2019/11/20 CG Resource Management and Engineering FY19/20 On-Call Stormwater Management Program Services (Non-Recoverable)CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY2OI9IaO ON-CALL STORMWATER MANAGEMENT PROGRAM SERVICES
(NON-RECOVERABLE)
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
ttris 7i) il aay or N >/ , 2019 ("Effective Date") by and between the CITY oF MENIFEE, a
Califomia municipal corporation, ("City")and CG RESOURCE MANAGEMENT &
ENGINEERING , a Califomia Corporation ("Consultant"). City and Consultant may sometimes
herein be refened to individually as a "Party" and collectively as the "Parties."
SECTION I. SERVICES.
Ll Term of Services. The term of this A greement shall begin on November 20,2019
and shall end on June 30, 2020 unless the term of this Agreement is otherwise tcrminated 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 Agrecment, as provided
for in Section 8.
1.3 Assignment of Personnel. Consultant shall assi gn 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 ofany such persons, Consultant
shall, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
| .4 Time. Consultant shall devote such time to the performance of thc Services
pursuant to this Aglcement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
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Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope ofServices, 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 cvent ofa conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider offirst 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.
1.5 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 EIGHT THOUSAND
DOLLARS AND ZERO CENTS ($8,000.00) not withstanding any contrary indications that may
be contained in Consultant's proposal, for the Services to be performed and reimbursable costs
incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A,
regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant
for the Services rendered pursuant to this A$eement 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 Ageement. 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 monthl y during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. lnvoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. I for the first
invoice, etc.;
d. At City's option, for each item in each task, a copy ofthe 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;
Receipts lor expenscs to be reimbursed;
The Consultant Representative's signature.
Invoices shall be submittcd to:
City of Menifee
Attn: Accounts Payable
f.
s
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b. The beginning and ending dates ofthe 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;
29844 Haun Road
Menifcc. CA 92586
2.2 Monthly Pavment. 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 ofan invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Payment. Cit y shall pay the last ten percent ( l0%) of the total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City ofa final invoice, ifall 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 HourltEces. 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 ReimbursableExpenses
amount of this Agreement.
Reimbursablc expenses are included within the maximum
2.7 Pavment of Taxes. Consultant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Paymcnt upon Termination. In thc event that Cit v 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 fumishing those facilities shall be in the sole discretion of City. In no event shall City be
required to fumish 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.
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SECTION 4. INSURANCE REQUIREMENTS.
_ Before beginning any work under this A$eement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certificates of
lnsurance, indicating that Consultant has obtained or currently maintains insurance that meets the
requirements of this section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost ofsuch insurance shall be included in Consultant's compensation. Consultanishall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereof to City. Verification of the required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between Citv and other Insureds.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation lnsurance and Employer's Liability Insurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe CiliforniaI,abor Code. Statutory Workers' Compensation Insurance and Employer's Liability Insurance
shall be provided with timits of not less than oNE MILLI0N oollAns ($ I ,000,'000.00) per
accident, oNE MILLIoN DoLLARS ($ I ,000,000.00) disease per employee, and oNE MILLIoN
DOLLARS ($ 1,000,000.00) disease per policy. In the altemative, consultant may rely on a self-
insurance progmm to meet those requirements, but only if the program of self-insurance complies
fully with the provisions of the Califomia Labor Code. Determination of whether a self-insurance
program meets the standards ofthe Califomia Labor Code shall be solely in the discretion ofthe
contract Administrator. The insurer, ifinsurance is provided, or consultant, ifa program ofself-
insurance is provided, shall waive all rights of subrogation against City and its oificis, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commcrcial General and Automobil e Liabilit
b. Minimum scope of c veragc
as broad as Insurance Scrvices Office Commercial
Commercial general coveragc shall be at least
General Liability occurrence form CG 0001.
y Ins
a. Ccneral 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 (s 1,000,000.00) p"r o""u."n"", combined
single limit coverage, for risks associated with the Services contemplatei by this Agreement, TWoMILLION DOLLARS ($2,000,000.00) general ag$egate, and TW-O MILLIONDoLLARS ($2,000,000.00) products/completed opcrations aggregate. If a commercial GeneralLiability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general ag$egate limit siratt 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 ther&om, and
damage to property resulting from the Services contemplated undir this Agreement, including the
use ofhired, owned, and non-owned automobiles.
4
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Automobile coverage shall be at least as broad as lnsurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c Additional requirements. Each of the followi ng 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 Liabilitylnsurance.
a Gcneral 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.
b. 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. lf 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 ofthe Serviccs. Such continuation coverage may be provided by
one of the following: ( I ) 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. Cityshall have the
right to exercise, at Consultant's sole cost and expense, any extended reporting
provisions ofthe 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.
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4.4 All Policies Requirements.
a. Acceotability 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 Califomia.
b. Vcrification of coveraqe. Prior to be ginning the Services under this
Agreement, Consultant shall fumish City with Certificates ol Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies ofall
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 lnsurance must include the following reference:
FY20t9t20 ON-CALL STORMWATER MANAGEMENT PROGRAM SERVTCES (NON-
RECOVERABLE). Thc name and address for Additional Insured endorsements, Certificates of
Insurance and Notice of Cancellation is: Cityof Menifee,29844 Haun Road, Menifee, CA 92586.
City must be endorsed as an additional insured for liability arising out ofongoing and completed
operations by or on behalf of Consultant.
Notice of Reduction in or Cancellation of Coverace. Consultant shall
provide written notice to City within ten (10) working days if: (l) any ofthe required insurance
policies is terminated; (2) the limits ofany ofthe required polices are reduced; or (3) the deductible
or self-insured retention is increased.
d. 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 Consultanti 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 ofprotection 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 ( I ) year after the expiration or termination of this Ageement 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 shalt be called upon to contribute to a loss
under the coverage.
Deductibles and Self-insured Retentions. Consultant shall obtain the
c.
written approval of City lor the self-insured retentions and deductibles before beginning any ofthe
Services.
During the term of this Agreemcnt, 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
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retention levels with a requirement that Consultant procure a bond guaranteeing payment oflosses
and related investigations, claim administration, and defense expenses that is satisfactory in all
respects to each of them.
f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall fumish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
Variation. The Contract Administrator ma y, but is not requircd to, approve
in writing a variation in the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms ofsuch 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 altematives 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 hereofi and/or
Terminate this A$eement.C
5.1 lndemnification for Professional Liabilitv. 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 ofany 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 thereofl in the performance ofprofessional
services under this Agreement.
5.2 Indemnification for Other than Professional Liabilitv. Other than in the
performance of professional services and to the full extent pcrmitted by law, Consultant shall
indemnify, protect, defcnd (with counsel selected by City), and hold harmless City, and any and
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SECTION 5, INDEMNIFICATION.
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all of its officcrs, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequcnce ol, 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 lndemnification for Desi An Professionals . Notwithstanding any
provision of this Section 5 to the contrary, design professionals are required to defend and
indemnify City only to the extent permitted by Civil Code Section 2782.8. The term "design
professional" as defined in Section 2782.8, is limited to licensed architects, Iicensed landscape
architects, registered professional engineers, professionaI land surveyors, and the business entities
that offer such services in accordance with the applicable provisions of the Califomia Business
and Professions Code.
5.4 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. Atall times durin g the term of this Agreement, Consultant
shall be an independcnt 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 ofpersonnel 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 ofcity. Consultant
shall not incur or have the power to incur any debt, obligation, or tiability 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 becoms entitled to any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the Califomia 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 Govemine Law. The laws of the State of Califomia shall govern this Agreement.
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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 oflndustrial Relations ofthe 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 ofConsultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the Califomia Department of
Industrial Relations ("DIR") pursuant to Califomia 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 alI 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, [oss, 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 ofany 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 ofSection
l78l 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 I 781 , 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 ofpayment or non-payment ofprevailing wages
under Califomia law and/or the implementation ol Labor Code Section l78l , 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 ofall subcontractors.
7 .3 Licenses and Permits. Consultant re presents 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 ofthis 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 notifi cation to Consultant.
8.2 Termination by Consultant. Consultant ma
written notice to Citv.
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y cancel this Agreement upon 30 days'
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8.3 Conseouences of Termination In thc event of termination. Consultant shall be
cntitled 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 l.l. 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 thc 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 Amendmcnts. The Parties may amend this Agreement only by a writing signed by
all the Parties.
8.6 Assignment and Sub ng . City and Consultant recognize and agree that this
Agteement 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 ofConsultant. Consultant maynot assign this Agreement
or any interest therein without the prior written approval ofthe Contract Administrator. Consultant
shall not subcontract any portion ofthe pcrformance 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 Ontions uoon B reach 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 A$eement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
c. Rctain
Exhibit Al and-/or
a different consultant to complete the Services described in
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.
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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. lt 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 ofsuch documents for other projects by City shall be without liability to Consultant. Cityand
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
ofboth Parties unless required by law.
9.2 Licensing of lntellectual Prooe(v. This A greement 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 wananty 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 an y and all ledgers,
books ofaccount, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges lor 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 offinal 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 Insoection an d udit of Rccords . Any records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copfng at any time during regular business hours, upon oral or written request of City.
Under Califomia Covemment Code Section 8546.7, ifthe amount ofpublic 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 ofthree (3) years after final payment under this Agreement.
-ll-7610]76 2 al l/l I /19
SECTION IO,MISCELLANEOUS PROVISIONS.
10. I Attomevs' Fees. Ifeither Pany to this Agreemenr brings any action. including an
action for declaratory relief, to enforce or interpret the provision ofthis 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 entitledt provided, however, that the attomeys' 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 ofthe
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 intemal laws of the State of Califomia shall govem
thc 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.
10.3 Severabilitv. 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 Hcadinss and Subheadinss. The section h eadings 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 Im licd Waiv fB h. The waiver ofan y breach ofa specific provision of
this Agreement does not constitute a waiver ofany other breach ofthat term or any other term of
this Agreement.
10.6 Successors and A . The provisions of this Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns ofthe Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by Cynthia Gabaldon ("Consultant's Representative"). The Consultant's
Representative shall have full authority to represent and act on behalfofConsultant 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 lor the satisfactory coordination of all portions of the Services
under this Agreement.
10.8 Citv Contract Administration. This Agreement shall be administered by a City
employee, Haile Ford, Sr. Civil 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:
2671/0:I858-000r
7630376 2 al l/l li l9 -12-
CG RESOURCE MANAGEMENT & ENGINEERING
Attn: Cynthia Gabaldon
2105 Foothill Blvd Suite B-135
La Veme. CA 9l 750
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Haile Ford, Sr. Civil Engineer
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page ofa technical report, first page ofdesign specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the reporVdesign 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/desi gn responsibility.
10. I I Rishts and Remedies. Ex cept 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, ofany other rights or remedies for the same default
or any other default by the other Party.
10.12 Inteqration. 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 ofthe authorship of
this Agreement or any other ru[e of construction which might otherwise apply.
10.13 Countemarts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
- 13-
267rl031858-000r
?610376.2 al l/l l/19
Any written notice to City shall be sent to the Contract Administrator at:
with a copy to:
10.14 Execution ofContract. The persons executing this Agreement on bchallofeach 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 ofthis Agreement, and
(iv) that entering into this Agreement does not violate any provision ofany other Agreement to
which said Party is bound.
10. I 5 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.
10.16 No Third Partv 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 Nonliabilitvof City Olficers and Emplovees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event ofany default or breach by city or for any amount which may become due to
Consultant or to its successor, or for breach ofany obligation ofthe terms of this Agreement.
10.18 No tjndue 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 Agrecment, including any method of coercion, confidential
financial arrangement, or financial induccment. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant, in conncction with the award ofthis Agreement or any work to be conducted as a result
of this Agreement.
10. l9 No Bcnefit to Arise to Citv Emolovees.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 hisiher tenure or for one (l) 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.
ISignatures on Following Page]
-14-2671/0I858 0001
7610176.2allllrl9
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as ofthe Effective Date.
CITY OF MENIFEE CONSULTANT
Bill Zimmerman, Mayor
A$est:
Sarah A. Manwaring, City Clerk
Approved as to Form:
[Corporation must have two signatures]
Jeffrey T. Melching, City Attorney
267 t/01t858-000t
7630376 2 nll/ll/19 -15-
n .1
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as ofthe Effective Date.
CITY OF MENIFEE CONSULTANT
')/x
ettzinr "@,@*
Attest:
S A.
J
City Cl
to
v . Mclching,ttomey
ICorporation must have two signatures]
26? l /01 l 8J8-000 1
7630176 2 al1t11t19 -15-
,,.1
EXHIBIT A
SCOPE OF SERVICES
Consultant shalI provide the following services:
o As needed comprehensive NPDES Program Management Services
ln the not to exceed amount of EIGHT THOUSAND DOLLARS AND ZERO
cENTS ($E,000.00)
2671/01l85lt-0001
76103?6.2 all/ll/19 EXHIBIT A
2671/0ll85rJ-000r
7630376.2 all/ll/19