2016/01/07 Albert A. Webb Associates, Inc. Survey/Inspection/Administrative Srvcs CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
effective this 7 day of January 2016 ("Effective Date") by and between the CITY OF
MENIFEE, a California municipal corporation, ("City") and Albert A Webb Associates, a
California Corporation, ("Consultant"). City and Consultant may sometimes herein be
referred to individually as a "Party" and collectively as the "Parties."
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall
provide to City the services described in the Scope of Services, attached hereto as
Exhibit A and incorporated herein by this reference (the "Services"). Consultant will
perform subsequent task orders as requested by the Contract Administrator (as defined
below), in accordance with the Scope of Services. In the event of a conflict in or
inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall
prevail.
1 .1 Term of Services. The term of this Agreement shall begin on January 7,
2016 and shall end on June 30, 2016 unless the term of this Agreement is otherwise
terminated or extended as provided for in Section 8. The time provided to Consultant to
complete the Services required by this Agreement shall not affect City's right to
terminate this Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that
Consultant is a provider of first class work and services and Consultant is experienced
in performing the Services contemplated herein and, in light of such status and
experience, Consultant shall perform the Services required pursuant to this Agreement
in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which
Consultant practices its profession and to the sole satisfaction of the Contract
Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent
personnel to perform the Services pursuant to Agreement. In the event that City, in its
sole discretion, at any time during the term of this Agreement, desires the reassignment
of any such persons, Consultant shall, immediately upon receiving notice from City of
such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the
Services pursuant to this Agreement as may be reasonably necessary to satisfy
Consultant's obligations hereunder.
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1.5 Authorization to Perform Services. Consultant is not authorized to perform
any of the Services or incur any costs whatsoever under the terms of this Agreement
until receipt of authorization from the Contract Administrator.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed SEVENTY
THOUSDAND DOLLARS ($70,000.00) notwithstanding any contrary indications that
may be contained in Consultant's proposal, for the Services to be performed and
reimbursable costs incurred under this Agreement. In the event of a conflict between
this Agreement and Exhibit A, regarding the amount of compensation, this Agreement
shall prevail. City shall pay Consultant for the Services rendered pursuant to this
Agreement at the time and in the manner set forth herein. The payments specified
below shall be the only payments from City to Consultant for the Services rendered
pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specified herein. Except as specifically authorized in advance by City, Consultant shall
not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for
the first invoice, etc.;
b. The beginning and ending dates of the billing period;
C. A "Task Summary" containing the original contract amount, the
amount of prior billings, the total due this period, the balance available under this
Agreement, and the percentage of completion;
d. At City's option, for each item in each task, a copy of the applicable
time entries or time sheets shall be submitted showing the name of the person
performing the Services, the hours spent by each person, a brief description of
the Services, and each reimbursable expense;
e. The total number of hours of work performed under this Agreement
by Consultant and each employee, agent, and subcontractor of Consultant
performing the Services hereunder necessary to complete the Services
described in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative's signature.
Invoices shall be submitted to:
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City of Menifee
Attn: Accounts Payable
29714 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices
received, for the Services satisfactorily performed, and for authorized reimbursable
costs incurred. City shall have thirty (30) days from the receipt of an invoice that
complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total
amount due pursuant to this Agreement within sixty (60) days after completion of the
Services and submittal to City of a final invoice, if all of the Services required have been
satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or
cost whatsoever incurred by Consultant in rendering the Services pursuant to this
Agreement. City shall make no payment for any extra, further, or additional service
pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of
the maximum amount of compensation provided above either for a task or for the
entirety of the Services performed pursuant to this Agreement, unless this Agreement is
modified in writing prior to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly
basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the
maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant
terminates this Agreement pursuant to Section 8, City shall compensate Consultant for
all outstanding costs and reimbursable expenses incurred for Services satisfactorily
completed and for reimbursable expenses as of the date of written notice of termination.
Consultant shall maintain adequate logs and timesheets in order to verify costs and
reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense,
provide all facilities and equipment necessary to perform the services required by this
Agreement. City shall make available to Consultant only physical facilities such as
desks, filing cabinets, and conference space, as may be reasonably necessary for
Consultant's use while consulting with City employees and reviewing records and the
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information in possession of City. The location, quantity, and time of furnishing those
facilities shall be in the sole discretion of City. In no event shall City be required to
furnish any facility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles,
and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and
expense, shall procure the types and amounts of insurance checked below and provide
Certificates of Insurance, indicating that Consultant has obtained or currently maintains
insurance that meets the requirements of this section and which is satisfactory, in all
respects, to City. Consultant shall maintain the insurance policies required by this
section throughout the term of this Agreement. The cost of such insurance shall be
included in Consultant's compensation. Consultant shall not allow any subcontractor,
consultant or other agent to commence work on any subcontract until Consultant has
obtained all insurance required herein for the subcontractor(s) and provided evidence
thereof to City. Verification of the required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy
must cover inter-insured suits between City and other Insureds.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense,
maintain Statutory Workers' Compensation Insurance and Employer's Liability
Insurance for any and all persons employed directly or indirectly by Consultant pursuant
to the provisions of the California Labor Code. Statutory Workers' Compensation
Insurance and Employer's Liability Insurance shall be provided with limits of not less
than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION
DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely
on a self-insurance program to meet those requirements, but only if the program of self-
insurance complies fully with the provisions of the California Labor Code. Determination
of whether a self-insurance program meets the standards of the California Labor Code
shall be solely in the discretion of the Contract Administrator. The insurer, if insurance
is provided, or Consultant, if a program of self-insurance is provided, shall waive all
rights of subrogation against City and its officers, officials, employees, and authorized
volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense,
shall maintain commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, combined single limit coverage, for risks associated with the Services
contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general
aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed
operations aggregate. If a Commercial General Liability Insurance or an Automobile
Liability Insurance form or other form with a general aggregate limit is used, either the
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general aggregate limit shall apply separately to the Services to be performed under this
Agreement or the general aggregate limit shall be at least twice the required occurrence
limit. Such coverage shall include but shall not be limited to, protection against claims
arising from bodily and personal injury, including death resulting therefrom, and damage
to property resulting from the Services contemplated under this Agreement, including
the use of hired, owned, and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall
be at least as broad as Insurance Services Office Commercial General Liability
occurrence form CG 0001. Automobile coverage shall be at least as broad as
Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9. No
endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in
the insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident
basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions
of the policy shall not affect coverage provided to City and its officers,
employees, agents, and volunteers.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense,
shall maintain for the period covered by this Agreement professional liability insurance
for licensed professionals performing the Services pursuant to this Agreement in an
amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed
professionals' errors and omissions. Any deductible or self-insured retention shall be
shown on the Certificate. If the deductible or self-insured retention exceeds ONE-
HUNDRED THOUSAND DOLLARS ($100,000), it must be approved by City.
4.3.2 Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must
be no later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance
must be provided for at least five (5) years after the expiration or
termination of this Agreement or completion of the Services, so long as
commercially available at reasonable rates.
C. If coverage is canceled or not renewed and it is not replaced
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with another claims-made policy form with a retroactive date that precedes
the Effective Date of this Agreement, Consultant must provide extended
reporting coverage for a minimum of five (5) years after the expiration or
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termination of this Agreement or the completion of the Services. Such
continuation coverage may be provided by one of the following:
(1) renewal of the existing policy; (2) an extended reporting period
endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement of the Services under this Agreement. City shall
have the right to exercise, at Consultant's sole cost and expense, any
extended reporting provisions of the policy, if Consultant cancels or does
not renew the coverage.
d. A copy of the claim reporting requirements must be
submitted to City prior to the commencement of the Services under this
Agreement.
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this Section is to
be placed with insurers with a Bests' rating of no less than A:VII and admitted in
California.
4.4.2 Verification of coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional
insured endorsement or policy language granting additional insured status complete
certified copies of all policies, including complete certified copies of all endorsements.
All copies of policies and certified endorsements shall show the signature of a person
authorized by that insurer to bind coverage on its behalf. The Certificate of Insurance
must include the following reference: Community Facilities District No. 2015-2
Annexation Service. The name and address for Additional Insured endorsements,
Certificates of Insurance and Notice of Cancellation is: City of Menifee, 29714 Haun
Road, Menifee, CA 92586. City must be endorsed as an additional insured for liability
arising out of ongoing and completed operations by or on behalf of Consultant.
4.4.3 Notice of Reduction in or Cancellation of Coverage. Consultant
shall provide written notice to City within ten (10) working days if: (1) any of the
required insurance policies is terminated; (2) the limits of any of the required polices are
reduced; or (3) the deductible or self insured retention is increased.
4.4.4 Additional insured; primary insurance. City and its officers,
employees, agents, and authorized volunteers shall be covered as additional insureds
with respect to each of the following: liability arising out of the Services performed by or
on behalf of Consultant, including the insured's general supervision of Consultant;
products and completed operations of Consultant, as applicable; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by
Consultant in the course of providing the Services pursuant to this Agreement. The
coverage shall contain no special limitations on the scope of protection afforded to City
or its officers, employees, agents, or authorized volunteers. The insurance provided to
City as an additional insured must apply on a primary and non-contributory basis with
respect to any insurance or self-insurance program maintained by City. Additional
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insured status shall continue for one (1) year after the expiration or termination of this
Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that
coverage is primary insurance with respect to City and its officers, officials, employees,
and volunteers, and that no insurance or self-insurance maintained by City shall be
called upon to contribute to a loss under the coverage.
4.4.5 Deductibles and Self-insured Retentions. Consultant shall obtain
the written approval of City for the self-insured retentions and deductibles before
beginning any of the Services.
During the term of this Agreement, only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
deductible or self-insured retention levels with a requirement that Consultant procure a
bond guaranteeing payment of losses and related investigations, claim administration,
and defense expenses that is satisfactory in all respects to each of them.
4.4.6 Subcontractors. Consultant shall include all subcontractors as
insureds under its policies or shall furnish separate certificates and certified
endorsements for each subcontractor. All coverages for subcontractors shall be subject
to all of the requirements stated herein.
4.4.7 Variation. The Contract Administrator may, but is not required to,
approve in writing a variation in the foregoing insurance requirements, upon a
determination that the coverage, scope, limits, and forms of such insurance are either
not commercially available, or that City's interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity 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, exercise any of the following remedies, which are alternatives to other remedies
City may have and are not the exclusive remedy for Consultant's breach:
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 or withhold
any payment that becomes due to Consultant hereunder, or both stop work and
withhold any payment, until Consultant demonstrates compliance with the
requirements hereof; and/or
C. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
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5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent
permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by
City), and hold harmless City and any and all of its officers, employees, officials,
volunteers, and agents from and against any and all claims, losses, costs, damages,
expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under
statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or
penalties of any kind (including reasonable consultant and expert fees and expenses of
investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City, the legal costs of counsel retained by City) and any judgment
(collectively, "Claims") to the extent same are caused in whole or in part by any
negligent or wrongful act, error, or omission of Consultant, its officers, agents,
employees, or subcontractors (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this Agreement.
5.2 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, protect, defend (with counsel selected by City), and hold harmless City,
and any and all of its officers, employees, officials, volunteers, and agents from and
against any and all Claims, 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 subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply
to claims to the extent they arise from the City's sole or active negligence. The
provisions of this Section 5 shall not release City from liability arising from gross
negligence or willful acts or omissions of City or any and all of its officers, officials,
employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement,
Consultant shall be an independent contractor and shall not be an employee of City.
City shall have the right to control Consultant only insofar as the results of the Services
rendered pursuant to this Agreement and assignment of personnel pursuant to
Subparagraph 1.3; however, otherwise City shall not have the right to control the means
by which Consultant accomplishes the Services rendered pursuant to this Agreement.
The personnel performing the Services under this Agreement on behalf of Consultant
shall at all times be under Consultant's exclusive direction and control. Consultant shall
not at any time or in any manner represent that it or any of its officers, employees, or
agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever
against City, or bind City in any manner. Except for the fees paid to Consultant as
provided in this Agreement, City shall not pay salaries, wages, or other compensation to
Consultant for performing the Services hereunder for City. City shall not be liable for
compensation or indemnification to Consultant for injury or sickness arising out of
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performing the Services hereunder. Notwithstanding any other City, state, or federal
policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its
employees, agents, and subcontractors providing services under this Agreement shall
not qualify for or become entitled to any compensation, benefit, or any incident of
employment by City, including but not limited to eligibility to enroll in the California
Public Employees Retirement System ("PERS") as an employee of City and entitlement
to any contribution to be paid by City for employer contributions and/or employee
contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this
Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall
comply with all applicable local, state, and federal laws and regulations applicable to the
performance of the work hereunder. Consultant shall not hire or employ any person to
perform work within City or allow any person to perform the Services required under this
Agreement unless such person is properly documented and legally entitled to be
employed within the United States. Any and all work subject to prevailing wages, as
determined by the Director of Industrial Relations of the State of California, will be the
minimum paid to all laborers, including Consultant's employee and subcontractors. It is
understood that it is the responsibility of Consultant to determine the correct scale. The
State Prevailing Wage Rates may be obtained from the California Department of
Industrial Relations ("DIR") pursuant to California Public Utilities Code, Sections 465,
466, and 467 by calling 415-703-4774. Appropriate records demonstrating compliance
with such requirement shall be maintained in a safe and secure location at all times, and
readily available at City's request. Consultant shall indemnify, defend, and hold City
and its elected and appointed boards, members, officials, officers, agents,
representatives, employees, and volunteers harmless from and against any liability,
loss, damage, cost or expenses (including but not limited to reasonable attorneys' fees,
expert witness fees, court costs, and costs incurred related to any inquiries or
proceedings) arising from or related to (i) the noncompliance by Consultant or any party
performing the Services of any applicable local, state, and/or federal law, including,
without limitation, any applicable federal and/or state labor laws (including, without
limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the
implementation of Section 1781 of the Labor Code, as the same may be amended from
time to time, or any other similar law; and/or (iii) failure by Consultant or any party
performing the Services to provide any required disclosure or identification as required
by Labor Code Section 1781, as the same may be amended from time to time, or any
other similar law. It is agreed by the Parties that, in connection with performance of the
Services, including, without limitation, any and all public works (as defined by applicable
law), Consultant shall bear all risks of payment or non-payment of prevailing wages
under California law and/or the implementation of Labor Code Section 1781, as the
same may be amended from time to time, and/or any other similar law. Consultant
acknowledges and agrees that it shall be independently responsible for reviewing the
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applicable laws and regulations and effectuating compliance with such laws. Consultant
shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all licenses,
permits, qualifications, and approvals of whatsoever nature that are legally required to
practice their respective professions. Consultant represents and warrants to City that
Consultant and its employees, agents, and subcontractors shall, at their sole cost and
expense, keep in effect at all times during the term of this Agreement any licenses,
permits, and approvals that are legally required to practice their respective professions.
In addition to the foregoing, Consultant and any subcontractors shall obtain and
maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without
cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon
30 days' written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant
shall be entitled to compensation for the Services performed up to the date of
termination; City, however, may condition payment of such compensation upon
Consultant delivering to City any or all documents, photographs, computer software,
video and audio tapes, and other materials provided to Consultant or prepared by or for
Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end
date of this Agreement beyond that provided for in Subsection 1.1. Any such extension
shall require a written amendment to this Agreement, as provided for herein.
Consultant understands and agrees that, if City grants such an extension, City shall
have no obligation to provide Consultant with compensation beyond the maximum
amount provided for in this Agreement. Similarly, unless authorized by the Contract
Administrator, City shall have no obligation to reimburse Consultant for any otherwise
reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing
signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and
agree that this Agreement contemplates personal performance by Consultant and is
based upon a determination of Consultant's unique personal competence, experience,
and specialized personal knowledge. Moreover, a substantial inducement to City for
entering into this Agreement was and is the professional reputation and competence of
Consultant. Consultant may not assign this Agreement or any interest therein without
the prior written approval of the Contract Administrator. Consultant shall not
subcontract any portion of the performance contemplated and provided for herein, other
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than to the subcontractors noted in Consultant's proposal, without prior written approval
of the Contract Administrator. In the event that key personnel leave Consultant's
employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and
Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches
any of the terms of this Agreement, City's remedies shall include, but not be limited to,
any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design
documents, and any other work product prepared by Consultant pursuant to this
Agreement;
C. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the
Services described in Exhibit A that is unfinished at the time of breach and the
amount that City would have paid Consultant pursuant to Section 2 if Consultant
had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data,
maps, models, charts, studies, surveys, photographs, memoranda, plans, studies,
specifications, records, files, or any other documents or materials, in electronic or any
other form that Consultant prepares or obtains pursuant to this Agreement and that
relate to the matters covered hereunder shall be the property of City. Consultant hereby
agrees to deliver those documents to City upon the expiration or termination of this
Agreement. It is understood and agreed that the documents and other materials,
including but not limited to those described above, prepared pursuant to this Agreement
are prepared specifically for City and are not necessarily suitable for any future or other
use. Any use of such documents for other projects by City shall be without liability to
Consultant. City and Consultant agree that, until final approval by City, all data, plans,
specifications, reports, and other documents are confidential and will not be released to
third parties without prior written consent of both Parties unless required by law.
9.2 Licensing of Intellectual Property. With the exception of Consultant's
WebbSTARTM system, this Agreement creates a non-exclusive and perpetual license for
City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of
reproduction, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderings, and other documents
or works of authorship fixed in any tangible medium of expression, including but not
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limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or
in any other medium, which are prepared or caused to be prepared by Consultant under
this Agreement ("Documents and Data"). Consultant shall require all subcontractors to
agree in writing that City is granted a non-exclusive and perpetual license for any
Documents and Data the subcontractor prepares under this Agreement. Consultant
represents and warrants that Consultant has the legal right to license any and all
Documents and Data. Consultant makes no such representation and warranty in regard
to Documents and Data which were prepared by design professionals other than
Consultant or provided to Consultant by the City. City shall not be limited in any way in
its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
9.3 Consultant's Books and Records. Consultant shall maintain any and all
ledgers, books of account, invoices, vouchers, canceled checks, and other records or
documents evidencing or relating to charges for the Services or expenditures and
disbursements charged to City under this Agreement for a minimum of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records shall be maintained in accordance with
generally accepted accounting principles and shall be clearly identified and readily
accessible.
9.4 Inspection and Audit of Records. Any records or documents that
Section 9.3 of this Agreement requires Consultant to maintain shall be made available
for inspection, audit, and/or copying at any time during regular business hours, upon
oral or written request of City. Under California Government Code Section 8546.7, if the
amount of public funds expended under this Agreement exceeds TEN THOUSAND
DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit
of the State Auditor, at the request of City or as part of any audit of City, for a period of
three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If either Party to this Agreement brings any action,
including an action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees and
expenses including costs, in addition to any other relief to which that Party may be
entitled; provided, however, that the attorneys' fees awarded pursuant to this Section
shall not exceed the hourly rate paid by City for legal services multiplied by the
reasonable number of hours spent by the prevailing Party in the conduct of the litigation.
The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Law; Venue. The internal laws of the State of California shall
govern the interpretation and enforcement of this Agreement. In the event that either
Party brings any action against the other under this Agreement, the Parties agree that
trial of such action shall be vested exclusively in Riverside County.
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10.3 Severability. If any provision of this Agreement is held invalid, the
remainder of this Agreement shall not be affected thereby and all other parts of this
Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only and shall
not limit or otherwise affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. The waiver of any breach of a specific
provision of this Agreement does not constitute a waiver of any other breach of that
term or any other term of this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be
handled for Consultant by Shan Spicer ("Consultant's Representative"). The
Consultant's Representative shall have full authority to represent and act on behalf of
Consultant for all purposes under this Agreement. The Consultant's Representative
shall supervise and direct the Services, using his best skill and attention, and shall be
responsible for all means, methods, techniques, sequences, and procedures and for the
satisfactory coordination of all portions of the Services under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a
City employee, Bruce Foltz ("Contract Administrator"). All correspondence shall be
directed to or through the Contract Administrator or his designee. The Contract
Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept
direction or orders from any person other than the Contract Administrator or his
designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
Albert A. Webb Associates
3788 McCray Street
Riverside, CA 92506
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: Bruce Foltz
with a copy to:
I
City Clerk
City of Menifee
2671/031858-0001
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29714 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design specifications, and
each page of construction drawings shall be stamped/sealed and signed by the licensed
professional responsible for the report/design preparation. The stamp/seal shall be in a
block entitled "Seal and Signature of Registered Professional with report/design
responsibility," as in the following example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the
Parties are cumulative and the exercise by either Party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached
hereto and incorporated herein as Exhibit A, represents the entire and integrated
agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral. The terms of this Agreement
shall be construed in accordance with the meaning of the language used and shall not
be construed for or against either Party by reason of the authorship of this Agreement or
any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one
agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf
of each of the Parties hereto represent and warrant that (i) such Party is duly organized
and existing, (ii) they are duly authorized to execute and deliver this Agreement on
behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to
the provisions of this Agreement, and (iv) that entering into this Agreement does not
violate any provision of any other Agreement to which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs,
executors, assigns, and all persons claiming under or through them, that in the
performance of this Agreement there shall be no discrimination against or segregation
of, any person or group of persons on account of any impermissible classification
including, but not limited to, race, color, creed, religion, sex, marital status, sexual
orientation, national origin, or ancestry.
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10.16 No Third Party Beneficiaries. With the exception of the specific provisions
set forth in this Agreement, there are no intended third-party beneficiaries under this
Agreement and no such other third parties shall have any rights or obligations
hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of City shall be personally liable to Consultant, or
any successor in interest, in the event of 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.
10.18 No Undue Influence. Consultant declares and warrants that no undue
influence or pressure is used against or in concert with any officer or employee of City in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No
officer or employee of City shall receive compensation, directly or indirectly, from
Consultant, or from any officer, employee, or agent of Consultant, in connection with the
award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee
of City, or their designees or agents, and no public official who exercises authority over
or has responsibilities with respect to this Agreement during his/her tenure or for one (1)
year thereafter, shall have any interest, direct or indirect, in any agreement or sub-
agreement, or the proceeds thereof, for the Services to be performed under this
Agreement.
[Signatures on Following Page]
267 1/03 1 858-0001
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-1 S-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreeme of the Effective Date.
CITY OF I CONSULTANT
Scott A. Mann, Mayor Matthew Webb, President
Attest:
j� e S i , birector Municipal Finance
t7l
Manwaring, City Clerk
App d as to Form:
'2
Je4ff6y etching, Ci y orney
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t. t, t: it T A. EXHIBIT A
P FEE SCHEDULE
s o r t ., r [I ,
RATES
CLASSIFICATION /HOUR
Engineers/Project Manager/Planners/Scientist/
Assessment/Special Tax Consultants/Landscape Architects/Designers
PrincipalII.......................................................................................................................... 198.00
PrincipalI............................................................................................................................ 190.00
SeniorIII ............................................................................................................................ 173.00
SeniorII ............................................................................................................................. 162.00
SeniorI ............................................................................................................................... 157.00
AssociateIII ........................................................................................................................ 149.00
AssociateII ......................................................................................................................... 128.00
AssociateI .......................................................................................................................... 122.00
AssistantV........................................................................................................................... 105.00
AssistantIV ........................................................................................................................ 101.00
AssistantIII ........................................................................................................................ 92.00
AssistantIl........................................................................................................................... 76.00
AssistantI ........................................................................................................................... 62.00
Survey Services
3-Person Survey Party...........o............................ ..................... ..... 242.00
...........................
2-Person Survey Parry.......................................................................................................... 212.00
1-Person Survey Parry..........................................................................................0............... 130.00
Directorof Survey......................................0..... .....0..............................oo...........................0 167.00
Manager of Field Operations............................................................................................... 124.00
SurveyTechnician II............................................................................................................ 108.00
SurveyTechnician I............................................................................................................. 89.00
Inspection Services
ConstructionManager ........................................................................................................ 150.00
InspectorII ......................................................................................................................... 105.00
InspectorI .......................................................................................................................... 94.00
Administrative Services
ProjectCoordinator............................................................................................................. 86.00
Administrative Assistant III.................................................................................................. 72.00
Administrative Assistant II................................................................................................... 62.00
Administrative Assistant I ....................................................................................0.............. 46.00
Other Direct Expenses
Incidental Charges .............................................................................................................. Cost
Postageand Telephone ....................................................................................................... Cost
In-house Prints, Copies and Delivery ....................................................0............................. Cost
Traveland Subsistence........................................................................................................ Cost
Special Consultant........................................................................ ............... 275.00/Hour
GIS License Fee................................................ .......o....................o.......o......o 39.00/Hour
Subcontracted Services ........................................................................................................ Cost+ 15%
Survey/Inspector Vehicle..................................................................................................... 0.77/Mile
Mileage........................................................................................................0....................... 0.68/Mile
NOTE: All rates are subject to change based on annual inflation and cost of living adjustments.
'A FINANCE CHARGE of one and one halfpercent(1-1/2%)per month(18%per year)will be added to any unpaid amount commencing thirty(30)days from date of
invoice. A mechanic's lien may be filed for any invoice remaining unpaid after thirty(30)days from date of invoice.
I
SCH 34(07/07/08 REV)
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