2008/10/01 Jas Pacific, Inc. Building and Safety Services PROFESSIONAL SERVICES AGREEMENT
For Building and Safety Services
THIS AGREEMENT for Professional Services ("Agreement") is made this 1st day of
October, 2008, ("Effective Date") by and between the City of Menifee ("City") and JAS Pacific,
Inc., Municipal Consulting and Engineering Services ("Consultant") (together sometimes
referred to 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 attached Exhibit A, and
incorporated here. Such work shall be provided at the time and place and in the manner
specified by the City. 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 the Effective Date
and shall terminate with no less than 10 days prior written notice of termination
from one party to the other or but in no event later than June 30,2009.
1.2 Standard of Performance. Consultant shall perform all 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 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 services pursuant
to this Agreement as may be reasonably necessary to satisfy Consultant's
obligations hereunder.
1.5 Authorization to Perform Services. The Consultant is not authorized to perform
any 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 at the hourly rates set
out on Exhibit B, incorporated here, for services to be performed and reimbursable costs
incurred under this Agreement. . City shall pay Consultant for 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 services rendered pursuant to this Agreement.
4824-7172-0963.1
Professional Services Agreement with I of 12
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 services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall identify the beginning and ending
dates of the billing period; provide a task and services summary,provide the total
number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder
necessary to complete the work described in Exhibit A; provide the hourly rate
and the total cost.
2.2 Monthly Payment. City shall make monthly payments, based on invoices
received, for services satisfactorily performed, and for authorized reimbursable
costs incurred. City shall have 30 days from the receipt of an invoice that
complies with all of the requirements above to pay Consultant.
r
2.3 Final Payment. City shall pay the last 10%of the total sum due pursuant to this
Agreement within sixty (60) days after completion of the services and submittal to
City of a final invoice, if all 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 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
entire Agreement, unless the Agreement is modified in writing prior to the
submission of such an invoice.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not
exceed the amounts shown on the fee schedule included with Exhibit B.
2.6 Reimbursable Expenses. Reimbursable expenses are included on Exhibit B.
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 the City or Consultant terminates
this Agreement pursuant to Section 8, the City shall compensate the Consultant
for all outstanding costs and reimbursable expenses incurred for work
satisfactorily completed as of the date of written notice of termination. Consultant
4824-7172-0963.1
Professional Services Agreement with JAS 2 of 12
shall maintain adequate logs and timesheets in order to verify costs 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
information in possession of the 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 the 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 the Consultant's compensation. Consultant shall not allow any subcontractor 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.
X 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. The
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. 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
Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance
is provided, shall waive all rights of subrogation against the City and its officers,
officials, employees, and authorized volunteers for loss arising from work
performed under this Agreement.
4.2 Commercial General
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
4824-7172-0963.1
Professional Services Agreement with JAS 3 of 12
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 work contemplated by this
Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work
to be performed under this Agreement or the general aggregate limit shall
be at least twice the required occurrence limit. 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 activities contemplated under this Agreement,
including the use of owned and non-owned automobiles.
4.2.2 Minimum scone of coverage. Commercial general coverage shall be at
least as broad as Insurance Services Office Commercial General Liability
occurrence form CG 0001 or GL 0002 (most recent editions) covering
comprehensive General Liability and Insurance Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability.
Automobile coverage shall be at least as broad as Insurance Services
Office Automobile Liability form CA 0001 (ed. 12/90) Code 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 work 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 not exceed $150,000 per
claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
4824-7172-0963.1
Professional Services Agreement with JAS 4 of 12
a. The retroactive date of the policy must be shown and must be
before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement
or the work, so long as commercially available at reasonable rates.
C. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that
precedes the date of this Agreement, Consultant must provide
extended reporting coverage for a minimum of five years after
completion of the Agreement or the work. The City shall have the
right to exercise, at the Consultant's sole cost and expense, any
extended reporting provisions of the policy, if the Consultant
cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
the City prior to the commencement of any work 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 ANII.
4.4.2 Verification of coverage. Prior to beginning any work under this
Agreement, Consultant shall furnish City with Certificates of Insurance,
and upon request, 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.
4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified
endorsement shall be attached to all insurance obtained pursuant to this
Agreement stating that coverage shall not be suspended, voided, canceled
by either party, or reduced in coverage or in limits, except after thirty (30)
days'prior written notice by certified,mail, return receipt requested,has
been given to the City. In the event that any coverage required by this
section is reduced, limited, cancelled, or materially affected in any other
manner, Consultant shall provide written notice to City at Consultant's
earliest possible opportunity and in no case later than ten(10)working
days after Consultant is notified of the change in coverage.
4824-7172-0963.1
Professional Services Agreement with JAS 5 of 12
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 activities 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 the
Consultant in the course of providing 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.
A certified endorsement must be attached to all policies stating that
coverage is primary insurance with respect to the City and its officers,
officials, employees and volunteers, and that no insurance or self-
insurance maintained by the City shall be called upon to contribute to a
loss under the coverage.
4.4.5 Deductibles and Self-insured Retentions. Consultant shall disclose to
and obtain the approval of City for the self-insured retentions and
deductibles before beginning any of the services or work called for by any
term of this Agreement.
During the period covered by this Agreement, only upon the prior express
written authorization of 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. Contract Administrator may 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 the City's interests are otherwise fully
protected.
4824-7172-0963.1
Professional Services Agreement with JAS 6 of 12
l
4.5 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, 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:
• Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under the Agreement;
• 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
• Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES.
Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City
and its officials, officers, employees, agents, and authorized volunteers from and against any and
all losses, liability, claims, suits, actions, damages, and causes of action arising out of any
personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance,to the extent caused, in whole or in part, by the willful
misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or
agents, by acts for which they could be held strictly liable, or by the quality or character of their
work. The foregoing obligation of Consultant shall not apply when(1)the injury, loss of life,
damage to property, or violation of law arises wholly from the negligence or willful misconduct
of the City or its officers, employees, agents, or authorized volunteers and(2)the actions of
Consultant or its employees, subcontractor, or agents have contributed in no part to the injury,
loss of life, damage to property, or violation of law. It is understood that the duty of Consultant
to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the
California Civil Code. Acceptance by City of insurance certificates and endorsements required
under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages
or claims for damages whether or not such insurance policies shall have been determined to
apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of
this Section and that it is a material element of consideration.
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
Consultant's services rendered pursuant to this Agreement and assignment of
personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
4824-7172-0963.1
Professional Services Agreement with JAS 7 of 12
the right to control the means by which Consultant accomplishes services
rendered pursuant to this Agreement. 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.
6.2 Consultant Not Agent. Except as City may specify in writing, Consultant shall
have no authority, express or implied,to act on behalf of City in any capacity
whatsoever as an agent. Consultant shall have no authority, express or implied,
pursuant to this Agreement to bind City to any obligation whatsoever.
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.
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, any subcontractors
shall, at their sole cost and expense, keep in effect at all times during the term or
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. Either City or Consultant may terminate cancel this Agreement at
any time and without cause upon written notification to the other.
In the event of termination, Consultant shall be entitled to compensation for
services performed to the effective 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
4824-7172-0963.1
Professional Services Agreement with JAS 8 of 12
other materials provided to Consultant or prepared by or for Consultant or the
City in connection with this Agreement.
8.2 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.
8.3 Amendments. The parties may amend this Agreement only by a writing signed
by all the parties.
8.4 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 than to the subcontractors noted in the proposal,
without prior written approval of the Contract Administrator. In the event that
key personnel leave Consultant's employ, Consultant shall notify City
immediately.
8.5 Survival. All obligations arising prior to the termination of this Agreement and
all provisions of this Agreement allocating liability between City and Consultant
shall survive the termination of this Agreement.
8.6 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:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this
Agreement;
4824-7172-0963.1
Professional Services Agreement with JAS 9 of 12
8.6.3 Retain a different consultant to complete the work described in Exhibit A
not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
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 work.
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 the City.
Consultant hereby agrees to deliver those documents to the City upon termination
of the 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 the City and are not necessarily
suitable for any future or other use. 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 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 services or expenditures and
disbursements charged to the 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 the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 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, the 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), the 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 the City, for a period of three (3)years after final payment under the
Agreement.
4824-7172-0963.1
Professional Services Agreement with JAS 10 of 12
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 in
addition to any other relief to which that party may be entitled. The court may set
such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. 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.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision
of this Agreement is invalid,void, or unenforceable,the provisions of this
Agreement not so adjudged shall remain in full force and effect. The invalidity in
whole or in part of any provision of this Agreement shall not void or affect the
validity of any other provision of this Agreement.
10.4 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.
10.5 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.
10.6 Consultant Representative. All matters under this Agreement shall be handled
for Consultant by Jason Smith.
10.7 City Contract Administration. This Agreement shall be administered by the
City Manager("Contract Administrator"). All correspondence shall be directed to
or through the Contract Administrator or his or her designee.
10.8 Notices. Any written notice to Consultant shall be sent to:
Jason Smith,JAS Pacific, Inc. 31531 Pio Pico Rd., Temecula, CA 92592.
Any written notice to City shall be sent to the Contract Administrator.
10.9 Integration. This Agreement, including the scope of work 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.
10.10 Counterparts. This Agreement may be executed in multiple cBlue Ribbon Committee
Members Selected:
4824-7172-0963.1
Professional Services Agreement with JAS 11 of 12
10.10 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.
The Parties have executed this Agreement as of the Effective Date.
CITY O MENIFEE CONSZT
George�. Wedtz, C Lger J. Addison Smith
4824-7172-0963.1
Professional Services Agreement with JAS 12 of 12
I
i�
,i
at1- v
S C H E D U L E O F F E E S
JAS Pacific is pleased to provide the following Fee Schedule for Building and Safety
J Administration services for your review. For overtime hours JAS Pacific shall receive
time and half. For Plan Check projects that are evaluated at over one million
($1,000,000.00) dollars JAS Pacific will provide an approved graduating scale.
SUPPORT STAFF
Building Official $100.00 per hour
Deputy Building Official $75.00 per hour
In House Plan Review Engineer $85.00 per hour
LLB Building Inspector $60.00 per hour
Permit Technician $40.00 per hour
Mileage while performing inspections $.48 per mile
o:c
PLAN CHECK
I I Outsourcing Percentage Fee
C Full Plan Check Seventy Five Percent (75%)
of the plan review fee
Structural Only Sixty Percent (60%)
�J
I�
42