HomeMy WebLinkAboutContract 1483 C - ek3 /) o a0/0 -- PL-Y
ORIGINAL
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
This Agreement is made and entered into as of the a 'day of ;N2010,
by and between the City of Cathedral City, a municipal corporation ( "City ") and KOA
Corporation, Inc., a California Corporation ( "Design Professional "):
RECITALS
A. Design Professional is specially trained, experienced and competent to
perform the special services which will be required by this Agreement; and
B. Design Professional possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement on the
terms and conditions described herein.
C. City desires to retain Design Professional to render professional services as
set forth in this Agreement.
AGREEMENT
SERVICES OF CONSULTANT
1. Scope of Services; Extra Work.
A. Design Professional shall furnish the services described in the Scope
of Services, attached hereto as Exhibit "A" and incorporated herein by this reference.
Design Professional shall provide said services at the time, place, and in the manner
specified in the Scope of Services.
B. At any time during the term of this Agreement, City may request that
Design Professional perform Extra Work. As used herein, Extra Work means any work
that is determined by City to be necessary for the proper completion of the services, but
which the parties did not reasonably anticipate would be necessary at the execution of this
Agreement. Design Professional shall not perform, nor be compensated for, Extra Work
without written authorization from City. Design Professional shall perform the Extra Work
in the manner specified in the Scope of Services.
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Design Professional Services Agreement
2. Familiarity with Work.
A. Design Professional warrants that it has thoroughly investigated and
considered the scope of services, has carefully considered how the services should be
performed and fully understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
B. If the services involve work upon any site, Design Professional
warrants that it has, or will, investigate the site and is or will be fully acquainted with the
existing conditions, prior to commencement of services hereunder. Should the Design
Professional discover any latent or unknown conditions that may materially affect the
performance of the services hereunder, it shall immediately inform the City of such fact and
shall not proceed without written instructions from the City except at its own risk.
3. Standard of Care. Services shall be performed by Design Professional in
accordance with generally accepted professional practices and principles and in a manner
consistent with the level of care and skill ordinarily exercised under similar conditions by
members of Design Professional's profession currently practicing in California. By delivery
of completed work, Design Professional certifies that the work conforms to the
requirements of this contract and all applicable federal, state and local laws and the
professional standard of care in California. Design Professional shall perform such
services and duties in conformance to and consistent with that degree of care and skill
consistent with the generally accepted professional standards prevailing at the time the
work is performed. In addition, Design Professional represents that its work product does
not infringe on any other copyrighted work. If Design Professional's work does infringe on
any other copyrighted work, this constitutes willful misconduct under this Agreement.
4. Independent Evaluation. Design Professional is responsible for making an
independent evaluation and judgment of all conditions affecting performance of the work,
including without limitation site conditions, existing facilities, seismic, geologic, soils,
hydrologic, geographic, climatic conditions, applicable federal, state and local laws and
regulations, and all other contingencies or design considerations. Data calculations,
opinions, reports, investigations, and other similar information provided by the City relating
to site, local or other conditions is not warranted or guaranteed, either expressly or
impliedly, by the City.
5. Licenses.
A. Design Professional represents and warrants to City that it has all
licenses, permits, qualifications, insurance and approvals of whatsoever nature, which is
legally required to practice its profession as well as perform the services as set forth
herein.
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Design Professional Services Agreement
B. Design Professional represents and warrants to City that it shall, at its
sole cost and expense, keep in effect or obtain at all times during the term of this
Agreement, any licenses, permits, insurance and approvals which are legally required of
Design Professional to practice its profession.
C. Design Professional shall maintain a valid City business license.
6. Special Requirements. Additional terms and conditions of this Agreement, if
any, which are made part hereof are set forth in the Special Requirements, attached hereto
as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between
the provisions of the Special Requirements and any other provision of this Agreement, the
Special Requirements shall govern.
COMPENSATION
7. Contract Sum. Compensation to be paid to Design Professional shall be in
accordance with the Schedule of Charges set forth in Exhibit "C ", which is attached hereto
and incorporated herein by reference. In no event shall Design Professional's
compensation exceed Forty Five Thousand Two Hundred Fifty Five dollars ($45,255)
without additional written authorization from the City.
8. Payment.
A. Design Professional shall submit monthly billings to City describing the
work performed during the preceding month. Design Professional's bills shall include a
brief description of the services performed, the date the services were performed, the
number of hours spent and by whom, and a description of any reimbursable expenditures.
B. City shall pay Design Professional no later than 30 days after approval
of the monthly invoice by City staff.
C. When payments made by City equal 90% of the maximum fee
provided for in this Agreement, no further payments shall be made until City has accepted
the final work under this Agreement.
PERFORMANCE SCHEDULE
9. Time of Performance.
The services of Design Professional are to commence upon execution of the Agreement,
with work to be completed pursuant to the Performance Schedule, which is attached hereto
as Exhibit "D" and is incorporated herein by this reference.
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10. Time of Essence. Time is of the essence in the performance of this
Agreement.
COORDINATION OF WORK
11. Independent Design Professional. Neither the City nor any of its employees
shall have any control over the manner, mode or means by which Design Professional, its
agents or employees, perform the services required herein, except as otherwise set forth
herein. City shall have no voice in the selection, discharge, supervision or control of
Design Professional's employees, servants, representatives or agents, or in fixing their
number, compensation or hours of service. It is understood that Design Professional, in
the performance of the work and services agreed to be performed, shall act as and be an
independent consultant and shall not act as an agent or employee of the City. Design
Professional shall obtain no rights to retirement benefits that accrue to City's employees,
and it hereby expressly waives any claim it may have to any such rights.
12. Conflicts of Interest.
A. Design Professional (including principals, associates and professional
employees) covenants and represents that it does not now have any investment or interest
in real property and shall not acquire any interest, direct or indirect, in the area covered by
this Agreement or any other source of income, interest in real property or investment which
would be affected in any manner or degree by the performance of Design Professional's
services hereunder. Design Professional further covenants and represents that in the
performance of its duties hereunder no person having any such interest shall perform any
services under this Agreement.
B. The City has determined that Design Professional is not a designated
employee within the meaning of the Political Reform Act.
13. Assignment and Subcontracting. The parties recognize that a substantial
inducement to City for entering into this Agreement is the professional reputation,
experience and competence of Design Professional. Assignments of any or all rights,
duties or obligations of the Design Professional under this Agreement will be permitted only
with the express consent of the City. Design Professional shall not subcontract any portion
of the work to be performed under this Agreement without the written authorization of the
City. If City consents to such subcontract, Design Professional shall be fully responsible to
City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create
any contractual relationship between City and subcontractor nor shall it create any
obligation on the part of the City to pay or to see to the payment of any monies due to any
such subcontractor other than as otherwise required by law.
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Design Professional Services Agreement
RECORDS AND REPORTS
14. Ownership of Documents. All plans, studies, documents and other writings
prepared by and for Design Professional, its officers, employees and agents and
subcontractors in the course of implementing this Agreement, except working notes and
internal documents, shall become the property of the City upon payment to Design
Professional for such work, and the City shall have the sole right to use such materials in
its discretion without further compensation to Design Professional or to any other party.
Design Professional shall, at their expense, provide such reports, plans, studies,
documents and other writings to City upon written request.
15. Licensing of Intellectual Property.
A. This Agreement creates a nonexclusive and perpetual license for City
to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other
intellectual property embodied in plans, specifications, studies, drawings, estimates, and
other documents or works of authorship fixed in any tangible medium of expression,
including but not limited to, physical drawings or data magnetically or otherwise recorded
on computer diskettes, which are prepared or caused to be prepared by Design
Professional under this Agreement ( "Documents and Data ").
B. Design Professional shall require all subcontractors to agree in writing
that City is granted a nonexclusive and perpetual license for any Documents and Data the
subcontractor prepares under this Agreement.
C. Design Professional represents and warrants that it has the legal right
to license any and all Documents and Data it provides to the City under this Agreement.
16. Confidentiality. All ideas, memoranda, specifications, plans, procedures,
drawings, descriptions, computer program data, input record data, written information, and
other Documents and Data either created by or provided to Design Professional in
connection with the performance of this Agreement shall be held confidential by Design
Professional. Design Professional shall not, without the prior written consent of City, use
such materials for any purposes other than the performance of the services under this
Agreement nor shall such materials be disclosed to any person or entity not connected with
the performance of the services under this Agreement. Design Professional shall not use
the City's name or insignia, photographs relating to project for which Design Professional's
services are rendered, or any publicity pertaining to the Design Professional's services
under this Agreement in any magazine, trade paper, newspaper, television or radio
production or other similar medium without the prior written consent of City.
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Design Professional Services Agreement
17. Books and Records.
A. Design Professional shall maintain any and all ledgers, books of
account, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges for services, or expenditures and disbursements charged to City for a
minimum period of three (3) years, or for any longer period required by law, from the date
of final payment to Design Professional to this Agreement.
B. Design Professional shall maintain all documents and records which
demonstrate performance under this Agreement fora minimum period of three (3) years, or
for any longer period required by law, from the date of termination or completion of this
Agreement.
C. Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time during regular
business hours, upon written request by the City Manager, City Attorney, City Auditor or a
designated representative of these officers. Copies of such documents shall be provided
to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an
alternative is mutually agreed upon, the records shall be available at Design Professional's
address indicated for receipt of notices in this Agreement.
D. Where City has reason to believe that such records or documents may
be lost or discarded due to dissolution, disbandment or termination of Design
Professional's business, City may, by written request by any of the above -named officers,
require that custody of the records be given to the City and that the records and documents
be maintained in City Hall. Access to such records and documents shall be granted to any
party authorized by Design Professional, Design Professional's representatives, or Design
Professional's successor -in- interest.
INSURANCES
18. Insurance Requirements.
A. Policies. Design Professional, at its own cost and expense, shall
procure and maintain, for the duration of the contract, the following insurance policies.
1. Workers Compensation Coverage. Design Professional shall
maintain Workers Compensation Insurance and Employer's Liability Insurance for his /her
employees in accordance with the laws of the State of California. In addition, Design
Professional shall require each subcontractor to similarly maintain Workers Compensation
Insurance and Employer's Liability Insurance in accordance with the laws of the State of
California for all of the subcontractor's employees. Any notice of cancellation or non -
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renewal of all Workers Compensation policies must be received by the City at least thirty
(30) days prior to such change. The insurer shall agree to waive all rights of subrogation
against City, its officers, agents, employees and volunteers for losses arising from work
performed by Design Professional for City. This provision shall not apply if Design
Professional has no employees performing work under this Agreement. If the Design
Professional has no employees for the purposes of this Agreement, Design Professional
shall sign the Certificate of Exemption from Workers Compensation Insurance attached
hereto as Exhibit "E ", and incorporated herein by reference.
2. General Liability Coverage. Design Professional shall maintain
commercial general liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a
commercial general liability insurance form or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work to be performed
under this Agreement or the general aggregate limit shall be at least twice the required
occurrence limit.
3. Automobile Liability Coverage. Design Professional shall
maintain automobile liability insurance covering bodily injury and property damage for all
activities of the Design Professional arising out of or in connection with the work to be
performed under this Agreement, including coverage for owned, hired and non -owned
vehicles, in an amount of not less than one million dollars ($1,000,000) combined single
limit for each occurrence.
4. Professional Liability Coverage. Design Professional shall
maintain professional errors and omissions liability insurance for protection against claims
alleging negligent acts, errors or omissions which may arise from Design Professional's
operations under this Agreement, whether such operations by the Design Professional or
by its employees, subcontractors, or sub consultants. The amount of this insurance shall
not be less than one million dollars ($1,000,000) per occurrence.
B. Endorsements. Each general liability and automobile liability
insurance policy shall be with insurers possessing a Best's rating of no less than A:VII and
shall be endorsed with the following specific language:
1. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insured's with respect to liability
arising out of work performed by or on behalf of the Design Professional, including
materials, parts or equipment furnished in connection with such work or operations.
2. This policy shall be considered primary insurance as respects
the City, its elected or appointed officers, officials, employees, agents and volunteers. Any
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insurance maintained by the City, including any self- insured retention the City may have
shall be considered excess insurance only and shall not contribute with it.
3. 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.
4. The insurer waives all rights of subrogation against the City, its
elected or appointed officers, officials, employees or agents.
5. Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to the City, its elected or appointed officers, officials,
employees, agents or volunteers.
6. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits except after thirty (30) days written
notice has been received by the City.
C. Deductibles and Self- Insured Retentions. Any deductibles or self -
insured retentions must be declared to and approved by the City. At the City's option,
Design Professional shall demonstrate financial capability for payment of such deductibles
or self- insured retentions.
D. Certificates of Insurance. Design Professional shall provide
certificates of insurance with original endorsements to City as evidence of the insurance
coverage required herein. Certificates of such insurance shall be filed with the City on or
before commencement of performance of this Agreement. Current certification of
insurance shall be kept on file with the City at all times during the term of this Agreement.
19. Indemnity. To the fullest extent permitted by law, the Design Professional
shall indemnify, defend (with independent counsel approved by the City) and hold harmless
the City, and its directors, officers, and employees from and against all liabilities (including
without limitation all claims, losses, damages, penalties, fines and judgments, associated
investigation and administrative expenses, and defense costs, including but not limited to
reasonable attorneys' fees, court costs and costs of alternative dispute resolution)
regardless of nature or type that arise out of, pertain to, or relate to the negligence,
reckless, or willful misconduct of the Design Professional or the acts or omissions of an
employee, agent or subcontractor of the Design Professional. The provisions of this
paragraph survive completion of the services or the termination of this contract. The
provisions of this section are not limited by the provisions of section 18 relating to
insurance.
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ENFORCEMENT OF AGREEMENT
20. Entire Agreement. This Agreement constitutes the complete and exclusive
statement of Agreement between the City and Design Professional. All prior written and
oral communications, including correspondence, drafts, memoranda, and representations,
are superseded in total by this Agreement.
21. Waiver. Waiver of a breach or default under this Agreement shall not
constitute a continuing waiver of a subsequent breach of the same or any other provisions
under this Agreement. Payment by City under this Agreement shall not be deemed a
waiver of defects, even if such defects were known to the City at the time of payment.
22. Rights and Remedies. 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 or any other default by the other party.
23. Controlling Law Venue. The laws of the State of California shall govern this
Agreement and all matters relating to it and any action brought relating to this Agreement
shall be held exclusively in a state court in the County of Riverside.
24. Litigation Expenses and Attorneys Fees. If either party to this Agreement
commences any legal action against the other party arising out of this Agreement, the
prevailing party shall be entitled to recover its reasonable litigation expenses, including
court costs, expert witness fees, discovery expenses, and attorneys fees.
25. Execution. 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 one 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.
26. Authority to Enter Agreement. Design Professional has all requisite power
and authority to conduct its business and to execute, deliver, and perform the Agreement.
Each party warrants that the individuals who have signed this Agreement have the legal
power, right, and authority to make this Agreement and to bind each respective party.
27 Termination. City may terminate this Agreement immediately for cause. City
may terminate this Agreement without cause upon fifteen days written notice of
termination. Upon termination, Design Professional shall be entitled to compensation for
services performed up to the effective date of termination.
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MISCELLANEOUS
28. Notices. Any notice required to be given under this Agreement shall be in
writing and either served personally or sent prepaid, first class mail. Any such notice shall
be addressed to the other party at the address set forth below. Notice shall be deemed
communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: Donald E. Bradley
City Manager
City of Cathedral City
68 -700 Avenida Lalo Guerrero
Cathedral City, CA 92234
If to Consultant: Mujib Ahmed, PE
Vice President/Project Manager
KOA Corporation, Inc.
3190 C. Shelby Street
Ontario, CA 91764
29. Amendments. This Agreement may be modified or amended only by a
written document executed by both Design Professional and City and approved as to form
by the City Attorney.
30. Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
31. Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of this Agreement or any other rule of construction which
might otherwise apply.
CITY OFFICERS AND EMPLOYEES
32. Non - liability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Design Professional, or any successor in interest, in
the event of any default or breach by the City or for any amount, which may become due to
the Design Professional or to its successor, or for breach of any obligation of the terms of
this Agreement.
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Design Professional Services Agreement
33. Prohibited Interests. Design Professional maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Design Professional, to solicit or secure this Agreement. Further, Design
Professional warrants that it has not paid nor has it agreed to pay any company or person,
other than a bona fide employee working solely for Design Professional, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or
resulting from the award or making of this Agreement.
34. Equal Opportunity Employment. Design professional represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of sex, marital status, race, color, religion,
ancestry, natural origin, physical handicap, sexual orientation or domestic partnership
status. Such nondiscrimination shall include, but not be limited to, all activities related to
initial employment upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff or termination.
(CONTINUED ON NEXT PAGE)
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Design Professional Services Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date first written above.
CITY OF CATHEDRAL CITY KOA Corporation, Inc.
6„j64
Donald E. Bradley, City Manager Mujig Ahmed, PE
Vice President/Project Manager
ATTEST:
4
Pat ammers, City Clerk 1
APPROVED AS TO CONTENT APPROVED AS TO FORM:
61 '
William O. Bay , P.E., City Engineer Charles R. Green, City Attorney
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Design Professional Services Agreement
EXHIBIT "B"
SPECIAL REQUIREMENTS
NONE
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Design Professional Services Agreement
Exhibit "A"
Scope of Services
The Date Palm Drive Area Lighted Crosswalks project will involve engineering design and
construction support services required to prepare plans, specifications, and estimates
(PS &E), contract bid documents and construction support services for this Safe Routes to
School funded project.
The work includes the design and construction support services required for the
installation of Lighted Crosswalks at seven locations in the Date Palm Drive area, signing,
striping and appurtenances. A summary of the work tasks are included in this Scope of
Services and more specifically described in the proposal, dated October 5, and attached
hereto.
Phase 1 PLANNING AND DESIGN
Task 1 Project Management and Administration
1. Participation in coordination and progress meetings.
2. Develop and agree on Design Standards.
3. Submit Progress reports, invoices and schedules.
4. Perform Quality Control review of all submittals.
Task 2 Memorandum of Recommendation
1. Attend an informal field review.
2. Prepare conceptual crosswalk plans.
3. Prepare and submit a memorandum of recommendations.
Task 3 Prepare Base Maps
1. Obtain and Review existing documents and reports.
2. Prepare base maps.
Task 4 Utility Coordination
1. Coordinate and collect utility information.
2. Prepare Notices and follow up requests with plans to affected utility
companies and agencies.
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Task 5 First Review: 50% Preliminary Design Plans
1. Prepare preliminary plans for first review (50 %).
2. Prepare preliminary Construction Cost Estimate.
Task 6 Meetings with the Public
1. Prepare exhibits and attend public and City Council meetings.
Task 7 Prepare Final PS&E Package
1. Prepare and submit draft final specifications, special provisions and
engineers estimate.
2. Prepare and submit second review (100 %) plans.
3. Prepare and submit final PS &E (Camera Ready).
Phase 2 CONSTRUCTION PHASE SERVICES
Task 8 Engineering Support during Bidding, Award and Construction
1. Assist City during Bidding Phase.
2. Attend the Preconstruction meeting.
3. Review RFI's, Submittals and Change Orders during Construction.
4. Perform Site Visits.
5. Prepare As -Built Drawings based on redlines furnished by others.
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EXHIBIT "C"
SCHEDULE OF CHARGES
The basis of this agreement is to prepare contact plans, specifications and cost estimates
required for the installation of seven lighted crosswalks in the Date Palm Drive area
including signing, striping and appurtenances. The project is to be funded with Safe Routes
to School and other funds. The total, not to exceed, fee amount to provide all of the
services listed in Exhibit "A ", "Scope of Services" and as otherwise required as part of the
terms of this agreement shall be $45,255 dollars.
A summary of the estimated fee amount is as listed below. A detailed breakdown of the
not to exceed fee amount is included in the attached proposal dated October 5, 2010.
Task 1.01 Project Management Administration $6,420
Task 1.02 Memorandum of Recommendations $6,665
Task 1.03 Prepare Base Maps $5,735
Task 1.04 Utility Coordination $3,605
Task 1.05 First Review: 50% Preliminary Design Plans $5,460
Task 1.06 Meetings with the Public $1,930
Task 1.07 Prepare Final PS &E Package $9,930
Task 1.08 Support During Bidding, Award and Construction $4,310
Reimbursable Expenses $1,200
Total Not To Exceed Fee Amount $45,255
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EXHIBIT "D"
PERFORMANCE SCHEDULE
The Tentative project Schedule shall be as shown in the attached proposal. Key milestone
dates are as listed below.
Notice to Proceed 12/9/10
Task 1.02 Memorandum of Recommendations 1/3/11
Task 1.03 Prepare Base Maps 1/3/11
Task 1.04 Utility Coordination 2/28/11
Task 1.05 First Review: 50% Preliminary Design Plans 1/30/11
City Review of 50% Submittal 2/15/11
Task 1.07 Final Plans, Specifications and Estimates 3/2/11
City Review of Final PS & E Submittal 3/15/11
Task 2.08 Support during Bidding, Award and Construction 7/30/11
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EXHIBIT "E"
CERTIFICATE OF EXEMPTION FROM WORKERS COMPENSATION INSURANCE
I hereby certify that in the performance of the work for which this Agreement is
entered into, I shall not employ any person in any manner so as to become subject to the
Workers Compensation Laws of the Sate of California.
Executed on this day of , 2010 at
, California.
Design Professional
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Design Professional Services Agreement
EXHIBIT "F"
COPY OF KOA CORPORATION PROPOSAL
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Design Professional Services Agreement