2018/07/01 Dudek, Inc. FY18/19 On-Call Construction Inspection Services (Recoverable)CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY2018/19 ON -CALL CONSTRUCTION INSPECTION SERVICES (RECOVERABLE)
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this Zo-�' day of (1QJ , 2018 ("Effective Date") by and between the CITY OF MENIFEE, a
California municipal corporation, ("City") and Dudek a California C 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 July 1, 2018 and shall
end June 30, 2019 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.
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.
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SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed TWO HUNDRED
THOUSAND DOLLARS AND ZERO CENTS ($200,000.00) 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:
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
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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 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
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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) for disease per employee, and ONE
MILLION DOLLARS ($1,000,000.00) for 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 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:
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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 TWENTY-FIVE THOUSAND DOLLARS ($25,000), 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 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 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.
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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:
FY2018/19 ON -CALL CONSTRUCTION INSPECTION SERVICES (RECOVERABLE).
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 prior to the occurrence of any of the
following: (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 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
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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.
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.
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5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to
claims occurring as a result of 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 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
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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 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.
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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
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
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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. 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 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 Parry 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
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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 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 George Litzinger ("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 the City
employee Jonathan Smith, Public Works Director/City Engineer ("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:
Dudek
605 Third Street
i'1Ci'Jl �, CA C-72 e2#
Attn: George Litzinger
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: Jonathan Smith, Public Works Director/City Engineer
with a copy to:
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City Clerk
City of Menifee
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 Nonliabilit of 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]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY F MENIFEE CONS LTANT
LA
Dudek
Dudektl
Less A. Sobe-r- , Mayor 'Pro Chairman / CEO
Attes
J — Emily Hart
cl -.,2, Secretary
S ah A. Manwaring, City a udek
[Note: 2 officer's signatures required if
Approved as to Form: Consultant is a corporation]
Jeffrey T. Melching, City Attorney
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EXHIBIT A
SCOPE OF SERVICES
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DUDEK
3585'1A.'1 STREET. SUITE 150
RIVER5111F CAI IK,P.NI[. 97.30i
S5..3CQ2100 " 95I.30C.ii 05
June 6, 2018
Ms. Margarita Cornejo
City of Menifee
29714 Haun Road
Menifee, California 92S96
Subject: Fiscal Year 2018119 Contract Services Agreements for the Public
Works/Engineering Department
Dear Ms. Comejo,
Dudek appreciates the opportunity to continue our relationship with the City of Menifee to provide On -Call
Public Works and Development Construction Inspection Services for the 2018119 Fiscal Year. As requested in
yourJune Vt email, we are providing our current Scope of Services and Hourly Rate Schedule.
Our schedule of hourly rates for proposed staff are as follows:
Inspector
$125
We are available to discuss any changes in scope, approach, and commensurate fee that the City of Menifee
may require.
Authorized Agent and Contact
Contact: George Litzinger, PE
Address: 1645 S. Rancho Santa Fe Rd., Suite 201, San Marcos, California 92078
Cell Phone: 619.980.7048
Email: glitzinger@dudek.com
Dudek is excited about the opportunity to continue to provide these services to the City. Should you have any
questions or require additional information, please contact me.
Sinc ely,
George L' ing ,
Principal in arge
r;WV- OUOEK COM
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1 Scope of Sen/ices
1.1 Inspection Understanding
The key to success for the City's construction projects is to develop a clear understanding of the project and
issues that will be encountered during construction. The inspector's role is to understand and interpret each
project's plans, specifications, and permits to ensure compliance. They must be able to anticipate and have
knowledge of the challenges the contractor will face and have the ability to proactively discuss and resolve them
with the contractor, engineers, property owners, and the public -at -large to avoid negatively impacting the
project schedule and budget. When issues are encountered, quick and proactive solutions are required to avoid
delays. Our inspectors will identify the problems and assist the team in finding solutionsto keep projects moving
forward.
1.2 Inspection Forms / Checklist
Paperwork is critically important in construction and all communication will be provided to effected personnel in
writing. Our inspectors maintain daily logs, complete incident reports, and photograph elements of a project.
We assist the City with progress pay estimates, contract change orders, labor and equipment records, personnel
records, and other general correspondence that will ensure the effectiveness of the projects.
1.3 Inspection of Roadway Subgrade, Sidewalks, Curb/Gutter,
Grades, and Slopes
Dudek has developed a proactive checklist for the inspectors that is used on projects as follows:
Roadway Subgrade
1. Check plan requirements for existing soil foundation preparation and stabilization, subbase and base.
Thickness? Density?
2. Grade Stakes Set? Check for protection and setting of hubs by contractor.
3. Review requirements and procedure with contractor. Sources of base and subbase, soil stabilization
method, material tests and approval, compaction tests.
4. Are all of the pockets of soft or yielding material ripped up and dried out or replaced with suitable
material? Evaluate for contractor or agency responsibility.
S. Imported base or subbase sampled from sampled from material delivered to job site? Test results
okay?
6. Maintain adequate dust and noise control during all grading and crushing operations.
7. Collect delivery tickets for tonnage payment (from certified weighmaster).
8. Test for compacted density of subbase, base.
9. Check finished subgrade for grade, cross section and surface smoothness. +/- YV (6mm) (which must
be compensating) is the usual tolerance of subgrade for pavement.
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Asphalt Pavement Checklist
10. Review procedures and requirements with contractor.
11. Check contractor's preparations? Source of paving mix? Condition of equipment?
12. Check for required types, weights and numbers of rollers.
13. Check condition of spreader. Is screed contour set properly?
14. Gutter and other concrete strength okay to lay pavement against (7 days or 3 days if accelerator used)?
15. Does delivered mixture meet the requirements of the job?
16. Check temperature of periodically. If bottom dumps are delivering and windrowing the mix, check the
temperature in windrow ahead of pickup by paver. Stop windrowing if temperature drops glow
minimum for laying.
17. Is the speed of spreading machine matched to the rate of delivery of the material?
18. Check that type, weight and number of rollers meet the requirements and are adequate for the job on
hand.
Curbs, Gutter, Walk and Driveway Checklist
1. Check sub -grade. Firm and on grade? Any base required? Elevation proper for thickness required?
2. Check forms and headers. Rigid? Straight? Elevation? Contour?
3. Curing compound and spray equipment onjob.
4. Check finishing tools. Is edger and inside corner tool radius as required?
Curb and Integral Curb and Gutter
5. Check integral curb and gutter forms for batter of curb and gutter out. Height of curb face? Top of
curb width? Gutter width; thickness and hike -up?
6. Keys or dowels required for adjoining sidewalk?
Gutter
7. Check gutter side forms for width, thickness, batter?
8. Flow line stakes installed?
Sidewalk
1. Sideforms 2-inch lumber staked securely with full bearing on subgrade?
2. Thickness checked (use scratch template if big job is involved)?
3. Joints laid out and material on hand for types of joint specified?
4. All vault, meter boxes and pull boxes set to grade and parallel with curb?
5. Tree wells blocked out?
6. Biockouts for street light and traffic signals, if required? Other blackouts required for uncompleted
work?
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Concrete Placement and Finishing
1. Subgrade dampened prior to concrete placement?
2. Check delivery tickets and observe concrete mixture as it is being placed. is type of concrete correct?
From approved source? General appearance and consistency satisfactory?
3. is concrete being deposited properly? Without segregation? Spaded, tamped or vibrated?
1.4 Traffic Control
The inspector will review the traffic control plans and follow the requirements as stipulated by the City's traffic
engineer in the absence of traffic control plans. The inspector will use the 'Work Area Traffic Control
Handbook.'
1.5 Management of CIPs
Construction Services General Approach
Construction Management Philosophy
Our philosophy is that obtaining quality construction is a combined responsibility of the construction contractor
and the construction team. Our mutual goal must be a quality product conforming to the contract
requirements. A cooperative and professional working relationship must be established to realize this common
goal. The plan specifications establish the standards the construction inspector will use to monitor the project's
progress. Quality assurance (QA) is the process by which the construction manager (CM) and inspector delivers
the end product, using plan specifications, the contract, conditions of approval, and permits. The process starts
well before construction and includes reviews of the plans and specifications for bidding and constructability.
The key to success for the City's construction projects is to develop a clear understanding of the project and
issues that will be encountered during construction. The CM's role is to understand and interpret each prcjecrs
plans, specifications, and permits to ensue compliance. They must be able to anticipate and have knowledge of
the challenges the contractor will face and have the ability to proactively discuss and resolve them with the
contractor, engineers, property owners, and the public -at -large to avoid negatively impacting the project
schedule and budget.
Communications in Writing
Paperwork is critically important in construction management. All communication will be provided to effected
personnel in writing. Our inspectors maintain daily logs, complete incident reports, and photograph elements of
a project CMs will provide monthly progress pay estimates, contract change orders, labor and equipment
records, personnel records, and other general correspondence that will ensure the effectiveness of your
projects. We have found this philosophy helps alleviate any miscommunication or forgotten responsibilities.
Construction Inspection Services Technical Approach
The Dudek team approach is to provide the City with construction management and inspection services to
facilitate a project that is completed per code, on time, within budget, and to the City's standards. We will listen
to the City closely to develop a complete understanding of the goals and needs by attending all pre -
construction meetings from the outset.
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We believe to develop a team that works together seamlessly, roles and task assignments must be dearly
defined. Although not all inclusive, responsibilities for inspectors are detailed below.
Inspector Responsibilities
The inspectors assigned to the City will be on site daily during working hours and whenever work is performed
outside of normal working hours. They will be available by cell phone whenever not at the site to answer any
questions and resolve issues. The inspector will be the key pant of contact for the contractor's project manager
and superintendent during the course of the work. The inspector will not direct the contractor's work but will
facilitate the contractor's efforts by anticipating issues that might affect the progress of the work
The inspector will examine the site daily, manage subconsultants, and conduct weekly progress meetings with
the contractor. One of the key activities is the weekly progress meeting with the contractor. This is where old
and new business issues are discussed, such as action items developed, progress to date is reviewed in detail, a
contractor's three week look -ahead schedule is developed, and items from the City or other consultants
discussed. A description of these meetings and the inspector's role is provided below.
1.6 Interfacing with Other Agencies
The inspector will interface with all impacted agencies.
1.7 Work Program / Personnel Assignments
The inspector assigned to the project will provide the tasks outlined in Section HI - Scope of Work outlined on
Pages 10,11, and 12 of the City's RFP dates August 15, 2016.
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EXHIBIT B
INSURANCE
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