AMENDMENT NO.2
TO THE
AGREEMENT FOR CONCRETE INSTALLATION, REPAIR AND MAINTENANCE
SERVICES AS NEEDED CONTRACT
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
DESERT ANTS ENGINEERING, INC.
In accordance with the “Agreement for Concrete Installation, Repair and Maintenance Services As Needed Contract” dated August 24, 2022, (“Agreement”), by and between the City of Cathedral City , a municipal corporation (“City”) and Desert Ants Engineering, Inc. , a California corporation (“Contractor”), and in accordance with the Section of the Agreement, entitled, “Amendments”, this Amendment Number No. 2 to the Agreement is made and entered into this on the 24th day of August, 2026 , (“Effective Date”).
RECITALS
A. Contractor currently provides the City with Concrete Installation, Repair, and Maintenance Services.
B. City desires to amend the Agreement as per Section 1, to: extend the term of the Agreement one (1) year, commencing on the Effective Date.
C. Section Ownership of Documents has been amended in the City’s standard agreement. Amendment No. 2 will repeal and replace Section Ownership of Documents of the original agreement with Section 2. Ownership of Materials; Exceptions; Documents.
D. Section Standards of Performance; Familiarity with Work has been added in the City’s standard agreement. Amendment No. 2 will include Section 3. Standard of Performance; Familiarity with Work.
E. Section Prevailing Wage Laws has been amended in the City’s standard agreement.
Amendment No. 2 will repeal and replace Section Prevailing Wage Laws of the original agreement with Section 4. Prevailing Wage Laws.
F. Section Confidential Information; Release of Information has been added in the City’s standard agreement. Amendment No. 2 will include Section 5. Confidential Information; Release of Information.
G. Section Continuity of Personnel has been added in the City’s standard agreement.
Amendment No. 2 will include Section 6. Continuity of Personnel.
H. Section Default has been added in the City’s standard agreement. Amendment No. 2 will include Section 7. Default.
I. Section Data Protection has been added to the City’s standard agreements. Amendment No. 2 will include Section 8. Data Protection.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
Section 1. The agreement termination date as set forth in the Agreement is hereby amended such that it shall expire at the end of business day on August 24, 202 7 (Expiration Date). Following this one (1) year extension, the option to extend the Agreement for one (1) additional year, commencing after the Expiration Date, remains in effect per the terms outlined in the Agreement.
Section 2. Ownership of Materials; Exceptions; Documents.
a. Documents and Data. 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 (“Materials”) 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 Materials.
b. If and to the extent that City utilizes for any purpose not related to this Agreement any Materials 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; Familiarity With Work” of this Agreement shall not extend to such use of the Materials.
c. Contractor warrants that all Materials it drafts and completes pursuant to this Agreement constitutes original work. Specifically, Contractor understands and agrees that use of artificial intelligence (AI) tools including, without limitation, ChatGPT, Microsoft’s Bing Chat, Google’s Bard, and Meta’s LLaMA (Large Language Model Meta AI), in the performance of this Agreement does not constitute an original work, i.e., submitting Materials generated by such AI tools to City and representing it as Contractor’s original work constitutes a material breach of this Agreement, constitutes a false claim, and may also violate applicable intellectual property rights law including without limitation, United States Copyright Law. Accordingly, and notwithstanding any other provision of this Agreement as to ownership, City specifically rejects ownership of such Materials. Contractor is required to indemnify and defend City to the fullest extent allowed by applicable law should it violate this Section.
Section 3. Standard of Performance; Familiarity with Work.
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, generally accepted standards and practices utilized by persons engaged in providing s ervices similar to the Services required of Contractor under this Agreement, and shall use such skill, prudence, and diligence as other members of Contractor’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Contractors 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 full y understands the facilities, difficulties and restrictions attending performance of the work under this Agreement.
c. Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Contractor shall at all times enforce strict discipline and good order among its employees. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Services, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Services to be performed by the Contractor and shall not be re-employed on the Services.
Section 4. Prevailing Wage Laws.
Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. It is the understanding of City and Contractor that California prevailing wage laws may 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. Contractor shall defend, indemnify, and hold City, its elected officials, officers, employees, volunteers and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
Section 5. 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. Contractor shall not use City’s name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
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.
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.
d. 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 admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent 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.
Section 6. 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 subcontractors, if any, assigned to perform the Services prior to and during any such performance. If City does not agree to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause.
Section 7. 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, however, the time frame may also be shortened if the default results in a safety issue or imminent threat to City employees or the public in the sole discretion of City. During 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 “Termination. ” 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 8. Data Protection.
a. Contractor shall protect, using the most secure means and technology that is commercially available, City-provided data or consumer-provided data acquired in the course and scope of this Agreement, including but not limited to customer lists and customer credit card or consumer data, (collectively, the “City Data”).
Contractor shall notify City in writing as soon as reasonably feasible, and in any event within twenty-four (24) hours, of Contractor’s discovery or reasonable belief of any unauthorized access of City Data (a “Data Breach”), or of any incident affecting, or potentially affecting City Data related to cyber security (a “Security Incident”), including, but not limited to, denial of service attack, and system outage, instability or degradation due to computer malware or virus. Contractor shall begin remediation immediately. Contractor shall provide daily updates, or more frequently if required by City, regarding findings and actions perform ed by Contractor until the Data Breach or Security Incident has been effectively resolved to City’s satisfaction. Contractor shall conduct an investigation of the Data Breach or Security Incident and shall share the report of the investigation with City. At City’s sole discretion, City and its authorized agents shall have the right to lead or participate in the investigation. Contractor shall cooperate fully with City, its agents and law enforcement.
b. If City is subject to liability for any Data Breach or Security Incident, then Contractor shall fully indemnify and hold harmless City and defend against any resulting actions.
Section 9. Except as specifically amended by this Amendment No. 2, the remaining terms of the Agreement shall remain in full force and effect. In the event of a conflict between the provisions of this Amendment No. 2 and the provisions of the Agreement, the provisions of this Amendment No. 2 shall control.
SUMMARY:
Amendment No. 2 extends the contract end date to August 24, 2027, and updates the Agreement to the City’s standard agreement for services.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be executed as of the date first written above.
CITY OF CATHEDRAL CITY Desert Ants Engineering, Inc.
By: Andrew Firestine By:
City Manager
ATTEST:
By: Christina Burton By:
City Clerk
By: Eric S. Vail
City Attorney