HomeMy WebLinkAboutContract 1737 AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
FOMOTOR ENGINEERING
This Agreement for Design Professional Services ("Agreement") is entered into
as of April 25, 2018 ("Effective Date") by and between the City of Cathedral City, a
municipal corporation ("City") and Fomotor Engineering a California Corporation
("Design Professional"). City and Design Professional are sometimes hereinafter
individually referred to as"Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. City has sought, by informal quotes, the performance of the land
surveying services defined and described particularly In Section 2 of this Agreement.
B. Design Professional, following submission of a quote for the performance
of the services defined and described particularly in Section 2 of this Agreement, was
selected by the City to perform those services.
C. Design Professional was selected by the City on the basis of Design
Professional's demonstrated competence and the professional qualifications necessary
for the satisfactory performance of the services required.
D. Pursuant to the City of Cathedral City's Municipal Code, City has authority
to enter into this Design Professional Services Agreement and the City Manager has
authority to execute this Agreement.
E. The Parties desire to formalize the selection of Design Professional 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 19 'Termination of Agreement" of this
Agreement, the Term of this Agreement is for two months] commencing on the Effective
Date.
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SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.
(a) Scope of Services. Design Professional agrees to perform the services
set forth in Exhibit "A" "Scope of Services" (hereinafter, the "Services") and made a part
of this Agreement by this reference.
(b) Schedule of Performance. The Services shall be completed within sixty
(60) days. Should the Services not be completed pursuant to that schedule, the Design
Professional shall be deemed to be in Default of this Agreement. The City, in its sole
discretion, may choose not to enforce the Default provisions of this Agreement and may
instead allow Design Professional to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Design Professional 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 25 "Administration and Implementation" or Section 27
"Amendment" of this Agreement. If and when such additional work is authorized, such
additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay
Design Professional total compensation, including reimbursement for actual expenses,
Nineteen Thousand Eight Hundred Twenty dollars ($19,820), unless additional
compensation is approved in writing in accordance with Section 25 "Administration and
Implementation" or Section 27 "Amendment" of this Agreement.
(b) Each month Design Professional shall furnish to City an original invoice
for all work performed and expenses incurred during the preceding month. The Invoice
shall detail charges by the following categories: labor (by sub-category), travel,
materials, equipment, supplies, and sub-Design Professional contracts. Sub-Design
Professional charges shall be detailed by the following categories: labor, travel,
materials, equipment and supplies. If the compensation set forth in subsection (a) and
Exhibit "B" include payment of labor on an hourly basis (as opposed to labor and
materials being paid as a lump sum), the labor category in each invoice shall include
detailed descriptions of task performed and the amount of time incurred for or allocated
to that task. City shall independently review each invoice submitted by the Design
Professional to determine whether the work performed and expenses incurred are in
compliance with the provisions of this Agreement. In the event that no charges or
expenses are disputed, the invoice shall be approved and paid according to the terms
set forth in subsection (c). In the event any charges or expenses are disputed by City,
the original invoice shall be returned by City to Design Professional for correction and
resubmission.
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(c) Except as to any charges for work performed or expenses incurred by
Design Professional which are disputed by City, City will use its best efforts to cause
Design Professional to be paid within forty-five (45) days of receipt of Design
Professional's correct and undisputed invoice.
(d) Payment to Design Professional for work performed pursuant to this
Agreement shall not be deemed to waive any defects in work performed by Design
Professional.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Design Professional's work under
this Agreement, either during performance or when completed. City shall reject or
finally accept Design Professional's work within sixty (60) days after submitted to City. {�{
City shall reject work by a timely written explanation, otherwise Design Professional's
work shall be deemed to have been accepted. City's acceptance shall be conclusive as
to such work except with respect to latent defects, fraud and such gross mistakes as
amount to fraud. Acceptance of any of Design Professional's work by City shall not
constitute a waiver of any of the provisions of this Agreement including, but not limited
to, Section 15"Indemnification"and Section 16 "Insurance."
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys
reports, data, notes, computer files, files and other documents prepared, developed or
discovered by Design Professional in the course of providing the Services pursuant to
this Agreement shall become the sole property 9 p of City and may be used, reused or
otherwise disposed of by City without the permission of the Design Professional. Upon
completion, expiration or termination of this Agreement, Design Professional 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
Design Professional in the course of providing the Services pursuant to this Agreement,
Design Professional's guarantees and warranties in Section 9 "Standard of
Performance; Familiarity With Work" of this Agreement shall not extend to such use of
the maps, models, designs, drawings, photographs, studies, surveys, reports, data,
notes, computer files, files or other documents.
SECTION 7. DESIGN PROFESSIONAL'S BOOKS AND RECORDS.
(a) Design Professional shall maintain any and all documents and
records
demonstrating or relating to Design Professional's performance of the Services.
Consultant shall maintain any and all ledgers, books of account, invoices, vouchers,
canceled checks, or other documents or records evidencing or relating to work,
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services, 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 detailed so as to •
permit an accurate evaluation of the services provided by Design Professional pursuant
to this Agreement Any and all such documents or 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.
(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 Design
Professional's address indicated for receipt of notices in this Agreement.
(c) Where City has reason to believe that any of the documents or records
required to be maintained pursuant to this section may be lost or discarded due to
dissolution or termination of Design Professional'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) Design Professional is and shall at all times remain a wholly independent
contractor and not an officer, employee or agent of City. Design Professional shall
have no authority to bind City in any manner, nor to incur any obligation, debt or liability
of any kind on behalf of or against City, whether by contract or otherwise, unless such
authority is expressly conferred under this Agreement or is otherwise expressly
conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of
Design Professional shall at all times be under Design Professional's exclusive direction
and control. Neither City, nor any elected or appointed boards, officers, officials,
employees or agents of City, shall have control over the conduct of Design Professional
or any of Design Professional's officers, employees, or agents except as set forth in this
Agreement. Design Professional shall not at any time or in any manner represent that
Design Professional or any of Design Professional's officers, employees, or agents are
in any manner officials, officers, employees or agents of City.
(c) Neither Design Professional, nor any of Design Professional's officers,
employees or agents, shall obtain any rights to retirement, health care or any other
benefits which may otherwise accrue to City's employees. Design Professional
expressly waives any claim Design Professional may have to any such rights.
(d)
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SECTION 9. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK.
(a) Design Professional represents and warrants that it has the qualifications,
experience and facilities necessaryproperly to p p erl
y perform the Services required under this
Agreement in a thorough, competent and professional manner. Design Professional
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, Design
Professional shall employ, at a minimum, generally accepted standards and practices
utilized by persons engaged in providing services similar to the Services required of
Design Professional under this Agreement, and shall use such skill, prudence, and
diligence as other members of Design Professional'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 Design Professionals
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) Design Professional 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.
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SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND
LICENSES.
Design Professional 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. Design Professional shall obtain any and all licenses,
permits and 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 Design Professional to comply with this section.
SECTION 11. PREVAILING WAGE LAWS.
It is the understanding of City and Design Professional that California prevailing
wage laws do apply to this Agreement because the Agreement does involve land
surveying work.
SECTION 12. NONDISCRIMINATION.
Design Professional shall not discriminate, in any way, in the employment of
persons to perform the Services in violation of any federal or state law prohibiting
discrimination in employment, including based on the race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, genetic
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information, marital status, sex, gender, gender identity, gender expression, age, sexual
orientation, of any person, except as provided under California Government Code
section 12940.
SECTION 13. CONFLICTS OF INTEREST.
(a) Design Professional 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 Design
Professional's performance of the Services. Design Professional further covenants that
in the performance of this Agreement, no person having any such interest shall be
employed by it as an officer, employee, agent or subcontractor without the express
written consent of the City Manager. Design Professional agrees to at all times avoid
conflicts of interest or the appearance of any conflicts of interest with the interests of
City in the performance of this Agreement.
(b) City may determine that Design Professional 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, Design Professional
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.
(c) City understands and acknowledges that Design Professional is, as of the
3 date of execution of this Agreement, independently Involved in the performance of non-
related services for other governmental agencies and private parties. Design
Professional 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.
(d) City understands and acknowledges that Design Professional 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.
SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
(a) All information gained or work product produced by Design Professional in
performance of this Agreement shall be considered confidential, unless such information
is in the public domain or already known to Design Professional. Design Professional
shall not release or disclose any such information or work product to persons or
entities other than City without prior written authorization from the City Manager,
except as may be required by law.
(b) Design Professional, 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
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the work performed under this Agreement. Response to a subpoena or court order
shall not be considered "voluntary" provided Design Professional gives City notice of
such court order or subpoena.
(c) If Design Professional, or any officer, employee, agent or subcontractor of
Design Professional, provides any information or work product in violation of this
Agreement, then City shall have the right to reimbursement and indemnity from Design
Professional for any damages, costs and fees, including attorney's fees, caused by or
incurred as a result of Design Professional's conduct.
(d) Design Professional shall promptly notify City should Design Professional,
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 Design Professional or be present at any
deposition, hearing or similar proceeding. Design Professional agrees to cooperate
fully with City and to provide City with the opportunity to review any response to
discovery requests provided by Design Professional. However, this right to review any
such response does not imply or mean the right by City to control, direct, or rewrite said
response.
SECTION 15. INDEMNIFICATION.
(a) Indemnification by Design Professional. As provided under Civil Code
Section 2782.8, Design Professional 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 claims. actions and proceedings (whether at law or equity,
administrative or judicial), demands, orders, judgments, losses, liabilities, damages,
costs and expenses, including attorney's fees and costs, (collectively "Claims") to the
extent same arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Design Professional, its officers, agents, employees or sub-
consultants (or any entity or individual that Design Professional shall bear the legal
liability thereof) in the performance of professional services under this Agreement. In
the event Claims are found by the trier of fact to have been caused by the joint or
concurrent negligence of the City, its contractors and other design professionals, and
Design Professional, damages and expenses from both indemnity and duty to defend
obligations shall be borne by each party in proportion to its negligence. Notwithstanding
the foregoing, in the event one or more defendants are unable to pay its share of
defense costs due to bankruptcy or dissolution of the business, Design Professional
shall meet and confer with other parties regarding unpaid defense costs. The provisions
of this section pertaining to Design Professional's duty to defend shall not apply if there
is a project-specific general liability policy of insurance that insures all project participants
for general liability exposure on a primary basis and also covers all design professionals
involved with the project for their legal liability arising out of their professional services
on a primary basis.
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(b) Indemnification from Subcontractors. Design Professional agrees to
obtain executed indemnity agreements with provisions identical to those set forth here
in this section from each and every sub-consultant, subcontractor or any other person
or entity involved by, for, with or on behalf of Design Professional in the performance of
this Agreement naming the Indemnified Parties as additional indemnitees. In the event
Design Professional fails to obtain such Indemnity obligations from others as required
here, Design Professional 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 Design Professional and shall survive the termination of
this Agreement or this section.
(c) City's Nealicence. 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 16. INSURANCE.
Design Professional agrees to obtain and maintain in full force and effect during
the term of this Agreement the insurance policies set forth in Exhibit "B" "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. Design Professional agrees to
provide City with copies of required policies upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of Design Professional 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 Design
Professional under this Agreement. In recognition of that interest, Design Professional
shall not assign or transfer this Agreement or any portion of this Agreement or the
performance of any of Design Professional'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 19 "Termination of Agreement." City acknowledges,
however, that Design Professional, in the performance of its duties pursuant to this
Agreement, may utilize subcontractors.
SECTION 18. CONTINUITY OF PERSONNEL.
Design Professional shall make every reasonable effort to maintain the stability
and continuity of Design Professional's staff and subcontractors, if any, assigned to
perform the Services. Design Professional shall notify City of any changes in Design
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Professional's staff and subcontractors, if any, assigned to perform the Services prior to
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and during any such performance.
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SECTION 19. 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 Design Professional. In the event
such notice is given, Design Professional shall cease immediately all work in progress.
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(b) Design Professional may terminate this Agreement for cause at any time
upon thirty(30)days written notice of termination to City.
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(c) If either Design Professional or City fail to perform any material obligation
under this Agreement, then, in addition to any other remedies, either Design
{ Professional, or City may terminate this Agreement immediately upon written notice.
I (d) Upon termination of this Agreement by either Design Professional or City,
all property belonging exclusively to City which is in Design Professional's possession
shall be returned to City. Design Professional shall furnish to City a final invoice for
, work performed and expenses incurred by Design Professional, prepared as set forth in
I 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.
I SECTION 20. DEFAULT.
In the event that Design Professional is in default under the terms of this
5 Agreement, the City shall not have any obligation or duty to continue compensating
Design Professional for any work performed after the date of default. Instead, the City
may give notice to Design Professional of the default and the reasons for the default.
The notice shall include the timeframe in which Design Professional may cure the
default. This timeframe isresum tivel
p p y thirty (30) days, but may be extended, though
not reduced, if circumstances warrant. During the period of time that Design
Professional is in default, the City shall hold all invoices and shall, when the default is
a 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
I default. If Design Professional does not cure the default, the City may take necessary
steps to terminate this Agreement under Section 19 "Termination of Agreement." Any
failure on the part of the City to give notice of the Design Professional's default shall not
be deemed to result in a waiver of the City's legal rights or any rights arising out of any
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provision of this Agreement.
SECTION 21. EXCUSABLE DELAYS.
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Design Professional 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 Design Professional. Such causes include, but are not limited to,
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acts of God, acts of the public enemy, acts of federal, state or local governments, acts
of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe
weather. The term and price of this Agreement shall be equitably adjusted for any
delays due to such causes.
SECTION 22. 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 Design Professional in every reasonable way to facilitate, without
4 undue delay, the Services to be performed under this Agreement.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreement shall be in
writing and shall be personally delivered, or sent by telecopier or certified mail, postage
prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: City Manager
68-700 Avenida Lab Guerrero
Cathedral City, CA 92234
To Design Professional: Fomotor Engineering
Attn: Phillip K. Fomotor, P.E, PLS
225 South Civic Drive Suite 1-5
Palm Springs, CA 92262
Notice shall be deemed effective on the date personally delivered or transmitted
by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the
United States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Design
Professional represents and warrants that he/she/they has/have the authority to so
execute this Agreement and to bind Design Professional to the performance of its
obligations hereunder.
SECTION 25. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his
or her designated 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 27 "Amendment" and the City
Manager's contracting authority under the Cathedral City Municipal Code.
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SECTION 26. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made
in writing and approved by the Design Professional and by the City. The City Manager
shall have the authority to approve any amendment to this Agreement if the total
compensation under this Agreement, as amended, would not exceed the City
Manager's contracting authority under the Cathedral City Municipal Code. All other
amendments shall be approved by the City Council. The Parties agree that the
requirement for written modifications cannot be waived and that any attempted waiver
shall be void.
SECTION 28. WAIVER.
Waiver by any Party to this Agreement of any term, condition, 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 or services
by Design Professional shall not constitute a waiver of any of the provisions of this
Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed 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 30. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any
provision of this Agreement, the prevailing Party in such litigation or other proceeding
shall be entitled to an award of reasonable attorney's fees, costs and expenses, in
addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire,
complete, final and exclusive expression of the Parties with respect to the matters
addressed therein and supersedes all other agreements or understandings, whether
oral or written, or entered into between Design Professional and City prior to the
execution of this Agreement. No statements, representations or other agreements,
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whether oral or written, made by any Party which are not embodied herein shall be valid
and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is 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 33. 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.
CITY OF CATHEDRAL CITY FOMOTOR ENGINEERING
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Charles P. McClendon By: Phillip K. Fomotor
• City Manager Its: President
ATTEST:
By:•
Its:
Gary F. Howell
City Clerk
APPROVED S TO 0
Eric S. Vail
City Attorney
NOTE: DESIGN PROFESSIONAL'S SIGNATURES SHALL BE DULY NOTARIZED,
AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION,
OR OTHER RULES OR REGULATIONS APPLICABLE TO DESIGN
PROFESSIONAL'S BUSINESS ENTITY.
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s
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Riverside )
On Ivkcui Ili before me, AnnMarie J. Quintanilla-Garcia Notary Public
(insert name and title of the officer)
personally appeared Ph^t11 p KaAiw.it lawsoto
who proved to me on the basis of satisfactory evidence to be the person(z)whose name(a is/are
subscribed to the within instrument and acknowledged to me that he/ W/they executed the same in
his/her/their authorized capacity(1), and that by his/bef/thetr signatureks`)on the instrument the
person(,s'), or the entity upon behalf of which the personWacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
ANN MARIE J. UIItTM IL.LA-GARCIA
WITNESS my hand and official seal. '`.
commission•2109791
■ ,i Notary Public-California
Riverside Co
un y
ee � — • My Conlin.Expires May 29,2019 I
Signature �t�tr; Q (13 -C , (Seal) — — — — — — — — — —
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EXHIBIT"A"
SCOPE OF SERVICES
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Fomotor Engineering
225 South Civic Drive,Suite 1-5 • Palm Springs, California 92262
Office: (760)323-1842 • Facsimile: (760)323-1742
Email: phillip@fomotor.com
Civil Engineering Land Surveying Land Planning
April 12, 2018
Efrain Rodriguez
Engineering Technician I
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Ph. (760) 202-2405
SUBJECT: Land Survey services for approximately 5,600 linear feet of street cross
sections along Dinah Shore Drive, Date Palm Drive and Cathedral Canyon
Drive.
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Dear Efrain,
Pursuant to your request, we are pleased to present the following proposal for
approximately 5,600 linear feet of street cross sections along Dinah Shore Drive, Date Palm
Drive and Cathedral Canyon Drive.
I. SCOPE OF SERVICES
Field Survey
• Perform control field survey locating street centerline monuments to be used as a
basis of bearing and a local Cathedral City benchmark.
• All cross sections to be taken at a maximum of 25'intervals With sections beginning at
right-of-way or wall to right-of-way or wall. Right of way .widths to be plotted per
current Assessor Map or per Client provided maps!title information.
• Perform field survey obtaining cross section along Dinah Shore beginning at the
easterly end of the concrete bridge westerly of Shifting Sands Trail to 200'
easterly of the easterly stop bar at the intersection of Date Palm,Drive.
• Perform field survey obtaining cross section along Cathedral Canyon Drive
beginning 200' northerly of the northerly stop bar of the intersection of Dinah
Shore Drive to 200' southerly of the southerly stop bar of the intersection of
Dinah Shore Drive.
• Perform field survey obtaining cross section along Date Palm Drive beginning
200' northerly of the northerly stop bar of the intersection of Dinah Shore Drive to
200' southerly of the southerly stop bar of the intersection of Dinah Shore Drive.
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City of Cathedral City:Land survey services for the sheet cross sections of Dinah Shona Drive, Cathedral Canyon
Drive,and Date Palm Drive.
Fomotor Engineering Apr77 12,2018
Topographical Survey Base Sheet
Prepare Survey Base Sheet of plotting street, curb return and visible street utilities
noting elevation cross sections obtained per the above field survey. Generate 1 foot
contours of the existing street and curb returns.
II. ASSUMPTIONS
We have made the following assumptions in the preparation of this proposal. Should
any of these assumptions prove to be inaccurate, an adjustment in the Scope of
Services and associated compensation may be required.
1. A title report will be obtained by the Client to identify all easements and rights-of-
way. Easement plotting is not part of this scope.
2. All permit fees, plan check fees, recordation fees, agency review fees, agency
document retrieval and copy fees and similar fees are to be paid by the Client
3. Expenses for reproduction, postage, delivery are considered reimbursable. We
suggest an additional$100.00 be budgeted for these expenses.
4. Additional services beyond the scope outlines herein will be provided on an
hourly basis with prior Client approval per the attached "2018 Schedule of Hourly
Rates" or per a mutually agreed upon lump sum fee. Additional services may
include redesign and/or additional design due to site plan changes, changes in Client
or agency requirements,and the Ike
5. Pot holing of existing utilities, if required, will be provided by Client.
6. Utility research and plotting per as built utility plats is not part of this scope.
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City of Cathedral Crty.Land survey services for the sheet cross sections of Dinah Shore Drive, Cathedral Canyon
Drive,and Date Palm Drive.
FamotorEngineering Apn712,2018
III. COMPENSATION
We propose to perform the services outlined above for the following fee schedule
Field Survey
Topographical Survey Base Sheet
Lump Sum Fee of$19,820.00 at prevailing wage
($15,020.00 at non prevailing wage)
Survey submission to City by May 3, 2018.
Our work will be governed by the enclosed Conditions of Service.
If this proposal meets with your approval please sign below and return one copy. I
would like to thank you for this opportunity to be of service and am looking forward to
working with you on this project.
Best regards,
FOMOTOR ENGINEERING Approved by Client:
(Fomotor, Inc.
401100MW"
IP K. FOMOTOR, P.E., P.L.S. By:
CEO Name:
Civil#47284 Title:
QSD /QSP#23078
Land Survey#7070.
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City of Cathedral Ciy.Land survey services for the street cross sections of Dinah Shore Drive,Cathedral Canyon
Drive,and Date Palm Drive.
Fomotor Engineering April 12,2018
44.
CONDITIONS OF SERVICE
1. This agreement contains the entire agreement between Client and Consultant relating to the project and the
provision of services to the project. Any prior agreements, promises, negotiations or representations not
expressly set forth in this agreement are of no force of effect. Subsequent modifications to this agreement shall
be in writing and signed by both Client and Consultant.
2. AN fees and other Charges will be billed monthly and shall be due at the time of billing.
'' 3. Client agrees that the periodic billings from Consultant to Client are correct, conclusive, and binding on Client
unless Client,within ten(10)days from the date of receipt of such billing,notifies Consultant in writing of alleged
I inaccuracies,discrepancies,or errors in the billing.
4. Client agrees to pay a monthly late payment charge,which will be the lesser of one and one half percent(1-1
1/2%)per month or a monthly charge not to exceed the maximum legal rate,which will be applied to any unpaid
balance commencing sixty(60)days after the date of the original billing.
I, 5. The Consultant's total liability related to the services provided shall be limited to the coverage provided by
Fomotor Engineering's insurance company.
6. Client agrees that if Client requests services not specified pursuant to the Scope of Services description within
this agreement,Client agrees to pay for all such additional services as extra work.
7. In the event all or any portion Of the Work prepared or partially prepared by Consultant be suspended,
abandoned,or terminated,Client shall pay Consultant for all fees,larges,and services provided for the project,
not to exceed any contract limit specified herein. Client acknowledges if the project work is suspended and
restarts,there will be additional charges due to suspension of the work which shall be paid for by Client as extra
work.
8. In the event that Client institutes a suit against Consultant, either directly by complaint or by way of cross-
complaint for indemnity,for alleged negligence,error,omission,or other failure to perform, and if Client fails to
'T obtain a judgment in Client's favor, the lawsuit is dismissed, or if judgment is rendered for Consultant, Client
agrees to pay Consultant all costs of defense, including reasonable attorney'fees, expert witness fees, court
costs, and any and all other expenses of defense. Client agrees such payments shall be made immediately
following dismissal of the case or upon entry of judgment.
4 9. If any action at law or equity, inducing an action for dedaratory relief, is brought to enforce or interpret the
provision;of this agreement,the prevailing party shall be entitled to reasonable attorney'fees,which fees may
- be set by the court in the same action or in a separate action brought for that purpose,in addition to any other
relief to which he may be entitled.
10. Client agrees that in the event Client institutes litigation to enforce or interpret the provisions of this agreement,
such litigation is to be brought and adjudicated in the appropriate court in the county in which Consultant's
principal place of business is located,and Client waives the right to bring, try or remove such litigation to any
other county or judicial district.
11. Client acknowledges that Consultant is not responsible for the performance of work by third parties.
12. Consultant makes no warranty, either expressed or implied, as to his feedings, recommendations, plans,
specifications, or professional advice except that the work was performed pursuant to generally accepted I
standards of practice in effect at the time of performance. I
1 13. This contract is valid for 60 days from the date on page one to begin our scope of work.
14. Work will be stopped on any job that has invoices outstanding for more than 80 days.Client agrees to waive any
claim against any claims against Consultant,and to indemnify, defend,and hold Consultant harmless from and
against any claims arising from Consultant's suspension or termination due to Client's failure to provide timely i
payment.
15. Client agrees that in accordance with generally accepted construction practices, construction contractor will be
required to assume sole and complete responsibility for job site conditions during the course of construction of r
the project, including safety of all persons and property; that this requirement shall be made to apply
4 continuously and not be limited to normal working hours,and Client further agrees to defend,indemnify end hold
Consultant harmless from any and all liability,real or alleged,in connection with the performance of work on this li [
project,exceptingabilitty arising from the sole negligence of Consultant.
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EXHIBIT "B"
INSURANCE
A. Insurance Coverages. Service Provider 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 Services by Service Provider, its
agents, representatives or employees. Service Provider shall procure and maintain the
following scope and limits of insurance:
Only the following "marked" requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis
to protect Service Provider and City against liability or claims of liability which may arise
out of this Agreement in the amount of one million dollars ($1,000,000) per
occurrence and subject to an annual aggregate of two million dollars ($2,000,000).
Coverage shall be at least as broad as Insurance Services Office form Commercial
General Liability coverage (Occurrence Form CG 0001). There shall be no
endorsement or modification of the CGL limiting the scope of coverage for either insured
vs. additional insured claims or contractual liability. All defense costs shall be outside
the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less than
$1,000,000 for injuries, including accidental death, to any one person, and subject to the
same minimum for each person, in an amount not less than one million dollars
($1,000,000) for each accident, and property damage insurance in an amount of not
less than one million dollars ($1,000,000). A combined single limit policy with aggregate
limits in an amount of not less than $2,000,000 shall be considered equivalent to the
said required minimum limits. Coverage shall be at least as broad as Insurance Services
Office form number CA 0001 covering Automobile Liability, including code 1 "any auto"
and endorsement CA 0025, or equivalent forms subject to the approval of the City.
X Workers' Compensation Insurance: Workers' Compensation insurance that
includes a minimum of one million dollars ($1,000,000) of employers' liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of
subrogation against the City and its respective elected officials, officers, employees,
agents and representatives. In the event a claim under the provisions of the California
Workers' Compensation Act is filed against City by a bona fide employee of Service
Provider participating under this Agreement, Service Provider is to defend and
indemnify the City from such claim.
X Professional Liability Insurance: Professional liability insurance appropriate
to the Service Provider's profession in an amount not less than one million dollars
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$1,000,000 per occurrence. 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
Service Provider's services or the termination of this Agreement. During this additional
three (3) year period, Service Provider shall annually and upon request of the City
submit written evidence of this continuous coverage.
B. Other Provisions. Insurance policies required by this Agreement shall
contain the following provisions:
1. All Coverages.
a. 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.
b. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a. City, and its respective elected and appointed officers,
officials, and employees and volunteers are to be covered as additional insureds as
respects: liability arising out of activities Service Provider performs; products and
completed operations of Service Provider; premises owned, occupied or used by Service
Provider; or automobiles owned, leased, hired or borrowed by Service Provider. The
coverage shall contain no special limitations on the scope of protection afforded to City,
and their respective elected and appointed officers, officials, or employees.
b. Service Provider's insurance 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, Service Provider's
insurance.
} c. Service Provider'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.
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d. 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.
e. The insurer waives all rights of subrogation against the City,
its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager
otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation
against City, and its respective elected and appointed officers, officials, employees and
agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or
before the effective date of this Agreement, certificates of insurance necessary to
satisfy City that the insurance provisions of this contract have been complied with. The
City may require that Service Provider 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. Service Provider shall furnish certificates and endorsements from
each sub-contractor identical to those Service Provider provides.
2. Any deductibles or self-insured retentions must be declared to and
approved by City. At the option of City, either the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City or its respective elected or
appointed officers, officials, employees and volunteers, or the Service Provider 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 Service Provider's liability hereunder nor to fulfill the
indemnification provisions and requirements of this Agreement.
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