Cathedral City City Council
March 27, 2024

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Attachment: Professional Services Agreement - Z&K Consultants, Inc. (4119 : Award Professional

iii. PROJECT UNDERSTANDING AND APPROACH
The team proposed on this project have extensive experience in project management, construction management, construction inspection and design. We have successfully utilized CM/PM Agency delivery on a host of projects. Through this experience we have developed management procedures that promote collaboration and teamwork, improve quality and maximize the value of the above project. Z&K past performance with Cities, Counties, and other agencies shows our remarkable ability to control costs, guarantee great q uality of work, and meet all project deadlines. We understand the importance of Schedule Control and are known in the industry for assisting the contractor to cut the project schedule and to yield significant savings for our clients through reduction of overhead management and construction costs.

MANAGEMENT APPROACH | The Z&K Team has successfully utilized CM Agency delivery on a host of projects. Through this experience we have developed project management procedures that promote collaboration and teamwork, improve quality and maximize the value of the above project. Z&K’s past perfor mance with Cities, Counties, and other agencies show our remarkable ability to control costs, guarantee great quality of work, and meet all project deadlines. We understand the importance of Schedule Control and are kn own in the industry for assisting the contractor to cut the project schedule and to yield significant savings for our clients through reduction of overhead construction management and construction costs. The most significant saving is less inconvenience to the traveling public and less City exposure due to shortened construction duration. This will help extend excess project funds into other important projects. Z&K Consultants, Inc. provides proven professional construction management techniques to ensure t he safe construction of a quality project completed on time and within budget. Z&K accomplished this by establishing the systems, policies, and procedures necessary to ensure adequate project controls are in place. The Construction Manager must ensure all parties understand the basic responsibilities and interrelationships of all team member such as the Owner (both project management and operations), the Design Engineer, the Contractor, the construction management team, and the subconsultants. Additionally, a good Construction Manager must have the knowledge and experience to effectively understand the interrelationships between the key management components of time, information, cost, and quality. Decision making, including obtaining sufficient information to make reasoned decisions, is the key element leading to a successful project. the project. The Z&K approach is founded on a thorough understanding of each of the management components critical to the project.

TIME MANAGEMENT | Time management uses scheduling to accurately manage and track the restrictive elements of time and resources throughout the project. The key to a successfully implemented and managed schedule is the development of an accurate, detailed, and realistic baseline schedule. Z&K will review the Contractor’s baseline schedule to ensure it is accurate and reasonable. Activity durations and logic ties will be examined for accuracy and constructability. The schedule logic and activity durations wil l also be analyzed to ensure the Contractor does not use float suppression techniques.

Schedule float is a valuable resource for the Owner and the Contractor. Schedule implementation and administration is the next step in proper time management. The Contractor’s actual progress will be documented daily. The Z&K Team will review the progress with the Contractor at the weekly meetings. The Contractor’s three -week-look-ahead schedule will be compared with the work plan on the record schedule to ensure the Cont ractor continues to use the record schedule as a management tool. We will check the record schedule for activities with start dates that did not begin during the review period.

This proactive approach flags potential delay issues for further discussion.

COST MANAGEMENT | Z&K will take the lead to ensure a cost management system is properly implemented and maintained. Z&K’s cost management role will be in two parts. The first is to track the value of the completed work to ensure accurate and detailed monthly progress billing by the contractor. Secondly, Z&K will proactively manage the change order process. The monthly progress billing may be tied to the construction schedule. A cost loaded critical path method (CPM) schedule is a valuable management tool. Each month, the Construction Inspector will review and approve the updated cost loaded CPM. Work activities and material deliveries will be assigned the correct completion percentage by the Contractor.

This will be reviewed by the Construction Inspector and discrepancies will be addressed. If necessary, the Contractor will revise and resubmit the schedule of values. This process ensures the Owner is accurately billed for the completed work monthly. Changes in work and unforeseen conditions will be closely monitored. Any costs for changes will be managed by the Z&K construction management team. An ongoing log of potential change issues will be maintained. These issues will be discussed and updated at each weekly meeting.

FUNDING MANAGEMENT | Z&K will ensure that the City has all necessary information to comply with the funding requirements. Our team is experienced in complying with funding reporting and filing requirements. We pay close attention to these requirements and deadlines so that project funding remains unaffected and so that file audits are conducted quickly and efficiently. Our team is also experienced in ensuring that project documents show compliance with DBE reporting requirements, DBE goals, and/or good faith effort documented. Proper Project documentation is key in any audits. Z&K is extremely familiar with state funded projects and has in -depth knowledge of the Caltrans Local Assistance Procedures Manual (LAPM), the Caltrans Construction Manual, and other Federal Highway Administration (FHWA) requirements.

QUALITY MANAGEMENT | Quality management is an inherent CM responsibility. Z&K is knowledgeable and capable in all aspects of quality management. Quality assurance is the application of systematic methods to verify the effective implementation of quality control procedures. Z&K will manage the quality of the project by taking the quality assurance lead role and implementing the Z&K quality assurance program, which allocates quality control responsibilities to the various project participants to ensure the co nstructed product conforms to the contract plans and specifications.This includes a detailed inspection plan, inspection procedures, and documentation procedures for all inspection and test reports. Z&K will review the Contractor’s quality control procedur es to ensure adequacy. Quality control issues will be discussed at each weekly meeting. An ongoing deficiencies/corrective items list will be maintained, reviewed, and updated weekly. Quality assurance includes quality of the constructed work as well as the quality of the Contractor’s document processes (such as the Contractor’s submittals and RFIs).

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Attachment: Professional Services Agreement - Z&K Consultants, Inc. (4119 : Award Professional Services Agreement to Z & K Consultants for INFORMATION MANAGEMENT | Proper information flow is crucial to the success of a project. A construction project generates a large amount of information, which must be distributed to all parties on a timely basis. The source of this information will cover the full spectrum including contracts, meeting minutes, drawings and specifications, submittals, RFIs, pay requests, invoices, inspection reports, and so forth. Z&K will act as the hub for the management of all information flow.

Z&K has extensive experience providing document management solutions for its clients. Z&K’s approach to information management also includes building a communication framework to foster partnering and teamwork relationships for all the project stakeholders. -
CODES & PROCEDURES MANAGEMENT | Z&K has a strong knowledge of the City, County, State, and Federal codes and procedures that are required to deliver a successful project. Z&K will ensure that all codes and procedures are properly followed for the City’s Project.

Some of the requirements are as follows:
o Project Construction Documents
o California Building Code
o California Plumbing Code
o California Mechanical Code
o California Electrical Code
o California Building Energy
Efficiency Standards
o Title 24, Part 2, 2.5, 3, 4, 5, 6, 11
o California Fire Code
o California Residential Code
o California Green Building Code
o California Disabled Regulations
o City Codes & Ordinances
o City Grading Code & Manual
o APWA “Greenbook” Standard
Specifications for Public
Works Construction
o Caltrans Standards,
Specifications, and
Procedures
o Caltrans Construction Manual
o Caltrans Safety Manual
o OSHA Construction Safety
Orders
o 10/30-hr OSHA Training
Ce
rtification
o Local Assistance Procedures
Ma
nual (LAPM)
o City Standards and Design
Manuals
o State and Federal Building
Codes (Site Accessibility)
o County Procedures and
Guidelines
o Work Area Traffic Control
Handbook (WATCH) Manual
o Manual of Uniform Traffic
Control Devices (MUTCD)
o Project Safety Plan (PSP)
o Site Health and Safety Plan
o Activity Hazard Analysis (AHA)

CONSTRUCTABILITY REVIEW COMMENTS
Traffic Signal Turn-On | The Engineer shall be notified at least three (3) working days prior to the intended traffic signal turn-on. The Contractor shall not proceed with the turn-on without the presence of the Engineer or his representative. The Contractor shall arrange to have a signal technician, qualified to work on the controller and employed by the traffic signal controller cabinet manufacturer or his representative, present at the time of turn-on to verify operation of the equipment.

Material Delays | The Contractor must consider possible material delivery delays due to specified products; Avg TS Materials could range from 20 - 40-week lead times.

Existing Detection Maintained | Existing detection shall be maintained at all times during construction. In the event of unexpected damage by the Contractor or any of their subcontractors as determined by the City Representative, the Contractor shall commence repairs immediately. The Con tractor shall replace and restore to operation any damaged detector (inductive loop or other) within three (3) calendar days after damage occurs.

Traffic Signals to Remain in Operation | Contractor will be responsible for Existing Traffic Signals to REMAIN IN OPERATION until the new/modified installation has been satisfactorily tested and placed in operation and functional during the construction period. This includes Furnishing and Supply ing Maintenance, providing Temporary materials and equipment needed with no additional cost compensation. There is no separate pay item for Operations or Maintenance during construction; Operations and Maintenance is considered incidental to the construction process.

Traffic Signal Standard Pole Removals | It is the Contractor’s responsibility to field verify that all Traffic Signal Standard poles that call out for removal, as well as the exposed existing foundations not on the plans must have the Foundation excavated, removed complete, and backfilled complete with 2 Sack slurry at no extra cost to the City.

Avenida Quintana / Vista Chino | Pole F is not MUTCD/ ADA compliant with the top of Anchor bolts being roughly 2'' below finish sidewalk Grade.

Avenida Quintana / Vista Chino | Pole G has existing unsafe liability dent damages beyond repair. Pole is outdated and should be replaced with a new standard.

Gerald Ford Dr & Plumley Rd | Pole F is not in MUTCD / ADA compliance 1. Anchor bolts and base plate is buried and covered in Rocks; Pole should be upgraded to new standard. 2. New proposed APS push button will not be in compliance mounted on this pole since there is no flat landing disability access to push button.

E Canyon Plaza & E Palm Canyon Dr . | 1. This intersection is within State (Caltrans) ROW Easements (CA111). The Contractor will be responsible for pulling Caltrans Permits and ROW easement boundary limits before work is performed.

2. Pole E APS push button will not be ADA compliant due to the distance of button compared to crosswalk landing. City will need to add a compliant push button post to plan detail. 3. Pole A is not to standard compliance while pole base is buri ed
in
dirt slope.

Ramon Road & Avenida Del Yermo | 1. Pole A proposed push button will not be in compliance due to not having a flat concrete sidewalk area for disability access. also distance from crossing stop bar exceeds 5ft from push button. 2. Pole C is located in the middle of Ramp. The Ramp should be shifted to accommodate a flat surface at APS PB or Relocate and upgrade pole to newest standards out of ramp.

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Attachment: Professional Services Agreement - Z&K Consultants, Inc. (4119 : Award Professional Services Agreement to Z & K Consultants for

RISK MANAGEMENT LOG
Based on a comprehensive review of the project documents, Z&K has identified the following potential risks and response strategies.

ID Risk
Impact
Occurrence
Probability Risk Description Project Impact Response Strategy 1 High High Traffic Control/Street
Closure Restriction
Safety & Public
Inconvenience
Ensure that project phasing is followed for lowest impact to businesses and public. Our team will review the traffic control plans to ensure they comply with the WATCH manual and MUTCD requirements. We will review it for minimum lane widths and as well as continuous and safe access for pedestrians. We will ensure temporary pavement markings are implemented. Our team will work closely with the Contractor to provide advanced notice to first responders and essential services.
2 High High Long Lead Items Schedule Ensure the contractor begins process to order/procure possible long lead items or items that require coordination.
3 High High Agency
Coordination
Schedule &
Budget
Our Team will ensure that all agencies affected by this Project are invited to the pre - construction conference and informed of the Project schedule and progress. Z&K will ensure that the Project complies with all permit requirements and environmental mitigation measures.
4 High High
Potential Hazardous
Services & Utility
Coordination
Schedule,
Budget &
Safety
Ensure that Dig Alert tickets are current and up to date prior to excavation. We will keep track of hazardous and non-hazardous and conflicting utilities during our regular progress meetings. We will ensure that the Contractor coordinates with Underground Service Alert and all utilities are marked prior to the start of construction. We will track existing utilities marked by Underground Service Al ert to ensure that mark outs are recorded and documented. After mark outs, contractor will be required to pothole. Additionally, contractor shall notify all utility agencies to performing any work. 5 High High Extensive Change
Order Claims
Schedule &
Budget
Closely monitor the work and the change order process. Identify potential change orders early and proactively develop solutions.
6 High High Pedestrian Access
During Construction
Safety &
Schedule The contractor is responsible to maintain pedestrian access around the project at all times. 7 High High Public/Community
Outreach
Safety &
Schedule
It is imperative that our community outreach does not only include property owners, business owners and residents, but also elected officials, management from the City, and all affected agencies. We will coordinate a Press Conference with the City, community, and elected officials. Prepare announcements and communicate to public early. Letters to residents will be critical as well as early placement of no parking signs. 8 High Medium Delays Due to Other
Projects
Schedule &
Budget
Z&K will work closely with the City to ensure that other scheduled projects do not interfere with our project. We will also work closely with local agencies to ensure project schedule overlap and conflicts do not occur.
9 High Medium Weekend
Work/Overtime Budget
All overtime shall be approved by the City prior to the commencement of work and all associated costs for inspection/construction management shall be at the expense of the contractor.
10 High Medium Public Safety Safety
Z&K will work closely with the contractor to ensure that the Fire Department will be involved in the scheduling and planning stages for the streets. The Sheriff’s Department will also be notified of all scheduled construction activity as this work will impact major traffic routes. 11 Medium Medium Damage to Private
Properties
Public
Inconvenience
Damage to private property and vehicles occasionally occurs during construction activities. Community outreach shall include a procedure to notify Z&K immediately if any damage occurs.
12 Medium Medium Job Site
Housekeeping
Safety & Public
Inconvenience
We will have the contractor commit to street sweeping during all construction activity. This item should not be left to the discretion of the Contractor but rather a specific directive from the City to the Contractor.

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Attachment: Professional Services Agreement - Z&K Consultants, Inc. (4119 : Award Professional iv. SCOPE OF WORK
Our Team’s relevant experience allows them to provide overall administration of the construction process based on their unique ability to fully understand the construction process, work proactively to identify problems early, and to mitigate each risk before it affects the project performance goals. Z&K proactively serves as the project’s administrator and provides consistent coordination between all project stakeholders including the City, Design Engineer, and selected construction contractor and subcontractors. Z&K has thoroughly reviewed the Request for Proposal (RFP); we confirmed our team will provide all scope of work tasks as outlined in the RFP scope of services. The Z&K Team, at a minimum, will perform t he following:

CONSTRUCTION MANAGEMENT | Z&K will p erform a “third” party constructability review of the Project plans and specifications prior to the preconstruction conference and identify potential problems that may need attention before construction starts. We will review Project permit requirements and schedule and attend a field walk with inspector(s), design engineer, and City representatives. The team will schedule and chair a kick- off meeting with the City to discuss the proposed work plan and special concerns to be presented at the preconstruction meeting, and attend the Pre-Construction meeting. We will provide a preconstruction agenda to the City for concurrence, schedule a preconstruction meeting and notify attendees. It is envisioned that the preconstruction meeting will include all interested parties, including utilities, sub- contractors, etc. The team will provide coordination of Project activities and prepare reports and documents, as necessary, for City review and action. We will maintain at the Project site, on a current basis: a record copy of all contracts, drawings, specifications, addenda, change orders, and other modifications, in good order and marked to record all changes made during construction; shop drawings, product data; samples; submittal; purchases; materials; equipment; applicable handbooks; maintenance and operating manuals and instructions; other related documents and revisions which are relevant to the contract work.

Z&K will p rovide weekly status reports to the City as required. We will c ontact the Tribal Historic Preservation Office to arrange cultural monitoring. The team will r eview laboratory, shop, and mill test reports of materials and equipment, and coordinate as required with the design engineer(s) , as well as prepare and send a Weekly Statement of Working Days, noting the controlling operations, to the contractor. We will monitor contractor and sub-contractor compliance with State and Federal labor laws and pa perwork requirements including: monitor Contractor’s certified payroll; spot check payrolls for prevailing wage compliance; conduct employee interviews; maintain evidence of apprentices employed on the Project; and ensure that the contractor has posted all required posters, notices, and wage determinations at the job site. Z&K will prepare daily/weekly Resident Engineer reports listing the type of work done, controlling operation, weather conditions, important discussions/agreements with the Contractor, and any other important facts pertaining to the Project that are not specifically covered elsewhere in the contract records. We will monitor and document domestic water or sanitary sewer improvements for compliance with the Project plans and specifications and for any requirements from Coachella Valley Water District or Desert Water Agency.

The team will administer the construction contract in conformance with the requirements set forth in the Project plans and specifications including applicable requirements from Caltrans’ Standard Plans and Specifications, Local Assistance Procedures, Standard Specifications for Public Works Construction and the City of Cathedral City. We will receive, log, and respond to contractor Request for Information (RFI) and conduct weekly construction progress meetings with the Contractor, Sub-contractors, City Staff, Design Engineer, Sub-consultants, affected outside agencies, general public, business owners, other consultants, etc. to discuss matters such as procedures, progress, problems, and scheduling ; we will then p repare and distribute meeting minutes. Z&K will r eview and approve Subcontracting Request forms , coordinate and monitor all inspection activities, and m aintain an open- door policy and meet with the general public as needed regarding street construction and make recommendations to address any concerns. We will receive and process all shop drawings, Project data, samples, and other submittals to the design engineer for review and establish and implement procedures for expediting the processing and approval of submittal. We will coordinate submittal review with the design engineer on an as -needed basis, coordinate with the City Engineer and other City Departments, and document all claims and maintain account records.

We will provide all necessary documentation and support to the City in settling claims.

The team will administer implementation of Project’s Traffic Control Plan and perform weekly reviews for conformance to approved plan. We will coordinate and schedule construction surveying, coordinate testing requirements and scheduling of material testing, and r eview and analyze the Contractor’s schedule (weekly), including activity sequences and duration, schedule of submittal and schedule of delivery for products with long lead times. We will work with Contractor to maintain the Project schedule to show current conditions and suggest revisions as required. Z&K will r ecommend necessary or desirable changes in the Construction Contractor’s scope of work to the City. Review and evaluate the contractor’s request for changes and negotiate with the Contractor and submit recommendations to the City supported by field data related to any additional work. If change orders are accepted by the City, we will prepare change orders for signature and authorization by the city. We will maintain a log of change requests. Z&K will create and maintain “As-Built” Project schedule, review pay requests and provide recommendation for contractor payments , m anage contractor DBE requirements , c oordinate the Transition of the Project to City Maintenance, coordinate any training sessions required for City Staff, and conduct regular coordination meetings with property owners and business owners.

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Attachment: Professional Services Agreement - Z&K Consultants, Inc. (4119 : Award Professional Services Agreement to Z & K Consultants for Z&K will provide the following Project closeout services: a dminister and coordinate final inspections, c oordinate the correction and the completion of the work, assist the City in determining when the Project, or a designated portion thereof, is substantially complete, prepare for the City, a summary of the status of the work of the Contractor, listing changes in the previously issued certificates of substantial completion of the work, and recommending the times within which the Contractor shall complete uncompleted items on the certificate of substantial completion of the work , calculate the amount of final payment due to the prime Contractor , obtain evidence of certification of all lien releases , secure and transmit to the City, required guarantees, issue the notice of substantial completion, coordinate any startup requirements, deliver all equipment manuals, special equipment, spare parts, catalogs, and other materials required by specifications, collect all “As-Built” data from all contractors and consultants, and make recommendation for the release of retention. Z&K will provide construction management documents and records to the City.

LABOR COMPLIANCE | The Z&K Team will monitor the Contractor and sub-contractor compliance with State and Federal labor law and paperwork requirements including monitoring Contractor’s certified payroll and supporting payroll records (statements of compliance, fringe benefit statements, deductions, apprentice registration, etc.), spot checking payrolls for compliance, monitoring applicable State and Federal prevailing wage requirements as well as providing State and Federal prevailing wage rates for labor complian ce support, conducting employee interviews, maintaining evidence of apprentices/trainees employed on the Project, and ensuring that the contractor has posted all required posters, notices, and wage determinations at the job site. Z&K will prepare and present mandatory labor compliance checklist to be presented to and acknowledged by the contractor at the pre-Construction meeting.

INSPECTION | The Z&K team will r eview contract documents, plans and permits, attend field walks and kick off meetings, and attend the pre-construction meeting. We will m onitor and enforce construction noticing requirements, including but not limited to PM10 and SWPPP requirements. We will maintain field diary (bound workbooks) during construction, including a cumulative record of quantities constructed, daily and weekly reports, working day reports, change order documentation, photographs, and other documentation. The team will maintain a separate field diary for change order work. We will m onitor the contractor’s fugitive dust control plan and ensure the contractor using approved haul routes and they are kept clean. The team will ensure compliance with the construction contract by continuously monitoring, evaluating, approving or rejecting the Contractor's work in accordance with the approved construction contract documents. Z&K will d etermine that the Contractor’ s work is being performed in accordance with the requirements of the contract documents.

Endeavor to guard City against defects and deficiencies in the work. As appropri ate, we will require special inspection or testing, or make recommendations to City regarding special inspection or testing of work not in accordance with the provisions of the contract documents whether such work is fabricated, installed or completed.

We will t rack and monitor construction costs , provide and maintain a digital photographic history of the progress of the Project. Photos will also be taken of the following: Showing existing conditions prior to construction , disputed work items, work that must be duplicated, replaced or removed, completed work, and extra Work. Record the progress of the Project.

Maintain a daily log containing a record of weather, Contractor and sub -contractor’s work on site, Contractor and sub - contractor’s equipment with h ours on site and idle time, number and names of workers with hours on site, work accomplished, problems encountered, and other relevant data. Provide copies of daily logs to City as requested. Include information on Contractor and the entire Project, showi ng percentages of completion. Daily Reports should be detailed enough to develop Time and Material payments for the contractor's work in case of future disputes. During the course of construction, we will maintain one set of plans with markings and dimensi ons in red ink to denote field changes or other corrections. Z&K will ensure ADA compliance an maintain copies of all permits needed to construct the project and enforce special requirements of each.

MATERIAL TESTING | Materials testing services will be provided by our subconsultant, Converse Consultants, with whom we have worked on multiple projects in the past. Z&K will be responsible for supervising and coordinating the materials and geotechnical testing program to ensure all required testing is perfor med with the required frequencies and documented according to the City’s plans, specifications, and industry standards. Sampling and testing activities will be conducted in accordance with the contract documents and approved procedures. The Inspector will work with the Contractor to correct any failed tests and achieve compliance. Our team can effectively make decisions and coordinate with other professionals on field issues related to material testing and inspection. Z&K will develop and provide a comprehensive testing program for the Project in accordance with the contract documents.

Z&K understands that the selected firm will be responsible for providing construction engineering support to ensure delivery of the Projects remain consistent with ATP project schedules and programming guidelines, communicating with Caltrans on project deliverables and other administrative functions associated with delivering state funded Local Assistance projects. iv. Addendums
Z&K acknowledges that there were no addendums issued.

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EXHIBIT "B"

COMPENSATION

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B. COST PROPOSAL Engineering Department, City of Cathedral City March 7, 2024 68700 Avenida Lalo Guerrero, Cathedral City, CA 92234 Subject: Cost Proposal for Request for Qualifications/Proposals to provide Professional Construction Engineering Support Services for Highway Safety Improvement Program (HSIP) Traffic Signal Improvements at 12 Intersections Project (Federal Project No. HSIP-5430(034) – City Project No. C08752) To Whom it May Concern, Z&K Consultants, Inc. (Z&K) proudly presents our cost proposal for Request for Qualifications/Proposals to provide Professional Construction Engineering Support Services for Highway Safety Improvement Program (HSIP) Traffic Signal Improvements at 12 Intersections Project (Federal Project No. HSIP-5430(034) – City Project No. C08752). Our not-to-exceed total lump sum fee for Professional Construction Engineering Support Services is $209,124.00. Z&K Consultants based our cost proposal on the scope of work provided in the Request for Proposals. All prevailing wage requirements will be followed by the team. All team members are in conformance with the State of California Labor compliance requirements. Rates included in our Cost Proposal are fully billable rates. All overhead costs are included. All insurance will be in force at the time of contract execution. Z&K has carefully selected this "A-Team" and committed our most qualified staff for the duration of the contract to deliver a successful project. We understand the importance of meeting budgets and schedules; we have a strategic plan in place to deliver projects with such benchmarks in mind. Our proposed team members are recognized as experts in Construction Management and Inspection services and will provide “turn-key” services for the City’s Project. Below is a table with the hourly rate schedule: Z&K Consultants, Inc Hourly Rates: Senior Construction Manager//Resident Engineer ......................................................................................... $212.00 Senior Construction/Traffic Signal Inspector .................................................................................................. $188.00 Project Manager/Office Engineer ................................................................................................................... $135.00 Constructability Reviewer ............................................................................................................................... $166.00 Labor Compliance .......................................................................................................................................... $128.00 Z&K Consultants commits that all assigned personnel will not be removed or replaced without prior written City approval. Key personnel will be available to the extent proposed for the duration of the contract. Our proposed and fully committed team is fully capable and exceptionally qualified. They have held many leadership roles and supervisory management positions in many local agencies including the private and public sectors. All can multi-task, are multi-disciplined, and have a full understanding of all aspects of the proposed project requirements. I will serve as the contact person for the full duration on the contract and I am authorized to bind the firm to the terms of the proposal. By signing below, I attest that all information submitted is true and accurate. This proposal shall remain valid for a period of not less than 90 days from the date of submittal. The payment terms shall be net thirty (30) days. We are excited about this opportunity to serve the City and are committed to the successful completion the City’s important project. Sincerely, Crystal Fraire, PE | President Z&K Consultants Inc. 17130 Van Buren Blvd. | Suite 122 | Riverside, CA 92504 951.310.7470 | [email protected]

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Attachment: Professional Services Agreement - Z&K Consultants, Inc. (4119 : Award Professional Services Agreement to Z & K Consultants for

NOT-TO-EXCEED FEE SCHEDULE The fee proposal shall be based on a not-to-exceed fee for a construction period of 72 working days. This assumes 40 hours for constructability review, 2 hours a day for the Senior Construction Manager/ Resident Engineer, full-time for the Senior Construction/Traffic Signal Inspector, 4 hours a week for the Labor Compliance Officer, and 2 hours a day for the Project Manager/Office Engineer. COST PROPOSAL FOR REQUEST FOR QUALIFICATIONS/PROPOSALS TO PROVIDE PROFESSIONAL CONSTRUCTION ENGINEERING SUPPORT SERVICES FOR HIGHWAY SAFETY IMPROVEMENT PROGRAM (HSIP) TRAFFIC SIGNAL IMPROVEMENTS AT 12 INTERSECTIONS PROJECT (FEDERAL PROJECT NO. HSIP-5430(034) – CITY PROJECT NO. C08752) Task/ Classification Senior Construction Manager/ Resident Engineer (Hrs) Senior Construction/ Traffic Signal Inspector (Hrs) Labor Compliance Officer (Hrs) Project Manager/ Office Engineer (Hrs) Constructability Reviewer (Hrs) Material Testing Services Total Cost Hourly Rate $ 212.00 $ 188.00 $ 128.00 $ 135.00 $ 166.00 - Pre-Construction Services 8 16 8 16 24 - $11,872.00 Construction Management 144 - - - - - $30,528.00 Construction Inspection - 576 - - - - $108,288.00 Office Engineering - - - 144 - - $19,440.00 Labor Compliance - - 60 - - - $7,680.00 Project Closeout 40 24 8 40 - - $19,416.00 Material Testing Services - - - - - $11,900.00 $11,900.00 TOTAL $40,704.00 $115,808.00 $9,728.00 $27,000.00 $3,984.00 $11,900.00 $209,124.00 Z&K Consultants commits that all assigned personnel will not be removed or replaced without prior written City approval. Key personnel will be available to the extent proposed for the duration of the contract. Our proposed and fully committed team is fully capable and exceptionally qualified. They have held many leadership roles and supervisory management positions in many local agencies including the private and public sectors. All can multi-task, are multi-disciplined, and have a full understanding of all aspects of the proposed project requirements.

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Attachment: Professional Services Agreement - Z&K Consultants, Inc. (4119 : Award Professional

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EXHIBIT "C"

INSURANCE

A. Insurance Requirements. Contractor shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of t his 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 Contractor , its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M.

Best's rating of no less than A:VII.

Contractor shall provide the following scope and limits of insurance:

1. Minimum Scope of Insurance. Coverage shall be at least as broad as:

(1) Commercial General Liability. Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001).

(2) Automobile. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the written approval of the City.

(3) Workers’ Compensation. Workers' Compensation insurance as required by the Labor Code of State of California c overing all persons providing Services on behalf of the Contractor and all risks to such persons under this Agreement.

(4) Professional Liability . Professional liability insurance appropriate to the Contractor ’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional 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 Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Contractor ’s services or the termination of this Agreement. During this additional three (3) year period, Contractor shall annually and upon request of the City submit written evidence of this continuous coverage.

2. Minimum Limits of Insurance. Contractor shall maintain limits of insurance no less than:

(1) Commercial General Liability. $1,000,000 general aggregate for bodily injury, personal injury and property damage.

(2) Automobile. $1,000,000 per accident for bodily injury and property damage. A combined single limit policy with aggregate limits in an amount of

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not less than $2,000,000 shall be considered equivalent to the said required minimum limits set forth above.

(3) Workers' Compensation. Workers' Compensation as required by the Labor Code of the State of California of not less than $1,000,000 per occurrence.

(4) Professional Liability. $1,000,000 per occurrence.

B. Other Provisions . Insurance policies required by this Agreement shall contain the following provisions:

1. All Policies. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notic e by certified mail, return receipt requested, has been given to City.

2. Commercial General Liability and Automobile Liability Coverages.

(1) City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Contractor performs; products and completed operations of Contractor ; premises owned, occupied or used by Contractor ; or automobiles owned, leased, hired or borrowed by Contractor. 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.

(2) Contractor’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self -insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Contractor’s insurance.

(3) Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

(4) Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.

3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writi ng, the insurer shall agree to waive all rights of subrogation

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against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Contractor.

C. Other Requirements. Contractor 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 contract have been complied with. The City may require that Contractor furnish City 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 insurer to bind coverage on its beh alf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.

1. Contractor shall furnish certificates and endorsements from each subcontractor identical to those Contractor 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 i ts respective elected or appointed officers, officials, employees and volunteers, or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.

3. The procuring of such required policy or policies of insurance shall not be construed to limit Contractor ’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.

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Staff Report

City Council

Item No. 6.A

Meeting Date: March 27, 2024
From: Tracey Hermosillo, City Clerk
Title: Appointments to the Finance Advisory Committee

RECOMMENDATION:

To consider appointing three individuals to the Finance Advisory Committee with terms expiring on June 30, 2026 and June 30, 2027, based on the interviews conducted during the Study Session Meeting of March 27, 2024.

BACKGROUND:

The Finance Advisory Committee currently has four vacancies, two seats with terms expiring on June 30, 2026, and two seats with terms expiring on June 30, 2027.

DISCUSSION:

Applications were received from the following individuals:

Teri Hargreaves
Danny Lee
Rick Saldivar

The three applicants were interviewed on March 27, 2024, during the Study Session Meeting. Based on the interviews conducted, staff recommends that the City Council consider making three appointments to fill the unexpired terms on the Finance Advisory Committee, filling three of the four vacant seats . The City Council will need to clarify which of the four seats they will be filling and the terms for each.

FISCAL IMPACT:

There is no fiscal impact with this item.

FIVE-YEAR STRATEGIC PLAN:

None

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Staff Report

City Council

Item No. 6.B

Meeting Date: March 27, 2024
From: Anne Ambrose, Assistant City Manager
Title: Joint Use Agreement with the Palm Springs Unified School District and Desert Recreation District for Operation of the Cathedral City High School Swimming Pool for Public Use During the 2024 Summer Months

RECOMMENDATION:

Staff recommends that the City Council approve the agreement and authorize the City Manager to execute all necessary documents.

BACKGROUND:

On December 11, 2019, the City Council instructed staff to prepare agreements between the City of Cathedral City, the Palm Springs Unified School District (PSUSD), and the Desert Recreation District (DRD) for use and operation of the Cathedral City High School (CCHS) swimming pool for a summer swim program . The three parties developed an agreement in 2022 and the pool operated for public use during the summers of 2022 and 2023.

The City, PSUSD and DRD three -party agreement is being proposed for approval by the City Council this evening. The PSUSD and DRD will take the agreement to their respective boards for approval.

DISCUSSION:

The Desert Recreation District will provide the following summer swim programs at the CCHS swimming pool:

• Community swimming lessons;
• Recreational swimming;
• Lap swimming;
• Team swimming;
• Water aerobics;
• Water polo programs
• Special Events (dive in movies)

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This agreement represents a three -way partnership where PSUSD will provide the facility, chemical, custodial, maintenance, and operational services of the CCHS swimming pool; and the DRD administers the programming on behalf of the City. The proposed agreement includes the costs of utilities and staffing the CCHS swimming pool (during operating hours) with certified lifeguards and custodial staff.

Public use of the CCHS swimming pool is proposed from June 1 0, 2024 through and including August 9, 2024 and will be based on the following schedule:

Summer 2024 CCHS Pool Operating Schedule:

• Monday and Wednesday from 10:00am to 4:00pm
• Tuesday, Thursday and Friday from 8:00am to 4:00pm
• Saturday from 8:00am to 12:00pm

The pool will be closed to public use from 8:00am to 10:00am on Mondays and Wednesdays for the use of the CCHS swim team and on Sundays.

FISCAL IMPACT:

The total not to exceed amount of this agreement is $118,553 which consists of:

• $60,417 to PSUSD for the use of the facility, pool operations, and custodial; and • $58,136 to DRD for administering the programming.

Additionally, the City Council, through their District Assistance Budgets, have allocated $3,300 out of their FY 2023/2024 for swim lesson scholarships.

The FY 2023/2024 budget included the costs of conducting the summer swim program.

Payments to PSUSD and DRD are due on or before June 10, 2024 (50%) and on or before July 8, 2024 (50%).

FIVE-YEAR STRATEGIC PLAN:

Goal F. Embracing, Inclusive Community

F-3 Promote additional community events and celebrations

Attachment: Nonexclusive Use and Operation Agreement

ATTACHMENTS:

23.24 Contract for Pool Use FINAL

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NONEXCLUSIVE USE AND OPERATION AGREEMENT BETWEEN

PALM SPRINGS UNIFIED SCHOOL DISTRICT,

THE CITY OF CATHEDRAL CITY, AND

DESERT RECREATION DISTRICT

THIS NON-EXCLUSIVE USE AND OPERATION AGREEMENT (“Agreement”) is made and entered into as of the____ day of March, 2024 , by and between the Palm Springs Unified School District (“SCHOOL DISTRICT”), the City of Cathedral City, a Charter City, located in the County of Riverside, State of California (“CITY”), and Desert Recreation District, a public recreation and park district (“ DESERT RECREATION DISTRICT”), with SCHOOL DISTRICT, CITY, and DESERT RECREATION DISTRICT sometimes hereinafter referred to individually as a “Party” or collectively as the “Parties,” with respect to the following:

RECITALS

WHEREAS, the SCHOOL DISTRICT is the owner of an Olympic size swimming pool and other associated facilities at Cathedral City High School ( “Premises”), located at 69250 Dinah Shore Drive, Cathedral City, California, 92234; and

WHEREAS, SCHOOL DISTRICT is responsible for the operations and activities associated with any use of the Premises and any of its invitees; and

WHEREAS, SCHOOL DISTRICT understands there are times when the Premises is not being used for SCHOOL DISTRICT activities; and

WHEREAS, CITY and DESERT RECREATION DISTRICT desire to use the Premises for programs, services and activities for the residents of Cathedral City and surrounding communities; and

WHEREAS, SCHOOL DISTRICT , DESERT RECREATION DISTRICT and CITY agree that allowing for outside use of the Premises will benefit members of the community of different ages; and

WHEREAS, the DESERT RECREATION DISTRICT in coordination with the SCHOOL DISTRICT and CITY, shall provide and operate recreation programs at the Premises.

Now therefore, in consideration of the covenants, conditions and promises contained herein, the Parties agree as follows:

Section 1. AGREEMENT RECITALS

The Recitals set forth above are hereby incorporated into this Agreement by this reference, as though fully set forth herein.

Section 2. CITY’S USE GRANT OF NONEXCLUSIVE RIGHT; USE SCHEDULE

a. Use Schedule. From June 10, 2024 through and including August 9, 2024 , the SCHOOL DISTRICT hereby grants to CITY and DESERT RECREATION DISTRICT a revocable, nonexclusive right,

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privilege, and permission to enter onto and use the Premises in accordance with this Agreement Monday and Wednesday from 10:00am to 4:00pm; Tuesday, Thursdays and Friday’s from 8:00am to 4:00pm and Saturday’s from 8:00am to 12:00pm. The SCHOOL DISTRICT Premises will be closed to the public on Mondays and Wednesdays from 8:00am to 10:00am for SCHOOL DISTRICT use. In the event that the CITY and/or DESERT RECREATION DISTRICT plan to host a special event outside of the hours of operation, this request will be submitted in writing for approval by the SCHOOL DISTRICT.

b. Permitted Uses (“Permitted Use(s)”). The following are Permitted Uses:

• Community swimming lessons;
• Recreational swimming;
• Lap swimming;
• Team swimming;
• Water aerobics;
• Water polo programs; and
• Special Events, as approved by SCHOOL DISTRICT.

All times and dates shall be mutually agreed upon by Parties. CITY or DESERT RECREATION DISTRICT shall notify the SCHOOL DISTRICT of the dates and times of events as soon as possible when decided, but no later than five (5) business days prior to the date of the event.

c. Programing. During the term of this Agreement, DESERT RECREATION DISTRICT agrees to provide recreation programs at the Premises during all operational hours in which the Premises is not being utilized by the SCHOOL DISTRICT.

d. Safety. DESERT RECREATION DISTRICT covenants and agrees to ensure the safety of activity participants at all times and will ensure that certified lifeguards are on site at all times during Permitted Uses. Certification shall be from the American Lifeguard Association, California State Park Lifeguard Training Program, American Red Cross, or other statewide organization.

e. Water Contamination. The SCHOOL DISTRICT and DESERT RECREATION DISTRICT covenants and agrees to immediately notify SCHOOL DISTRICT of evidence of pool water contamination or public health hazards.

Section 3. USE OF PREMISES

a. CITY and DESERT RECREATION DISTRICT’s Use. During the term of this agreement, CITY and DESERT RECREATION DISTRICT shall be permitted to use the Premises only for the Permitted Uses in accordance with this Agreement. The Permitted Use must be in a form consistent with the normal use of the Premises and must be done in a safe manner. Neither CITY nor DESERT RECREATION DISTRICT shall make or cause to be made any alterations, additions or improvements in, on or to the Premises without the prior written approval of the SCHOOL DISTRICT. CITY and DESERT RECREATION DISTRICT covenants and agrees that they shall not cause any disruption or annoyance that may interfere with the normal operations of the Premises.

b. CITY and DESERT RECREATION DISTRICT Use. CITY and DESERT RECREATION DISTRICT agree that when using the Premises, it shall take all reasonable efforts to ensure that individuals using the Pool Use Guidelines attached hereto as Exhibit A.

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c. SCHOOL DISTRICT ’s Use. The SCHOOL DISTRICT hereby retains all rights for the SCHOOL DISTRICT to use the Premises in any lawful manner, even though that use may interfere with the Permitted Use of the Premises. SCHOOL DISTRICT is responsible for removing any known hazards that may exist and notify CITY and DESERT RECREATION DISTRICT of such hazards.

d. Priority. CITY and DESERT RECREATION DISTRICT agree that the SCHOOL DISTRICT’s use shall take priority over CITY or DESERT RECREATION DISTRICT’s requests for use.

Section 4. DAMAGES

DESERT RECREATION DISTRICT assumes full responsibility for any damage done to pool, associated facilities, or equipment (collectively “Facilities”) due to misuse, negligence, and vandalism during periods of Permitted Use by the DESERT RECREATION DISTRICT. If damages occur, DESERT RECREATION DISTRICT shall be billed for the actual cost of repairs and/or replacement of the Facilities. The DESERT RECREATION DISTRICT shall not be responsible for normal wear and tear to the Facilities, regular or routine maintenance of the Facilities, or damage to the Facilities caused by the use of third parties. Prior to the start of the Term of this Agreement, DESERT RECREATION DISTRICT and CITY shall be permitted to inspect the Premises to determine and establish the condition of the Premises.

Section 5. TERM

This Agreement shall be effective from June 10, 2024, through and including August 9, 2024.

Section 6. FEES

a. CITY shall pay the SCHOOL DISTRICT a total amount not to exceed Sixty Thousand Four Hundred Seventeen Dollars ($60,417.00) (“Payment”). This payment represents the cost to the SCHOOL DISTRICT for custodial staff time, pool maintenance staff, and utilities used during the Permitted Use Periods. The Payment shall be made as follows: (1) the CITY shall pay the SCHOOL DISTRICT a total of $30,208.50 on or before June 10th, 202 4; (2) the CITY shall pay the SCHOOL DISTRICT a total of $30,208.50 on or before July 8th, 2024.

b. CITY shall pay the DESERT RECREATION DISTRICT a total amount not to exceed Fifty- Eight Thousand One Hundred Thirty-Six Dollars ($$58,136) (“Payment”). The Payment shall be made as follows: (1) the CITY shall pay the DESERT RECREATION DISTRICT a total of $$29,068 on or before June 10, 2024; (2) the CITY shall pay the DESERT RECREATION DISTRICT a total of $29,068 on or before July 8, 2024.

Section 7. INSURANCE

a. Policies.

(1) General Liability Coverage. Each Party shall procure and maintain, at its own expense, general liability insurance of not less than Two Million Dollars ($2,000,000) per occurrence, and Four Million Dollars ($4,000,000) in the aggregate, insuring its interests against claims for personal and bodily injury, death and property damage occurring as a result of the use of the Premises under this Agreement by that Party, its officers, employees, servants, volunteers, agents, and independent contractors .Both

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CITY and DESERT RECREATION DISTRICT are self -inured public entities. Their respective Moranda of Coverages set forth the coverage terms, conditions, and amounts for coverage.

(2) Worker's Compensation Coverage. Each Party shall procure and maintain, at its own expense, workers’ compensation insurance, providing coverage as required by the California State Workers’ Compensation Law. If any class of employees employed by the Party pursuant to this Agreement is not protected by the California State Workers’ Compensation Law, that Party shall provide adequate insurance for the protection of such employees to the satisfaction of the other Parties. (3) Abuse and Molestation Coverage. Each Party shall procure and maintain, at its own expense, abuse and molestation insurance of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate insuring its interest against claims or suits alleging physical, emotional, verbal or mental abuse, including sexual abuse or molestation occurring as a result of the use of the Premises under this Agreement by that Party, its officers, employees, servants, volunteers, agents, and independent contractors. Coverage should either be on an Occurrence basis, or if on a claims-made basis, shall include at a minimum a three-year automatic extended reporting period.

(4) Automobile Liability Coverage. Each Party shall further procure and maintain at its own expense commercial vehicle liability insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, covering any vehicle utilized by that Party or its officers, employees, servants, volunteers and agents and independent contractors in performing the Permitted Use.

b. Insurance Documentation.

(1) . Any insurance requirements contained in this agreement may be met with a program(s) of self-insurance. Current certificate of coverage shall be kept on file with each Party at all times during the term of this Agreement.

(2) All insurance policies required to be provided by each Party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self- insurance, primary or excess, maintained or available to the other Party, and its officers, employees, servants, volunteers, agents and independent contractors. Any insurance maintained by the other Parties, including any self -insured retention, shall be considered excess insurance only and shall not contribute to it.

(3) Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies shall bear an endorsement whereby it is provided that the other Parties and their officers, employees, servants, volunteers and agents and independent contractors are named as additional insureds.

(4) Each shall require the carriers of all required insurance policies to waive all rights of subrogation against the other Parties and their officers, volunteers, employees, contractors and subcontractors.

(5) This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company.

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(6) Any failure by a Party to comply with reporting provisions of the policies shall not affect coverage provided to the other Parties, its elected or appointed officers, officials, employees, agents or volunteers.

c. Deductibles and Self -Insured Retentions . Any deductibles or self -insured retentions must be declared to and approved by the other Parties. At the other Parties’ option, the insuring Party shall demonstrate financial capability for payment of such deductibles or self-insured retentions.

d. Certificates of Insurance. The insuring Parties shall provide certificates of insurance with original endorsements or memorandums of coverage to the other Parties as evidence of the insurance coverage required herein. Memorandums of coverage or Certificates of, and endorsements for, such insurance shall be filed with the other Parties on or before commencement of performance of this Agreement. The insuring Parties agree to ensure that the most current certification of insurance is on file with the other Parties at all times during the term of this Agreement.

e. Imposition of Insurance Requirements. The insuring Parties covenant and agree to require that all parties with whom the insuring Party enters into contracts or whom insuring Party hires or retains pursuant to or in any way related to the performance of this Agreement, provide the insurance coverage required herein, at minimum, and name as additional insureds the Parties to this Agreement.

The insuring Parties agree to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section.

f. Maintain Coverages. In the event this Agreement is terminated for any reason prior to the completion of all obligations and requirements of this Agreement, the insuring Parties agree to maintain all coverages required herein until the other Parties provide written authorization to terminate the coverages following the other Parties’ review and determination that all liability posed under this Agreement as to the Party providing insurance has been eliminated.

g. Failure to Obtain Coverages. Each insuring Party agrees and acknowledges that if it fails to obtain all of the insurance required in this Agreement in accordance with the requirements herein, or to obtain and ensure that the coverage required herein is maintained by others involved in any way with the Permitted Use, that insuring Party shall be responsible for any losses, claims, suits, damages, defense obligations, or liability of any kind or nature attributable to the other Parties and their officers, employees, servants, volunteers, agents and independent contractors, for which the insuring Party is responsible under this Agreement.

Section 8. NO REPRESENTATIONS OR WARRANTIES

No Party, nor their agents or attorneys have made any representations or warranties with respect to the Premises, except as expressly set forth herein, and no rights, easements or leases are, or shall be, acquired by CITY or DESERT RECREATION DISTRICT by implication or otherwise.

Section 9. COMPLIANCE WITH LAWS

The Parties shall comply with all local, state and federal laws, rules, regulations, policies, and procedures applicable to use of the Premises, including, but not limited to, obtaining or maintaining a business.

Section 10. HOLD HARMLESS; INDEMNIFICATION

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a. Each Party shall defend (with counsel reasonably acceptable to the other Parties) , indemnify and hold harmless the other Parties and its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damage, injuries. and liability, direct or indirect (including any and all costs and expenses in connection therewith) (collectively “Claims”), to the extent any such Claims arise out of the negligence or willful misconduct of the indemnifying Party and their officers, agents, employees or volunteers.

b. No Party waives any rights that it may have against the other Parties under this section because of the acceptance of any insurance policy or certificate required pursuant to this Agreement.

The hold harmless, indemnification and duty to defend provisions of this section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability, loss, cost or expense described herein.

Section 11 WAIVER OF RIGHTS

a. Each Party agrees to waive all rights it may have against the other Party(is) and its officers, agents, employees and independent contractors to pursue any actions, suits, proceedings, claims, demands, losses, judgments and costs and expenses of every type and description, including settlement costs, legal costs and attorneys' fees (collectively “Claims”), resulting from or arising out of, or otherwise in connection with any injury or damage sustained by that Party that may arise from this Agreement, except to the extent any such claim may arise out of the negligence or willful misconduct of the other Party(ies) and their officers, agents, employees or volunteers.

Section 12. NOTICES

a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:

To SCHOOL DISTRICT: Jeffrey Simmons
Assistant Superintendent, Business Services
150 District Center Drive
Palm Springs, CA 92264
Telephone: (760) 883-2710 Facsimile: (760) 325-8726
Email: [email protected]

To CITY: Charles P. McClendon, City Manage3r
68-700 Avenida Lalo Guerrero,
Cathedral City, CA 92234
Telephone: (760) 770-0372 Facsimile: (760) 770-0399
Email: [email protected]

To DESERT RECREATION DISTRICT: Kevin Kalman, General Manager 45-305 Oasis, Indio, CA
Telephone: (760) 347-3484

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Email: [email protected]

b. Notices, payments, and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.

Section 13. ATTORNEY’S FEES AND LITIGATION EXPENSES

In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.

Section 14. COUNTERPARTS

This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the Parties when at least a copy hereof shall have been signed by both Parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.

Section 15. TERMINATION OR EXPIRATION

a. This Agreement may be terminated or suspended without cause by either Party at any time provided that the respective Party provides the other Party at least thirty (30) calendar days’ written notice of such termination or suspension. In the event of termination of the Agreement by the SCHOOL DISTRICT, the SCHOOL DISTRICT shall make all reasonable efforts to continue to authorize the use of the Premises by the CITY and DESERT RECREATION DISTRICT where the Parties have previously agreed upon the date and time of the Permitted Use, and the CITY or DESERT RECREATION DISTRICT has already noticed or advertised the event to the public and/or contracted with vendors for the event.

b. This Agreement may be terminated by the SCHOOL DISTRICT in the SCHOOL DISTRICT's sole and absolute discretion immediately if the SCHOOL DISTRICT determines CITY or DESERT RECREATION DISTRICT to be in violation of the terms of this Agreement or any of the rules or regulations that govern the Premises.

c. Upon termination or expiration of this Agreement, CITY and DESERT RECREATION DISTRICT shall immediately cease all use of the Premises.

Section 16. NOT AGENT

a. Nothing contained in this Agreement shall be deemed, construed or represented by the SCHOOL DISTRICT , DESERT RECREATION DISTRICT , or CITY or by any third person to create the relationship of principal and agent.

b. Neither DESERT RECREATION DISTRICT nor CITY shall have any authority, express or implied, to act on behalf of the SCHOOL DISTRICT in any capacity whatsoever as an agent, nor shall CITY or DESERT RECREATION DISTRICT have any authority, express or implied, to bind the SCHOOL DISTRICT

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to any obligation whatsoever.

Section 17. EQUAL OPPORTUNITY EMPLOYMENT

CITY and DESERT RECREATION DISTRICT represent that they are an equal opportunity employer and shall not discriminate against any subcontractor. employee, or applicant (“person") for employment because of race; denial of family and medical care leave; religious creed (including religious dress and grooming practices); color; national origin (including language use restrictions); ancestry; physical disability or mental disability (including HIV and AIDS); medical condition (cancer and genetic characteristics); genetic information; military or veteran status; marital status; gender, gender identity, and gender expression; sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding); age or sexual orientation. Unless otherwise permitted under the law, CITY and DESERT RECREATION DISTRICT shall not refuse to hire or employ any such person or refuse to select any such person for a training program leading to employment, or bar or discharge any such person from employment or from a training program leading to employment, or otherwise discriminate against any such person in compensation or in terms, conditions, or privileges of employment.

Section 18. CONFLICTS OF INTEREST

CITY and DESERT RECREATION DISTRICT covenant that they do not have any interest, nor shall it acquire an interest, directly or indirectly, which would conflict in any manner with the performance of Permitted Use under this Agreement. In the event the SCHOOL DISTRICT officially determines that CITY or DESERT RECREATION DISTRICT must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, CITY shall file the subject Form 700 with the SCHOOL DISTRICT Business Services Department pursuant to the written instructions provided by the SCHOOL DISTRICT.

Section 19. LICENSING AND PERMIT REQUIREMENTS

CITY and DESERT RECREATION DISTRICT represents that they have obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for the Permitted Use described in this Agreement, including a City business license (if necessary).

Section 20. TIME OF THE ESSENCE

Time is of the essence in the performance of this Agreement.

Section 21. MEDIA

Neither DESERT RECREATION DISTRICT nor CITY shall use the SCHOOL DISTRICT's insignia or photographs relating to the Permitted Use, or any publicity pertaining to the Permitted Use under this Agreement in any internet, magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of the SCHOOL DISTRICT.

Section 22. MODIFICATIONS AND AMENDMENTS

This Agreement may be modified or amended only by a written instrument signed by all Parties.

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Section 23. BACKGROUND CHECKS

At any time during the term of this Agreement, the SCHOOL DISTRICT reserves the right to make an independent investigation into the background of any CITY or DESERT RECREATION DISTRICT employee, official, agent, contractor, or subcontractor performing work under this Agreement , including but not limited to their references, character, address history, past employment, education, social security number validation, and criminal or police records, for the purpose of confirming that such personnel are lawfully employed, qualified to provide the subject service, if any, or pose a risk to the safety of persons or property in and around the vicinity of the Premises. If the SCHOOL DISTRICT makes a reasonable determination that any of CITY or DESERT RECREATION DISTRICT's prospective or then current personnel is deemed objectionable, then the SCHOOL DISTRICT may notify CITY or DESERT RECREATION DISTRICT of the same. CITY or DESERT RECREATION DISTRICT shall not use that personnel to perform work related to the Permitted Use, and if necessary, shall replace him or her with another suitable worker.

Section 24. ENTIRE AGREEMENT

a. This Agreement supersedes any and all other agreements, either oral or written, between the Parties with respect to the subject matter of this Agreement.

b. This Agreement contains all of the covenants and agreements between the Parties with respect to the subject matter of this Agreement, and each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any Party except those covenants and agreements embodied in this Agreement.

c. No agreement, statement, or promise not contained in this Agreement shall be valid or binding.

Section 25. AMBIGUITIES

This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.

Section 26. NON-LIABILITY OF OFFICERS AND EMPLOYEES

No officer or employee of a Party shall be personally liable to another Party to this Agreement , or any successor in interest, in the event of any default or breach by defaulting or for any amount which may become due to other Party, or to its successor, or for any breach of any obligation of the terms of this Agreement.

Section 27. REVIEW BY ATTORNEYS

Each Party hereto has had its attorneys review this Agreement and all related documents. Each Party hereto has consulted with its attorneys and has negotiated the terms of this Agreement based on such consultation.

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Section 28 WAIVER

a. No waiver shall be binding, unless executed in writing by the Party making the waiver.

b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision.

c. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.

Section 29. ASSIGNMENT AND SUBCONTRACTING

The experience, knowledge, capability and reputation of CITY and DESERT RECREATION DISTRICT, their principals and employees were a substantial inducement for the SCHOOL DISTRICT to enter into this Agreement. Assignments of any or all rights, duties or obligations of the CITY and DESERT RECREATION DISTRICT under this Agreement will be permitted only with the written consent of the SCHOOL DISTRICT.

Section 30. NO DAMAGES RELIEF AGAINST SCHOOL DISTRICT

Except to the extent caused by the SCHOOL DISTRICT’S negligence or willful misconduct, the Parties agree that in no event shall CITY or DESERT RECREATION DISTRICT be entitled to recover damages of any kind whatsoever against SCHOOL DISTRICT for breach of this Agreement.

Section 31. CAPTIONS AND HEADINGS

The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.

Section 32. SEVERABILITY

If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein.

Section 33. GOVERNING LAW/VENUE

The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.

All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County, California.

Section 34. CUMULATIVE REMEDIES

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Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.

Section 35. EFFECTIVENESS OF AGREEMENT

This Agreement shall not be binding upon the Parties, until signed by the authorized representative(s) of the Parties.

Section 36. NO THIRD-PARTY BENEFICIARIES

The Parties do not intend the benefits of this Agreement to inure to any third party.

Section 37. REPRESENTATIONS OF PARTIES & PERSONS EXECUTING AGREEMENT

a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.

b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.

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IN WITNESS WHEREOF, the SCHOOL DISTRICT, DESERT RECREATION DISTRICT and CITY have executed this Agreement as of the date first written above.

“SCHOOL DISTRICT”

Palm Springs Unified School District

Jeffrey Simmons
Assistant Superintendent, Business Services

“DESERT RECREATION DISTRICT”

Desert Recreation District

Kevin Kalman, General Manager

“CITY”

City of Cathedral City

Charles P. McClendon, City Manager
ATTEST:

Tracey R. Hermosillo , City Clerk
APPROVED AS TO FORM:

Eric S. Vail, City Attorney

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EXHIBIT A

PALM SPRINGS UNIFIED SCHOOL DISTRICT POOL USE GUIDELINES

• School District is not liable for any personal valuables brought into the aquatic area or onto District property.
• All swimmers must wear proper swimming attire. Cut-offs and street clothes are not permitted in the pool.
• Persons with open sores, cuts, bandages, or rashes are not permitted in the pool. • No spitting or blowing nose in the pool.
• No hairpins, barrettes, jewelry, or glasses.
• Smoking, chewing gum, glass bottles or containers are not permitted in the aquatic center. • All children must be accompanied by an adult.
• No running, throwing/pushing, dunking, chicken fights, or rough play in the pool or shower area allowed at any time and grounds for immediate removal from the pool area. • NEVER jump or dive toward any object, including other swimmers, pool edges, or equipment. • No diving in the shallow end.
• Hanging on ropes or lane lines is not permitted.
• Do not stand, play, or jump off ladders or railings.
• No back dives, cannonballs, or somersaults allowed from the pool deck. • Always stay clear of handicap ramps and railings.
• No floatation devices are permitted in the pool.
• Starting blocks are restricted to approved swim practices and swim meets by school athletic teams, not recreational use.
• Non-swimmers must stay in the bleachers section of the pool area. • All injuries must be reported to the lifeguard on duty. • Socializing with or distracting any lifeguard on surveillance duty is not permitted. • All pool covers must be completely removed before pool use. • Possession of alcohol on District property is strictly prohibited. • Pool area is to be left clean. Check pool gutter drain for wayward items (bottles, goggles, caps, etc.). • Pool gates must always be closed.

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Staff Report

City Council

Item No. 6.C

Meeting Date: March 27, 2024
From: John Corella, Director of Engineering/Public Works Title: Contract with Petrochem Materials Innovation, LLC for Fiscal Year 2023 -24 Rubberized Emulsion Aggregate Slurry (REAS) Projects

City Council

RECOMMENDATION:

To approve a contract with Petrochem Materials Innovation, LLC. for $1,114,598.46 to supply and apply Rubber Emulsion Aggregate Slurry (REAS) on Panorama Neighborhood streets (C08681), Sunny Lane Neighborhood streets (C08682), and Victoria Drive Neighborhood streets (C08683), including traffic control, crack seal and striping replacement; and, approve a fifteen percent (15%) contingency in the amount of $167,189.54 for unforeseeable construction costs, making the total encumbrance $1,281,788.00; and, authorize the City Manager to execute the required contract documents; and, authorize the City Engineer to request bonds and insurance for the project, and issue the notice to proceed.

BACKGROUND:

Since 2015, the City of Cathedral City has used Rubberized Emulsion Aggregate Slurry (REAS) as the primary pavement maintenance surface treatment to preserve the asphalt on public streets because of its durability and longevity. The City utilizes REAS to preserve streets every five to seven years to prolong street life until a complete street reconstruction is necessary.

Additionally, REAS is a proven treatment preservation method embraced by large and small Cities in the west. As a result of this widely used product supplied by Petrochem Materials Innovation, LLC (PMI) , the City of Cathedral City and other Cities in the Coachella Valley are able to “piggyback” on PMI’s City of Los Angeles’s central mix contract prices, thus s ecure the lowest prices available in the Country for REAS . By piggybacking, the City receives the same unit price per gallon for PMI’s material and equipment as the City of Los Angeles; thereby providing significant savings for Cathedral City.

REAS maintenance of roadways are an integral part of the City’s Pavement Management Program (PMP). The City’s Capital Improvement Program (CIP) reflects

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these PMP projects within each of its biennial fiscal years’ budgets. This past November 2023, several CIP construction and maintenance projects had to be reevaluated and reprioritized to include street maintenance and reconstruction of the areas affected by Tropical Storm Hilary in addition to reprogrammed routine maintenance.

DISCUSSION:

Staff is proposing to apply REAS to the following streets:

• Panorama Neighborhood Streets REAS Project (C08681)
o Adelina Road, Avenida La Vista, and Vista Chino (Alternate) • Victoria Drive Neighborhood Streets REAS Project (C08683) o Ashley Court, Bion Way, Brittany Court, and Suncrest Drive, Corregidor Drive, Eagle Canyon Drive, Judy Lane, Linda Way, Marcia Road, Vaquero Road, and Victoria Drive.
• Sunny Lane Neighborhood REAS Project (C08682)
o Papaya Lane, Pomegranate Lane, Sunny Lane, and Talbert Drive

Maps of the above cited REAS application areas are attached to this Staff Report and discussed further below.

Panorama Neighborhood Streets REAS Project (C08681)
The scope of work in the Panorama Neighborhood streets will include the application of Type II REAS. Crack sealing treatment will precede the REAS applications, and the street striping and marking will occur after the REAS work. This work was included in the FY 2026-27 CIP , but due to the impacts of Tropical Storm Hilary, this work was reprogrammed to be included with the FY 2023-24 Spring REAS Projects. This work is proposed to be funded with Senate Bill 1 - Road Maintenance and Rehabilitation Account (SB-1/RMRA) funding.

Vista Chino – Panorama Neighborhood Streets REAS Project Alternate According to the California Department of Transportation (Caltrans) road classification, Vista Chino is listed as a minor arterial road in the Federal Aid System of the Federal Highway Administration (FHWA). Currently, the Caltrans Emergency Relief Program (ER Program) Manager is evaluating the recently submitted Damage Assessment Form (DAF) that summarizes the damage caused by Tropical Storm Hilary on Vista Chino.

The DAF recommends a treatment consistent with the City’s pavement management program to rehabilitate Vista Chino to the same or a better pavement condition than it was prior to the Tropical Storm. For the City to receive funds for the rehabilitation of Vista Chino, the DAF requires approval from Caltrans and FHWA.

Thus, City Staff is including Vista Chino as an alternate street on the Panorama Neighborhood Streets REAS Project. Including Vista Chino in this REAS Project is intended to provide the minimum treatment necessary to extend Vista Chino’s pavement useful life. If the DAF is approved by both Caltrans and FHWA, Staff will exclude Vista Chino from the Panorama Neighborhood Streets REAS Project. As mentioned above, the treatments outlined with the DAF are more comprehensive and have a longer useful life than a REAS treatment.

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Victoria Drive Neighborhood Streets REAS Project (C08683) The scope of work in the Victoria Drive Neighborhood streets will include the application of Type II REAS. Crack sealing treatment and asphalt patch work will precede the REAS applications, and the street striping and markings will occur after the REAS work.

This work was included in the FY 2025-26 CIP budget. This work is proposed to be included with the FY 2023-24 Spring REAS Projects and is proposed to be funded with a combination of Measure A and Assessment District (AD) 2003-01 funds.

Sunny Lane Neighborhood Streets REAS Project (C08682)
The scope of work in the Sunny Lane Neighborhood streets will include the application of Type II REAS. Crack sealing treatment and asphalt patch work will precede the REAS applications, and the street striping and markings will occur after the REAS work.

This work is included in the FY 2023-24 CIP budget and is proposed to be funded with Measure A funds.

PMI has evaluated the condition of the proposed streets with City Staff and has determined the REAS application will have an average spread ratio of approximately eight square feet per gallon (8 Sq. Ft./gallon). Based on this evaluation and subsequent calculations, PMI prepared a cost estimate that includes the price of the slurry, machinery, and labor. The cost estimate also includes traffic control, notice to residents, asphalt patching, crack seal and striping replacement.

City Staff and PMI will coordinate with local utilities and service providers, such as Burrtec and Sunline Transit, to accommodate service schedules and access with the work to be performed.

Staff requests City Council to approve a contract with Petrochem Materials Innovation, LLC. for $1,114 ,598.46 to supply and apply Rubber Emulsion Aggregate Slurry (REAS) on Panorama Neighborhood streets (C08681), Sunny Lane Neighborhood streets (C08682), and Victoria Drive Neighborhood streets (C08683), including traffic control, crack seal and striping replacement; and, approve a fifteen percent (15%) contingency in the amount of $167 ,189.54 for unforeseeable construction costs, making the total encumbrance $1,281 ,788.00; and, authorize the City Manager to execute the required contract documents; and, authorize the City Engineer to request bonds and insurance for the project, and issue the notice to proceed.

ENVIRONMENTAL ANALYSIS:

No environmental impact. A slurry project is Categorically Exempt as it involves work on existing streets and is listed as a Class 1 Exemption under CEQA Guidelines §15301(c).

FISCAL IMPACT:

Panorama Neighborhood Streets REAS Project

The original FY 2026-27 CIP amount of $720,000 from City’s General Funds was estimated for the REAS work within the Panorama Neighborhood. In conjunction w ith the October 2023 CIP reevaluation, City Staff is now proposing to perform maintenance

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this fiscal year ( FY 2023-24) and to utilize SB -1/RMRA funds for this Project in the amount of $226,889.02.

Victoria Drive Neighborhood Streets REAS Project

The original FY 2025-26 CIP amount of $485,000 from City’s SB -1/RMRA account was estimated for the REAS work within the Victoria Drive Neighborhood. In conjunction with the 2023 CIP reevaluation, City Staff is now proposing to perform maintenance this fiscal year (FY 2023-24) and utilize Assessment District (AD) 2003-01 for streets within the AD in the amount of $636,298.32, and Measure A funds for streets outside of the AD in the amount of $77,226.51.

Sunny Lane Neighborhood Streets REAS Project

The REAS work within the Sunny Lane Neighborhood was estimated in the CIP in the amount of $150,000 to be funded from the City’s FY 2023 -24 Maintenance of Effort (MOE) requirement. In conjunction with the 2023 CIP reevaluation , City Staff is proposing to utilize Measure A funds in the amount of $174,184.61 for this Project.

The overall PMI proposal to complete the FY 2023-24 REAS Projects is $1,114,598.46.

A 15% contingency is proposed amounting to $167,189.54, and thus the total estimated cost of the FY 2023-24 REAS Projects is $1,281,788 as shown in the table below.

PMI Cost Proposal $1,114,598.46
15% Contingency $ 167,189.54
Construction Total Estimate $1,281,788.00

FIVE-YEAR STRATEGIC PLAN:

Goal B: Community Investment

Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.

Project Funding
Source
PMI Estimated
Amount
Panorama Neighborhood SB-1/RMRA
Fund 248 $115,396.03
Panorama Neighborhood - Alternate SB-1/RMRA
Fund 248 $111,492.99
Victoria Drive Neighborhood Measure A
Fund 243 $77,226.51
Victoria Drive Neighborhood (AD) AD 2003-01
Fund 352 $636,298.32
Sunny Lane Neighborhood Measure A
Fund 243 $174,184.61
TOTAL $1,114,598.46

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ATTACHMENTS:

FY 23-24 Spring REAS Project Area Map
PMI Cost Estimate
PMI Contract

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Panorama Neighborhood Streets REAS
Vista Chino
Date Palm Drive
Avenida Maravilla
Vista Chino

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Attachment: FY 23-24 Spring REAS Project Area Map (4136 : FY 2023-24 REAS Projects Date Palm Drive
Los Gatos Road
Avenida La Vista
Adelina Road
Panorama Neighborhood Streets REAS (cont’d)
Avenida La Vista

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Attachment: FY 23-24 Spring REAS Project Area Map (4136 : FY 2023-24 REAS Projects Date Palm Drive
Adelina Road
Horizon Road
Panorama Neighborhood Streets REAS (cont’d)
Adelina Road

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Attachment: FY 23-24 Spring REAS Project Area Map (4136 : FY 2023-24 REAS Projects Date Palm DriveSuncrest Drive
Brittany Court
Victoria Neighborhood Streets REAS
Ashley Court, Bion Way, Brittany Court, and Suncrest Drive Ashley Court
Bion Way
Suncrest Drive

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Attachment: FY 23-24 Spring REAS Project Area Map (4136 : FY 2023-24 REAS Projects Date Palm Drive
Dinah Shore Drive
Plumley Road
Victoria Neighborhood Streets REAS (cont’d)
Assessment District 2003-01 Streets
Victoria Drive
Linda Way
Judy Lane
Vaquero Road
Marcia Road
Corregidor Drive
Eagle Canyon Drive

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Attachment: FY 23-24 Spring REAS Project Area Map (4136 : FY 2023-24 REAS Projects Date Palm Drive
Plumley Road
Victoria Neighborhood Streets REAS
Assessment District 2003-01 Streets (cont’d)
Vera Drive Judy Lane
Vaquero Road
Marcia Road
Corregidor Drive
Eagle Canyon Drive
Nilda Drive
Maria Road
35th Avenue

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Attachment: FY 23-24 Spring REAS Project Area Map (4136 : FY 2023-24 REAS Projects Da Vall Drive
Pomegranate Lane
Talbert Drive
Sunny Lane Neighborhood REAS
Papaya Lane, Pomegranate Lane, Sunny Lane, and Talbert Lane Papaya Lane
Sunny Lane

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Attachment: FY 23-24 Spring REAS Project Area Map (4136 : FY 2023-24 REAS Projects

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City of Cathedral City
Summary of Estimate Charges
Central Mix REAS Type II
Quote no:
24-11 QTY U/M Unit Price Days Total
*Material Type II REAS 10,701 GAL $2.52 1 $26,966.52 *Freight Delivery ($.40/per gallon) 10,701 GAL $0.40 $4,280.40 Applicator Trucks 16 HR $285.00 $4,560.00
Tanker Rental 4 LOAD $300.00 $1,200.00
Service Haul Trucks 6 EA $350.00 $2,100.00
Slurry Box 1 EA $350.00 $350.00
Slurry Pump 1 EA $650.00 $650.00
Sevice Labor crew( per person @ 8hr/day 100 HR $120.00 $12,000.00 Supervisor 1 DAY $2,000.00 $2,000.00
Per Diem ( per person/ per day) 14 DAY $261.50 $3,661.00 Traffic Control equipment 1 DAY $2,000.00 $2,000.00
Sweeping 16 HR $306.00 $4,896.00
Door Hanger 1 EA $150.00 $150.00
Striping - Chrisp Co 1 LS $30,663.00 $30,663.00
Crack Seal - RCS 1 LS $17,185.00 $17,185.00
$112,661.92
Sales Tax* 8.75% $2,734.11
Subtotal:

Adelina Rd, Avenida La Vista
$115,396.03Total

ALT #1 QTY U/M Unit Price Days Total
Material 25,338 GAL $2.52 1 $63,851.76
*Freight 25,338 GAL $0.40 $10,135.20
Equipment and Labor 1 LS 31,032.17$ $31,032.17
$105,019.13
Sales Tax* 8.75% $6,473.86
Subtotal:

Vista Chino
$111,492.99Total

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Attachment: PMI Cost Estimate (4136 : FY 2023-24 REAS Projects Contract with Petrochem Materials Innovation, LLC)

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QTY U/M Unit Price Days Total
*Material Type II REAS 20,824 GAL $2.52 2 $52,476.48
*Freight Delivery ($.40Gallon) 20,824 GAL $0.40 $8,329.60 Applicator Trucks 32 HR $285.00 $9,120.00
Tanker Rental 7 LOAD $300.00 $2,100.00
Service Haul Trucks 12 EA $350.00 $4,200.00
Slurry Box 2 EA $350.00 $700.00
Slurry Pump 2 EA $650.00 $1,300.00
Sevice Labor crew per hr / per person @ 8hr/day 188 HR $120.00 $22,560.00 Supervisor 2 DAY $2,000.00 $4,000.00
Per Diem 28 DAY $261.50 $7,322.00
Traffic Control equipment 2 DAY $2,000.00 $4,000.00
Sweeping 24 HR $306.00 $7,344.00
Door Hanger 1 EA $150.00 $150.00
Striping - Chrisp Co 1 LS $11,242.00 $11,242.00
Crack Seal - RCS 1 LS $9,930.00 $9,930.00
Asphalt - Allied Paving 1 LS $24,090.00 $24,090.00
$168,864.08
Sales Tax* 8.75% $5,320.53
Subtotal:
$174,184.61
Sunny Lane, Papaya Lane, Pomegranate Lane, Talbert Drive QTY U/M Unit Price Days Total
*Material Type II REAS 8,567 GAL $2.52 1 $21,588.84
*Freight Delivery ($.40Gallon) 8,567 GAL $0.40 $3,426.80 Applicator Trucks 16 HR $285.00 $4,560.00
Tanker Rental 3 LOAD $300.00 $900.00
Service Haul Trucks 6 EA $350.00 $2,100.00
Slurry Box 1 EA $350.00 $350.00
Slurry Pump 1 EA $650.00 $650.00
Sevice Labor crew per hr / per person @ 8hr/day 96 HR $120.00 $11,520.00 Supervisor 1 DAY $2,000.00 $2,000.00
Per Diem 14 DAY $261.50 $3,661.00
Traffic Control equipment 1 DAY $2,000.00 $2,000.00
Sweeping 8 HR $306.00 $2,448.00
Door Hanger 1 EA $150.00 $150.00
Striping - Chrisp Co 1 LS $6,248.00 $6,248.00
Crack Seal - RCS 1 LS $4,085.00 $4,085.00
Asphalt - Allied Paving 1 LS $9,350.00 $9,350.00
$75,037.64
Sales Tax* 8.75% $2,188.87
Subtotal:
$77,226.51
Suncrest Dr, Bion Wy, Ashley Ct, Brittany Ct.

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*Material Type II REAS 107,244 GAL $2.52 6 $270,254.88
*Freight Delivery ($.40/per gallon) 107,244 GAL $0.40 $42,897.60 Applicator Trucks 96 HR $285.00 $27,360.00
Tanker Rental 42 LOAD $300.00 $12,600.00
Service Haul Trucks 36 EA $350.00 $12,600.00
Slurry Box 6 EA $350.00 $2,100.00
Slurry Pump 6 EA $650.00 $3,900.00
Sevice Labor crew per hr / per person @ 8hr/day 556 HR $120.00 $66,720.00 Supervisor 6 DAY $2,000.00 $12,000.00
Per Diem (per person/ per day) 74 DAY $261.50 $19,351.00 Traffic Control equipment 6 DAY $2,000.00 $12,000.00
Sweeping 16 HR $306.00 $4,896.00
Door Hanger 1 EACH $150.00 $150.00
Striping - Chrisp Co 1 LS $48,048.00 $48,048.00
Crack Seal - RCS 1 LS $51,140.00 $51,140.00
Asphalt repair - Allied Paving 1 LS $22,880.00 $22,880.00 $608,897.48
Sales Tax* 8.75% $27,400.84
Victoria Dr, Eagle Canyon Dr, Corregidor Dr, Marcia Rd, Vaquero Rd, Judy Ln, Linda Wy, 35th Ave, Vera Dr, Nilda Dr, Maria Rd.

Subtotal:
$636,298.32Total
Total Estimated Charges + Alt1 ( Included Sales Tax)
Estimate good through October 31, 2024
$1,114,598.46

Prices Includes: Type II Central Mix REAS, transportation of material, posting and notifying, traffic control per watch handbook, sweeping, crack sealing, asphalt repairs, striping, bonds, permits, equipment, and labor for application.

*Location(s): Various locations per city provide map

Prices Exclude: no traffic plan, weed kill.

The foregoing quotation is subject to all the Terms and conditions set forth in PMI’s Master Terms and Conditions and the application for open business credit agreement entered into by and between Petrochem Materials Innovation, LLC. and customer. If terms and conditions are not attached, please call our office

Name: Vicki Nguyen Signature: Date: 3/15/2024_____

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Master Terms and Conditions

1. Binding Agreement. The following terms and conditions constitute a binding agreement (“Agreement”) effective as of July 1 , 2015 (“Effective Date”) by and between Petrochem Materials Innovation, LLC, a California limited liability company (“Company”) and the undersigned cu stomer (“Customer”) and govern all goods sold and all Equipment (as defined hereinafter) rented, leased or provided by Company to Customer and shall be deemed to be incorporated in all invoices, purchase orders, price quotations and shipping confirmations. Company and Customer are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.” For purposes of this Agreement the term “Equipment” shall mean all trucks, trailers, tractors, pumpers, tankers, tanks, mixers, vehicles and tools. Nothing contained in any purchase order, memoranda or other writing submitted by Customer to Company shall modify, amend or supersede this Agreement or any portion thereof. Customer’s submission of any provisions that are incons istent, in conflict with or create any ambiguity with this Agreement or any portion thereof are rejected. Company’s failure to object to any different terms or conditions shall not constitute acceptance or approval by Company.

2. Quotations and Pricing. All price quotations provided by Company to Customer shall only be valid for the duration and project specified in the written quotation provided by Company. Company reserves the right in its sole and absolute discretion to decline to quote or sell to Cu stomer. Company shall not be liable for any refusal to quote Customer or rejection of any offer to purchase by Customer.

Any request for quotation by Customer shall constitute a representation that Customer is solvent. All requests for quotation shall specify the name and address of the project where the goods and Equipment will be used, name and address of the original contractor, name and address of the public agency and any other information reasonably requested by Company to enable Company to serve a Preliminary Notice or Stop Notice pursuant to the California Civil Code. Company’s issuance of a quotation to Customer shall not obligate Company to provide any future quotations to Customer. Company reserves the right to require Customer to adhere to quality control measures imposed by Company in its sole and absolute discretion as a condition of accepting any offer to purchase by Customer and/or delivering goods and/or renting Equipment to the Customer. The parties agree that the foregoing provision is reasonable based on the need to maintain the quality of the goods, their application, the reputation of the brand and to maintain public safety. Customer shall be free to resell the goods purchased from Company at any price selected by Customer. The Equipment identified in any price quotation is subject to availability. Unless expressly provided in any price quotation, the prices in the quotation do not include an operator(s). The prices set forth in any price quotation will be charged from the time the Equipment leaves Company’s facility until it is returned, without proration for partial days and without regard as to whether the Equipment is actually used unless specifically provided otherwise in the applicable price quotation.

3. Delivery and Risk of Loss.
a. If the Company delivers the goods, delivery shall take place and all risk of loss shall pass when Company delivers the goods to the project and they pass the last flange on Company’s truck or trailer. If the Customer or its representative pick up the goods, delivery and all risk of loss shall pass when the goods pass the last flange on Company’s piping at Company’s plant. Company shall have the right to allocate goods to its customers pro rata in the event the Company experiences a shortage of goods. All claims for defective goods shall be made within ten (10)

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calendar days of delivery. Failure to make a claim within that time shall operate as unequivocal acceptance and waiver of all claims.
b. Delivery of the Equipment from Company to Customer shall take place when the Equipment leaves the gate at Company’s South Gate or El Cajon facilities, as applicable, and shall not be deemed to be returned until the Equipment is delivered back inside of the gate at Company’s South Gate or El Cajon facilities, as applicable, in the same condition as when the Equipment left, ordinary wear and tear excepted. Customer shall be responsible for all risk of loss, damages and liability from the point in time that the Equipment leased or rented by Company to Customer leaves the gate at Company’s facility until it is returned back inside the gate at
Company’s facility. Customer shall be solely responsible for the loss of any materials transported or mixed in the Equipment leased or rented by Company to Customer after the Equipment leaves Company’s facility and before it is returned to Company’s facility including, but not limited to, any loss of materials which solidify, break, or become stuck as a result of the failure of the Customer to follow the operating instructions for the Equipment. Customer shall operate the Equipment in compliance with all applicable laws, ordinances and regulations. Customer shall be solely responsible for all fines and violations arising out of or relating to the Customer’s use or operation of the Equipment. Customer is only obtaining the right to use the Equipment specif ied in the applicable price quotation and shall obtain no ownership interest in the Equipment.

4. Payment Terms. Company’s standard terms of sale of goods and rental of Equipment are cash on delivery unless the Company grants credit to Customer in Company’s sole and absolute discretion.

All goods, applicable freight and insurance charges and Equipment rental charges will be invoiced as of the date of delivery. Company reserves the right to suspend credit, change credit terms or deny credit in its sole discretion at any time with or without notice to Customer. Company reserves the right to require from Customer adequate assurances of performance before delivery of goods or rental of Equipment. Company reserves the right to suspend performance until Company receives adequate assurances satisfactory to Company. Company shall have the right to take possession of the Equipment and/or goods if Customer fails to make timely payment within forty eight (48) hours of the time that Customer is deemed to have received written notice of failure to make payment. Payment by Customer to Company shall not be contingent upon Customer receiving payment from any third party. Customer shall pay all sales, use and excise taxes. Interest at eighteen percent (18%) per annum shall accrue on all past due payments. Customer’s failure to pay invoices when due, at Company’s election shall make all subsequent invoices immediately due and payable irrespective of prior negotiated terms. Company may withhold delivery or shipment of goods or rental of Equipment until Customer’s account is settled in full. Customer expressly w aives any liability of Company for any refusal to deliver goods or rent Equipment for accounts in arrears. Customer authorizes Company to obtain credit information on Customer on an ongoing basis and authorizes the release of all credit information on Cus tomer to Company.

5. Equipment.
a. Company requires that each third -party user and operator of Company’s Equipment be briefed on the proper use of the Equipment and acknowledge that the user understands all such requirements in writing on a form which is substantially similar to Exhibit “A” hereto. Each employee of Customer who will make use of or operate the Equipment shall sign a form that is substantially similar to Exhibit “A” hereto before Customer’s employee will be permitted to make any use of or operate the Equipment.
b. The fuel level of all Equipment will be recorded when it leaves Company’s facility and the Customer is responsible for returning the Equipment to Company’s facility with the same amount of fuel

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as when it left. If the Equipment is returned with less fuel than when the Equipment left Company’s facility, the Customer will be responsible for paying the cost of the fuel to bring the fuel level back to the level when it departed Company’s facility.
c. Customer shall be responsible for maintaining the Equipment inside and outside in a clean manner. Customer will be charged for the cost of cleaning the Equipment if it is not returned to Company in at least as clean a condition as when it left the Com pany facility. No smoking is allowed in or around any of the Equipment.
d. All material valves shall be closed when transporting all Equipment. All lids and covers shall be maintained in a closed condition on all Equipment. Customer shall check for damage to all Equipment on a regular basis no less frequently than prior to depa rture from Company’s facility and again when the Equipment is returned to Company’s facility. e. Customer shall notify Company of any operating problems or any required repairs to the Equipment so that Company can make any required repairs. An authorized representative of the Customer will be required
to confirm in writing on a form substantially similar to Exhibit “B” that the Equipment (i) delivered at the start of the work day is in good operating condition free from any operating problems or required repairs, and (ii)

was returned in good operating condition free from any operating problems or required repairs. The Customer is responsible for promptly notifying Company in writing of any operating problems or required repairs so that any operating problems or required repairs can be promptly handled. Company shall not be responsible for any damages or delays as a result of operating problems or required repairs if the Customer does not promptly notify Company. Customer shall be responsible for all damages to the Equipment while the Equipment is in the possession, custody or control of the Customer.

6. Insurance Requirements For Equipment Rental.
a. Coverage. Customer shall procure and maintain at its own expense comprehensive general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily inj ury, personal injury, death, loss or damage resulting from the use or operation of the Equipment by Customer or its officers, employees, servants, volunteers, agents and independent contractors. Customer shall further procure and maintain at i ts own expense commercial vehicle liability insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, covering the Equipment that names Company as the loss payee. Said policies of insurance shall have deductibles of One Thousand Dollars ($1,000) or less. b. Workers Compensation Insurance. Customer shall procure and maintain at its own expense, during the term of this Agreement, workers' compensation insurance, providing coverage as required by the California State Workers' Compensation Law.
c. Additional Named Insured. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation coverage, shall bear an endorsement whereby it is provided that, Company and its officers, directors, shareholders, members, managers, employees, agents, representatives and lessors are named as an additional insured. d. Proof of Insurance Coverage; Certificates. Customer shall secure from a good and responsible company or companies authorized to do insurance business in the State of California the

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policies of insurance required by this Agreement and furnish to Company certificates of said insurance on or before delivery or use of the Equipment by the Customer . Each policy required herein must be endorsed to provide that the policy shall not be cancelled or reduced in coverage unless the insurer has provided Company with thirty (30) days prior written notice of cancellation or reduction in coverage.

All insurance policies required to be provided by Customer or any other party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self-insurance, primary or excess, maintained or available to Company. The insurance provisions of this Agreement shall in no way modify Customer’s dut y to indemnify, defend and hold Company harmless pursuant to the terms of this Agreement. Company shall have the right to terminate this Agreement immediately and take possession of the Equipment if the Customer fails at any time to provide and maintain the required insurance or certificates.

7. Trademarks and Intellectual Property. Customer shall not make any use of the Flex Seal® or other Company trademarks, service marks or symbols unless Customer has submitted such proposed use to Company and received Company’s express prior written consent. Customer shall not use Company’s trademarks, service marks or symbols in Customer’s business name or letterhead. Company and its licensor shall be the exclusive
owner of the Flex Seal® trademarks, service marks, symbols, trade secrets, confidential information, know how, copyrights and patents together with all Improvements (as defined hereinafter) to any of the foregoing and
Customer shall not challenge such exclusive ownership or make any unauthorized use. For purposes of this Agreement, “Improvements” shall mean all inventions, modifications, revisions, alterations, enhancements, betterments, ideas and discoveries (whether or not patentable) conceived or reduced to practice (actually or constructively), either solely or jointly with others.

8. Disclaimer of Warranties. Customer shall be solely responsible for determining whether the goods and Equipment are appropriate for any project or application or whether the goods must be modified to make them suitable for any project or application. Company makes no representati on or warranty that the goods or Equipment will be suitable for any particular project or application. It shall be the Customer’s sole responsibility to obtain a mix design from a qualified engineer for each project or application. Company shall have no liability for any mix designs used by Customer.

COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR

IMPLIED, AS TO THE GOODS AND EQUIPMENT, INCLUDING BUT NOT LIMITED TO, ANY

IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF MERCHANTABILITY.

COMPANY HAS NO CONTROL OVER THE MATERIAL SUPPLIERS SELECTED BY BUYER OR THE MATERIALS PURCHASED FROM THIRD PARTIES. COMPANY SHALL HAVE NO

LIABILITY FOR ANY MATERIALS PURCHASED BY BUYER FROM ANY

THIRD PARTIES. BUYER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THAT ALL

MATERIALS OBTAINED BY BUYER FROM THIRD PARTIES ARE COMPATIBLE WITH ANY MATERIALS PURCHASED BY BUYER FROM COMPANY. BUYER SHALL BE

SOLELY RESPONSIBLE FOR ADJUSTING AND CALIBRATING BUYER’S EQUIPMENT TO

ACCOUNT FOR VARIATIONS IN THE MATERIALS PURCHASED BY BUYER FROM THIRD PARTIES. COMPANY SHALL NOT BE LIABLE FOR ANY CALIBRATION OR OTHER ASSISTANCE THAT MAY BE PROVIDED TO BUYER BY COMPANY.

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9. Limitation of Liability. Company shall not be liable under any circumstances for any special, consequential, incidental, punitive or exemplary damages arising out of or in any way connected with this Agreement to sell goods or rent Equipment to the Customer, including damages for loss of use, lost profits, or damages paid to third parties even if Company has been advised of the possibility of such damages. Customer’s exclusive remedy and Company’s entire liability to Customer shall be limited to the total invoice price paid or incurred by Customer for the goods and/or Equipment that are the subject of any dispute or claim for damages. Customer shall report all alleged problems with the goods and Equipment to Company immediately. Company shall have no liability for any problems which are not reported immediately. No legal action shall be brought by Customer against the Company for any claim with respect to any goods sold or Equipment rented by Company to Customer more than one (1) year after delivery of such goods or Equipment t o the Customer. It is agreed that any cause of action with respect to such goods or Equipment shall accrue as the date of delivery of such goods or Equipment.

10. Relationship of the Parties. Nothing in this Agreement shall restrict Company’s right to sell the same or similar goods to third parties. The relationship of the Parties shall be that of purchaser and vendor and/or lessor and lesser, as applicable, and nothing contained in this Agr eement shall be construed to create a joint venture, association, agency, partnership or franchise relationship.

11. Termination. Either Party may terminate this Agreement on thirty (30) calendar day written notice. Any such termination shall not affect any accepted orders or the duty of Customer to make payment.

12. Indemnification. Customer shall indemnify, defend, and hold harmless Company and its officers, directors, shareholders, partners, members, managers, agents, employees, attorneys, successors, and permitted assigns with respect to any and all claims, demands, liabilities, judgments, awards, liens, losses, damages, or
costs (including reasonable attorneys’ fees and expenses) of any kind or nature arising from or in any manner related to (i) any use of the goods purchased or Equipment rented from Company; or (ii) the failure of Customer to observe or perform the covenant s and agreements of Customer under this Agreement (hereinafter collectively “Claims”) with the exception of Claims caused by the sole negligence of Company. Customer’s duty to defend, indemnify and hold harmless the Company shall survive the termination of this Agreement for any reason.

13. Further Assurances. Each of the Parties hereto agrees to execute and deliver any and all additional papers and documents, and to do any and all acts reasonably necessary in connection with performance of its obligations hereunder to carry out the intent of the Parties hereto.

14. Entire Agreement. This Agreement and the documents expressly referenced herein, shall constitute the entire Agreement between the Parties hereto with respect to the subject matter hereof, and shall supersede all prior and contemporaneous agreements, representations and negotiations of the Parties concerning the subject matter hereof and the terms applicable thereto.

15. Amendment. This Agreement may not be supplemented, modified or amended in any manner, except by an instrument in writing stating that it is a supplement, modification or amendment of this Agreement and signed by each of the Parties hereto.

16. Waiver. No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.

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17. Successors and Assigns. All terms and provisions contained herein shall inure to the benefit of and shall be binding on each of the Parties hereto and their respective directors, officers, shareholders, partners, members, managers, employees, agents, heirs, representatives, suc cessors and permitted assigns and each of them.

18. Applicable Law. This Agreement shall be deemed to have been entered into, and shall be construed and interpreted, in accordance with the laws of the State of California without reference to California’s application of principles of conflicts of law.

19. Severability. In the event that any provisions hereof are deemed to be illegal or unenforceable, such a determination shall not affect the validity or enforceability of the remaining provisions hereof, all of which shall remain in full force.

20. Form. As used in this Agreement, the masculine, feminine and neuter gender, and singular and plural number shall be deemed to include the other and others whenever the context so indicates. All captions used in this Agreement are for convenience only and shall not be construed in interpreting this Agreement.

21. Time is of The Essence. Time is of the essence for this Agreement and all of the terms, provisions, covenants and conditions hereof.

22. Parties In Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties to it and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any Party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any Party to this Agreement.

23. Remedies. In addition to any other available remedies, either Party, upon an appropriate showing, shall be entitled to equitable relief including, but not limited to, injunction and specific performance in the event of a
breach or threatened breach of this Agreement. No remedy conferred by any specific provision of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy gi ven hereunder, or now or hereinafter existing at law, in equity, by
statute or otherwise. The election of one or more remedies by a Party shall not constitute a waiver of the right to pursue other available remedies.

24. Attorneys’ Fees. The prevailing party in any arbitration or legal action arising out of this Agreement shall be entitled to an award of its attorneys’ fees, expert witness fees and costs.

25. Nonassignability. This Agreement may not be assigned by either Party without the express written consent of each of the Parties. For purposes of this Agreement, the prohibition on assignment shall also apply to licenses, sublicenses and subcontractors.

26. Interpretation. This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the parties and the parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them.

27. Force Majeure. Company shall not be responsible for any delays or failure to perform for any reason including, but not limited to, fire, flood, strikes, lockouts, accidents, war, terrorist acts, insurrection, Acts

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of God, inclement weather, delays in transportation, Equipment failure, shortage of Equipment, governmental interference or regulation, or any other reason beyond Company’s reasonable control.

28. Waiver. No waiver shall be binding, unless executed in writing by the Party making the waiver.

No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.

29. Captions and Headings. The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.

30. Notices. All notices required or permitted under this Agreement shall be in writing, shall be sent to the Party’s address as set forth immediately below, shall reference this Agreement, and shall be deemed given (i) when delivered personally; (ii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one day after deposit with a commercial overnight carrier with verification of receipt.

“Company” Petrochem Materials Innovation, LLC
6168 Innovation Way
Carlsbad, CA 92009

“Customer” _________________

Any correctly addressed notice that is refused, unclaimed, or undeliverable because of any act or omission of the Party to be notified will be deemed effective as of the first date that the notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service. A Party may change its address for purposes of receiving notices by giving notice of said change of address in the manner provided for herein.

31. Arbitration. Any and all controversies, claims and disputes arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in the County of San Diego, State of California, in accordance with the Commercial Arbitration Ru les of the American Arbitration Association then in effect. The arbitrator shall be an attorney admitted to practice law in the State of California with at least fifteen (15) years of business law experience. The award rendered by the arbitrator shall be final and non-appealable and may be entered as a final judgment in any court having jurisdiction thereof. The award of the arbitrator shall be in the form of findings of fact and conclusions of law and shall set forth in detail the legal and factual basis of the decision.

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AGREEMENT
THIS CONTRACT, by and between the CITY OF CATHEDRAL CITY, a municipal corporation, herein referred to as "City,” and Petrochem Materials Innovation (PMI), LLC , herein referred to as, "Contractor."

W I T N E S S E T H:

In consideration of their mutual covenants, the parties hereto agree as follows:

1. Contractor shall furnish all necessary labor, material, equipment, transportation and services to supply and install Type II Rubberized Emulsion Aggregate Slurry (REAS) delivered from an approved Central Plant on Panorama Neighborhood Streets, Victoria Neighborhood Streets, Assessment District 2003 -01 Streets, and Sunny Lane Neighborhood Streets , including traffic control and striping, thermoplastic stop bars, legends and cros swalks in accordance with Attachments A thru H, in the City of Cathedral City, California.

2. Contractor shall comply with all Federal, State, County, and Cathedral City Municipal Code, which are, as amended from time to time, incorporated herein by reference.

3. All work shall be done in a manner satisfactory to the City Engineer.

4. Contractor shall commence work after the execution of this agreement and purchase order and agrees to have all work completed within the specified Sixty (60) calendar days.

5. In consideration of said work, City agrees to pay Contractor such sums as shall be approved by the City Engineer at lump sums and/or unit prices stated in the Contractor's proposal, attached hereto, in the amount of One Million One Hundred Fourteen Thousand Five Hundred Ninety-Eight Dollars and 46/100 ($1,114,598.46). All payments shall be subject to approval by the City Engineer.

6. The Contractor shall not knowingly pay less than the higher of the Federal minimum wage rate or the general prevailing rate for per diem wages, as determined by the State of California Department of Industrial Relations and referred to in the Invitation to Bid, to any workman employed for the work to be performed under this contract; and the Contractor shall forfeit as a penalty to the City the sum of Twenty- Five Dollars ($25.00) for each calendar day, or fraction thereof, for such workman paid by him or by any subcontractor under him in violation of this provision (Sections 1770-1777, Labor Code of California).

7. Contractor agrees to indemnify, hold harmless, release and defend (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council, and each member thereof, and its officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney's fees and costs of litigation) which in whole or in part are claimed to result from or to arise out of the usage or operation, including the malfunctioning of, or, any injury caused by, any product purchased herein; or any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its employees, representatives, subcontractors, or agents in connection with the performance of this Contract.

This agreement to indemnify includes, but is not limited to, personal injury (including death at any time) and damage to property (including, but without limitation, contract or tort or patent, copyright, trade secret or trademark infringement) sustained by any person or persons (including, but not limited to, companies, or corporations, Contractor and its employees or agents, and members of the general public).

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8. Except as otherwise required, Contractor shall concurrently with the execution of this contract, furnish the City satisfactory evidence of insurance of the kinds and in the amounts on Attachment B. This insurance shall be kept in full force and effect by Contractor dur ing this entire contract and all premiums thereon shall be promptly paid by it. Each policy shall further state that it cannot be canceled without 30 days’ unconditional written notice to the City and shall name the City and the County of Riverside as additional insured. Contractor shall furnish evidence of having in effect, and shall maintain Workers Compensation Insurance coverage of not less than the statutory amount or otherwise show a certificate of self-insurance, in accordance with the Workers Compensation laws of the State of California.

Failure to maintain the required amounts and types of coverage throughout the duration of this Contract shall constitute a material breach of this Contract.

9. Contractor shall forfeit as a penalty to City $25.00 for each laborer, workman, or mechanic employed in the execution of this Contract by said Contractor, or any subcontractor under it, upon any of the work herein mentioned, for each calendar day during which such laborer, workman, or mechanic is required or permitted to work at other than a rate of pay provided by law for more than 8 hours in any one calendar day and 40 hours in any one calendar week, in violation of the provisions of Sections 1810- 1815 of the Labor Code of the State of California.

10. In accepting this Contract, Contractor certifies that in the conduct of its business it does not deny the right of any individual to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex or age as provided in the California Fair Employment Practice Act (Government Code Sections 12900, et seq.) Contractor agrees that a finding by the State Fair Employment Practices Commission that Contractor has engaged during the term of this Contract in any unlawful employment practice shall be deemed a breach of this Contract and Contractor shall pay to City $500.00 liquidated damages for each such breach committed under this contract.

11. This Contract shall not be assignable by Contractor without the written consent of City.

12. Contractor shall notify the City Engineer (in writing) forthwith when the Contract is deemed completed.

13. In accepting this Contract, Contractor certifies that no member or officer of the firm or corporation is an officer or employee of the City except to the extent permitted by law.

14. Contractor certifies that it is the holder of any necessary California State Contractor's License and authorized to undertake the above work.

15. The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the contract and/or is paying only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract.

16. To ensure proper performance of this Contract, the City shall retain five percent (5%) of the amount of each approved Application for Payment until the project work is 100% complete provided that the Contractor completed the scope of work and properly identified and corrected any non-conforming work. A Notice of Completion will be issued

17. The Contractor shall maintain and preserve all such records for a period of at least four years after termination of the contract.

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18. The Contractor shall maintain all such records in the City of Cathedral City. If not, the Contractor shall, upon request, promptly deliver the records to the City or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than at City offices including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.

19. The further terms, conditions, and covenants of the Contract are set forth in Attachments A thru H, each of which is by this reference made a part hereof.

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IN WITNESS, WHEREOF, the parties have executed this Agreement as of the dates stated below.

"CITY"

CITY OF CATHEDRAL CITY,
a California municipal corporation

By: ________________________ Dated: _____________________________ Charles P. McClendon, City Manager

ATTEST:

Dated: _____________________________
Tracey R. Hermosillo, CMC
City Clerk

APPROVED AS TO FORM:

Dated: _____________________________
Eric S. Vail, City Attorney

“CONTRACTOR”

Dated: _____________________ By: __________________________________

Name: Frank B. Hoffman

Title: Chief Financial Officer (CFO)

Dated: _____________________ By: __________________________________

Name: Charlie Hoffman

Title: Chief Operating Officer (COO)

"CONTRACTOR"

(If corporation, affix seal)

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ATTACHMENT A

WORKERS' COMPENSATION INSURANCE CERTIFICATE

In accordance with California Labor Code Section 1861, prior to commencement of work on the Contract, the Contractor shall sign and file with the City the following certification:

"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."

__________________________________________________
Signature

__________________________________________________
Title

__________________________________________________
Date

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ATTACHMENT B

LIABILITY AND INSURANCE REQUIREMENTS

1.0 INDEMNIFICATION

The Contractor shall indemnify, hold harmless and assume the defense of the City of Cathedral City (City), its elected officials, officers, agents, employees, commission members and representatives, from all damages, costs, or expenses in law or equity that may at any time arise to cause damages to property, or of personal injury received by reason of or in the course of performing work, which may be occasioned by any willful or negligent act or omission of the Contractor, any of the Contractor's employees, or any of its subcontractors arising out of work under this Contract.

The City does not, and shall not, waive any rights that it may have against Contractor, any of the Contractor’s employees, or any of its subcontractors under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Contract. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described herein. The City shall not be liable for any accident, loss, or damage to the work prior to its completion and acceptance.

2.0 INSURANCE REQUIREMENTS

2.1 General

The Contractor shall provide evidence of all the insuranc e required by Paragraph 1340- 2.0, INSURANCE REQUIREMENTS, and shall submit coverage verification for review and approval by the City upon execution of the Contract.

The Contractor shall not commence work, until such insurance has been approved by the City. The Contractor shall not allow any subcontractors to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and verified by Contractor. Such insurance shall remain in full force and effect at all times during the prosecution of the Work and until the final completion and acceptance thereof.

2.2 Commercial General Liability Policy

The Contractor shall maintain during the life of the Contract, a Commercial General Liability Policy, on an occurrence basis, with a minimum limit of not less than Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage for any one occurrence and a Four Million Dollar ($4,000,000) annual project aggregate, for all of the following:

a. Premises Operations, including Explosion, Collapse and Underground (X, C, and U) Coverage.

b. Completed Operations/Products, including X, C, and U Coverage.

c. Independent Contractors.

d. Blanket Contractual.

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e. Deductible shall not exceed One Thousand Dollars ($1,000).

2.3 Commercial Business Auto Policy

The Contractor shall maintain during the life of this Contract a Commercial Business Auto Policy, on an occurrence basis, with a minimum amount of not less than Two Million Dollars ($2,000,000) combined single limit for bodily injury and property damage, providing at least all of the following coverage:

a. Coverage shall be app licable to any and all leased, owned, hired, or non- owned vehicles used in pursuit of any of the activities associated with this Contract.

b. Any and all mobile equipment, including cranes, which is not covered under said Commercial Business Auto Policy s hall have said coverage provided for under the Commercial General Liability Policy.

c. Deductible shall not exceed One Thousand Dollars ($1,000).

2.4 Workers' Compensation Insurance

The Contractor shall maintain during the life of the Contract, Worker's Compensation and Employers' Liability insurance providing coverage for any and all employees of Contractor:

a. The required policy shall provide coverage for Workers' Compensation (Coverage A).

b. This policy shall provide coverage for One Million Dollars ($1,000,000) Employers' Liability (Coverage B).

2.5 Endorsements

All of the following endorsements are required to be made a part of the policies described in this Section hereof:

a. "The City, City employees and officers, the City Engineer, its consultants, el ected officials, agents are hereby added as additional insured insofar as Work done under this Contract is concerned."

b. "This policy shall be considered primary insurance as respects any other valid and collectible insurance, including self-insured retention, the City may possess, and any other insurance the City does possess shall be considered excess insurance only."

c. "This insurance shall act for each insured, and additional insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.

d. “Thirty (30) days prior written notice of cancellation shall be given to the City. Such notice shall be sent to:

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Armando J. Garcia Baldizzone , P.E.

City Engineer
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234

2.6 Change in Terms

The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to the above stated location, identified in Section 2.5, Endorsements. The Contractor shall be obligated to pay any extra premium for maintaining the insurance requirements specified here.

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ATTACHMENT C

PMI CERTIFICATE OF LIABILITY INSURANCE

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ATTACHMENT D

CATHEDRAL CITY COST ESTIMATE

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City of Cathedral City
Summary of Estimate Charges
Central Mix REAS Type II
Quote no:
24-11 QTY U/M Unit Price Days Total
*Material Type II REAS 10,701 GAL $2.52 1 $26,966.52 *Freight Delivery ($.40/per gallon) 10,701 GAL $0.40 $4,280.40 Applicator Trucks 16 HR $285.00 $4,560.00
Tanker Rental 4 LOAD $300.00 $1,200.00
Service Haul Trucks 6 EA $350.00 $2,100.00
Slurry Box 1 EA $350.00 $350.00
Slurry Pump 1 EA $650.00 $650.00
Sevice Labor crew( per person @ 8hr/day 100 HR $120.00 $12,000.00 Supervisor 1 DAY $2,000.00 $2,000.00
Per Diem ( per person/ per day) 14 DAY $261.50 $3,661.00 Traffic Control equipment 1 DAY $2,000.00 $2,000.00
Sweeping 16 HR $306.00 $4,896.00
Door Hanger 1 EA $150.00 $150.00
Striping - Chrisp Co 1 LS $30,663.00 $30,663.00
Crack Seal - RCS 1 LS $17,185.00 $17,185.00
$112,661.92
Sales Tax* 8.75% $2,734.11
Subtotal:

Adelina Rd, Avenida La Vista
$115,396.03Total

ALT #1 QTY U/M Unit Price Days Total
Material 25,338 GAL $2.52 1 $63,851.76
*Freight 25,338 GAL $0.40 $10,135.20
Equipment and Labor 1 LS 31,032.17$ $31,032.17
$105,019.13
Sales Tax* 8.75% $6,473.86
Subtotal:

Vista Chino
$111,492.99Total

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QTY U/M Unit Price Days Total
*Material Type II REAS 20,824 GAL $2.52 2 $52,476.48
*Freight Delivery ($.40Gallon) 20,824 GAL $0.40 $8,329.60 Applicator Trucks 32 HR $285.00 $9,120.00
Tanker Rental 7 LOAD $300.00 $2,100.00
Service Haul Trucks 12 EA $350.00 $4,200.00
Slurry Box 2 EA $350.00 $700.00
Slurry Pump 2 EA $650.00 $1,300.00
Sevice Labor crew per hr / per person @ 8hr/day 188 HR $120.00 $22,560.00 Supervisor 2 DAY $2,000.00 $4,000.00
Per Diem 28 DAY $261.50 $7,322.00
Traffic Control equipment 2 DAY $2,000.00 $4,000.00
Sweeping 24 HR $306.00 $7,344.00
Door Hanger 1 EA $150.00 $150.00
Striping - Chrisp Co 1 LS $11,242.00 $11,242.00
Crack Seal - RCS 1 LS $9,930.00 $9,930.00
Asphalt - Allied Paving 1 LS $24,090.00 $24,090.00
$168,864.08
Sales Tax* 8.75% $5,320.53
Subtotal:
$174,184.61
Sunny Lane, Papaya Lane, Pomegranate Lane, Talbert Drive QTY U/M Unit Price Days Total
*Material Type II REAS 8,567 GAL $2.52 1 $21,588.84
*Freight Delivery ($.40Gallon) 8,567 GAL $0.40 $3,426.80 Applicator Trucks 16 HR $285.00 $4,560.00
Tanker Rental 3 LOAD $300.00 $900.00
Service Haul Trucks 6 EA $350.00 $2,100.00
Slurry Box 1 EA $350.00 $350.00
Slurry Pump 1 EA $650.00 $650.00
Sevice Labor crew per hr / per person @ 8hr/day 96 HR $120.00 $11,520.00 Supervisor 1 DAY $2,000.00 $2,000.00
Per Diem 14 DAY $261.50 $3,661.00
Traffic Control equipment 1 DAY $2,000.00 $2,000.00
Sweeping 8 HR $306.00 $2,448.00
Door Hanger 1 EA $150.00 $150.00
Striping - Chrisp Co 1 LS $6,248.00 $6,248.00
Crack Seal - RCS 1 LS $4,085.00 $4,085.00
Asphalt - Allied Paving 1 LS $9,350.00 $9,350.00
$75,037.64
Sales Tax* 8.75% $2,188.87
Subtotal:
$77,226.51
Suncrest Dr, Bion Wy, Ashley Ct, Brittany Ct.

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*Material Type II REAS 107,244 GAL $2.52 6 $270,254.88
*Freight Delivery ($.40/per gallon) 107,244 GAL $0.40 $42,897.60 Applicator Trucks 96 HR $285.00 $27,360.00
Tanker Rental 42 LOAD $300.00 $12,600.00
Service Haul Trucks 36 EA $350.00 $12,600.00
Slurry Box 6 EA $350.00 $2,100.00
Slurry Pump 6 EA $650.00 $3,900.00
Sevice Labor crew per hr / per person @ 8hr/day 556 HR $120.00 $66,720.00 Supervisor 6 DAY $2,000.00 $12,000.00
Per Diem (per person/ per day) 74 DAY $261.50 $19,351.00 Traffic Control equipment 6 DAY $2,000.00 $12,000.00
Sweeping 16 HR $306.00 $4,896.00
Door Hanger 1 EACH $150.00 $150.00
Striping - Chrisp Co 1 LS $48,048.00 $48,048.00
Crack Seal - RCS 1 LS $51,140.00 $51,140.00
Asphalt repair - Allied Paving 1 LS $22,880.00 $22,880.00 $608,897.48
Sales Tax* 8.75% $27,400.84
Victoria Dr, Eagle Canyon Dr, Corregidor Dr, Marcia Rd, Vaquero Rd, Judy Ln, Linda Wy, 35th Ave, Vera Dr, Nilda Dr, Maria Rd.

Subtotal:
$636,298.32Total
Total Estimated Charges + Alt1 ( Included Sales Tax)
Estimate good through October 31, 2024
$1,114,598.46

Prices Includes: Type II Central Mix REAS, transportation of material, posting and notifying, traffic control per watch handbook, sweeping, crack sealing, asphalt repairs, striping, bonds, permits, equipment, and labor for application.

*Location(s): Various locations per city provide map

Prices Exclude: no traffic plan, weed kill.

The foregoing quotation is subject to all the Terms and conditions set forth in PMI’s Master Terms and Conditions and the application for open business credit agreement entered into by and between Petrochem Materials Innovation, LLC. and customer. If terms and conditions are not attached, please call our office

Name: Vicki Nguyen Signature: Date: 3/15/2024_____

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ATTACHMENT E

PMI'S REPRESENTATIONS AND WARRANTIES

PMI hereby makes the following representations, warranties and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date:
a. PMI has the full right, power and authority to enter into this Agreement and to sell Central Mix and rent the Equipment to the City, and to take all actions required of PMI by the terms of this Agreement.
b. All the documents executed by PMI pursuant to this Agreement will be duly authorized, executed and delivered by PMI and will be legal, valid and binding obligations of PMI enforceable against PMI in accordance with their respective terms, and will not violate any provisions of any agreement to which PMI is a party or to which it is subject. c. PMI has manufactured the Central Mix and has centrally mixed the Central Mix in accordance with Sections 203-5.5 and 203-5.5 .3, respectively, of the Greenbook. d. PMI has good and marketable title to the Type II Central Mix, which is to be sold and transferred to the City free and clear of all liens, security agreements, encumbrances, claims, demands, and charges of every kind and nature whatsoever. e. The Central Mix and Equipment are free from all defects and are of good quality and fit for the purposes and uses intended herein.
f. PMI possesses the ability to deliver approximately 172,6674 gallons of Type II Central Mix daily to Cathedral City, California, during the term of this Agreement. g. The Equipment has been maintained in substantial accordance with the specifications of the Equipment manufacturers, or has otherwise been maintained in a manner to enable PMI to complete the Project.
h. PMI has inspected the Equipment and the Equipment is or will be in good and operable condition as of March 15, 2024, sufficient to enable PMI to complete the Project on a timely basis.

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PRODUCT AND DELIVERY WARRANTIES

a. PMI hereby warrants that the Type II Central Mix product (sometimes hereinafter, "Product") will not Fail (as defined hereinafter) for five (5) years from the date of application (hereinafter, "Useful Life"), provided all persons involved in the installation of the Product substantially foll ow the guidelines, instructions, recommendations and best practices published and/or provided by PMI. The City hereby grants PMI and its representatives, in consultation with the City's inspector, the right to inspect, observe, monitor, provide instructions and recommend corrective actions to the City and any person installing the Product on all applications of the Product, including, without limitation, compliance with the guidelines and best practices for the application of the Product. The granting of this right to PMI and its representatives does not impose any additional duty on PMI or its representatives in addition to those duties outlined in this Agreement.
b. Should the Product Fail, PMI shall, at its election, and within thirty (30) days after determination of Failure, either repair or pay for the material cost of the Product to repair those areas of the Product covered by this warranty that Fail during its Useful Life, as well as for labor and other incidental costs (hereinafter, "Labor and Incidental Costs"), including, but not limited to, any affected striping, markings, and reflective pavement markers; provided, however, that such Failure shall occur within one (1) year from the date of Product application. For any Failure that occurs thereafter but during the Useful Life, PMI shall only be responsible for the repair or payment for the material cost of the Product, which shall also occur within thirty (30) days after determination of Product Failure. For purposes of this Agreement, whether the Product has Failed must be evaluated using the Slurry Seal Survey Procedures set forth in Exhibit "D" ("SSSP"), attached hereto and incorporated herein by this reference. The term "Fail," "Fails," "Failure" or "Failed" shall mean that, prior to the expiration of the Useful Life, more than ten percent (10%) of the native asphalt for any street segment (as defined in Exhibit "D") becomes uncovered (i.e., no longer covered by the Product), and such uncovering does not arise out of conditions outside of PMI's control, including, but not limited to, subgrade conditions, improper subbase and/or compaction, cracks, earthquakes, over watering, frequent sprinkler overspray, standing or pondi ng water, heavy truck or equipment traffic, corrosive or acid materials that may leak or spill on the Product, or a Force M ajeure event, as defined below.
c. Provided PMI and the City mutually agree, either Steve Marvin, of LaBelle Marvin, or Steve Escoba r, of Asphalt Pavement and Recycling Technology, shall make the exclusive determination of whether the Product "Failed" during its Useful Life and, if so, identify the areas and the square footage of Failure that "Failed." If PMI elects not to perform the repair itself, then PMI shall pay one hundred percent (100%) of the Product material cost for the percentage of "Failed" square footage, and for any related Labor and Incidental Costs to the extent there may be any Labor and Incidental Costs during the first year of the Product's Useful Life. If Steve Marvin or Steve Escobar are unavailable to make the determination of whether the Product "Failed," an independent engineer approved by both the City and PMI with qualifications and experience as extensive as S teve Marvin's or Steve Escobar's shall be used. This warranty only applies to the Project that is the subject of this Agreement and no other location. If the evaluator concludes the Product Failed, PMI will bear the cost of the evaluation. If the evaluator concludes the Product did not Fail, the City will bear the cost of the evaluation. d. This warranty shall be ineffective unless the City provides PMI written notice of any problems, defects or perceived Failures of the Product within thirty (30) days of the City's discovery of the problem, defect or perceived Failure. PMI shall be given the opportunity to inspect, investigate, test, repair and remediate any alleged problems, defects or failures in connection with the Product prior to any

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repair by the City, and, repair without notice shall void and waive this warranty. Inspection, investigation, testing, repair and remediation by PMI shall not operate as an admission of liability by PMI. e. Subject to Sections 21b and 21f hereof, regardless of whether any remedy set forth herein fails of its essential purpose, in no event shall PMI be liable to City for any special, consequential, incidental, exemplary, punitive, indirect or similar damages, including loss of profits, Joss of use, or personal injury, in connection with any Failed Product, even if PMI has been advised of t he possibility of such damages.
f. Notwithstanding anything else to the contrary herein, in the event PMI should fail to deliver the entirety of any per diem amount of Type II Central Mix as required by the City in accordance with Section 2 of this Agreement, or, in the event of a delay due to any portion of the Type II Central Mix being deemed by the City to be unusable for the timely completion of the Project through sample testing or otherwise, PMI shall be responsible and shall immediately pay for any and all direct or indirect damages of whatever character, nature or kind, in connection therewith, in accordance with the method of calculation of damages from delays set forth in Section 25 of the General Provisions, which is expressly incorporated herein by this reference with the same force and effect as though set forth at length herein, and which provisions are part of the City's contract with Contractor for the Project; provided, however, that PMI shall not be held responsible for delays if such delays are as a result of any Act of God (hereinafter, "Force Majeure"), which includes fire, flood, earthquake, storm, hurricane or other natural disaster, war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service . In the event of any delay, PMI shall immediately notify the City in writing of the delay and the estimated extent of the delay, and the cause of the delay. The term of this Agreement, including the Rental Ter m, may be extended by the City in the City's sole discretion in the event of a Force Majeure delay but in no event shall PMI be considered in breach of this Agreement or any warranty as a result of any such Force Majeure delay.

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ATTACHMENT F

PMI MASTER TERMS AND CONDITIONS

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Master Terms and Conditions

1. Binding Agreement. The following terms and conditions constitute a binding agreement (“Agreement”) effective as of July 1 , 2015 (“Effective Date”) by and between Petrochem Materials Innovation, LLC, a California limited liability company (“Company”) and the undersigned cu stomer (“Customer”) and govern all goods sold and all Equipment (as defined hereinafter) rented, leased or provided by Company to Customer and shall be deemed to be incorporated in all invoices, purchase orders, price quotations and shipping confirmations. Company and Customer are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.” For purposes of this Agreement the term “Equipment” shall mean all trucks, trailers, tractors, pumpers, tankers, tanks, mixers, vehicles and tools. Nothing contained in any purchase order, memoranda or other writing submitted by Customer to Company shall modify, amend or supersede this Agreement or any portion thereof. Customer’s submission of any provisions that are incons istent, in conflict with or create any ambiguity with this Agreement or any portion thereof are rejected. Company’s failure to object to any different terms or conditions shall not constitute acceptance or approval by Company.

2. Quotations and Pricing. All price quotations provided by Company to Customer shall only be valid for the duration and project specified in the written quotation provided by Company. Company reserves the right in its sole and absolute discretion to decline to quote or sell to Cu stomer. Company shall not be liable for any refusal to quote Customer or rejection of any offer to purchase by Customer.

Any request for quotation by Customer shall constitute a representation that Customer is solvent. All requests for quotation shall specify the name and address of the project where the goods and Equipment will be used, name and address of the original contractor, name and address of the public agency and any other information reasonably requested by Company to enable Company to serve a Preliminary Notice or Stop Notice pursuant to the California Civil Code. Company’s issuance of a quotation to Customer shall not obligate Company to provide any future quotations to Customer. Company reserves the right to require Customer to adhere to quality control measures imposed by Company in its sole and absolute discretion as a condition of accepting any offer to purchase by Customer and/or delivering goods and/or renting Equipment to the Customer. The parties agree that the foregoing provision is reasonable based on the need to maintain the quality of the goods, their application, the reputation of the brand and to maintain public safety. Customer shall be free to resell the goods purchased from Company at any price selected by Customer. The Equipment identified in any price quotation is subject to availability. Unless expressly provided in any price quotation, the prices in the quotation do not include an operator(s). The prices set forth in any price quotation will be charged from the time the Equipment leaves Company’s facility until it is returned, without proration for partial days and without regard as to whether the Equipment is actually used unless specifically provided otherwise in the applicable price quotation.

3. Delivery and Risk of Loss.
a. If the Company delivers the goods, delivery shall take place and all risk of loss shall pass when Company delivers the goods to the project and they pass the last flange on Company’s truck or trailer. If the Customer or its representative pick up the goods, delivery and all risk of loss shall pass when the goods pass the last flange on Company’s piping at Company’s plant. Company shall have the right to allocate goods to its customers pro rata in the event the Company experiences a shortage of goods. All claims for defective goods shall be made within ten (10)

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calendar days of delivery. Failure to make a claim within that time shall operate as unequivocal acceptance and waiver of all claims.
b. Delivery of the Equipment from Company to Customer shall take place when the Equipment leaves the gate at Company’s South Gate or El Cajon facilities, as applicable, and shall not be deemed to be returned until the Equipment is delivered back inside of the gate at Company’s South Gate or El Cajon facilities, as applicable, in the same condition as when the Equipment left, ordinary wear and tear excepted. Customer shall be responsible for all risk of loss, damages and liability from the point in time that the Equipment leased or rented by Company to Customer leaves the gate at Company’s facility until it is returned back inside the gate at
Company’s facility. Customer shall be solely responsible for the loss of any materials transported or mixed in the Equipment leased or rented by Company to Customer after the Equipment leaves Company’s facility and before it is returned to Company’s facility including, but not limited to, any loss of materials which solidify, break, or become stuck as a result of the failure of the Customer to follow the operating instructions for the Equipment. Customer shall operate the Equipment in compliance with all applicable laws, ordinances and regulations. Customer shall be solely responsible for all fines and violations arising out of or relating to the Customer’s use or operation of the Equipment. Customer is only obtaining the right to use the Equipment specif ied in the applicable price quotation and shall obtain no ownership interest in the Equipment.

4. Payment Terms. Company’s standard terms of sale of goods and rental of Equipment are cash on delivery unless the Company grants credit to Customer in Company’s sole and absolute discretion.

All goods, applicable freight and insurance charges and Equipment rental charges will be invoiced as of the date of delivery. Company reserves the right to suspend credit, change credit terms or deny credit in its sole discretion at any time with or without notice to Customer. Company reserves the right to require from Customer adequate assurances of performance before delivery of goods or rental of Equipment. Company reserves the right to suspend performance until Company receives adequate assurances satisfactory to Company. Company shall have the right to take possession of the Equipment and/or goods if Customer fails to make timely payment within forty eight (48) hours of the time that Customer is deemed to have received written notice of failure to make payment. Payment by Customer to Company shall not be contingent upon Customer receiving payment from any third party. Customer shall pay all sales, use and excise taxes. Interest at eighteen percent (18%) per annum shall accrue on all past due payments. Customer’s failure to pay invoices when due, at Company’s election shall make all subsequent invoices immediately due and payable irrespective of prior negotiated terms. Company may withhold delivery or shipment of goods or rental of Equipment until Customer’s account is settled in full. Customer expressly w aives any liability of Company for any refusal to deliver goods or rent Equipment for accounts in arrears. Customer authorizes Company to obtain credit information on Customer on an ongoing basis and authorizes the release of all credit information on Cus tomer to Company.

5. Equipment.
a. Company requires that each third -party user and operator of Company’s Equipment be briefed on the proper use of the Equipment and acknowledge that the user understands all such requirements in writing on a form which is substantially similar to Exhibit “A” hereto. Each employee of Customer who will make use of or operate the Equipment shall sign a form that is substantially similar to Exhibit “A” hereto before Customer’s employee will be permitted to make any use of or operate the Equipment.
b. The fuel level of all Equipment will be recorded when it leaves Company’s facility and the Customer is responsible for returning the Equipment to Company’s facility with the same amount of fuel

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as when it left. If the Equipment is returned with less fuel than when the Equipment left Company’s facility, the Customer will be responsible for paying the cost of the fuel to bring the fuel level back to the level when it departed Company’s facility.
c. Customer shall be responsible for maintaining the Equipment inside and outside in a clean manner. Customer will be charged for the cost of cleaning the Equipment if it is not returned to Company in at least as clean a condition as when it left the Com pany facility. No smoking is allowed in or around any of the Equipment.
d. All material valves shall be closed when transporting all Equipment. All lids and covers shall be maintained in a closed condition on all Equipment. Customer shall check for damage to all Equipment on a regular basis no less frequently than prior to depa rture from Company’s facility and again when the Equipment is returned to Company’s facility. e. Customer shall notify Company of any operating problems or any required repairs to the Equipment so that Company can make any required repairs. An authorized representative of the Customer will be required
to confirm in writing on a form substantially similar to Exhibit “B” that the Equipment (i) delivered at the start of the work day is in good operating condition free from any operating problems or required repairs, and (ii)

was returned in good operating condition free from any operating problems or required repairs. The Customer is responsible for promptly notifying Company in writing of any operating problems or required repairs so that any operating problems or required repairs can be promptly handled. Company shall not be responsible for any damages or delays as a result of operating problems or required repairs if the Customer does not promptly notify Company. Customer shall be responsible for all damages to the Equipment while the Equipment is in the possession, custody or control of the Customer.

6. Insurance Requirements For Equipment Rental.
a. Coverage. Customer shall procure and maintain at its own expense comprehensive general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily inj ury, personal injury, death, loss or damage resulting from the use or operation of the Equipment by Customer or its officers, employees, servants, volunteers, agents and independent contractors. Customer shall further procure and maintain at i ts own expense commercial vehicle liability insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, covering the Equipment that names Company as the loss payee. Said policies of insurance shall have deductibles of One Thousand Dollars ($1,000) or less. b. Workers Compensation Insurance. Customer shall procure and maintain at its own expense, during the term of this Agreement, workers' compensation insurance, providing coverage as required by the California State Workers' Compensation Law.
c. Additional Named Insured. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation coverage, shall bear an endorsement whereby it is provided that, Company and its officers, directors, shareholders, members, managers, employees, agents, representatives and lessors are named as an additional insured. d. Proof of Insurance Coverage; Certificates. Customer shall secure from a good and responsible company or companies authorized to do insurance business in the State of California the

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policies of insurance required by this Agreement and furnish to Company certificates of said insurance on or before delivery or use of the Equipment by the Customer . Each policy required herein must be endorsed to provide that the policy shall not be cancelled or reduced in coverage unless the insurer has provided Company with thirty (30) days prior written notice of cancellation or reduction in coverage.

All insurance policies required to be provided by Customer or any other party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self-insurance, primary or excess, maintained or available to Company. The insurance provisions of this Agreement shall in no way modify Customer’s dut y to indemnify, defend and hold Company harmless pursuant to the terms of this Agreement. Company shall have the right to terminate this Agreement immediately and take possession of the Equipment if the Customer fails at any time to provide and maintain the required insurance or certificates.

7. Trademarks and Intellectual Property. Customer shall not make any use of the Flex Seal® or other Company trademarks, service marks or symbols unless Customer has submitted such proposed use to Company and received Company’s express prior written consent. Customer shall not use Company’s trademarks, service marks or symbols in Customer’s business name or letterhead. Company and its licensor shall be the exclusive
owner of the Flex Seal® trademarks, service marks, symbols, trade secrets, confidential information, know how, copyrights and patents together with all Improvements (as defined hereinafter) to any of the foregoing and
Customer shall not challenge such exclusive ownership or make any unauthorized use. For purposes of this Agreement, “Improvements” shall mean all inventions, modifications, revisions, alterations, enhancements, betterments, ideas and discoveries (whether or not patentable) conceived or reduced to practice (actually or constructively), either solely or jointly with others.

8. Disclaimer of Warranties. Customer shall be solely responsible for determining whether the goods and Equipment are appropriate for any project or application or whether the goods must be modified to make them suitable for any project or application. Company makes no representati on or warranty that the goods or Equipment will be suitable for any particular project or application. It shall be the Customer’s sole responsibility to obtain a mix design from a qualified engineer for each project or application. Company shall have no liability for any mix designs used by Customer.

COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR

IMPLIED, AS TO THE GOODS AND EQUIPMENT, INCLUDING BUT NOT LIMITED TO, ANY

IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF MERCHANTABILITY.

COMPANY HAS NO CONTROL OVER THE MATERIAL SUPPLIERS SELECTED BY BUYER OR THE MATERIALS PURCHASED FROM THIRD PARTIES. COMPANY SHALL HAVE NO

LIABILITY FOR ANY MATERIALS PURCHASED BY BUYER FROM ANY

THIRD PARTIES. BUYER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THAT ALL

MATERIALS OBTAINED BY BUYER FROM THIRD PARTIES ARE COMPATIBLE WITH ANY MATERIALS PURCHASED BY BUYER FROM COMPANY. BUYER SHALL BE

SOLELY RESPONSIBLE FOR ADJUSTING AND CALIBRATING BUYER’S EQUIPMENT TO

ACCOUNT FOR VARIATIONS IN THE MATERIALS PURCHASED BY BUYER FROM THIRD PARTIES. COMPANY SHALL NOT BE LIABLE FOR ANY CALIBRATION OR OTHER ASSISTANCE THAT MAY BE PROVIDED TO BUYER BY COMPANY.

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9. Limitation of Liability. Company shall not be liable under any circumstances for any special, consequential, incidental, punitive or exemplary damages arising out of or in any way connected with this Agreement to sell goods or rent Equipment to the Customer, including damages for loss of use, lost profits, or damages paid to third parties even if Company has been advised of the possibility of such damages. Customer’s exclusive remedy and Company’s entire liability to Customer shall be limited to the total invoice price paid or incurred by Customer for the goods and/or Equipment that are the subject of any dispute or claim for damages. Customer shall report all alleged problems with the goods and Equipment to Company immediately. Company shall have no liability for any problems which are not reported immediately. No legal action shall be brought by Customer against the Company for any claim with respect to any goods sold or Equipment rented by Company to Customer more than one (1) year after delivery of such goods or Equipment t o the Customer. It is agreed that any cause of action with respect to such goods or Equipment shall accrue as the date of delivery of such goods or Equipment.

10. Relationship of the Parties. Nothing in this Agreement shall restrict Company’s right to sell the same or similar goods to third parties. The relationship of the Parties shall be that of purchaser and vendor and/or lessor and lesser, as applicable, and nothing contained in this Agr eement shall be construed to create a joint venture, association, agency, partnership or franchise relationship.

11. Termination. Either Party may terminate this Agreement on thirty (30) calendar day written notice. Any such termination shall not affect any accepted orders or the duty of Customer to make payment.

12. Indemnification. Customer shall indemnify, defend, and hold harmless Company and its officers, directors, shareholders, partners, members, managers, agents, employees, attorneys, successors, and permitted assigns with respect to any and all claims, demands, liabilities, judgments, awards, liens, losses, damages, or
costs (including reasonable attorneys’ fees and expenses) of any kind or nature arising from or in any manner related to (i) any use of the goods purchased or Equipment rented from Company; or (ii) the failure of Customer to observe or perform the covenant s and agreements of Customer under this Agreement (hereinafter collectively “Claims”) with the exception of Claims caused by the sole negligence of Company. Customer’s duty to defend, indemnify and hold harmless the Company shall survive the termination of this Agreement for any reason.

13. Further Assurances. Each of the Parties hereto agrees to execute and deliver any and all additional papers and documents, and to do any and all acts reasonably necessary in connection with performance of its obligations hereunder to carry out the intent of the Parties hereto.

14. Entire Agreement. This Agreement and the documents expressly referenced herein, shall constitute the entire Agreement between the Parties hereto with respect to the subject matter hereof, and shall supersede all prior and contemporaneous agreements, representations and negotiations of the Parties concerning the subject matter hereof and the terms applicable thereto.

15. Amendment. This Agreement may not be supplemented, modified or amended in any manner, except by an instrument in writing stating that it is a supplement, modification or amendment of this Agreement and signed by each of the Parties hereto.

16. Waiver. No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.

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17. Successors and Assigns. All terms and provisions contained herein shall inure to the benefit of and shall be binding on each of the Parties hereto and their respective directors, officers, shareholders, partners, members, managers, employees, agents, heirs, representatives, suc cessors and permitted assigns and each of them.

18. Applicable Law. This Agreement shall be deemed to have been entered into, and shall be construed and interpreted, in accordance with the laws of the State of California without reference to California’s application of principles of conflicts of law.

19. Severability. In the event that any provisions hereof are deemed to be illegal or unenforceable, such a determination shall not affect the validity or enforceability of the remaining provisions hereof, all of which shall remain in full force.

20. Form. As used in this Agreement, the masculine, feminine and neuter gender, and singular and plural number shall be deemed to include the other and others whenever the context so indicates. All captions used in this Agreement are for convenience only and shall not be construed in interpreting this Agreement.

21. Time is of The Essence. Time is of the essence for this Agreement and all of the terms, provisions, covenants and conditions hereof.

22. Parties In Interest. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties to it and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any Party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any Party to this Agreement.

23. Remedies. In addition to any other available remedies, either Party, upon an appropriate showing, shall be entitled to equitable relief including, but not limited to, injunction and specific performance in the event of a
breach or threatened breach of this Agreement. No remedy conferred by any specific provision of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy gi ven hereunder, or now or hereinafter existing at law, in equity, by
statute or otherwise. The election of one or more remedies by a Party shall not constitute a waiver of the right to pursue other available remedies.

24. Attorneys’ Fees. The prevailing party in any arbitration or legal action arising out of this Agreement shall be entitled to an award of its attorneys’ fees, expert witness fees and costs.

25. Nonassignability. This Agreement may not be assigned by either Party without the express written consent of each of the Parties. For purposes of this Agreement, the prohibition on assignment shall also apply to licenses, sublicenses and subcontractors.

26. Interpretation. This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the parties and the parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them.

27. Force Majeure. Company shall not be responsible for any delays or failure to perform for any reason including, but not limited to, fire, flood, strikes, lockouts, accidents, war, terrorist acts, insurrection, Acts

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of God, inclement weather, delays in transportation, Equipment failure, shortage of Equipment, governmental interference or regulation, or any other reason beyond Company’s reasonable control.

28. Waiver. No waiver shall be binding, unless executed in writing by the Party making the waiver.

No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.

29. Captions and Headings. The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.

30. Notices. All notices required or permitted under this Agreement shall be in writing, shall be sent to the Party’s address as set forth immediately below, shall reference this Agreement, and shall be deemed given (i) when delivered personally; (ii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one day after deposit with a commercial overnight carrier with verification of receipt.

“Company” Petrochem Materials Innovation, LLC
6168 Innovation Way
Carlsbad, CA 92009

“Customer” _________________

Any correctly addressed notice that is refused, unclaimed, or undeliverable because of any act or omission of the Party to be notified will be deemed effective as of the first date that the notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service. A Party may change its address for purposes of receiving notices by giving notice of said change of address in the manner provided for herein.

31. Arbitration. Any and all controversies, claims and disputes arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in the County of San Diego, State of California, in accordance with the Commercial Arbitration Ru les of the American Arbitration Association then in effect. The arbitrator shall be an attorney admitted to practice law in the State of California with at least fifteen (15) years of business law experience. The award rendered by the arbitrator shall be final and non-appealable and may be entered as a final judgment in any court having jurisdiction thereof. The award of the arbitrator shall be in the form of findings of fact and conclusions of law and shall set forth in detail the legal and factual basis of the decision.

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ATTACHMENT G
CITY OF LOS ANGELES CONTRACT 59680

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ATTACHMENT H

MAPS OF PROGRAMMED STREETS

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Vista Chino
Date Palm Drive
Avenida Maravilla
Vista Chino

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Los Gatos Road
Avenida La Vista
Adelina Road
Panorama Neighborhood Streets REAS (cont’d)
Avenida La Vista

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Adelina Road
Horizon Road
Panorama Neighborhood Streets REAS (cont’d)
Adelina Road

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Brittany Court
Victoria Neighborhood Streets REAS
Ashley Court, Bion Way, Brittany Court, and Suncrest Drive Ashley Court
Bion Way
Suncrest Drive

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Dinah Shore Drive
Plumley Road
Victoria Neighborhood Streets REAS (cont’d)
Assessment District 2003-01 Streets
Victoria Drive
Linda Way
Judy Lane
Vaquero Road
Marcia Road
Corregidor Drive
Eagle Canyon Drive

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Plumley Road
Victoria Neighborhood Streets REAS
Assessment District 2003-01 Streets (cont’d)
Vera Drive Judy Lane
Vaquero Road
Marcia Road
Corregidor Drive
Eagle Canyon Drive
Nilda Drive
Maria Road
35th Avenue

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Pomegranate Lane
Talbert Drive
Sunny Lane Neighborhood REAS
Papaya Lane, Pomegranate Lane, Sunny Lane, and Talbert Lane Papaya Lane
Sunny Lane

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Cathedral City Page 1 of 3 Printed on 3/27/2024

Staff Report

City Council

Item No. 6.D

Meeting Date: March 27, 2024
From: John Corella, Director of Engineering/Public Works Title: Award Contract to LCR Earthwork & Engineering Corp. for the Cove Crack Repairs Project (C08675)

City Council

RECOMMENDATION:

To award a construction contract to LCR Earthwork & Engineering Corp., in the amount of $893,803.35 for the Cove Crack Repairs Project (C08675) and approve a twelve percent (12%) contingency in the amount of $106,196.65 for any unforeseeable construction costs; thereby, bringing the total construction budget for this Project to $1,000,000.00 to be funded with available Assessment District (AD) 2004 -02 funds; and, authorize the City Manager to execute the required contract documents; and, authorize the City Engineer to request bonds and insurance for the Project and issue the Notice to Proceed.

BACKGROUND:

Historically, City Staff received resident complaints due to the wide transverse asphalt cracks in the Cathedral City Cove Neighborhood. To address the resident complaints and to find a long -term solution for this type of pavement cracking, City Staff conducted various asphalt treatments to repair the wide transverse cracks. The se various treatments were performed with limited success.

In 2023, City Staff hired the City’s Pavement Management Program (PMP) Consultant, NCE Inc., who provided a technical memorandum which evaluated various rehabilitation strategies. The conclusion of this technical memorandum provides the method and treatment recommendation to address the repair of these wide transverse asphalt cracks. The technical memorandum is attached to this report.

The Cove Crack Repairs Project (Project) proposes to repair the pavement deterioration cracks in the Cove Neighborhood (Project Location Map attached).

The Project consists of repairing wide transverse asphalt cracks (crack fill) together with the application of crack seal treatment in small asphalt cracks. Both treatments are intended to prevent and reduce the intrusion of water, protecting the pavement structure from moisture damage and ultimately extending the pavement life.

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Based on the recommendation of the technical memorandum provided by NCE Inc., City Staff prepared in-house Plans, Specifications and Estimates for this Project.

DISCUSSION:

On Thursday, February 8, 2024, the City advertised an invitation to bid, requesting qualified contractors to perform the described scope of work found in Bid No. B24 -59E, which includes the Plans and Specifications for this Project. This solicitation was made available to contractors for twenty -one (21) calendar days and advertised in the following locations:

• Desert Sun – Published on February 8, 2024
• PlanIt Print Works – From February 8, 2024, until February 29, 2024 • City’s Website – From February 8, 2024, until February 29, 2024

On February 29, 2024, the City received three (3) bid proposals for this Project. The following table lists each qualified bidder by total price:

RANK CONTRACTOR AMOUNT
1 LCR Earthwork & Engineering Corp. (Jurupa Valley, CA) $ 893,803.35 2 Onyx Pavement Company, Inc. (Anaheim, CA) $ 998,877.00 3 Vance Corp. (Beaumont, CA) $1,555,555.55

The Bid Tabulation prepared by the Engineering Division is attached to this report for reference.

Based on the bids received, the lowest responsive and responsible bidder is LCR Earthwork & Engineer Corp. (LCR) from Jurupa Valley, CA.

Engineering Staff is recommending the City Council award a construction contract to LCR Earthwork & Engineering Corp., in the amount of $893,803.35 for the Cove Crack Repairs Project (C08675) and approve a twelve percent (12%) contingency in the amount of $106,196.65 for any unforeseeable construction costs; thereby, bringing the total construction budget for this Project to $1,000,000.00 to be funded with available Assessment District (AD) 2004 -02 funds ; and, authorize the City Manager to execute the required contract documents; and, authorize the City Engineer to request bonds and insurance for the Project and issue the Notice to Proceed.

All work will be performed within the existing City right -of-way. Construction is scheduled to start in May 2024 and is estimated to be completed by September 2024.

ENVIRONMENTAL ANALYSIS:

These projects are categorically excluded under the National Environmental Policy Act (NEPA) process for federally funded projects per 24CFR58.35 (a)(1), and Categorically Exempt under the California Environmental Quality Act (CEQA), Section 15301 for “Existing Facilities”.

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FISCAL IMPACT:

The Cove Crack Repair Project is programmed in the FY 2023/2024 Capital Improvements Program (CIP) Budget to be funded with Assessment District (AD) 2004 - 02 funds.

The Bid Opening for this Project was held on February 29, 2024, with the lowest bid in the amount of $893,803.35. The budget required for the construction of this Project will include the bid amount and a 12% contingency, in the amount of $106,196.65, thereby bringing the total construction budget for this Project to $1,000,000.00 as shown below.

LCR (Contractor with lowest bid) $ 893,803.35
15% Contingency $ 106,196.65
Construction Total $ 1,000,000.00

The Project is proposed to be funded with available Assessment District (AD) 2004 -02 funds (account number 354-100-150-156-8800-8802) in the amount of $1,000,000.

FIVE-YEAR STRATEGIC PLAN:

Goal B: Community Investment

Objective: Cathedral City roads, gateways, public spaces, and other city infrastructure are well planned, designed, constructed, and maintained.

ATTACHMENTS:

Cove Crack Repair Project Plans
Cathedral City Transverse Crack Technical Memorandum
Bid Tabulation/Analysis - Cove Crack Repairs Project
Contract - LCR Earthwork & Engineering Corporation

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17050 Bushard Street, Suite 200
Fountain Valley, CA 92708
(714) 848-8897
Technical MEMORANDUM

WIDE TRANSVERSE CRACK REHABILATION STRATERGY

EVALUATION
Cathedral City, CA
January 25, 2024

Prepared for:

Cathedral City
Engineering Department
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234

Prepared by:

NCE
17050 Bushard St., Suite 200
Fountain Valley, CA 92708
(714) 848-8897

NCE Project No. 1261.30.2303

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Introduction and Scope of Work
Nichols Consulting Engineers, Chtd. (NCE) was retained
by Cathedral City (City) to evaluate the rehabilitation strategies used by the City to address the wide cracks
observed by City staff in asphalt concrete pavement
within the Cove Neighborhood.

NCE’s scope included a site visit, gathering information regarding the rehabilitation methods used by the City
staff to address these wide transverse cracks, discussion with the City staff on the performance of their
rehabilitation techniques and providing recommendations on which strategy should be used going forward based on performance.

Please note that no material or field testing (except a site visit) was included in NCE’s scope of work. Furthermore, NCE’s evaluation of the rehabilitation techniques used by the City was based solely on visual observations in the field. The performance of the rehabilitation techniques to implement wide crack repairs was based on feedback
from the City staff and engineering judgement. Lastly, NCE’s scope of work was limited to the evaluation of these rehabilitation techniques of these wide transverse cracks in the Cove Neighborhood.

Field Observations
NCE staff conducted a field visit on December 1, 2023. The primary objective of the field visit was to observe these cracks and the performance of the repair strategies (if applicable) in the field. Images from NCE’s site visit are shown in Figure 2.

The main takeaways from the NCE’s field visit can be summarized as follows:
• The transverse cracks typically extended the entire pavement width. • The width of the cracks ranged from ~1.25-4 inches.
• The spacing between consecutive transverse cracks varied from 10-160 feet.

Figure 1. Cathedral City
Neighborhood District Map

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Figure 2. Four Locations from the Site Visit on December 1, 2023

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Information Obtained from the City
Pavement Structure: The City staff informed NCE that the existing pavement within the Cove Neighborhood where these wide cracks were observed typically consisted of 4.5 inches of asphalt concrete (AC) pavement over native subgrade.

Rehabilitation Strategies: To address the wide transverse cracks the City has used the following two strategies (detailed in Figure 3). The details provided below are based on the information provided to NCE by the City.

Strategy 1: Remove top 2 inches of AC (typically 1 feet on either side of the crack, 2 feet total) across the entire pavement width, clean and fill the crack with 0.5-inch gradation AC (PG 70-10), place a paving fabric, and place 2 inches of 0.5-inch gradation AC (PG 70-10).

Strategy 2: Remove top 2 inches of AC for 2 feet on either side of the crack (4 feet total); Sawcut the entire pavement depth (~4.5 inches) at a distance of 1 foot on either side of the crack and remove material, apply tack coat on all the exposed surfaces, place a 2.5-inch lift of 0.5-inch gradation AC (PG 70-10) over subgrade; place paving fabric, apply tack coat, and place 2 inches of 0.5-inch gradation AC (PG 70-10).

Figure 3. Rehabilitation Strategies

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Comparison of Rehabilitation Strategies
As noted earlier, Strategy 1 involves replacing only the top 2 inches of pavement and leaving the bottom 2.5 inches of cracked (if crack exists to the bottom of the asphalt concrete) pavement in-place. This approach is more economical, however there is a possibility of the crack reflecting through the new overlay and fabric which was observed (see Figure 4) by NCE staff in the field.

Strategy 2 is a more intensive treatment as compared to Strategy 1. In essence it is a T-Cut and patch which ensures that the entire depth of cracked (if crack exists to the bottom of the asphalt concrete) pavement is removed. Additionally, a T-Cut ensures that the pavement has a joint to release the stress that will be built up in the pavement structure due to thermal expansion and contraction of the AC. Based on verbal communication with City staff, no cracking or pavement uplift was observed in locations where Strategy 2 was used in one year of service.

Figure 4. Reflection Cracking observed in Strategy 1 Patches Conclusion
Based on the field observation and discussion with City staff, NCE recommends the following:
• Use Method 2 (T-Cut and Patch) to repair wide cracks as observed in the Cove Neighborhood. Based on the discussion noted above, it is a better treatment than Strategy 1.
• Going forward, City staff should monitor these patches for failures. Reflection cracking at the pavement cut edges are also a concern and should be monitored.

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• The existing pavement between two successive patches should also be monitored as there is a possibility of new transverse cracking occurring between the two patches. • City should monitor patch construction to ensure that adequate compaction effort is made on the AC repair.

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CITY OF CATHEDRAL CITY

COVE CRACK REPAIR PROJECT
Bid Tabulation/ Analysis
CITY PROJECT No.: 8675
1 MOBILIZATION LS 1 59,854.25$ 59,854.25 $ 65,000.00 $ 65,000.00 $ 35,590.24 $ 35,590.24 $ 47,800.55 $ 47,800.55 $ 2 TRAFFIC CONTROL LS 1 9,975.71$ 9,975.71 $ 45,000.00 $ 45,000.00 $ 120,500.00 $ 120,500.00 $ 69,342.40 $ 69,342.40 $ 3 GRIND 2" AC PAVEMENT AND DISPOSE SF 80,352 0.90 $ 72,316.80$ 0.65 $ 52,228.80$ 1.11 $ 89,190.72$ 3.30 $ 265,161.60$ 4 REMOVE AND DISPOSE FULL DEPTH AC PAVEMENT AND
BASE MATERIAL UP TO A TOTAL DEPTH OF 4.5" (3" AC +

1.5" BASE)
SF
40,176 1.60 $ 64,281.60$ 2.00 $ 80,352.00$ 3.65 $ 146,642.40$ 2.15 $ 86,378.40$ 5 SAWCUT LF 53,568 5.50 $ 294,624.00$ 0.25 $ 13,392.00$ 0.14 $ 7,499.52$ 0.45 $ 24,105.60$ 6 1/2" HMA ASPHALT CONCRETE
TYPE III CLASS C-3, PG 70-10 TONS 2,120 120.00 $ 254,400.00$ 155.00 $ 328,600.00$ 195.00 $ 413,400.00$ 365.35 $ 774,542.00$ 7 SUBGRADE GEOTEXTILE (PETROMAT) SF 120,528 0.55 $ 66,290.40$ 0.95 $ 114,501.60$ 0.45 $ 54,237.60$ 0.90 $ 108,475.20$ 821,742.76$ 699,074.40 $ 867,060.48 $ 1,375,805.75 $ 8 CRACK SEAL LF 299,583 0.82 $ 245,658.06$ 0.65 $ 194,728.95$ 0.44 $ 131,816.52$ 0.60 $ 179,749.80$ 245,658.06$ 194,728.95 $ 131,816.52 $ 179,749.80 $ 1,067,400.82$ 893,803.35 $ 998,877.00 $ 1,555,555.55 $ TOTAL ALL BID ITEMS AND ALTERNATIVE VANCE CORP.

UNIT COST TOTAL
ONYX PAVING COMPANY INC.LCR EARTHWORK &
ENGINEERING CORP.

UNIT COST TOTAL
SUB-TOTAL ADDITIVE ALTERNATE BID SCHEDULE NO. 1
UNIT

BID SCHEDULE
ADDITIVE ALTERNATE BID SCHEDULE NO. 1: CRACK
SEAL
SUB-TOTAL BID SCHEDULE NO.1

ITEM DESCRIPTION TOTAL QUANTITY UNIT COST
Engineers Estimate

TOTAL UNIT COST

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Agreement 1300-1
SECTION 1300

CONTRACT

THIS CONTRACT, by and between the CITY OF CATHEDRAL CITY, a municipal corporation, herein referred to as "City, and LCR Earthwork & Engineering Corporation, herein referred to as, "Contractor."

W I T N E S S E T H:

In consideration of their mutual covenants, the parties hereto agree as follows:

1. Contractor shall furnish all necessary labor, material, equipment, transportation and services for Bid No. B24-59E, CIP No. 8675, Cove Crack Repairs Project (the “Work”) in the City of Cathedral City, California .

The Work shall be done in strict conformity with this Contract, approved Change Orders, the Invitation to Bid dated February 8, 2024, Instructions to Bidders, permits issued by the City or other agencies, the General and Specific Project Requirements, Standard Specifications , Plans, Referenced Specifications, the General Conditions, Supplementary Conditions the Contractor's Bid dated _________, and any addenda thereto (the “Contract Documents”) all of which shall be considered a part hereof as though fully set herein.

2. Contractor will comply with all Federal, State, County, and City of Cathedral City laws, regulations and policies, which are, as amended from time to time, incorporated herein by reference.

3. All work shall be done in a workman like manner and to the satisfaction of the City Engineer.

4. Time is of the essence in Contractor’s performance of the Work for this Contract . Contractor agrees to diligently pursue the performance and completion of the Work in every detail to the satisfact ion of the City. Contractor shall commence work after the issuance of a written Notice to Proceed and agrees to have all work completed within One Hundred Ten (110) calendar days from the date of Notification to Proceed.

5. In consideration of said W ork, City agrees to pay Contractor such sums as shall be approved by the City Engineer at lump sums and/or unit prices stated in the Contractor's Bid. The total compensation to Contractor for all Work shall not exceed Eight Hundred Ninety- Three Thousand Eight Hundred Three Dollars and Thirty Five Cents ($893,803.35). All payments shall be subject to approval by the City Engineer and shall be in accordance with the terms, conditions, and procedures provided in the Contract Documents .

6. The Contractor, and any subcontractor engaged by Contractor, shall not pay less than the general prevailing rate for per diem wages, as determined by the State of California Department of Industrial Relations and referred to in the Invitation to Bid, to any workman employed for the work to be performed under this contract; and the Contractor shall forfeit as a penalty to the City up to Two Hundred Dollars ($200.00) for each calendar day, or fraction thereof, for every workman paid by Contractor or by any subcontractor engaged by Contractor, in violation of this provision (Sections 1770-1777, Labor Code of California).

7. Concurrently with the execution of this Contract, Contractor shall furnish bonds of a surety satisfactory to City, as provided in the Contract Documents, the cost of which shall be paid by Contractor.

8. Contractor agrees to indemnify, hold harmless, release and defend (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council and each member th ereof, and its officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney's fees and costs of litigation) which in whole or in part are claimed to result from or to arise out of the usage or operation, including the malfunctioning of, or, any injury caused by, any product purchased herein; or any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its em ployees, representatives, subcontractors, or agents in connection with the performance of this Contract. This agreement to indemnify includes, but is not limited to, personal injury (including death at any time) and damage to property (including, but with out limitation, contract or tort or patent, copyright, trade secret or trademark infringement) sustained by any person or persons (including, but not limited to, companies, or corporations, Contractor and its employees or agents, and members of the general public.

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Agreement 1300-2

9. Except as otherwise required, Contractor shall concurrently with the execution of this Contract, furnish the City satisfactory evidence of insurance of the kinds and in the amounts provided in the Contract Documents. This insurance shall be kept in full force and effect by Contractor during this entire contract and all premiums thereon shall be promptly paid by it. Each policy shall further state that it cannot be canceled without 30 days unconditional written notice to the City and shall nam e the City as an additional insured. Contractor shall furnish evidence of having in effect, and shall maintain Workers Compensation Insurance coverage of not less than the statutory amount or otherwise show a certificate of self -insurance, in accordance w ith the Workers Compensation laws of the State of California. Failure to maintain the required amounts and types of coverage throughout the duration of this Contract shall constitute a material breach of this Contract.

10. Contractor shall forfeit as a penalty to City $25.00 for each laborer, workman, or mechanic employed in the execution of this Contract by said Contractor, or any subcontractor under it, upon any of the work herein mentioned, for each calendar day during which such laborer, workman, or mechanic is required or permitted to work at other than a rate of pay provided by law for more than 8 hours in any one calendar day and 40 hours in any one calendar week, in violation of the provisions of Sections 1810- 1815 of the Labor Code of the State o f California.

11. In accepting this Contract, Contractor certifies that in the conduct of its business it does not deny the right of any individual to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status as provided in the California Fair Employment Practice Act (Government Code Sections 12900, et seq.) Contractor agrees that a finding by the State Fair Employment Practices Commission that Contractor has engaged during the term of this Contract in any unlawful employment practice shall be deemed a breach of this Contract and Contractor shall pay to City $500.00 liquidated damages for each such breach committed under this C ontract.

12. Contractor also agrees that for contracts in excess of $30,000 that apprentices will be employed without discrimination in an approved program in a ratio established in the apprenticeship standards of the craft involved (Sections 1777.5 and 1777.6, Labor Code of California). Contractors who willfully fail to comply will be denied the right to bid on public projects for a period of six months in addition to other penalties provided by law.

13. This Contract shall not be assignable by Contractor without the written consent of City.

14. Contractor shall notify the City Engineer (in writing) forthwith when the Contract is deemed completed.

15. In accepting this Contract, Contractor certifies that no member or officer of the firm or corporation is an officer or employee of the City except to the extent permitted by law.

16. Contractor certifies that it is the holder of any necessary California State Contractor's License and authorized to undertake the Work. Contractor must, at Contractor’s sole expense, obtain all necessary permits and licenses required for the Work, and give all necessary notices and pay all fees and taxes required by law, including, without limitation, any business license tax imposed by City. Contractor represents and declares to Agency that it has all licenses, permits, qualifications and approvals of wha tever nature which are legally required to practice its profession.

17. The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor records to the extent the City deems necess ary to insure it is receiving all money to which it is entitled under the contract and/or is paying only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract.

18. The Contractor shall maintain and preserve all such records for a period of at least three years after termination of the Contract.

19. The Contractor shall maintain all such records in the City of Cathedral City. If not, the Contractor shall, upon request, promptly deliver the r ecords to the City or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than at City offices including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.

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Agreement 1300-3

20. In entering into this Contract or a contract with a subcontractor to supply goods, services, or materials pursuant to this Contract, Contractor and any or subcontractor is deemed to have offered and agre ed to assign to 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. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700 of Part 2 of Division 7 of the Cali fornia Business and Professions Code), arising from purchases of goods, services, or materials for the Contract . This assignment will be deemed made and will become effective at the time City tenders final payment to Contractor, without further acknowledgement by the Parties.

IN WITNESS WHEREOF, the parties have executed this Contract as of the dates stated below.

"CITY"

CITY OF CATHEDRAL CITY,
a California municipal corporation

By:________________________________ Dated:______________________________ Charles McClendon, City Manager

ATTEST:

Dated: _____________________________
Tracey R. Hermosillo, CMC,
City Clerk

APPROVED AS TO FORM:

Dated: _____________________________
Eric Vail, City Attorney

“CONTRACTOR”

Dated: By: _______________________________ Name: _______________________________
Title: _______________________________

Dated: By: ____________________________ Name: ________________________________
Title: ________________________________

[CONTRACTOR SIGNATURES MUST BE NOTARIZED. IF CONTRACTOR IS A CORPORATION OR LIMITED LIABILITY COMPANY, TWO SIGNATURES MUST BE PROVIDED.]

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Faithful Performance Bond 1310-1

SECTION 1310

FAITHFUL PERFORMANCE BOND

KNOW ALL MEN BY THESE PRESENTS:

THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on ____ , awarded to , hereinafter designated as the Principal, a Contract for Bid No. B24-59E, CIP No. 8675, Cove Crack Repairs Project, and

WHEREAS, said Principal is required under the terms of said Contract to furnish a bond for the faithful performance of said Contract:

NOW, THEREFORE, we, the Principal, and _____________________________________, as Surety, are held and firmly bound unto the City in the just and full amount of ( ) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and faithfully perform the covenants, conditions, and agreements in the said contract and any alterations made as therein provided, on his or their part to be kept and perfor med, at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless, the City, its officers and agents as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and virtue.

It is acknowledged that the Contract provides for one -year guarantee period, during which time this bond remains in full force and effort.

And the said Surety, for value received, hereby s tipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall, in any way, affect its obligations on this bond, and i t does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract or to the work or to the specifications. Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the Sta te of California.

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Faithful Performance Bond 1310-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their

seals this _________ day of _________________________________, 20__ , the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.

__________________________________________________
Principal
(Seal)

__________________________________________________
Signature for Principal

__________________________________________________
Title of Signatory

__________________________________________________
Surety

(Seal)

__________________________________________________
Signature for Surety

__________________________________________________
Title of Signatory

__________________________________________________
Address of Surety

__________________________________________________
Phone # of Surety

__________________________________________________
Contact Person For Surety

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Payment Bond 1320-1
SECTION 1320

PAYMENT BOND

KNOW ALL MEN BY THESE PRESENTS:

THAT the City of Cathedral City, a municipal corporation, hereinafter designated the City, has, on , awarded to , hereinafter designated as the Principal, a Contract for Bid No. B24-59E, CIP No. 8675, Cove Crack Repairs Project, and

WHEREAS, said Principal is required to furnish a bond in connection and with said Contract, providing that if said Principal, or any of it or its subcontractors shall fail to pay for any materials, pr ovisions, 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, the Surety of this bond will pay 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 just and full amount of ( ), executors, administrators, and successors, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, it or its heirs, executors, administrators, successors, or assigns, shall 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 for amount due under the Unemployment Insurance Act with respect to such work or labor, or for any amounts due, or to be withheld pursuant to Sections 18806 of the Revenue and Taxation Code of the State of California with respect to such work or labor, then said surety will pay the same in or to an amount not exceeding the amount hereinabove set forth, and also will pay in case suit is brought upon this bond, such reasonable attorney's fees to the City as shall be fixed by the court.

This bond shall insure to the benefit of any and all persons, companies, and corporations named in Section 3181 of the Civil Code of the State of California so as to give a right of action to them or their assigns in a ny suit brought upon this bond.

And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition of the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall, in any way, affect its obligations of this bond, and it does hereby waive notice of any change, extension of time, alteration, or addition to the terms of the contract or to the work or to the specifications.

Said Surety hereby waives the provisions of Sections 2819 and 2845 of the Civil Code of the State of California.

THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK

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Payment Bond 1320-2
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their seals this _________ day of _________________________________, 20 _____, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body.

__________________________________________________
Principal
(Seal)

__________________________________________________
Signature for Principal

________________________________________________
Title of Signatory

__________________________________________________
Surety

(Seal)

__________________________________________________
Signature for Surety

__________________________________________________
Title of Signatory

__________________________________________________
Address of Surety

__________________________________________________
Phone # of Surety

__________________________________________________
Contact Person For Surety

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Workers' Compensation Insurance 1330-1
SECTION 1330

WORKERS' COMPENSATION INSURANCE CERTIFICATE

In accordance with California Labor Code Section 1861, prior to commencement of work on the Contract, the Contractor shall sign and file with the City the following certification:

"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self -insurance in accordance with the provisi ons of that code, and I will comply with such provisions before commencing the performance of the work of this contract."

______________________________________________
Signature

______________________________________________
Title

______________________________________________
Date

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Liability & Insurance Requirements 1340-1
SECTION 1340

LIABILITY AND INSURANCE REQUIREMENTS

1.0 INDEMNIFICATION

Contractor shall defend, indemnify and hold harmless the City, City Council and each member thereof, and every officer, employee and agent of City, from any claim, demand, damage, liability, loss, cost or expense (including, without limitation, attorney’s fees and costs) arising from any intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of the Contractor, or any of the Contractor'’ employees, or any of its subcontractors arising out of work under this Contract.

The City does not, and shall not, waive any rights that it may have against Contractor, any of the Contractor’s employees, or any of its subcontrac tors under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Contract.

The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described herein. The City will not be liable for any accident, loss, or damage to the work prior to its completion and acceptance.

2.0 INSURANCE REQUIREMENTS

2.1 General

After award of Contract, the Contractor shall promptly obtain, at its own expense, all the insurance required by Paragraph 1340- 2.0, INSURANCE REQUIREMENTS , and shall submit coverage verification for review and approval by the City upon execution of the Contract.

The Notice to Proceed with the Work under this Contract will not be issued, and the Contractor shall not commence work, until such insurance has been approved by the City. The Contractor shall not allow any subcontractors to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and verified by Contractor. Such insurance shall remain in full force and effect at all times during the prosecution of the Work and until the final completion and acce ptance thereof.

The Notice to Proceed does not relieve the Contractor of the duty to obtain such insurance as required by Paragraph 1340-2.0 INSURANCE REQUIREMENTS.

2.2 Commercial General Liability Policy

The Contractor shall take out and maintain during the life of the Contract, a Commercial General Liability Policy, on an occurrence basis, with a minimum limit of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage for any one occurrence and a Two Million Dollar ($2,000,000) annual project aggregate, for all of the following:

a. Premises Operations, including Explosion, Collapse and Underground (X, C, and U) Coverage.

b. Completed Operations/Products, including X, C, and U Coverage.

c. Independent Contractors.

d. Blanket Contractual.

e. Deductible shall not exceed One Thousand Dollars ($1,000).

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Liability & Insurance Requirements 1340-2

2.3 Commercial Business Auto Policy

The Contractor shall take out and maintain during the life of this Contract a Commercial Business Auto Policy, on an occurrence basis, with a minimum amount of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage, providing at least all of the following coverage:

a. Coverage shall be applicable to any and all leased, owned, hired, or non- owned vehicles used in pursuit of any of the activities associated with this Contract.

b. Any and all mobile equipment, including cranes, which is not covered u nder said Commercial Business Auto Policy shall have said coverage provided for under the Commercial General Liability Policy.

c. Deductible shall not exceed One Thousand Dollars ($1,000).

2.4 Workers' Compensation Insurance

The Contractor shall take ou t and maintain during the life of the Contract, Worker's Compensation and Employers' Liability insurance providing coverage for any and all employees of Contractor:

a. The required policy shall provide coverage for Workers' Compensation (Coverage A).

b. This policy shall provide coverage for One Million Dollars ($1,000,000) Employers' Liability (Coverage B).

2.5 Endorsements

All of the following endorsements are required to be made a part of the policies described in this Section hereof:

a. "The City, City employees and officers, the City Engineer, its consultants, elected officials, agents, and sub- consultants are hereby added as additional insured insofar as Work done under this Contract is concerned."

b. "This policy shall be considered primar y insurance as respects any other valid and collectible insurance, including self-insured retention, the City may possess, and any other insurance the City does possess shall be considered excess insurance only."

c. "This insurance shall act for each insu red, and additional insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company.

d. "Thirty (30) days prior written notice of cancellation shall be given to the Ci ty. Such notice shall be sent to:

Kevin Biersack, Financial Services Director
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234

2.6 Change in Terms

The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to the location identified in Paragraph 1340- 2.6.d, Endorsements. The Contractor shall be obligated to pay any extra premium for maintaining the insurance requirements specified herein.

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Cathedral City Page 1 of 5 Printed on 3/27/2024

Staff Report

City Council

Item No. 6.E

Meeting Date: March 27, 2024
From: Andrew Firestine, Development Services Director
Title: Amendment to Master Schedule of User and Regulatory Fees - Code Compliance Shopping Cart Impoundment

RECOMMENDATION:

Staff recommends the City Council approve a resolution amending the fee schedule to add a fee for the impoundment of an abandoned shopping cart.

BACKGROUND:

The Cathedral City Municipal Code declares the proliferation of abandoned shopping carts on public and private property as a public nuisance and regulates shopping carts in a manner consistent with the Business and Professions Code to mitigate the negative effects abandoned shopping carts have on the community.

These regulations require stores with more than 10 shopping carts to develop, implement, and maintain a shopping cart containment plan to prevent the removal of shopping carts from the premises and to provide for the retrieval of removed and abandoned carts. This plan is to be prepared at the time a store applies for a business license or a certificate of occupancy. The regulations also applied retroactively to existing businesses and contain civil penalties for the failure to establish or maintain a cart containment plan.

In addition to the requirement to establish and maintain a shopping cart containment plan, the regulations also direct the impoundment of abandoned shopping carts. An abandoned shopping cart that does not have an affixed sign identifying the owner may be impounded and disposed of immediately. Carts with identification may be handled in one of two ways:

1. The City may notify a business of an abandoned shopping cart located within the City, giving the owner three business days to retrieve it, after which the City may impound and dispose of the cart; or

2. The City may immediately impound an abandoned shopping cart, giving the owner notice the cart has been impounded within 24 hours from the time it was collected by the City. If the owner retrieves the cart within three business days from the notice, the City is required to release the cart at no cost. The City may

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recover its costs to impound the cart and fines starting on the fourth business day following the notice and it may dispose of the cart after 30 days.

A $50 fine is imposed on a shopping cart owner for each occurrence in excess of three during a specified six-month period for failure to retrieve shopping carts.

The adopted fee resolution does not contain a specific fee for the impoundment of a shopping cart, although it contains the hourly billing rate for a code compliance officer.

DISCUSSION:

Many Cathedral City businesses responsibly manage their shopping carts and there are some success stories to share with stores that have added wheel locks to their shopping carts to prevent their removal from a property, including Stater Brothers and Cardenas Markets. The City does, however, receive frequent complaints about abandoned shopping carts reported through the MyCathedralCity app. Over the calendar year 2023, the City received 728 reports of abandoned shopping carts, inclusive of those reported by residents, businesses, and City staff through the MyCathedralCity app. For 2022, 445 requests were received.

Abandoned shopping carts are found on streets, sidewalks, landscaping, and drainage areas along commercial corridors and in neighborhoods throughout the City. The stores responsible for the abandoned shopping carts vary by geographic area but include Target, Food4Less, 99 Cents Only Stores, Rite Aid, and Walgreens. While the City does not regulate shopping cart containment plans for stores in other cities, businesses in Palm Springs also contribute to the proliferation of abandoned shopping carts in Cathedral City and their carts are frequently found in the City, including carts from Home Depot, Lowes, Burlington, Aldi, and Staples.

Requests for service related to abandoned shopping carts are received by the Public Works Department. Previously, staff were able to report abandoned shopping carts to a cart retrieval company website, but in the last year the website has been modified to only allow stores to report abandoned carts. Staff can no longer report abandoned shopping carts directly to a retrieval company. Staff also discovered the retrieval companies will not pick up carts from stores they do not have a contract with and some stores have conveyed they will only pay a cart retrieval company if they brought in more than 10 carts at one time, which has led some cart retrieval companies to stop picking up those carts. There are also a limited number of cart retrieval companies in the Coachella Valley.

The current reactive approach that relies on stores and their shopping cart retrieval companies to remove abandoned shopping carts is ineffective – staff does not have an effective means to engage with businesses on their abandoned shopping carts and it often does not produce immediate action. As a result, abandoned shopping carts build up in the city, producing significant visual blight along commercial corridors and in neighborhoods. The Public Works Department picks up abandoned shopping carts that are not collected by a cart retrieval company, typically within a week of their report.

They also perform a sweep of the Dream Homes neighborhood every other month.

Those collections are currently performed without any cost recovery to the City.

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Staff efforts to manage shopping cart containment plans have also produced mixed results. Stater Brothers and Cardenas Markets have taken ownership of their shopping carts through wheel locks and are not a significant contributor to the proliferation of shopping carts. In contrast, however, staff has found other stores located in the City to be unresponsive or to have produced shopping cart containment plans that insufficiently manage their carts. Additionally, staff has no ability to manage shopping cart containment plans for businesses located outside of Cathedral City.

Recognizing the proliferation of shopping carts in the City through the MyCathedralCity data and the impacts abandoned shopping carts have on the City and the ineffectiveness of the current approaches to respond to requests for service and manage shopping cart containment plans, a different approach is needed.

The City is limited in its approaches based on its regulations and the Business and Professions Code, although the City can take a more proactive approach in the collection and impoundment of abandoned shopping carts. More specifically, the City can immediately impound an abandoned shopping cart , following the provisions of the ordinance and the Business and Professions Code. The Code Compliance Division will be launching this new approach to encourage businesses to develop containment plans that prevent shopping carts from leaving their property.

Staff has prepared tags to document the impoundment of a shopping cart with a tear off receipt that can be given to a business informing them that one of their carts has been impounded, following the requirements of the ordinance and the Business and Professions Code. Those businesses will have three days to pick up their carts from the Public Works maintenance yard without charge, after which they will be charged the cost of impoundment. Staff will also be tracking the number of violations each business has to be able to charge a $50 fine per day for each violation in excess of three in a six - month period. Carts not picked up in 30 days will be disposed of.

The adopted fee resolution does not contain a specific fee for the impoundment of a shopping cart and needs to be amended to assess this charge on businesses that fail to pick up abandoned shopping carts from the maintenance yard within three days of receiving notice from the City that one of their carts has been impounded.

Staff estimates that it will take approximately 30 minutes to load an abandoned shopping cart, transport it to the maintenance yard, and unload it. While the Public Works Department has had a primary role in the impoundment of shopping carts in the past, and it will continue to have a supporting role together with the Police Department, the new campaign will be led by the Code Compliance Division. The hourly rate for a code compliance officer II is between that of a street maintenance worker and a uniformed police officer and is a reasonable rate to use for the establishment of an abandoned shopping cart impoundment fee. The hourly rate for a code compliance officer II is $139. Therefore, an impoundment fee of $69.50 per cart is recommended.

To illustrate the effect of this change, a business that repeatedly has abandoned shopping carts in the community could face $50 per day fines for each new occurrence and $69.50 fees for each cart impounded by the City. Over a 30 -day period of time, the

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fines could be up to $1,500 and, if 30 carts were impounded in that same period, they could see up to another $2,085 in impoundment fees (actual cost of impoundment).

Separately, code compliance can also cite a business for the failure to maintain a shopping cart containment plan, up to $1,000, plus $50 for each day of noncompliance.

The fines and fees are intended to function as a penalty for those businesses who are failing to maintain control of their shopping carts. The goal remains to continue to work with businesses cooperatively to increase their responsibility for their shopping carts and implementing effective controls and measures that prevent shopping carts from leaving a property, although the clear impoundment fee will give staff more leverage in the enforcement of the Cathedral City Municipal Code.

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FISCAL IMPACT:

The adoption of a shopping cart impoundment fee will have a small positive fiscal impact on the General Fund, depending on the number of shopping carts impounded by the City that are not picked up within three days from when they received notice of its collection by the City. The City will incur some expenses, including the purchase of a trailer to collect abandoned shopping carts together with other materials and supplies.

FIVE-YEAR STRATEGIC PLAN:

Goal F: Embracing, inclusive community.

Objective: Cathedral City is valued and respected as a community that welcomes and embraces diversity, has an abundance of high quality and affordable housing op tions and vibrant businesses. Our neighborhoods are attractive, well -maintained, and issues surrounding homelessness have been compassionately addressed with thoughtful, coordinated, and collaborative programs.

Action F11: Implement a code compliance program that proactively iden tifies and responds to code compliance complaints.

Action F12: Develop and implement initiatives to proac tively monitor the City's commercial corridors to address visual blight and nuisance issues associated with vacant and underutilized properties and non-compliant commercial strips and centers.

ATTACHMENTS:

Resolution Amending Fee Schedule to Add a Fee for the Impoundment of an Abandoned Shopping Cart

ATTACHMENTS:

Fee schedule - shopping cart

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RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CATHEDRAL

CITY, CALIFORNIA, AMENDING THE SCHEDULE OF USER AND

REGULATORY FEES FOR VARIOUS CITY SERVICES TO ADD A FEE

FOR THE IMPOUNDMENT OF AN ABANDONED SHOPPING CART

WHEREAS, user and regulatory fees are established by the City Council; and WHEREAS, the City completed a study in 2021 to identify the cost of providing various user and regulatory fee-related services; and
WHEREAS, the City Council adopted a schedule of fees through Resolution No. 2021-27 after finding that the study provides adequate evidence to conclude that the fees do not exceed the cost to provide the services for which the fees are charged; and WHEREAS, the schedule of fees contains provisions such that the City Manager may update the various fees based on the percentage change, for 12 -months ending March of the current fiscal year, in the All Urban Consumers Price Index (CPI -U) for Riverside-San Bernardino-Ontario, to become effective July 1 of the subsequent fiscal year; and
WHEREAS, the schedule of fees has been updated twice on July 1, 2022 and July 1, 2023 based on the CPI-U; and
WHEREAS, the schedule of fees was updated on January 10, 2024 to reduce the street vendor permit fees; and
WHEREAS, by adopting this Resolution, the City Council is taking action only on the code compliance fees for the impoundment of abandoned shopping carts , as identified in Exhibit “A”. The remaining fees that have not been modified from prior resolutions shall remain in full force and effect.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CATHEDRAL CITY, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:

SECTION 1. INCORPORATION OF RECITALS
The City Council hereby finds the recitals set forth above to be true and correct.

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REVISED CODE COMPLIANCE FEES FOR THE IMPOUNDMENT OF AN

ABANDONED SHOPPING CART
The City Council hereby adopts an amendment to the fee schedule as set forth in attached Exhibit “A” and incorporated by reference.

SECTION 3. EFFECTIVE DATE
This Resolution shall take effect upon adoption.

SECTION 4. CERTIFICATION

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Attachment: Fee schedule - shopping cart (4152 : Amendment to Master Schedule of User and Regulatory Fees - Code Compliance Shopping The City Clerk shall attest to and certify the vote adopting this Resolution.

PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Cathedral City held on this 27th day of March, 2024, by the following vote:

Ayes:

Noes:

Absent:

Abstain:

Mark Carnevale, Mayor

ATTEST:

Tracey R. Hermosillo, City Clerk

APPROVED AS TO FORM:

Eric S. Vail, City Attorney

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Master Fee Schedule - Code Compliance Fees
Fee Description Fee Charge Basis Note CPI
5 Impoundment of Abandoned Shopping Cart

$69.50 each

Y

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Staff Report

City Council

Item No. 6.F

Meeting Date: March 27, 2024
From: Kevin Biersack, Financial Services Director
Title: Adopt Credit Card and Electronic Check Transaction Processing Fees

City Council

RECOMMENDATION:

To adopt a Resolution Establishing a Credit Card Transaction Processing Fee and an Electronic (e-check) Fee

BACKGROUND:

The City maintains a Schedule of User and Regulatory Fees identifying various services provided by the City and corresponding fees for service. A new fee credit card fee and an electronic check (e-check) fee are being recommended for adoption and inclusion in the City’s Master Fee Schedule.

DISCUSSION:

With the implementation of the Customer Self Service (CSS) portal, a new fee for credit card transactions or electronic check (e-check) will be identified as a processing fee.

• The proposed fee is 2.75% of the amount paid for each transaction. As a basis of comparison, please see the attached list of credit card fees for the various Coachella Valley agencies.

• The proposed e-check fee is $1.95/transaction.

• These fees are intended to offset processing fees charged by the City’s payment processor. Accordingly, th ese fees will apply to applicants that pay fees with a credit card or an e-check.

• These fees are intended to capture the City’s cost, not generate any new revenue for the City. They will function as a pass -through collection of amounts directly payable to the City’s processing vendor.

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These proposed fee s comply with applicable federal, state, and local laws. The se proposed fees are not a tax as defined in Article 13C of the California Constitution and the proposed fees do not exceed the City’s reasonable costs associated with accepting credit card or electronic payments.

FISCAL IMPACT:

These transaction fee s (revenue) will directly offset the processing cost (expense) charged by the payment processing vendor(s) . There is no net financial impact for this item.

FIVE-YEAR STRATEGIC PLAN:

Goal C – Fiscal Stability and Sustainability

Objective - Cathedral City has economically prospered by facilitating the investment of private dollars in high quality development which benefits the community. We remain financially solvent by instituting prudent fiscal policies and transparent financial practices.

ATTACHMENTS:

Credit Card Fees - Coachella Valley Agencies
Resolution 2024-XX Credit Card Fee and E-Check Fee

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Agency Credit Card Service Fees Notes
City of Rancho Mirage None N/A
City of Palm Springs None No credit card fees being charged as of now, but it is part of their upcoming fee study City of La Quinta 2.50% N/A
City of Indio 3.00% N/A
City of Desert Hot Springs 2.50% N/A
City of Indian Wells None N/A
City of Palm Desert 2.9% +$.30 flat fee N/A
City of Coachella 2.70% N/A
Riverside County Assessor 2.28% for credit card, $3.95 flat fee for debit card N/A Riverside County Animal Services $1.50 flat fee N/A
Riverside County Health Department 2.30% N/A
Coachella Valley Association of Governments None Per the CVAG rep, they do not accept ANY credit card payments Coachella Valley Water District None N/A
Mission Springs Water District None N/A
Department of Motor Vehicles 2.1% online, 1.95% in house N/A South Coast Air Quality Management District 2.22% N/A

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Attachment: Credit Card Fees - Coachella Valley Agencies (4130 : Adopt Credit Card and Electronic RESOLUTION NO. 2024 - ___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CATHEDRAL CITY, CALIFORNIA, ADOPTING A CREDIT CARD

TRANSACTION PROCESSING FEE AND AN ELECTRONIC CHECK (E-

CHECK) TRANSACTION PROCESSING FEE

WHEREAS, user and regulatory fees are established by the City Council; and

WHEREAS, periodically, the City Council determines that charges should cover the costs reasonably borne or a substantial portion of the actual costs of the goods and services provided by the City; and

WHEREAS, when the City accepts payment of fees via credit card, or via electronic check (e -check), a transaction processing fee applies. The City does not have a fee currently established to recover these costs; and

WHEREAS, the City desires to establish a fee to recover the reasonable costs incurred by the City associated with credit card payment transaction processing; and

WHEREAS, the fee does not exceed the City’s reasonable costs associated with accepting credit card payments; and

WHEREAS, the fee will be incorporated into the City’s Master Schedule of User and Regulatory Fees so that it can be periodically examined and adjusted, as necessary; and

WHEREAS, in adopting this Resolution, the City Council is taking action only on those fees for the services, programs or products set forth in Exhibit “A” which have been modified from prior resolutions of the City Council. The remaining fees that have not been modified from prior resolutions shall remain in full force and effect.

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Attachment: Resolution 2024-XX Credit Card Fee and E-Check Fee (4130 : Adopt Credit Card and Electronic Check Transaction Processing

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF CATHEDRAL CITY, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:

SECTION 1. INCORPORATION OF RECITALS

The City Council hereby finds the recitals set forth above are true and correct.

SECTION 2. ESTABLISHMENT AND UPDATE OF FEES, CHARGES, AND RATES

The City Council hereby adopts the fees , charges, and rates as set forth in attached Exhibit "A" and incorporated by this reference.

SECTION 3. EFFECTIVE DATE
Any new or adjusted fees adopted by this Resolution shall go into effect upon adoption.

SECTION 4. CERTIFICATION

The City Clerk shall attest to and certify the vote adopting this resolution.

PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Cathedral City held on this ___ day of __________, 2024, by the following vote:

Ayes:

Noes:

Absent:

Abstain:

______________________________
Mark Carnevale, Mayor
ATTEST:

______________________________
Tracey Hermosillo, City Clerk

APPROVED AS TO FORM:

______________________________
Eric S. Vail, City Attorney

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Attachment: Resolution 2024-XX Credit Card Fee and E-Check Fee (4130 : Adopt Credit Card and Electronic Check Transaction Processing “EXHIBIT A”

CITY OF CATHEDRAL CITY

MASTER FEE SCHEDULE - CREDIT CARD TRANSACTION PROCESSING FEE Fee Charge Basis Note
Credit Card Transaction Processing Fee 2.75% percent of fees paid

Electronic Check (e-check) Transaction Processing Fee $1.95

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Attachment: Resolution 2024-XX Credit Card Fee and E-Check Fee (4130 : Adopt Credit Card and Electronic Check Transaction Processing

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Staff Report

City Council

Item No. 6.G

Meeting Date: March 27, 2024
From: Kevin Biersack, Financial Services Director
Title: Contract to Perform the Annual Comprehensive Financial Report (ACFR) Audit Activities

City Council

RECOMMENDATION:

To authorize the City Manager to enter into an agreement with Lance, Soll & Lunghard, LLP to perform the annual financial audit activities for the next three (3) fiscal years with the option to extend up to three (3) additional fiscal years.

BACKGROUND:

Audit services were provided by Lance, Soll & Lunghard (LSL), LLP for Fiscal Years Ending (FYE) 2017 -2023. In the past, w e have competitively procur ed audit services every six (6) years, coinciding with the California State Controller’s Office (SCO) requirement for partner rotation to occur at least every six (6) years.

DISCUSSION:

On January 5, 2024, the Financ ial Services department sent a request for proposal (RFP) to ten (10) audit firms and posted the request for proposal on the city’s website.

The listing of all ten (10) firms is attached for review. By the closing date on January 29, 2024, we received five (5) responses comprised of:

• three (3) responses, with two (2) responses received on time,

• one (1) vendor response stating they were not accepting new clients at this time , and

• one (1) vendor response stating they ran out of time and would not be able to submit a response by the deadline.

Per the RFP, the scope of the audit proposal included the following:
• City Audit, including the independent auditors’ various report(s) • GANN Limit Review

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• Single Audit (Federal Grants) and related reporting , normally one (1) major program; however, the city has had two (2) major programs in some previous fiscal years
The audit proposal review team consisted of the city’s two (2) Senior Accountants and the Financial Services Director. The team conducted independent reviews of all technical proposals based upon the following elements:
• Firm’s expertise in audits of this type,
• Firm’s experience in auditing governments,
• Firm’s size, structure and resources,
• Qualifications of audit team – partner,
• Qualifications of audit team – manager,
• Qualifications of audit team – senior,
• General direction/supervision,
• Adequacy of proposed staffing plan,
• Thoroughness of approach to audit,
• Adequacy of sampling techniques, and
• Commitment to timeliness.

The audit proposal review team determined both firms were technically compliant. The technical review scoring sheet is attached. The primary differences in the scoring between the two (2) firms were in these three elements:
• Firm size, structure and resources,
• Qualifications of audit team, and
• Adequacy of proposed staffing plan/hours.

Oral interviews were conducted and client references were checked. After the oral interviews were conducted, the purchasing agent asked the two vendors to provide their best and final price proposal, whether the cost needed to increase, stay the same, or decrease.

This process resulted in the following overall technical ranking with:
• First, Lance, Soll & Lunghard, LLP, and
• Second CliftonLarsenAllen LLP
Subsequently and separately, the sealed cost proposals were reviewed. For the two (2) firms, the annual cost, number of hours and average hourly rates (including the audit cost for one major Single Audit Program) are listed below:
• Lance, Soll & Lunghard, LLP
o $68,758
o 425 hours
o $161.79/hour average
• CliftonLarsenAllen LLP
o $53,140
o 291 hours
o $182.61/hour average

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Per the city’s Municipal Code, Chapter 3, Section 12, Paragraph 180. Best Value Criteria, the review team determined LSL effectively demonstrated they would be more thorough with their audit processes and provided a clearer understanding of our city- prepared financial statement(s) . LSL was more effective in communicating their ability, capacity and skill to perform the services requested in a prompt manner and be able to provide dedicated resources.

FISCAL IMPACT:

The General Fund account for this engagement is 100 -100-140-141-8600-8601 for Finance Professional Services. We will not need additional budget authorization in FY 2024/2025, year one of this contract.

FIVE-YEAR STRATEGIC PLAN:

Goal C: FISCAL STABILITY and SUSTAINABILITY

Objective: Cathedral City has economically prospered by facilitating investment of private dollars in high quality development which benefits the community. We remain financially solvent by instituting prudent fiscal policies and transparent financial practices.

ATTACHMENTS:

Audit Firms List Final
2024 Proposal Score Sheet CLA vs LSL
Services Agreement - LSL 04.01.2024_Final

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Audit Firms List

Clifton Larson Allen
2875 Michelle Drive, Suite 300
Irvine, CA 92606
Courtney Wiegand ([email protected])

Eide Bailly
10681 Foothill Blvd #300
Rancho Cucamonga, CA 91730
Chris Pace ([email protected])

Davis Farr LLP
18201 Von Karmann Ave., Suite 1100
Irvine, CA. 92612
Jennifer Farr ([email protected])

Lance, Soll & Lunghard, LLP
203 N. Brea Boulevard, Suite 203
Brea, CA 92821
Ryan Domino ([email protected]) & Melissa Liu ([email protected])

Macias Gini & O’Connell LLP
700 South Flower Street, Suite 800
Los Angeles, CA 90017
Linda Hurley ([email protected])

Moss, Levy & Hartzheim, LLP
5800 Hannum Avenue, Suite E
Culver City, CA 90230
Craig Hartzheim ([email protected])

The Pun Group
200 E. Sandpointe Avenue, Suite 600
Santa Ana, CA 92707
Ken Pun ([email protected])

Rogers, Anderson, Malody & Scott, LLP
735 E. Carnegie Drive, Suite 100
San Bernardino, CA 92408
Brad Welebir ([email protected]) & Scott Manno ([email protected])

Van Lant & Fankhanel, LLP
29970 Technologie Dr., Suite 105A
Murrieta, CA. 92563
Greg Fankhanel ([email protected])

Vasquez & Company, LLP
655 N. Central Ave., Suite 1550
Los Angeles, CA 91203
Donald Nino ([email protected])

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Attachment: Audit Firms List Final (4148 : Contract to Perform the Annual Comprehensive Financial Report (ACFR) Audit Activities)

CITY OF CATHEDRAL CITY
RFP for Professional Audit Services
Proposal Score Sheet
2/16/2024
123123
Technical Score (max = 70 points):

II.A.1. Firm's expertise in audits of this type 0 - 5 5.0 5.0 5.0 5.0 5.0 5.0 II.A.2. Firm's experience in auditing governments 0 - 5 5.0 5.0 4.0 5.0 5.0 5.0 II.A.3. Firm's size, structure and resources 0 - 5 3.0 3.0 4.0 5.0 5.0 5.0 II.A.4. Qualifications of audit team - partner 0 - 5 4.0 3.0 5.0 4.0 5.0 5.0 Qualifications of audit team - manager 0 - 5 4.0 4.5 5.0 4.0 4.5 5.0 Qualifications of audit team - senior 0 - 10 3.0 - - 8.0 7.0 4.0 General direction/supervision 0 - 5 3.0 4.0 5.0 5.0 4.0 5.0 II.B.1. Adequacy of proposed staffing plan 0 - 5 2.0 4.0 3.0 4.0 4.5 5.0 II.B.2. Thoroughness of approach to audit 0 - 15 12.0 12.0 15.0 12.0 12.0 15.0 III.B.3.Adequacy of sampling techniques 0 - 5 4.0 4.0 3.0 4.0 4.0 4.0 III.B.4.Commitment to timeliness 0 - 5 4.0 5.0 2.0 5.0 3.5 5.0 Total 0 - 70 49.0 49.5 51.0 61.0 59.5 63.0
Combined Total
Score:
11 Clifton Larson Allen LLP 149.5
12 Lance, Soll & Lungard LLP 183.5
Clifton Larson Allen
LLP
Lance, Soll &
Lungard LLP
149.5 183.5

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Attachment: 2024 Proposal Score Sheet CLA vs LSL (4148 : Contract to Perform the Annual - 1 -
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AGREEMENT FOR SERVICES

BETWEEN

THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
Lance, Soll & Lunghard, LLP

This Agreement for Services (“Agreement”) is entered into as of this 1st day of April 2024 by and between the City of Cathedral City, a municipal corporation (“City”) and Lance, Soll & Lunghard, a Limited Liability Partnership (LLP) (“Contractor”). City and Contractor are sometimes hereinafter 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 services defined and described particularly in Section 2 of this Agreement.

B. Contractor, following 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. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance 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 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 Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement is for three years and an option for three years commencing on the date first ascribed above.

SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.

Contractor 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. The Services 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 Default of this Agreement. The City, in its sole discretion, m ay choose not to enforce the Default provisions of this Agreement and may instead allo w Service Provider to continue performing the Services.

SECTION 3. ADDITIONAL SERVICES.

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Contractor shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “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 Contractor 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 Sixty-Eight Thousand, Seven hundred, Fifty-Eight and up to Two Thousand dollars ($68,758 for labor and up to $2,000 for miscellaneous costs ), unless additional compensation is approved in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. (b) Each month Contractor 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 subcontractor contracts. Subcontractor 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 performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Contractor 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, the original invoice shall be returned by City to Contractor for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. (d) Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.

SECTION 5. INSPECTION AND FINAL ACCEPTANCE.

City may inspect and accept or reject any of Contractor ’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Contractor’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Contractor’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

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of Contractor’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS.

All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Contractor 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 the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor 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, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement, Contractor’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, s tudies, surveys, reports, data, notes, computer files, files or other documents.

All final work product developed by Contractor 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 the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such f inal work product if paid for by the City. This provision specifically excludes Contractors’ work notes and drafts, which are owned by Contractor, not City.

SECTION 7. CONTRACTOR'S BOOKS AND RECORDS.
(a) Contractor shall maintain any and all documents and records demonstrating or relating to Contractor’s performance of the Services. Contractor shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to the Services, including expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and de tailed so as to permit an accurate evaluation of the services provided by Contractor pursuant to this Agreement. Any and all such documents or records 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. In accordance with California Government Code Section 8546.7, if the total compensation in Section 4 exceeds ten thousand dollars ($10,000.00), this Agreement and the Contractor 's books and records related to this Agreement shall be subject to the examination and audit of the State Auditor, at the

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request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
(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 request by City or its designated representative. Copies of such documents or records shall 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 records shall be made available at Contractor’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 Contractor’s business, City may, by written 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) Contractor is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Contractor shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise.
(b) The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’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 Contractor or any of Contractor’s personnel.

Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s personnel are in any manner officials, officers, or employees of City. (c) Neither Contractor, nor any of Contractor’s personnel shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor, its officers, employees, agents or subcontractors, may have to any such rights. Contractor’s indemnity obligations in Section 16 “Indemnification” of this Agreement include the obligation to indemnify the City from and against any liability that may arise related to claims that Contractor, its officers, employees, agents or subcontractors, are entitled to retirement, health care or any other benefits that accrue to City employees. This provision shall survive the expiration or earlier termination of this Agreement.

SECTION 9. STANDARD OF PERFORMANCE.
(a) Contractor represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Contractor 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, Contractor shall employ, at a minimum,

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generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Contractor under this Agreement. In addition to the general standards of performance set forth this section, additional specif ic standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Contractor’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general. (b) Contractor warrants that (1) it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how 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.

Contractor shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Contractor shall obtain any and all licenses, permits an d authorizations necessary to perform the Services 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 equity, as a result of any failure of Contractor to comply with this section.

SECTION 11. PREVAILING WAGE LAWS
It is the understanding of City and Contractor that California 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 pursuant to the California Labor Code or regulations promulgated 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.

SECTION 12. NONDISCRIMINATION.

Contractor shall not discriminate, in any way, against any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status in connection with or related to the performance of this Agreement.

SECTION 13. UNAUTHORIZED ALIENS.

Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of the Services, and

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should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.

SECTION 14. CONFLICTS OF INTEREST.
(a) Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of the Services. Contractor 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 Manager. Contractor 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 understands and acknowledges that Contractor is, as of the date of execution of this Agreement, independently involved in the performance of non- related services for other governmental agencies and private parties. Contractor 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 for purposes of this section. (c) City understands and acknowledges that Contractor will perform non- related services for other governmental agencies and private Parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. (d) City may determine that Contractor must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. If such a determination is made, Contractor shall file the subject Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request.

SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Contractor, 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 or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena.

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(c) If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Contractor ’s conduct.

Contractor shall promptly notify City should Contractor , its officers, employees, agents or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions 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 Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. Contractor shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

SECTION 16. INDEMNIFICATION.
(a) Indemnification for Professional Liability. Where the law establishes a professional standard of care for Contractor’s services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys ’ fees and costs, court costs, interest, defense 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 Contractor, or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or subcontractors of Contractor , in the performance of professional services under this Agreement. Notwithstanding the foregoing, to the extent that the Consultant’s services are subject to California Civil Code Section 2782.8, the above indemnity, including the cost to defend, shall be limited to the extent required by Civil Code Section 2782.8.
(b) I
ndemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contractor shall indemnify, protect, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys’ 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, in

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whole or in part, the performance of this Agreement by Contractor, or by any individual or entity for which Contractor is legally liable, including but not limited to off icers, agents, employees or subcontractors of Contractor.
(c) Indemnification from Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Contractor fails to obtain such indemnity obligations from others as required herein, Contractor agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Contractor and shall survive the termination of this Agreement or this section.
(d) Cit
y’s Negligence . The provisions of this section do not apply to claims occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.

SECTION 17. INSURANCE.

Contractor 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 policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Contractor agrees to provide City with copies of required policies upon request.

SECTION 18. ASSIGNMENT.

The expertise and experience of Contractor are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Contractor under this Agreement. In recognition of that interest, Contractor shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Contractor ’s duties or obligations under this Agreement without the prior written consent of the City.

Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, that Contractor , in the performance of its duties pursuant to this Agreement, may utilize subcontractors.

SECTION 19. CONTINUITY OF PERSONNEL.

Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services. Contractor shall notify City of any changes in Contractor’s staff and

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subcontractors, if any, assigned to perform the Services prior to and during any such performance.

SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Contractor. In the event such notice is given, Contractor shall cease immediately all work in progress. (b) Contractor may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Contractor or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Contractor , or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Contractor or City, all property belonging exclusively to City which is in Contractor’s possession shall be returned to City.

Contractor shall furnish to City a final invoice for work performed and expenses incurred by Contractor, prepared 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.

SECTION 21. DEFAULT.

In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. Dur ing the period of time that Contractor 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 the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

SECTION 22. EXCUSABLE DELAYS.

Contractor shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Contractor. Such causes include, but are not limited to, acts of God, acts of the pu blic enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods,

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epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.

SECTION 23. COOPERATION BY CITY.

All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Contractor in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.

SECTION 24. NOTICES.

All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by certified mail, postage prepaid and return receipt requested, addressed as follows:

To City: City of Cathedral City
Attn: City Clerk
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Contractor: Lance, Soll & Lunghard, LLP____
Attn: Ryan Domino, CPA, Partner
203 N. Brea Blvd.,m Suite 203___
Brea CA 92821_______________

Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.

SECTION 25. AUTHORITY TO EXECUTE.

Each of the signatories hereto represents and warrants that he or she is competent and authorized to enter into this Agreement on behalf of the Party for whom he or she purports to sign. Each Party hereto agrees to defend, indemnify, and hold harmless the other Parties hereto against all claims, suits, actions, and demands, including necessary expenses of investigation and reasonable attorneys' fees and costs, arising out of claims that its signatory was not competent or so authorized to execute this Agreement.

SECTION 26. ADMINISTRATION AND IMPLEMENTATION.

This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the City of Cathedral City Municipal Code and its adopted policies and procedures.

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SECTION 27. BINDING EFFECT.

This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

SECTION 28. AMENDMENT.

No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if it does not exceed the amount that may be approved administratively pursuant to the City Municipal Code. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void. The City’s City Manager may, but is not required to, make minor amendments not affecting substantive terms without further authorization from the City Council. The City Council hereby authorizes the City Manager to execute any such amendments as required by this Agreement or that do not otherwise reduce City’s rights under this Agreement. All other amendments shall be approved by the City Council.

SECTION 29. WAIVER.

Waiver by any Party to this Agreement of any term, condition, or covenant 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 breach or violation of any provision of this Agreement. Acceptance by City of any work by Contractor shall not constitute a waiver of any of the provisions of this Agreement.

SECTION 30. LAW TO GOVERN; VENUE.

This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.

SECTION 31. 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 expenses, in addition to any other relief to which it may be entitled.

SECTION 32. 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 and supersedes all other agreements or understandings, whether oral or wri tten, or entered into between Contractor and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written,

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made by any Party which are not embodied herein shall be valid and binding.

SECTION 33. SEVERABILITY.

If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, 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 34. ELECTRONIC SIGNATURE
The Parties agree that, in accordance with the City’s Electronic Signature Use Policy, adopted on August 10, 2023, and as amended thereafter, the Parties may use electronic signatures to execute this Agreement. Any use of electronic signatures to execute this Agreement shall comply with the City’s Electronic Signature Use Policy, and such signatures shall have the same force and effect as if this Agreement were executed by hand. Contractor acknowledges that it has had an opportunity to request and review the City’s Electronic Signature Use Policy, and Contractor agrees to comply with the Electronic Signature Use Policy. Contractor agrees to indemnify, defend, and hold the City harmless from any claim, damage, or liability associated with transmitting an electronic signature or an electronically signed record by electronic transmission.

SECTION 35. CONFLICTING TERMS.

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.
[SIGNATURES ON FOLLOWING PAGE]

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CITY OF CATHEDRAL CITY
___________________________
Charles P. McClendon
City Manager
ATTEST:
___________________________
Tracey R. Hermosillo
City Clerk

APPROVED AS TO FORM
_______________________________
Eric S. Vail
City Attorney
[CONTRACTOR NAME]
____
________________
________________

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EXHIBIT "A"

SCOPE OF SERVICES

Date Audit May Commence
Audit planning, documentation of systems of internal control and compliance and transaction testing should be completed during interim stage. Interim audit fieldwork should be completed no later than May 31
st.

It is expected the City will close its books in mid -September and be ready for the final fieldwork and audit to be completed in late September/early October.

Date Reports Are Due
Upon completion of the audit examination and prior to issuing any audit reports or the management letter, the auditor will participate in an exit conference with the Financial Services Director, or designee, and other City staff as necessary to discuss observations and findings. During the engagement, the auditor will meet with and provide periodic status reports to the Financial Services Director, or designee, on a regular basis. The auditor should also be available to meet with the Financial Services Director as needed, to provide consultation on various accounting and auditing matters.

The following is the anticipated report schedule and related due dates:

Reports Due Date
City submits to auditors the draft ACFR 5 weeks after auditors finish on-site field work
Auditors submits to City comments on draft ACFR 3 weeks after City send draft ACFR
Auditors submit to City the draft management letter 8 weeks after auditors finish on-site field work
Auditors submit to City drafts of all other audit reports 8 weeks after auditors finish on-site field work
Auditors submit to City the final management letter
Late November – early December
9 weeks after auditors finish
on-site field work
Auditors submit to City finals of all other audit reports 9 weeks after auditors finish on-site field works

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City submits final reports to governing body Not later than December 31 Formal presentation to Council, only if deemed
necessary
January

Service Provider will perform the following Services:

A. ACFR (City) Audit (including independent’ auditor’s reports)

B. GANN Limit Agreed Upon Procedures (AUP) Review Report

C. If applicable, Single Audit and Related Reports

II. Service Provider will utilize the following personnel to accomplish the Services:

A. Partner – Note 1

B. Senior Manager

C. Manager

D. Supervisor

E. Senior

F. Experienced Staff

G. Staff

H. Clerical

III. Regarding Personnel identified in the Partner labor category above, auditor rotation requirements specified in Government Code (GC) §12410.6(b) apply to public accounting firms providing audit services to local agencies. A local agency shall not employ a public accounting firm to provide audit services to that local agency if the lead audit partner or coordinating audit partner having primary responsibility for the audit, or the audit partner responsible for reviewing the audit, has performed audit services for that local agency for six consecutive fiscal years. Since Mr. Domino was the audit partner for FY 2022/2023, he will only be eligible to be the audit partner for the next five (5) years. In year six or sooner, LSL would be required to change the audit partner for the City of Cathedral City annual audit activities.

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EXHIBIT "B"

COMPENSATION

I. Service Provider will perform the following Services at these fixed fee amounts during the base fiscal years of 23/24, 24/25 and 25/26:

A. City Audit (including independent’ auditor’s reports) for $62,300

B. GANN Limit Review Report for $683

C. If applicable, Single Audit and Related Reports for $5,775. Note: for more than one major program, there is an additional $3,000 for each one.

II. Service Provider shall use the following rates of pay in the performance of the Services:

A. Partner $315.00

B. Senior Manager $236.00

C. Manager $201.00

D. Supervisor $175.00

E. Senior $158.00

F. Experienced Staff $131.00

G. Staff $114.00

H. Clerical $ 96.00

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EXHIBIT "C"

INSURANCE

A. Insurance Requirements. Contractor shall provide and maintain insurance, acceptable to the City, in full force and effect throughout 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 S ervices by Contractor , its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M.

Best's rating of no less than A:VII.

Contractor shall provide the following scope and limits of insurance:

1. Minimum Scope of Insurance. Coverage shall be at least as broad as:

(1) Commercial General Liability. Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001).

(2) Automobile. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the written approval of the City.

(3) Workers’ Compensation. Workers' Compensation insurance as required by the Labor Code of State of California covering all persons providing Services on behalf of the Contractor and all risks to such persons under this Agreement.

(4) Professional Liability . Professional liability insurance appropriate to the Contractor ’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional 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 Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Contractor ’s services or the termination of this Agreement. During this additional three (3) year period, Contractor shall annually and upon request of the City submit written evidence of this continuous coverage.

2. Minimum Limits of Insurance. Contractor shall maintain limits of insurance no less than:

(1) Commercial General Liability. $1,000,000 general aggregate for bodily injury, personal injury and property damage.

(2) Automobile. $1,000,000 per accident for bodily injury and property damage. A combined single limit policy with aggregate limits in an amount of

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not less than $2,000,000 shall be considered equivalent to the said required minimum limits set forth above.

(3) Workers' Compensation. Workers' Compensation as required by the Labor Code of the State of California of not less than $1,000,000 per occurrence.

(4) Professional Liability. $1,000,000 per occurrence.

B. Other Provisions. Insurance policies required by this Agreement shall contain the following provisions:

1. All Policies. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this 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.

2. Commercial General Liability and Automobile Liability Coverages.

(1) City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Contractor performs; products and completed operations of Contractor ; premises owned, occupied or used by Contractor ; or automobiles owned, leased, hired or borrowed by Contractor. 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.

(2) Contractor’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self -insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Contractor’s insurance.

(3) Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

(4) Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.

3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation

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against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Contractor.

C. Other Requirements. Contractor 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 contract have been complied with. The City may require that Contractor furnish City 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 insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.

1. Contractor shall furnish certificates and endorsements from each subcontractor identical to those Contractor 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 officers, officials, employees and volunteers, or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.

3. The procuring of such required policy or policies of insurance shall not be construed to limit Contractor ’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.

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