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Coachella Valley Mosquito and Vector Control
District Board of Trustees Meeting May 13, 2008 |
Agenda Item: Old Business
Discussion and Request for clarification regarding Scope of Work/Scope of Payment for Kiner Communications’ contract and for authorization for Interim General Manager to execute contract with clarified Scope of Work.
Background:
The Board of Trustees approved the scope of work to be included in an RFQ at their August 14, 2007, meeting. The Executive Committee reviewed the responses at their February 1, 2008, meeting and requested that the three lowest bidders be invited to the February 12, 2008, Trustee meeting to make short presentations before the entire Board.
At the February 12, 2008, Board of Trustees
meeting, Trustees heard presentations from three Communication/PR firms.
The Board voted to have the General Manager enter into contract negotiations
with Kiner Communications and to present the negotiated contract to the Board
at their March 11, 2008, meeting for their approval.
According to the minutes for the meeting of March
11, 2008, the Board took the following action:
“Trustee Lock questioned what the wording in the
Kiner contract stating “from five hours or $750 an hour”. Mr. Kiner from Kiner
responded that the contract is stating that the project is going to take five
hours. Trustee Lock requested that Item 11 A
be broken into two separate motions, one for the amount of $33,000 and
one for the amount of $15,000. A discussion ensued. Trustee Nigosian made the
motion to approve the amount of $33,000 to enter into a contract with Kiner
Communications. The motion was seconded by Trustee Lock and carried with ten (10) approved (Duran, Fuschetti,
The contact that was presented for consideration
at the meeting of March 11, 2008, was prepared by Kiner Communications. It was under review by the former General
Counsel when she resigned. She had not
approved the agreement or presented it to the General Manager for
signature. Kiner had prepared the Scope
of Services based in large part on the RFQ.
The contract was sent to Rutan & Tucker to
review. Ms. Jenson was concerned about
the form of the agreement (e.g., there were no provisions covering the right to
terminate, etc.). In addition, she was
concerned about the Scope of Services.
Ms. Carter of Kiner Communications agreed to add “deliverables.” Ms. Jenson revised the form of the agreement
to provide for standard terms and conditions.
The revised agreement is attached.
Staff wishes to confirm that the revised Scope of
Services/Scope of Compensation reflects the Board wishes. There is concern from staff that the
District’s needs are bundled with one firm and questions whether that single
resource can provide the best product in all the areas defined in the scope of
work, i.e., website, graphics.
Staff
Recommendation:
Provide direction and clarify any revisions the Board wishes
to make to the agreement and authorize the Interim General Manager to execute
the agreement, as revised.
Fiscal Impact:
The contract encompasses two budget years; therefore, pro-rata figures are used. Current funds available from Fund #6095.01.225 – Miscellaneous Professional Fees is $32,977, 27% of the budgeted amount for this line item. The pro-rata expenditure is approximately 25% of the available balance. For FY 2008/09 Budget Account #6095.01.215 – Community Outreach Professional Fees this expenditure will be $39,750.
PROFESSIONAL SERVICES
AGREEMENT
THIS AGREEMENT FOR
CONTRACT SERVICES (the “Agreement”) is made and entered into by and between the
COACHELLA VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT, (“District”) and KINER
COMMUNICATIONS (“Consultant”). The parties
hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions
of this Agreement, Consultant shall provide those services related to
marketing, advertising, promotion, communications, and public relations as
specified in the “Scope of Services” attached hereto as Exhibit “A” and
incorporated herein by this reference (the “services” or “work”). Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance
with the standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules,
regulations and laws of the District and any Federal, State or local
governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and
approvals as may be required by law for the performance of the services
required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus
applicable penalties and interest, which may be imposed by law and arise from
or are necessary for the performance of the services required by this
Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant
warrants that (a) it has thoroughly investigated and considered the work to be
performed, (b) it has investigated the site of the work and fully acquainted
itself with the conditions there existing, (c) it has carefully considered how
the work should be performed, and (d) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this
Agreement. Should Consultant discover
any latent or unknown conditions materially differing from those inherent in
the work or as represented by District, Consultant shall immediately inform
District of such fact and shall not proceed except at Consultant's risk until
written instructions are received from the Contract Officer (as defined in
Section 4.2 hereof).
1.5 Care of Work and Standard of Work.
a. Care of Work. Consultant shall adopt reasonable methods
during the life of the Agreement to furnish continuous protection to the work
performed by Consultant, and the equipment, materials, papers and other
components thereof to prevent losses or damages, and shall be responsible for
all such damages, to persons or property, until acceptance of the work by
District, except such losses or damages as may be caused by District's own
negligence. The performance of services
by Consultant shall not relieve Consultant from any obligation to correct any
incomplete, inaccurate or defective work at no further cost to District, when
such inaccuracies are due to the negligence of Consultant.
b. Standard of Work. Consultant acknowledges and understands that
the services and work contracted for under this Agreement require specialized
skills and abilities and that, consistent with this understanding, Consultant’s
services and work will be held to a heightened standard of quality and
workmanship. Consistent with Section 1.4
hereinabove, Consultant represents to District that it holds the necessary
skills and abilities to satisfy the heightened standard of work as set forth in
this Agreement.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this
Agreement, Consultant shall be compensated in accordance with Exhibit “A” in a
total amount not to exceed Thirty-Three Thousand Dollars ($33,000) (the
“Contract Sum”).
2.2 Method of Payment. Any month in which Consultant wishes to
receive payment, Consultant shall submit to District no later than the tenth
(10th) working day of such month, in the form approved by General
Manager/Interim General Manager, an invoice for services rendered prior to the
date of the invoice. Such invoice shall
(1) describe in detail the services provided, including time and materials, and
(2) specify each staff member who has provided services and the number of hours
assigned to each such staff member. Such
invoice shall contain a certification by a principal member of Consultant
specifying that the payment requested is for work performed in accordance with
the terms of this Agreement. District
will pay Consultant for all expenses stated thereon which are approved by
District pursuant to this Agreement no later than thirty (30) days after
invoices are received by the General Manager/Interim General Manager.
In
accordance with industry standards, Consultant proposes to invoice District for
media purchases such as television, radio, and print upon Contractor’s
insertion order, i.e., at the time the insertion order is placed. This will allow District time to process
payment and send to Consultant upon fulfillment of media commitment.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of
this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this
Agreement shall be performed diligently and within the time period established
in Exhibit “A”, if any. Extensions to
the time period specified may be approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of
Performance for performance of the services rendered pursuant to this Agreement
shall be extended because of any delays due to unforeseeable causes beyond the
control and without the fault or negligence of Consultant, including, but not
restricted to, acts of God or of the public enemy, fires, earthquakes, floods,
epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of
any governmental agency other than District, and unusually severe weather, if
Consultant shall within ten (10) days of the commencement of such delay notify
the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the
facts and the extent of delay, and extend the time for performing the services
for the period of the forced delay when and if in his or her judgment such
delay is justified, and the Contract Officer's determination shall be final and
conclusive upon the parties to this Agreement.
3.4 Term.
The term of this Agreement shall commence on the date of the last signature
on this Agreement and terminate on 1 year later, unless earlier terminated in
accordance with Sections 7.7 or 7.8 of this Agreement.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant are
hereby designated as being the principals and representatives of Consultant
authorized to act in its behalf with respect to the work specified herein and
make all decisions in connection therewith:
a.
Scott Kiner, Principal
b.
Andrea Carter, Vice President/Account Manager
It is expressly
understood that the experience, knowledge, capability, and reputation of the
foregoing principals were a substantial inducement for District to enter into
this Agreement. Therefore, the foregoing
principals shall be responsible during the term of this Agreement for directing
all activities of Consultant and devoting sufficient time to personally
supervise the services hereunder.
The foregoing
principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written
approval of District.
4.2 Contract Officer. The Contract Officer shall be the General
Manager/Interim General Manager or such other person as may be designated by
the General Manager/Interim General Manager.
It shall be Consultant's responsibility to assure that the Contract
Officer is kept informed of the progress of the performance of the services and
Consultant shall refer any decisions, which must be made by District to the
Contract Officer. Unless otherwise
specified herein, any approval of District required hereunder shall mean the
approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or
Assignment. The experience,
knowledge, capability and reputation of Consultant, its principals and
employees were a substantial inducement for District to enter into this
Agreement. Except as set forth in this
Agreement, Consultant shall not contract with any other entity to perform in
whole or in part the services required hereunder without the express written
approval of District. In addition,
neither this Agreement nor any interest herein may be assigned or transferred,
voluntarily or by operation of law, without the prior written approval of
District.
4.4 Independent Contractor. Neither District nor any of its employees
shall have any control over the manner, mode or means by which Consultant, its
agents or employees, perform the services required herein, except as otherwise
set forth. Consultant shall perform all
services required herein as an independent contractor of District and shall
remain at all times as to District a wholly independent contractor with only
such obligations as are consistent with that role. Consultant shall not at any time or in any
manner represent that it or any of its agents or employees are agents or
employees of District .
4.5 District Cooperation. District shall provide Consultant with any
plans, publications, reports, statistics, records or other data or information
pertinent to services to be performed hereunder which are reasonably available
to Consultant only from or through action by District.
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Prior to the beginning of and throughout the
duration of the Work performed under this Agreement, Consultant shall procure
and maintain, at its cost, and submit concurrently with its execution of this
Agreement, personal and public liability and property damage insurance against
all claims for injuries against persons or damages to property resulting from Consultant's
acts or omissions rising out of or related to Consultant's performance under
this Agreement. The insurance policy
shall contain a severability of interest clause providing that the coverage
shall be primary for losses arising out of Consultant's performance hereunder
and neither District nor its insurers shall be required to contribute to any
such loss. A certificate evidencing the
foregoing and naming District and its officers and employees as additional insured
shall be delivered to and approved by District prior to commencement of the
services hereunder.
The amount of
insurance required hereunder shall be determined by the Contract Sum in
accordance with the following table:
Contract Sum Personal Injury/Property
Damage Coverage
Less than $50,000 $100,000 per individual; $300,000 per
occurrence
$50,000 - $300,000 $250,000 per individual; $500,000
per occurrence
Over $300,000 $ 500,000
per individual; $1,000,000 per
occurrence
Consultant shall carry
automobile liability insurance of $1,000,000 per accident against all claims
for injuries against persons or damages to property arising out of the use of
any automobile by Consultant, its officers, any person directly or indirectly
employed by Consultant, any subcontractor or agent, or anyone for whose acts
any of them may be liable, arising directly or indirectly out of or related to
Consultant's performance under this Agreement.
If Consultant or Consultant’s employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto
liability coverage for each such person.
The term “automobile” includes, but is not limited to, a land motor
vehicle, trailer or semi-trailer designed for travel on public roads. The automobile insurance policy shall contain
a severability of interest clause providing that coverage shall be primary for
losses arising out of Consultant's performance hereunder and neither District
nor its insurers shall be required to contribute to such loss. A certificate evidencing the foregoing and
naming District and its officers and employees as additional insured shall be
delivered to and approved by District prior to commencement of the services
hereunder.
Consultant shall carry
Workers' Compensation Insurance in accordance with State Worker's Compensation
laws with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability
or Errors and Omissions Insurance as appropriate shall be written on a policy
form coverage specifically designed to protect against acts, errors or
omissions of the consultant and “Covered Professional Services” as designated
in the policy must specifically include work performed under this
agreement. The policy limit shall be no
less than $1,000,000 per claim and in the aggregate. The policy must “pay on behalf of” the
insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date
shall be on or before the effective date of this agreement.
Insurance procured
pursuant to these requirements shall be written by insurers that are admitted
carriers in the State of
All insurance required
by this Section shall be kept in effect during the term of this Agreement and
shall not be cancelable without thirty (30) days written notice to District of
proposed cancellation. The procuring of
such insurance or the delivery of policies or certificates evidencing the same
shall not be construed as a limitation of Consultant's obligation to indemnify
District, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification.
a. General Indemnification Provision.
1. Indemnification for Professional
Liability. When the law establishes
a professional standard of care for Consultant’s Services, to the fullest
extent permitted by law, Consultant shall indemnify, protect, defend and hold
harmless District and any and all of its officials, employees and agents
(“Indemnified Parties”) from and against any and all claims, losses,
liabilities of every kind, nature and description, damages, injury (including,
without limitation, injury to or death of an employee of Consultant or
subconsultants), costs and expenses of any kind, whether actual, alleged or
threatened, including, without limitation, incidental and consequential
damages, court costs, attorneys’ fees, litigation expenses, and fees of expert
consultants or expert witnesses incurred in connection therewith and costs of
investigation, to the extent same are cause in whole or in part by any
negligent or wrongful act, error or omission of Consultant, its officers,
agents, employees or subconsultants (or any entity or individual that
Consultant shall bear the legal liability thereof) in the performance of
professional services under this agreement.
With respect to the design of public improvements, the Consultant shall
not be liable for any injuries or property damage resulting from the reuse of
the design at a location other than that specified in Exhibit C without the
written consent of the Consultant.
2. Indemnification for Other Than
Professional Liability. Other than
in the performance of professional services and to the full extent permitted by
law, Consultant shall indemnify, defend and hold harmless District, and any and
all of its employees, officials and agents from and against any liability
(including liability for claims, suits, actions, arbitration proceedings,
administrative proceedings, regulatory proceedings, losses, expenses or costs
of any kind, whether actual, alleged or threatened, including, without
limitation, incidental and consequential damages, court costs, attorneys’ fees,
litigation expenses, and fees of expert consultants or expert witnesses)
incurred in connection therewith and costs of investigation, where the same
arise out of, are a consequence of, or are in any way attributable to, in whole
or in part, the performance of this Agreement by Consultant or by any
individual or entity for which Consultant is legally liable, including but not
limited to officers, agents, employees or subconsultants of Consultant.
3. Standard Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth herein this
section from each and every subconsultant or any other person or entity
involved by, for, with or on behalf of Consultant in the performance of this
agreement. In the event Consultant fails
to obtain such indemnity obligations from others as required herein, Consultant
agrees to be fully responsible according to the terms of this section. Failure of District to monitor compliance
with these requirements imposes no additional obligations on District and will
in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend
District as set forth herein is binding on the successors, assigns or heirs of
Consultant and shall survive the termination of this agreement or this section.
5.3 Remedies. In addition to any other remedies District
may have if Consultant fails to provide or maintain any insurance policies or
policy endorsements to the extent and within the time herein required, District
may, at its sole option:
a. Obtain such insurance and deduct and
retain the amount of the premiums for such insurance from any sums due under
this Agreement.
b. Order Consultant to stop work under this
Agreement and/or withhold any payment(s) which become due to Consultant
hereunder until Consultant demonstrates compliance with the requirements
hereof.
c. Terminate this Agreement.
Exercise of any of the
above remedies, however, is an alternative to any other remedies District may
have. The above remedies are not the
exclusive remedies for Consultant's failure to maintain or secure appropriate
policies or endorsements. Nothing herein
contained shall be construed as limiting in any way the extent to which
Consultant may be held responsible for payments of damages to persons or
property resulting from Consultant's or its subcontractors' performance of work
under this Agreement.
5.4 General Conditions pertaining to
provisions of insurance coverage by Consultant. Consultant and District agree to the
following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer
endorse the third party general liability coverage required herein to include
as additional insureds District, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees to require all contractors,
and subcontractors to do likewise.
2. No liability insurance coverage provided
to comply with this Agreement shall prohibit Consultant, or Consultant’s
employees, or agents, from waiving the right of subrogation prior to a
loss. Consultant agrees to waive
subrogation rights against District regardless of the applicability of any
insurance proceeds, and to require all contractors and subcontractors to do
likewise.
3. All insurance coverage and limits provided
by Contractor and available or applicable to this agreement are intended to
apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to
the District or its operations limits the application of such insurance
coverage.
4. None of the coverages required herein will
be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to District and
approved of in writing.
5. No liability policy shall contain any
provision or definition that would serve to eliminate so-called “third party
action over” claims, including any exclusion for bodily injury to an employee
of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are
subject to approval, modification and additional requirements by the District,
as the need arises. Consultant shall not
make any reductions in scope of coverage (e.g. elimination of contractual
liability or reduction of discovery period) that may affect District’s
protection without District’s prior written consent.
7. Proof of compliance with these insurance
requirements, consisting of certificates of insurance evidencing all of the
coverages required and an additional insured endorsement to Consultant’s
general liability policy, shall be delivered to District at or prior to the
execution of this Agreement. In the
event such proof of any insurance is not delivered as required, or in the event
such insurance is canceled at any time and no replacement coverage is provided,
District has the right , but not the duty, to obtain any insurance it deems
necessary to protect its interests under this or any other agreement and to pay
the premium. Any premium so paid by
District shall be charged to and promptly paid by Consultant or deducted from
sums due Consultant, at District option.
8. Certificate(s) are to reflect that the
insurer will provide thirty (30) days notice to District of any cancellation of
coverage. Consultant agrees to require
its insurer to modify such certificates to delete any exculpatory wording
stating that failure of the insurer to mail written notice of cancellation
imposes no obligation, or that any party will “endeavor” (as opposed to being
required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this
agreement that all insurance coverage required to be provided by Consultant or
any subcontractor, is intended to apply first and on a primary,
non-contributing basis in relation to any other insurance or self insurance
available to District.
10. Consultant agrees to ensure that
subcontractors, and any other party involved with the project who is brought
onto or involved in the project by Consultant, provide the same minimum
insurance coverage required of Consultant.
Consultant agrees to monitor and review all such coverage and assumes
all responsibility for ensuring that such coverage is provided in conformity
with the requirements of this section.
Consultant agrees that upon request, all agreements with subcontractors
and others engaged in the project will be submitted to District for review.
11. Consultant agrees not to self-insure or to
use any self-insured retentions or deductibles on any portion of the insurance
required herein and further agrees that it will not allow any contractor,
subcontractor, Architect, Engineer or other entity or person in any way
involved in the performance of work on the project contemplated by this
agreement to self-insure its obligations to District, If Consultant’s existing coverage includes a
deductible or self-insured retention, the deductible or self-insured retention
must be declared to the District. At
that time the District shall review options with the Consultant, which may
include reduction or elimination of the deductible or self-insured retention,
substitution of other coverage, or other solutions.
12. The District reserves the right at any time
during the term of the contract to change the amounts and types of insurance
required by giving the Consultant ninety (90) days advance written notice of
such change. If such change results in
substantial additional cost to the Consultant, the District will negotiate
additional compensation proportional to the increased benefit to District.
13. For purposes of applying insurance coverage
only, this Agreement will be deemed to have been executed immediately upon any
party hereto taking any steps that can be deemed to be in furtherance of or
towards performance of this Agreement.
14. Consultant acknowledges and agrees that any
actual or alleged failure on the part of District to inform Consultant of
non-compliance with any insurance requirement in no way imposes any additional
obligations on District nor does it waive any rights hereunder in this or any
other regard.
15. Consultant will renew the required coverage
annually as long as District, or its employees or agents face an exposure from
operations of any type pursuant to this agreement. This obligation applies whether or not the
agreement is canceled or terminated for any reason. Termination of this obligation is not
effective until District executes a written statement to that effect.
16. Consultant shall provide proof that policies
of insurance required herein expiring during the term of this Agreement have
been renewed or replaced with other policies providing at least the same
coverage. Proof that such coverage has
been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant’s
insurance agent to this effect is acceptable.
A certificate of insurance and/or additional insured endorsement as
required in these specifications applicable to the renewing or new coverage
must be provided to District within five (5) days of the expiration of
coverages.
17. The provisions of any workers’ compensation
or similar act will not limit the obligations of Consultant under this
agreement. Consultant expressly agrees
not to use any statutory immunity defenses under such laws with respect to
District, its employees, officials and agents.
18. Requirements of specific coverage features
or limits contained in this section are not intended as limitations on
coverage, limits or other requirements nor as a waiver of any coverage normally
provided by any given policy. Specific
reference to a given coverage feature is for purposes of clarification only as
it pertains to a given issue, and is not intended by any party or insured to be
limiting or all-inclusive.
19. These insurance requirements are intended to
be separate and distinct from any other provision in this agreement and are
intended by the parties here to be interpreted as such.
20. The requirements in this Section supersede
all other sections and provisions of this Agreement to the extent that any
other section or provision conflicts with or impairs the provisions of this
Section.
21. Consultant agrees to be responsible for
ensuring that no contract used by any party involved in any way with the
project reserves the right to charge District or Consultant for the cost of
additional insurance coverage required by this agreement. Any such provisions are to be deleted with
reference to District. It is not the
intent of District to reimburse any third party for the cost of complying with
these requirements. There shall be no
recourse against District for payment of premiums or other amounts with respect
thereto.
Consultant agrees to
provide immediate notice to District of any claim or loss against Consultant
arising out of the work performed under this agreement. District assumes no obligation or liability
by such notice, but has the right (but not the duty) to monitor the handling of
any such claim or claims if they are likely to involve District.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall prepare and submit to the
Contract Officer such reports concerning Consultant's performance of the
services required by this Agreement as the Contract Officer shall require. Quarterly Reports shall be submitted by
Contractor and shall be prepared in a manner that is appropriate for District
Board review. Quarterly Reports shall be
due on or about the following dates:
September 15, 2007; December 15, 2007; March 15, 2008; and June 15,
2008.
6.2 Records. Consultant shall keep such books and records
as shall be necessary to perform the services required by this Agreement and
enable the Contract Officer to evaluate the cost and the performance of such
services. Books and records pertaining
to costs shall be kept and prepared in accordance with generally accepted
accounting principals. The Contract
Officer shall have full and free access to such books and records at all
reasonable times, including the right to inspect, copy, audit, and make records
and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, reports, records,
documents and other materials, whether in hard copy or electronic form, which
are prepared by Consultant, its employees, subcontractors and agents in the
performance of this Agreement, shall be the property of District and shall be
delivered to District upon termination of this Agreement or upon the earlier
request of the Contract Officer, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by District
of its full rights of ownership of the documents and materials hereunder. Consultant shall cause all subcontractors to
assign to District any documents or materials prepared by them, and in the
event Consultant fails to secure such assignment, Consultant shall indemnify
District for all damages suffered thereby.
In the event District
or any person, firm or corporation authorized by District reuses said documents
and materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or
alterations in said documents and materials, District hereby releases,
discharges, and exonerates Consultant from liability resulting from said
change. The provisions of this clause
shall survive the completion of this Contract and shall thereafter remain in
full force and effect.
6.4 Release of Documents. The drawings, specifications, reports,
records, documents and other materials prepared by Consultant in the
performance of services under this Agreement shall not be released publicly
without the prior written approval of the Contract Officer or as required by
law. Consultant shall not disclose to
any other entity or person any information regarding the activities of
District, except as required by law or as authorized by District.
7.0 ENFORCEMENT OF AGREEMENT.
7.1
7.2 Disputes. In the event of any dispute arising under
this Agreement, the injured party shall notify the injuring party in writing of
its contentions by submitting a claim therefore. The injured party shall continue performing
its obligations hereunder so long as the injuring party commences to cure such
default within ten (10) days of service of such notice and completes the cure
of such default within forty-five (45) days after service of the notice, or
such longer period as may be permitted by the Contract Officer; provided that
if the default is an immediate danger to the health, safety and general
welfare, District may take such immediate action as District deems
warranted. Compliance with the
provisions of this section shall be a condition precedent to termination of
this Agreement for cause and to any legal action, and such compliance shall not
be a waiver of any party's right to take legal action in the event that the
dispute is not cured, provided that nothing herein shall limit District's right
to terminate this Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. District may withhold from any monies payable
to Consultant sufficient funds to compensate District for any losses, costs,
liabilities, or damages it reasonably believes were suffered by District due to
the default of Consultant in the performance of the services required by this
Agreement.
7.4 Waiver. No delay or omission in the exercise of any
right or remedy of a non defaulting party on any default shall impair such
right or remedy or be construed as a waiver.
District's consent or approval of any act by Consultant requiring
District's consent or approval shall not be deemed to waive or render unnecessary
District's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default
must be in writing and shall not be a waiver of any other default concerning
the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. 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.
7.6 Legal Action. In addition to any other rights or remedies,
either party may take legal action, at law or at equity, to cure, correct or
remedy any default, to recover damages for any default, to compel specific
performance of this Agreement, to obtain injunctive relief, or to obtain any
other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination of
this Agreement, except as specifically provided in the following Section 7.8
for termination for cause. District
reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of termination,
Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer.
Consultant shall be entitled to compensation for all services rendered
prior to receipt of the notice of termination and for any services authorized
by the Contract Officer thereafter in accordance with the Schedule of
Compensation or such as may be approved by the Contract Officer, except as
provided in Section 7.3.
7.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, District may, after
compliance with the provisions of Section 7.2, take over work and prosecute the
same to completion by contract or otherwise, and Consultant shall be liable to
the extent that the total cost for completion of the services required
hereunder exceeds the compensation herein stipulated (provided that District
shall use reasonable efforts to mitigate such damages), and District may
withhold any payments to Consultant for the purpose of setoff or partial
payment of the amounts owed District as previously stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against
the other party arising out of or in connection with this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs of suit from the losing party.
8.0 DISTRICT OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
8.1 Non-liability of District Officers and
Employees. No officer or employee of
District shall be personally liable to Consultant, or any successor in
interest, in the event or any default or breach by District or for any amount
which may become due to Consultant or to its successor, or for breach of any
obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of District shall have
any personal interest, direct or indirect, in this Agreement nor shall any such
officer or employee participate in any decision relating to the Agreement which
affects his or her personal interest or the interest of any corporation,
partnership or association in which she or he is, directly or indirectly,
interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or
given and will not pay or give any third party any money or general
consideration for obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself,
its heirs, executors, assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the performance of this Agreement. Consultant shall take affirmative action to
insure that applicants are employed and that employees are treated during
employment without regard to their race, color, creed, religion, sex, marital
status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, consent,
approval, communication either party desires or is required to give the other
party or any other person shall be in writing and either served personally or
sent by prepaid, first-class mail to the address set forth below. Either party may change its address by
notifying the other party of the change of address in writing. Notice shall be deemed communicated
forty-eight (48) hours from the time of mailing if mailed as provided in this
section.
To District: To
Consultant:
AND VECTOR CONTROL
DISTRICT Attention: Scott Kiner,
Attn: General Manager Principal
43-420 Trader Place 73-101 Highway 111,
Indio, CA 92201 Palm
Desert, CA 92260
9.2 Integrated Agreement. This Agreement contains all of the agreements
of the parties and all previous understanding, negotiations and agreements are
integrated into and superseded by this Agreement.
9.3 Amendment. This Agreement may be amended at any time by
the mutual consent of the parties by an instrument in writing signed by both
parties.
9.4 Severability. In the event that any one or more of the
phrases, sentences, clauses, paragraphs, or sections contained in this
Agreement shall be declared invalid or unenforceable by a valid judgment or
decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences,
clauses, paragraphs, or sections of this Agreement which are hereby declared as
severable and shall be interpreted to carry out the intent of the parties
hereunder.
9.5 Authority. The persons executing this Agreement on
behalf of the parties hereto warrant that they are duly authorized to execute
this Agreement on behalf of said parties and that by so executing this
Agreement the parties hereto are formally bound to the provisions of this
Agreement.
IN WITNESS WHEREOF,
the parties have executed this Agreement as of the dates stated below.
COACHELLLA VALLEY
MOSQUITO AND VECTOR CONTROL DISTRICT
Dated:
By:
Its:
ATTEST:
By:
Its: Clerk of the Board
APPROVED AS TO FORM:
M. Katherine Jenson,
Interim General Counsel
CONSULTANT
Dated:
By:
Its: