Tri-Lake/Inspection Services 05PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into by
and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Tri-
Lake -Consultants, Inc. ("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 Construction Observation and Inspection
Services for Fiscal Year 2005/2006 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 City of
La Quinta 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 City, it shall immediately inform City 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. 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 City, except such losses or damages as may be caused by City'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 City, when such
inaccuracies are due to the negligence of Consultant.
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1.6 Additional Services. In accordance with the terms and conditions of this
Agreement, Consultant shall perform services in addition to those specified in the Scope of
Services when directed to do so by the Contract Officer, provided that Consultant shall not be
required to perform any additional services without compensation. Any addition in
compensation not exceeding five percent (5%) of the Contract Sum may be approved by the
Contract Officer. Any greater increase must be approved by the City Council.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit "D" (the "Special Requirements"). In the
event of a conflict between the provisions of the Special Requirements and any other
provisions of this Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation") in a
total amount not to exceed FIVE HUNDRED SIXTY-ONE THOUSAND SIX HUNDRED DOLLARS
($561,600) (The "Contract Sum"), except as provided in Section 1.6. The method of
compensation set forth in the Schedule of Compensation may include a lump sum payment
upon completion, payment in accordance with the percentage of completion of the services,
payment for time and materials based upon Consultant's rate schedule, but not exceeding the
Contract Sum, or such other methods as may be specified in the Schedule of Compensation.
Compensation may include reimbursement for actual and necessary expenditures for
reproduction costs, transportation expense, telephone expense, and similar costs and expenses
when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in
the form approved by City's Finance Director, 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. City will pay Consultant for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working
day of the month.
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 "C" (the "Schedule of
Performance"). Extensions to the time period specified in the Schedule of Performance may be
approved in writing by the Contract Officer.
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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 City, 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. Unless earlier terminated in accordance with Sections 7.7 or 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the
services, except as otherwise provided in the Schedule of Performance.
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. Habib M. Motlagh, P.E., President
It is expressly understood that the experience, knowledge, capability, and reputation of the
foregoing principals were a substantial inducement for City 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
City.
4.2 Contract Officer. The Contract Officer shall be John M. Freeland, Senior Engineer
or such other person as may be designated by the City 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
City to the Contract Officer. Unless otherwise specified herein, any approval of City 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 City 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 City. 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 City.
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4.4 Independent Contractor. Neither City 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 City and shall remain at all times as
to City 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 City.
4.5 City Cooperation. City 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 City.
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. 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 City nor its insurers shall be required to contribute to any
such loss. A certificate evidencing the foregoing and naming City and its officers and
employees as additional insured shall be delivered to and approved by City 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. 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 City nor its insurers shall be
required to contribute to such loss. A certificate evidencing the foregoing and naming City and
its officers and employees as additional insured shall be delivered to and approved by City prior
to commencement of the services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws.
Consultant shall procure professional errors and omissions liability insurance in an amount
acceptable to City.
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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 City 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 City, its officers, employees, contractors, subcontractors, or agents.
5.2 Indemnification. Consultant shall defend, indemnify and hold harmless the City, its
officers, employees, representatives and agents ("Indemnified Parties"), from and against those
actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs
and attorneys' fees, for injury to or death of person(s), for damage to property (including property
owned by City) and for errors and omissions committed by Consultant, its officers, employees and
agents, which arise out of Consultant's negligent performance under this Agreement, except to the
extent of such loss as may be caused by City's own negligence or that of its officers or employees.
In the event the Indemnified Parties are made a party to any action, lawsuit, or other adversarial
proceeding in any way involving such claims, Consultant shall provide a defense to the Indemnified
Parties, or at the City's option, reimburse the Indemnified Parties their costs of defense, including
reasonable attorney's fees, incurred in defense of such claim. In addition, Consultant shall be
obligated to promptly pay any final judgment or portion thereof rendered against the Indemnified
Parties.
5.3 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within the
time herein required, City 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 City
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.
6.0 RECORDS AND REPORTS.
6.1 Reports. Consultant shall periodically 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.
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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, specifications, 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 City and shall be delivered to City 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 City of
its full rights of ownership of the documents and materials hereunder. Consultant shall cause
all subcontractors to assign to City any documents or materials prepared by them, and in the
event Consultant fails to secure such assignment, Consultant shall indemnify City for all
damages suffered thereby.
In the event City or any person, firm or corporation authorized by City 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, City 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 City, except as required by law or as authorized by City.
7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of
California. Legal actions concerning any dispute, claim or matter arising out of or in relation to
this Agreement shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Consultant covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
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, City may take such immediate
action as City 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 City's right to terminate this
Agreement without cause pursuant to Section 7.8.
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7.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City 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.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City'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. City 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, City 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 City
shall use reasonable efforts to mitigate such damages), and City may withhold any payments
to Consultant for the purpose of setoff or partial payment of the amounts owed City 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.
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8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or any default or
breach by City 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 City 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 City:
CITY OF LA QUINTA
Attention: Timothy R. Jonasson
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92247-1504
To Consultant:
Tri-Lake Consultants, Inc.
Attention: Habib M. Motlagh, P.E., President
170 Wilkerson, Suite A
P. 0. Box 606
Perris, California 92570
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.
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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 the 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.
CITY OF LA QUINTA a California municipal corporation
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homas P. Genovese, City Manager Date
ATTEST:
METG�
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APPROVED AS TO FORM:
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K brine Jenson, City Attor y
CONSULTANT: TRI-LAKE CONSULTANTS, INC.
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Name: ,¢8/ My7Z-4 )/
Title: e'u, Og, ...-r
Date
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Exhibit A
Scope of Services
The Consultant shall:
1. Provide qualified technical field representative/s to monitor the construction of a variety of
public works Capital Improvement and private development construction projects.
2. Prepare and track project schedules as directed by the City.
3. As directed by the City, prepare necessary correspondence, reports, and memos
necessary to administer various City capital improvement projects and/or private development
projects.
4. Observe, document and report on project progress, daily construction activities, assume
the City's role and act as the City's agent with contractors, developers, other outside agencies
and with City contracted technical consultants.
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Exhibit B
Schedule of Compensation
Payment shall be in full at the rates listed in the Schedule of Billing Rates attached herewith for
the actual hours submitted in conformance with Section 2.2 of the Agreement. Total
compensation for all work under this contract shall not exceed FIVE HUNDRED SIXTY-ONE
THOUSAND SIX HUNDRED DOLLARS ($561,600) except as specified in Section 1.6 -
Additional Services of the Agreement. The agreed upon hourly rate for qualified construction
inspection personnel provided by the consultant shall be $60.00 per hour flat rate for all time
periods. The City shall not pay any additional hourly wage for hours worked over 40 nor over
8. Compensable time shall begin when the inspector arrives at the designated work site and
shall end when the inspector leaves the designated work site to commute or stops conducting
business associated to the City.
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Exhibit C
Schedule of Performance
Consultant shall complete all services within the Fiscal Year 2005/2006, which shall end on
July 1, 2006.
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Exhibit D
Special Requirements
AT NO ADDITIONAL COST TO THE CITY:
1. The Consultant shall provide a hand held (type) cellular telephone and service compatible
with the City's "NEXTEL" service for each inspector assigned to the City at no additional cost
to the City.
2. The Consultant shall provide a hand held digital "smart level", one for each inspector,
calibrated for use in the performance of the inspector's duties to determine percent of slope of
inspected horizontal surfaces for compliance with various design guidelines.
3. The Consultant shall provide each inspector a "digital" camera for daily photographic
documentation. The City shall provide the necessary means of printing and downloading of
digital photos for archive purposes. Said camera shall have "date back" capability and of
sufficient mega pixel resolution to review relevant details of the work inspected.
4. The Consultant shall provide each inspector with a hand held digital weather monitoring
device. The device shall provide site specific data of: wind speed, ambient temperature and
relative humidity, all data to be recorded in inspector's daily report.
5. The Consultant shall insure that each inspector has successfully completed the
"Coachella Valley Fugitive Dust Control Class" provided by the South Coast Air Quality
Monitoring District (at no cost) and renewed every two years.
6. The Consultant shall provide his or her own transportation to and from the designated
work site.
AT NO ADDITIONAL COST TO THE CONSULTANT:
7. The City shall make available limited office space, land -based telephone & service,
reproduction facilities, fax service and minor clerical support as needed for the consultant's
inspector at no additional cost to the consultant.
8. UPON CONCURRENCE FROM BOTH PARTIES (CITY and TRI-LAKE CONSULTANTS,
/NC.)THIS AGREEMENT SHALL BE RENEWABLE FOR A PERIOD NOT TO EXCEED THREE
YEARS FROM JULY 5, 2002, REVIEWABLE IN ONE-YEAR INCREMENTS FROM THE CURRENT
DATE OF EXPIRATION (per Exhibit 'C') OF THIS AGREEMENT.
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