2018/07/01 D-Max Engineering, Inc. FY18/19 On-Call Stormwater Management Program Services (Non-Recoverable)CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY2OI8/I9 ON-CALL STORMWATER MANAGEMENT PROGRAM SERVICES
(NON.RECOVERABLE)
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this ap+ day of .\urtL, 2018 ("Effective Date") by and between the CITY OF MENIFEE, a
Califomia municipal corporation, ("City") and LMgI-p4g!@lEg& a Califomia S-
Corporation ("Consultant"). City and Consultant may sometimes herein be referred to individually
as a "Party" and collectively as the "Parties."
SECTION I, SERVICES.
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 relerence (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 ofa conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
1.2 Standard of Performance. Consultant re presents 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.
1.3 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 ofthis Agreement, desires the reassignment ofany such persons, Consultant
shall, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
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L I Term of Services. The term ofthis Agreement shall begin on July I , 201 8 and shall
end December 31, 2018 unless the term ofthis 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.
1.4 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 thorization crlornr Service Consultant is not authorized to perlirrnr anl'ol'
the Serviccs or incur any costs r.vhatsoever undcr the terms ol'this Agrcemcut until rcccipt ol'
authorization from the Contract Adnrinistrator.
SECTION 2. COMPENSATION.
city hereby agrees to pay consultant a sunl not to exceed THllrTY sEvEN THOI-IS,\N l)
FM HUNDRDD DOLLARS AND ZEITO CENTS ($37,500.00) notwilhstanding an) corltrar')
indications that may be contained in Consultant's proposal. fbr the Sclvices to be pcrlil nrctl and
reimbursable costs incurred urrclcr this Agrecrncnt. Iu the event ol' a contlict bctsccn this
Agreement and Exhibit A, regarding the amounl ol'conrpensatiotr. this Agreentent shall prcvail.
City shall pay Consultant tbr the Services rendcred pursuant to this Agrecment at thc titnc and in
the manner set forth herein. The payments specilicd below'shall be thc only payments l}om Citl'
to Consultant for the Services rendered pursuant to this Agreenrent. Consultant shall submit all
invoices to City in the manner spccified hereir,. Except as specifically authorized in advancc b1'
City, Consultant shall not bill City fbr duplicate services perfbnned by more than onc persotr.
2.1 Invoices. Consultant shall submil invoices monthly during the term ol' this
Agreement, based on the cost for the Scrvices perlonned arrd reinrtrursable costs incurrccl priot to
the invoice date. Invoices shall contain the following itrlbt'matitx:
a. Serial identifications ofprogress bills: i.e.. I)toglcss Bill No. I Iirr thc lilst
invoice, etc.;
b. The beginning and ending dates ofthe billing pcriod:
c. A "Task Surnmary" containing the original col'ltract anlount. thc arlloullt ol'
prior billings, the total duc this period, the balance available under this Agreenrcnt. antl thc
percentage ol completion;
d. At City's option. Ibr each itenr in each task. a copy of the applicable time
entries or time sheets shall be submitted showing the name ol the person pertorming the
Services, the hours spent by each person. a brief description ol the Services. ancl cach
reimbursable expense;
e. The total nurrrber of hours ol-work perlbrntcd undcr this Agtccnrcnt b1'
Consultant and each employee, agent. and stlbcontractor ol'Consultant perlblnring thc
Services hereunder necessttr)'to conlpletc thc Services dcscribcd in Ilxhihit A:
Receipts for expenses to be reimbursed:
The Consultant Representativr:'s signaturc
Invoiccs shall bc submittcd to
Citt' of Menifee
Attn: Accounts Payable
f.
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7610550.2 a06/02r lE -2-
29714 Ilaun Road
Menifec. CA 925 86
2.2 Monthly Pavment. City shall nrake monthly paymcnts. based on invoiccs rcceivcd.
for the Services satisfactorily perfbnrrcd. and lbr authorizcd rcimhursablc costs incLrrrccl. Citl
shall have thirty (30) days from the reccipt ol'an inYoice that complies rvith all ol'thc recluirentcnts
above to pay Consultant.
2.3 Final Payment. City shall pay the last len pcrcent ( l0%) ol the total anrount dLte
pursuant to this Agrcentent within sixti' (60) days alter conrpletion tl1'the Serviccs ancl sr-rbnritlal
to City ofa final invoice, ifall o1'the Scrvices requircd havc bcen satislactorily pcrfirrnred.
2.4 Total P avment. Ci ty shall not pay any additional sunr for any cxpense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agrcenrent. Cit]
shall make no payment for any extra, Iirrther, or additional servicc pursuant to this ngrcemenl.
In no event shall Consultant submit any irrvoice tbl arl anrount in cxcess ol'the
maximum amount of compensatioll providcd above either fbr a task or lbl thc ontilety ol the
Services performed pursuant to this Agrcerrent. uulcss this Agrccnlclit is modillcd iu r,vlitinu prit,t'
to the submission ol such an invoice.
2.5 Hourly Fees. Fees fbr lhe Serviccs performcd b1' Consultant on an lrourlv basis
shall not exceed the amounts shown on the {'ee schedule included r.vith Exhibit A
2.6 Reimburs able Exnenscs. Rcimbursable ex pcr)scs nlc inclucled u itlrirr thc r11it\rttLlnl
amount of this Agrcctncnt.
2.'7 Pavment olTa xes Consultant is solcly rcsponsible lbr thc paynrcnt o I'ctnplovtncrrt
taxes incurred under this Agreenlent and any f'ederal or statc taxes.
2.8 Payment upo Ternrination In the event that City or Consultant tcrminales tlris
Agreement pursuant to Section 8. City shall colrpensate Consullant f-or all outstandirtg cosls and
reimbursable expeuses incurred lor Services satislaclorily conrplcted and Ior rcintbtusablc
expenses as ofthe date of written noticc of termination. Consultant shall rnaintain adccluate logs
and timesheets in order to verify costs and teintbr-rrsable expcnses inctlrred to that datc.
SECTION 3. FACILITIES AND I'QI.IIPME,NT.
Except as otherwise provided. Consultant shall. at its sole cost and cxpcnsc. providc all
facilities and equiprnent necessar),to pcrftrrm the services required by this Agreenrcnt. Cit) shall
make available to Consultant only physical facilities such as dcsks. filing cabincts, ancl conlerencc
space, as may be reasonably neccssaly lbr Consultant's usc whilc cousuhing u'itlr Cit1,'u-tlployecs
and reviewing records and the inlitrrnati<ln in possession ot'City. 'l he location. quantit)'. atrtl titlc
of furnishing those facilities shall bc in the sole discretion ol'City. [n no evcnt shall Cit1" be
required to fumish any facility that may involve incurring any direct expense. including but not
limited to computer, long-distance tclephone or other cotnmunication clratgcs. vchicles. and
reproduction facilities.
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SECTION 4. I NSU It..\N C L, Rl.lQl-r I I{ E l\l liN l's.
Before beginning any work undcr this Agrccnrcnt. C'onsultant. at its or'vtt cosl arrd exltcnsc.
shall procure the types and amounts of insuraucc checked bclow attcl pro'"'iclc Certificatcs ol'
Insurance, indicating thal Consultant has obtainccl ur currently maintains insttt atrcc that mccts tllc
requirements of this section and which is satisllctory. in all respects. to Cit). Consultanl shall
maintain the insurance policies requircd by tlris scction throughou( the ternt ol'this Agrccnrcttt.
The cost of such insurancc shall be included in Consultant's contpcnsation. ('onsultant shall nol
allow any subcontractor. consullant or otlrcr agcnt to conrmerlce rtrrtk olt anr subconlract ttnlil
Consultant has obtained all insurance rcquircd hcrcin tbl the su l)con tract()r( s ) and proridcd
evidence thereofto City. Verilication of thc rcquircd insurance shall bc strbrtrittcd ancl ntaclc patt
olthis Agreement prior to cxeculion. Consultarrl acknorvlcdgcs thc insurancc policl'trLtsl covct'
inter-insured suits betu'eerr City and othcr Iusttrccls.
4.1 Workcrs' C omocnsalion. Consultanl sliall. at its solc cost and cx pcnsc. nrarr till r'l
Statutory Workers' Compensation lnsurance and llmployer's Liabilitl'lnsurance tbr any ancl all
persons employed directly or indirectll.bl,Consultant pursuant 1o thc provisions of the Calilirrnia
Labor Code. Statutory Workers' Corrpcnsation Insurance and Enrplol'er's Liabilitl' Ittsttrattcc
shatl be provided with limits of uot less than ONE MILLION DOLI,ARS ( $ I .000.000.ut) ) pcr
accident, ONE MILLION DOLLARS ($1.000.000.00) lor discasc pcr ernployee, and oNl:
MILLION DOLLARS ($1,000,000.00) fbr diseasc pcr policy. In thc al(ernative. Cionsultant r]]al'
rely on a self-insurancc prograni to nreet thosc rccluirentents, bL( only if tlre proglam ol scll'-
insurance complies f'ully with the provisions o1'the Califbrnia l-abor Code. Detemrination ol
whether a self-insurancc program mects thc standirrcls ol'the Calitbrnia [,abor C'ocle shall be solcll
in the discretion of the Contract Administralor. 'l ho insurer. il'insurancc is proviclctl. rrr
Consultant, ifa program of self:insurance is providcd. shall rvai, e all rights ofsuhrogation agrtinst
City and its officers, officials. ernplol,ees. and ar-rthorized volurttccrs lirr loss arising fionr tltc
Services performed under this Agreemcnt.
4.2 Commcrcia I General and Autonrobilc I-iabilitr Insura:rcc
4.2.1 General re ulre)11ent . Cousultant. at its own cost aud expense. shall
maintain commercial gcneral and autonrobile liability insr:rance tbr thc ternl ol'this Agrecmcnl in
an amount not less than ONE MILLION DOLI-ARS ($1.000.000.00) per occurrence. combincd
single limit coverage, lbr risks associated rvith the Serviccs contetrplated by this Agrccmcnt. I \\'o
MILLION DOLLARS ($2,000.000.00) gcneral aggregatc. atrd .l'U'O N4ll-l-lON
DOLLARS ($2,000,000.00) products/corrrplctcd opcrations aggrcgate, ll'a Clonrnrercial (lcncral
Liability Insurance o[ an Auton]obile l,iability lnsurance lbrm oI olhcr I'rrrm rvith a gcncral
aggregate limit is used. either thc general aggrcgatc limrt shall appll scparately to the Services lo
be performed under this Agreement or thc gcncral aggrcgate linrit shall hc at least twicc tltc
required occurrence lirlit. Such covcragc shall include but shall not be linritod to. protcction
against olaims arising liont bodill,'and pcrsonal injur1,. including dcath rcsulting thcrcflont. atttl
damage to property resulting tionr the Services contcrnplated under this Agrecnrcnt. inclucling thc
use ofhired. owned, and non-orlned autonrobilcs.
4.2.2 Minirmum scopqq!_govEIAgg. Clommercial general covcrage shall be at lcast
as broad as Insurance Services Office Commcrcial (ieneral Liability occurrcrtce fbrnr CC (XX)1,
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?610550.2 a06/02/18
Automobile coverage shall be at least as broad as Insurauce Services Office Aut<lnrobile l.iahilitl
form CA 0001 Code 2,8, and 9. No endorsement shall be attached limiting the covelage.
4.2.3 Additional re 0 ul l en'tcnts.Each of the following shall he includecl in thc
insurance coverage or added as a certified endorsement to the policy:
a- The insurance shall cover on an occunence or an acciden( basis. and
not on a claims-made basis.
b. Any failure of Consultant to cornply with reporling provisions ol'tltc
policy shall not afl'ect coveragc plovicled to City and its ollicers. crrrployccs. agcllts.
and volunteers.
4.3 Profession al Liabilitv Lrsurancc,
4.3.1 General rc n't c ltt s . Consultant. at its own cost and expensc. shall
maintain for the period covered by this Agrecmcnt prolbssional liability insurance fbr liccrrsctl
professionals perfoming the Sen,ices pursuant to this Agreement in an amount not less than ONli
MILLION DOLLARS ($1,000.000) covering the licensed professionals' errors and omissiotts.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductiblc or
self-insured retention exceeds TWENTY-FIVE TIIOLJSAND DOLLARS ($25.000) it ntust bc
approved by City.
4.3.2 Claims-rnade lirriitations. lhc lirllor'virt g provisions shall appll il thc
professional liability coverage is written on a claims-made fbrm:
a. The retroactive date of the policy must be shown atrd nlusl bc no
later than the commencement of the Serviccs.
c. If coverage is canceled or not renewed and it is not replaced rvith
another claims-made policy form rvith a retroactive date that precedes the Irll'cctir c
Date of this Agreernent. Consullant nrust provide extended reporting covcrage lirt'
a minimum of five (5) years alicr the expiration or tcrnrination o1'lhis Agrcctncrtl
or the completion ol'the Serviccs. Such conliuuation covcrage nray be providcd br
one of tlre following: (l) renewul ol'thc cxisting policy'; (2) an extettdecl rcpottittg
period endorsen'lentl or (3) replacenrent insutance with a retroactive date no latcr
than the commencernent ofthc Services undcr this Agteement. City shall havo the
right to exercise, at Corisultant's sole cost and expense. any extended rcpor'(ing
provisions of the policy, if Corisultant cancels or docs not rcnen thc covcragc.
d. A copy of the clainr reporting requirct.nents must be subnrittcd to
City prior to the commencement of the Services under this Agreenrent.
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?630550 2 a06,02rI8
b. Insurance must he maintained and evidence of insurancc must bc
provided for at least tive (5) 1'ears aller the expiration or ternrination ol' this
Agreement or complelion of thc Services" so long as comrnercialll availablc at
reasonable rates.
4.4 All Policies I{c0 U ircl,),)cnls
4.4.1 Acceptabilit v of insurers, All insurance requircd by this Scction is to bc
placed with insurers with a Bests' rating olno less than A:Vll and admitted in Calilornia
4.4.2 Verification o ginning the Services undcr this
Agreement. Consultant shall lirrnish City with Certiljcates ol'InsLtrancc. additionltl insLrrctl
endorsement or policy languagc granting additional insuled status contplete certiliecl copies ol'all
policies, including complete celtilled copies ol'all cndorsements. All copies ol' policics rncl
iertified endorsements shall shorv the signaturc ol'a pcrson authorizcd by that irtstrlct to bincl
coverage on its behalf. The Ccfiillcate of Insurancc must includc the lbllouing rcl'crcttcc:
FY2018/19 ON-CALL STOIiMWATER MANAGE MENT PRO(; ltAM SERVICFIS (NON-
RECOVERABLE). Thc nante and address lirr Aclditional Insurctl cndorsetllcrlts. Ccrtilicatcs ol'
Insurance and Notice of Cancellation is: City ol'N4cnil'ee. 29714 IIattn Road. Menil'cc. ('A 91586.
City must be endorsed as an additional insulcd tbr liability arising out ol'ongoing and conrplclcd
operations by or on behalf of Consultanl.
4.4.3 Notice ol'uction in or Cancellation of Covera qe. Consuhant shall
provide written notice to City within ten (l0) uorking days prior to the occurt'ence ol anl'ol'the
following: (l) any of the required insurance policics is tcrminatedt (2) the limits ol'att1 ol'thc
required polices are reduced; or (3) thc deductiblc or selfinsured rclcntion is incrcascd.
4.4.4 Additional itrsured; printarY insuanq!. Cit y and its ol'tlcers. cntployees.
agents, and authorized volunteers shall be covered as additional insurcds with respcct to cach ol'
the following: liability arising out of the Scrvices pcrlirrmed bv or on behall'ol' ('onsLtltant.
including the insured's general supervision of Consultant; products and corlpleted opcratiorls ()l
Consultant, as applicable; prcmiscs o*'ned, occupied. or used b1' Clonstrltant: and autotrrobilcs
owned, leased, or used by Consultant in the coulse of providing the Services ptu'suant t() this
Agreement. The coverage shall contain no special litnitatior.rs on tltc scol.rc ol'protcclion allirldcd
to City or its officers. employees. agents. or authol ized volunteers. l'lte insurance providcd to Citl
as an additional insured must apply on a primary and non-contributory basis with respect to an\'
insurance or self-insurance prograrn maintained by Citl'. Additional insured status shall cotrtilrttc
for one (l) year after the expiration or tennination ol this Agreement o!'cotrpletion ofthe Scrr ices.
A certified endorsenrent must be attached to all policies stating that c<tvctagc is
primary insurance with respect to City and its offlccrs, officials, employees, and volttntecrs. and
that no insurance or self-insurance maintained by City shall be called upon to contribttlc to a loss
under the coverage.
4.4.5 Ded uctibles and Self-insurcd Retentions. Cot.tsultant slrall obtain thc
written approval of City for the scll'-insured retentions and deductibles belbre beginning auv ol'thc
Services.
f coverase. Prior to be
-6-
During the ternl of this Agrccmcnt. only upon thc prior exprcss urittcn
authorization of the Contract Atlnrinistrator. Consultant nray incrcasc such deductiblcs or sell'-
insured retentions with respect to Citl'. its ofliccrs. employees. agctlts. and volunlccrs. .l
he
Contract Administrator may condition approval ot' an increase in deductible or sell'-insured
retention levels witl, a requirerncnt that Consultanl procure a bond guaranteeing payntent ol'losses
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and related investigations, claim administration, and defense expenses that is satisfactory ill all
respects to each of them.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shatl furnish separate certificates and certilied endorsements fbr cach
subcontractor. All coverages for subcontractols shall be subject to all ofthe requirements statcd
herein.
a. Obtain such insurance arrd dcduct and retain the anlount ol'tlrc prcnriunts
for such insurance from any sums due under this Agreenlent:
b. Order Consultant to stop rvot k undcr this Agreemcr.rt or uithhold anr
payment that becomes due to Consultant hcrcundcr. or both stop work and u'ithholtj artr
payment, until Consultant denlorislratcs conrpliance '"vith the tequirenrents hclcol: anclht'
'l'erminate tlT is Agrecmentc
SECTION 5. INDEMNIFICATION.
5.1 Indcmnilication Iirr Ptoltssiorral l-iatrilit Whcrc thc lau cstahlishcs a
professional standard of care for perfornrance ol'lhe Services. 1o the lullest extent pclmittccl b1'
law, Consultant shall indemnify, protect. defend (with counsel selected by City). and lrold harnrlcss
City and any and all of its oflficers. employees, olficials. \,oluntecrs. and agents fiom and agirinst
any and all claims. losses. costs. damages. expenscs. liabilities. liens. actions. causes ol'rctiurr
(whether in tort, contract, under statute. at Iau'. in equity. or otherwise) charges. arrarcls.
assessments, fines, or penalties of any kind (including reasonable consultant and expcrl t-ccs anti
expenses of investigalion, costs of whatever kind and nature and. if Consultant fails to providc a
defense for City, the legal costs of counsel rctaincd by Cily) and any iudgment (collcctivel1'"
"Claims") to the exlent same are caused in wholc ot irr part by any negligent or r.vronglirl acl. crror'.
or omissiorr of Consultant, its olflcers. agents. cmployces. or subcontractofs (o[ any clllit] ()r
individual that Consultant shall bear thc legal Iiability thcleof) in thc performance o l' pro I'cssional
services under this Agreement.
han I)rol'essional Liabilitv. othcr than in thc5.2 Indemniflcation lirr Other t
performance of professional services and to the Iull extent permittcd bv lau. ('onsultant shall
indemnify, protect. defend (u'ith counscl selectcd by'City). and hold harmless Cit1. and an1'antl
all olits officers, employees. ofllcials. \'oluntecrs. and agcnls tior.n and against an1'and all Clainrs.
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4.4.7 Variation. The Contract ndministrator may, but is not requircrl to. approvc
in writing a variation in the foregoing insurancc requircments. ttpon a deternrirlation that the
coverage, scope, limits, and forms ofsuch insurancc are cither not contmetciallv available. or tha(
City's interests are otherwise fully protected.
4.5 Remedies. In addition to any othct rerncdies a1 lau' or eqr-rit1' Cit,v nlal havc il'
Consultant fails to provide or maintain any insurancc policics or policy endorscments to tltc cxtclll
and within the lime herein required, City may. at ils sole option. exercise any of thc lbllol'ing
remedies, which are alternatives to other remedies City may have and are not thc exclusive rcnrccll'
for Consultant's breach:
where the same arise out of, are a consequence of. or are irr any way attributable to. in rvhole tlr in
part, the performance of this Agreement by Consultant or by any individual or entit) fbr uhich
bonsultant is legally liable, including but not linlited to ol'liccrs, agents. ernployecs ot'
subcontractors of Consultant.
5.3 L imitation of lndcrnnifi cation The provisions ol'this Section 5 do nol appl)' to
claims occurring as a result of City's sole or active negligence. The provisions ollhis Scction 5
shall not releasJ City from liability arising f'rom gross negligencc or rvillful acts ot otnissiotrs ol
City or any and all of its offlcers. oiflcials. employees. and agents actrng in an ol'llcial capacity
SECTION 6. STATUS OF CONSULTANT,
shall be an independent contractor and shall not be an employee ol'City. City sharll have thc right
to control Consultant only insolar as the resuhs ol the Services rendcred ptlrsuant lo this
Agreement and assignment of personnel pursuant to Subparagraph l.3l hou'evcr. othcnvisc C'it1'
sha1 not have the right to control the means b-v which Consultant accomplishes lhe Servict's
rendered pursuanl to this Agrcement. 'fhc personncl perfornting the Sctvices ttndel tlris
Agreement on behalf of Consultant shall at all times be under Consultant's exclttsive directiorr attd
control. Consultant shall not at an) tinre or in any nranner represcnt that it or any of its otliccls-
employees, or agents is in any nranner olficers. olllcials. enrployees, or agents ol'City. ConsLrltarlt
shajt not incur or have the power to incur any debt. obligation, or liability whatcvcr against (iit1.
or bind City in any manner. Exccpt for the lees paid to Consultant as provided in this Agrcenrcnt.
City shall not pay salaries, wages. or othor cornpcnsation to Consultant lbr perlirrnring tlre Scn iccs
heriunder for City. City shall not be liablc lor compensation or inticnrnification to Corlsttltatrl lirr
injury or sickness arising out of perfbrrring thc Services lrcreunclcr. Noflvithstnnding any othct'
City, state, or federal policy. rule, regulation. larv. or orclirrauce to the contrary. Consultant antl anv
of its employees, agents, and subcontractors providing services uncler this Agrccmcnt shall not
qualify for or become entitled to any compensation. henetlt. or an1 incidcnt ol'cnrplovnrcnt l.rr
City, including but not limiled to eligihilitl to enroll in the Califbrnia PLrhlic [intplor ecs
Reiirement System ("PERS") as an enrployee o1'City and entitlerrrcnt to any cotltribttlion 1o he
paid by City for employer contributions and/or employce contributions fbr I't'lRS bcnctlts.
SECTION 7. LEGAL REQUIREMIiNTS.
7.1 Governinq Law. The laws of thc State of California shall govern this Agrecntent.
6..l Indep endent Contractor. At all timcs dttrin g thc tcnn ol'lliis Agrcctttcltl. ('ottsLtllattl
7.2 l l')liancc h .,\licablc [-au'. Consultar.rt and an)' subcontractor shall conrpll
with all applicable local, statc. and fedcral la$s and rcgulations applicable to thc pcrlortr]attcc ol
the work hereunder. Consultant shall not hire ol cnrploy an.v pcrsol't lo perlirrtn $ork \\'ithin ('il)
or allow any person to perlbrni the Sen'iccs recluilccl undcr this n grcclnent ttnlcss such pet stln is
properly documented and legalll entitlcd to be ernployccl rvitlrin thc United Statcs. Anl and all
woik subject to prevailing wages. as determincd b1' thc Director ol'lndustrial Rclations ol'tlrc State
ol Catifornia, w,ill be the minirnum paid to atl laborcrs, including Consultant's employec and
subcontractors. It is understood that it is the responsibilitl' olCousultant to detcrnlinc the corl'ccl
scale. The State Prevailing Wage Rates may be obtained fionr thc Califirrnia l)epartnlcnt ol
lndustrial Relations ("DlR") pursuant to Califbrnia t'ublic Utilitics ('ode. Sections 465.4(t(r. antl
467 by calling 415-703-4771. Appropriate records denronstrating conlpliance with such
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requirement shall be maintained in a sal'e and securc location at all times. and readil-v- availablc at
City's request. Consultant shall indemnil,r,. dcl'end. and hold City and its elected arrtl appointcd
boards, mernbers, ol'ficials. ofllccrs, agents. reprcsenlatives. emplo)ees. and voluntccrs harntlcss
from and against any liability. loss. danrage. cost or expenses (including but not linritcd to
reasonable attorneys' l'ees, expcrt witness i-ces. court costs. and cosls incurred relatcd to anr
inquiries or proceedings) arising l'rom or related to (i) lhe noncompliance bv Consultant or an\
party performing the Services ofany applicable local. state. and/or f-:deral lara. incltrding. rr ilhout
timitation, any applicable federal and/or state labor lau's (inclucling. uithout lintitatron. thc
requirement to pay state prevailing wages and hire apprentices); (ii) the irnplerrentatiotl ol'Scctiott
l78l ofthe Labor Code. as the same nral' bc anrended fi'om time to tinre. or an) othcr similar Iarr:
and/or (iii) failure by Consultant or an)' pafi)' per{blming the Scrviccs Lo ptovidc attl rcqttircd
disclosure or identification as required bi' Labol Codc Section 1781. as the sattle t'na)' bc amcndcd
from time to time, or any other similar larv. It is agrccd by the Parties that. irr conncction rvith
performance of the Services. including. r.vilhout lin.ritation. any and all public u'orks (as tlclinccl
by applicable law), Consr.rltant shall bear all risks of payment or non-payrrent ol'pr*'ailing nagcs
under California law and/or the ir':rplelrcntation ol l-abol Code Scction I 78 I . as thc satlc mav bc
amended from time to time, and/ol any other similar lar'v. Consultant acknowlcdgcs ancl agrccs
that it shall be indeperrdently responsible lbr reviewing the applicable laws and regulations attrl
effectuating compliancc with suclr laws. Corrsultant shall require thc same o1'all subcontractols.
7 .3 Licenscs a nd l)crnrits. ('onsultant lc presenls and warrants to Cit) that Consultant
and its employees, agents, and any subcontractors have all licenses. pcrmits. qualili cat iorrs. antl
approvals ol whatsoevcr naturc that are legall,v rcquired to praclice their respcctivc prolcssions.
Consultant represents and warrants to City thal Consuhanl and its employecs. agcllts. att(l
subcontractors shall, at thcir solc cost and expense. keep iu effect at all tirnes during thc tcrtn ol'
this Agreement any licenses. perrnits. and approlals that are legall;- recluirccl to praclicc thcir
respective professions. In addition to the lbregoing. Consultant and anv subcontr.rctors shall obtain
and maintain during the term ol'this Agreement valid Business l-icenses tiom Citl .
SECTION 8. TIinMINATION,\NI) MOI)l['lCATlON.
8.1 Termination. City rnay cancel tlris Agreement al any time and rvithout causc r.rp()r1
written notifi cation to Consultanl.
8.2 Ternrinatio n by Consultant Consuhant mav cancel this Agreernent upon -30 days'
written notice to City
8.3 Consequences ol l'ennination. In the event of termination. Consultant shall bc
entitled to compensation for thc Serviccs perlbrrred up to the date ol'termination: Cit1. howcvcr.
may condition payment of suclt compensation upon Consultant dclivcring to Citl an1 or all
documents, photographs. compuler soliware. r,ideo and audio tapes. and other ntaterials providcd
to Consultant or preparcd by or lbr Consullant or City in connectiort with this Agrccmcrrt.
8.4 Extension. City may. in its sole and exclusive discrction. extcnd thc cntl rlatc ol'
this Agreement beyond that prolicled lirr in Subsection 1.1. Any such extcnsion shall rcrltrirc a
written amendmenl 10 this Agreenrent, as provided lbr hcrein. Consultant undcrstands anrl agrccs
that, if City grants such an extcnsiorr. City slrall have no obligation to provide Consultant r.r.i1h
compensation beyond the rnaxinrum arrount provided fbr in this Agreemcnt. Similallv. unlcss
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7610550.2 106/02/ 18
authorized by the Contracl Administrator. City shall have no obligation to rcitrtbttrsc ('ousttltzrtlt
for any otherwise reimbursable expenscs incurrcd durirlg thc extcrrsion period.
8.5
all the Parties.
8.6 Assi 1' 11
Amcndments. Thc l)artics ttta y amend this Agrecnrcnt onli, b1'a rvriting signcd b1
mertt and bcontractin . C'ity and (lonsultant rccognizc ancl aglcc tlrat thisSrr
Agreement contemplates personal perfbrnrance bl,Consr,rltant and is bascd upoll a dctcrlllillilti()ll
of Consultant's uniquc personal competence. cxpcriencc. and spccializcd pctsottal knollctlgc.
Moreover, a substantial inducenrent to City lbr cntelitrg into tlris Agrccntctlt u,as arltl is thc
professional reputation and contpetence ol'Consultant. Consultant nrat'ttot assigrr this Agrccrncrtt
or any interest therein rvithout the prior r.vrittcn approval rrl'(hc Contract Adntintstrator. C'()llstlltxllt
shall not subcontract any porlion of tlrc pcrlbrrnancc contcnlplated and pror, idccl lilr hctcin. othcr
than to the subcontractors noted in Consultant's proposal. rvithout prior u'rittcn approral ol tltc
Contract Administrator. In thc cvetrt that ke) 1;crsonncl lcavc Consultant's cntplor. (.onsultnttt
shall notify City immediately.
8.7 Survival. All obli gations arising prior to the expiration or termination ol'this
Agreement and all provisicrns ol this Agreement allocating liability bctween Citl' and Consultant
shall survive the expiration or ternlination ol this Agreenrenl.
8.8 Ootions upo n Breach bv Consultant. lf Cot'tsultant nrateriall y brcaches an)' ol'the
terms of this Agreement. City's remedies shall include. but not be limited to" any ol all ol thc
following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications. drawings. reports. design docunrents. and
any other work product prepared by Consultant pursuant to lhis Agreelnenl;
c. Retain a different consultant to complete the Services describctl in
Exhibit A; and/or
d. Charge Consultant the dilference between the cost to complete the Selviccs
described in Exhibit A that is unfinished a1 the time of breach and the amount that Cit),
would have paid Consultant pursuant to Section 2 il Consultant had conrpleted thc
Services.
SECTION 9. KEEPIN(; AND STATTIS OF ITIICOITI)S.
9.1 Records Created as Part ol'Corrsultant's Perfbrnrancc. All rc Irorts. (lata. nraps.
models, charts, studies. surveys. photograpJrs. nrcrlorancla. plans. sttrdies. spccilicalions. tcctrrtis.
files, or any other docuntents or nraterials. in clcctronic or any othcr lirrnr that Consultanl prcl)arcs
or obtains pursuant 1o this Aglccnrent and that rclalc to the nrattcrs coverccl hercundcr shall bc thc
property of City. Consuhant hclcby agrees to clclivcr thosc clocunrcnts to City upon thc cxpir.ttiott
or termination of this Agreemcnt. It is undctstood and agrecd tltat the docunrents and othcr
materials, including but not linritcd to thosc dcscribcd abovc. prcparccl pursuant to this ngreelltcnt
are prepared specifically for City and alc lrt.rt ncccssarily suitablc lirr any lirtr-rrc ot other usc. An)
-10-267tl011858.000 t
?630550.2 a06/02/18
use ofsuch documents for other projects by City shall hc withotrt liability to ('onsttltanl. Citl ancl
Consultant agree that, until final approval by City. all data. plans. spccilrcations. rcports. antl othct'
documents are confldential and rvill not bc releasccl to thircl parties \,\'ithout prior wri(tcl.l conscllt
of both Parties unless required by law.
9.2 Licensintr ol Intellcctual l)r'oDcrtr 'Ihis Agreement crcates a non-exclttsive atrtl
perpetual license for City to copy. r-lse, modity. reusc. ol sublicensc an1'and all copyrights. tlesigns.
rights of reproduction, and other intellectual property embodied in plans. spccilicalions. sttttlics.
drawings, estimates, test data. survey results. modcls. rerrdcrings. antl othcr clocttntcttts ttt rrrtrks
of authorship fixed in any tangiblc nrccliunr ol'exprcssiorr. inclucling but not lirrtitecl to. pltr sical
drawings, digital rendcrings, or data stored digitally. magnetically. ot in any otlrcr mcdiunt. rihich
are prepared or caused to bc prepared by Consultant undcr this Agrcement ("[)octttncttts and
Data"). Consultant shall requirc all subcontractors to agrcc in rvriting that Citl is grantecl a notr-
exclusive and perpetual license for any l)ocunlents and Data the subcorltractor prcparcs trndcl th is
Agreement. Consultarrt represents and u,arrants that Consultant has thc legal right to liccttsc arr\
and all Documents and Data. Consultant Inakcs no such representation and r.varrautv in tcgartl to
Documents and Data which rvere prepared bl,dcsign plof'essiouals othcr than C'onsultiutt ur
provided to Consultant by the City. Citl'shall not bc limitcd in an1'rvaf in ils use of'the [)ocutlcnts
and Data at any time, provided tlrat any suclr usc not rvithitr thc purposes intendcd lrl this
Agreement shall be at City's sole risk.
9.3 Consultant's Books and Records. Consuhant sltall ruaintain an 1' and all lcdgcls
books ofaccount, invoices, vouchers, canceled checks, and other rccords or docurrrents evidencing
or relating to charges lor the Scrvices or expenditures and disbursenrcnts charged to City' undcr
this Agreement for a minimum of three (3) years. or lor an;' longer pcriod rcquired h1 la"r'. liom
thedateoffinal payment toConsultant underthis Agreenlent. All such rccords shall hc rlaintainetl
in accordance with generally accepted accounting principlcs and shall be clcarly identilicd and
readily accessible.
9.4 lnsoection and Audit ol'llccortls Any records or documenls that Scction 9.-.i ul
this Agreement requires Consultant to nlaintain shall hc nradc availablc lirr inspcction. autlrt.
and/or copying at any tinrc during regulal busincss houls. u1'lott oral or rvrittcn rc(lucst ol ( i1\.
Under California Governmcnt Code Section 8546.7. if'thc arnount ol public Iunds cxpcudcd urtdcr
this Agreement exceeds TEN THOIJSAND I)OLI-ARS ($10.000.00). this Agrcemcnt shall bc
subject to the examination and audit ol'thc Stalc Auditor. at the rcqucst ol'CitY or as parl ol anV
audit of City, for a period ofthrcc (3) lears allcr liual pay'nrcnl undcr this n grcclnclll.
SECTION IO.MISCEI,I,ANIi()TIS PIT()VISI()NS.
l0.l Attorne)s' Fees. 1l'eithcr l)alty to this Agrccnrcnt brings anl,action. includirlg an
action for declaratory relief. to enlrxce or ilrlcrplct thc provisiot't ol'this ngrccnrcnt. thc prcrarling
Party shall be entitled to rcasorralrlc atlomcys' IL'cs ancl c\pcnscs including costs. in additiott to
any other relicf to which that Party may bc cntitlcdt provitlcd. lroucvcr. that thc altolncvs lccs
awarded pursuant to this Section shall rrot excccd thc hourlv ratc paid by Cit)'lirr lcgal sclrices
multiplied by the reasonable rrunrtrer ol'hours spent h)' thc prcvailing l)arty irr thc conrlucl ol'thc
litigation. The courl may set such l'ccs in the sanrc actiol't or in a sc1'ralatc action blought lirl thal
purpose.
-ll-267tl031858-000 r
?6305i0.2 a06/02/18
10.2 Applicable Law: Vcnue. 'lhe intcrnal la'"vs of the State olCalilbrnia shall govcrn
the interpretation and crrforcement olthis Agrcement. In the event that either Party brirtgs au1
action against the other under this Agleenrent. the l)arties agree that trial of such action shall bc
vested exclusively in Rivelsidc Countl'.
10.3 everabilit lf any provision of this Agreernent is held invalid. the remaitrdcr ol'
this Agreement shall not be afl'ected therebl, and all other parts of this Agreernent sltall
nevertheless be in full force and el'fect.
10.4 Section Headirr[s an d Subheadinss -I'he section headings and subheadings
contained in this Agreement are included for convenience onlv and shall nol limit or othcrrvisc
affect the terms of this Agreemen(.
10.5 No lmplied W ivcl ol [] rcach Tlre waiver ofany breach of a specilic provision ot'
this Agreement does not constitute a waiver ofany othel breach ofthat lerm or any other tenn ol
this Agreement.
10.6 uccessors and Ass t1 The provisions ol'this Agreenrent shall irrurc to thc bcncllt
of and shall apply to and bind thc successors and assigns of the Parties
10.7 Consultrnt R enrescntative, All matters under this A grecnrcnt shall bc handlcd lirr
Consultant by Arsalan Datlkhah ("Consultarrt's Representative" ). 'l'he Consultitl'11's
Representative shallhave full authority to represont and act on behalf of Consu ltant ftrr all llurposcs
under this Agreement. The Consultant's Representative shall supervise and direct thc Sctr iccs.
using his best skill and attention. and shall bc lesponsiblc lor all mcans" tncthods. tcchttirlucs.
sequences, and procedures and lbr the satislactory coordination of all portions ol'thc Setriccs
under this Agreement.
l0.tl Citv Clontract Adrninistratior.r.This Agreenrent shall be administercd bl thc ('it1'
employee Jonathan Smith, Public Works Director/City Engineer ("Contract Administrator"). All
correspondence shall be directed to or through the Contract Adnrinistrator or his designcc. 'l'hc
Contract Administrator shall have the porver to act on behalf ol City fbr all purposes undcr this
Agreement. Unless otherwise provided in this Agreement. Consultanl shall not accept dilcctiorr
or orders from any person other than thc Contract Administrator or lris designee.
10.9 Notices. Any rvritten notice to Consultant shall be sent 1o:
D-Max Engineering, Inc
72)0 Trade Street. Suite 'l l9
San Diego. CA 92121
Attn: Arsalan Dadkhah
Any wriltcn noticc to City shall be sent to the Contract Adnrinistrator at
City of Menifee
29714 Haun Road
Menifee. CA 92586
Attn: Jonathan Smith. Public Works Director/City Engincer
-12-2671/03 t858-000t
7630550.2 a06/02/18
with a copy to:
City Clerk
City ol Mcnil'ec
29714 Haun Road
Mer.rifee. ('A 92586
10.10 Professional Seal. Where applicable in the detennination ol' the Clontlact
Administrator, the first page ofa technical report. flrst page ofdesign specilications. and eaclt pagc
of construction drawings shall be stamped/sealcd and signed by tlie licensed prol'essional
responsible for the report/design preparation. Thc starnp/seal shall be in a block entitled "Seal and
Signature of Registered Prof'essional with report/design responsibility." as in the l'ollorving
example.
Seal and Signature of Rcgistcred [)rolcssrorral rvith
ort/desi t'l tcs nsibilitv
10.1I Ri hts and Re Except with respect to rights and rcrltedies exprcssll'
declared to be exclusive in this Agreenrent, the rights and renredies ol the Parties are cuntulativc
and the exercise by either Party ol'onc or more of such rights or remedies shall not preclrrdc the
exercise by it, at the same or dif'lbrent times. of'any other rights or renredies lbr tlrc san,e dcl'atrlt
or any other default by the other Party.
10.I2 Intesration. This A greement, including the scope of services attachcd hcrcto tttttl
incorporated herein as Exhibit A. replcsents the entire and integraled agreelrlcn( tretween Citl and
Consultant and supersedes all prior negotiations. represcntations, or agreements. citlrer rvrittcn ol'
oral. The terms of this Agreenrcnt shall be construed in accordatrcc r.vith the mcaning ol {hc
language used and shall not be construed fbr or against eitl.rer Party by' reason ol'1he autholship ol'
this Agreement or any other rulc of construction which might otherwise apply.
10.13 Counterparts. This Agrcement may be executed in multiple cout'ttctparts. eaclt ol'
which shall be an original and all of rvhiclr together shall constittrtc onc agrcelllent.
10.14 ecution of Contr l-hc persons cxccuting this Agreemenl on bchalfof'crch ol'
the Parties hereto represent and rvarrant that (i) such Party is duly organized and existing. (ii)thc1'
are duly authorized to execute and deliver this Agreement on behall of said l)arty. (iii) trv so
executing this Agreemenl, such Parly is formally bound to the plovisions of this Agreernent- and
(iv) that entering into this Agreerrrent does not violate any provisiou of any othcl ngrcclllcl'!1. to
which said Party is bound.
10.15 N rinrination. Consultant crtvcttants that. b 1' and lbr itsell. ils heirs. execLrl()rs.
assigns, and all persons claiming under or through them. that in thc pcrlbnnancc ol'this Agrcctttent
there shall be no discrimination agaitrst or segrcgation of. ant' person or gr()up ol'persotls on
account of any impermissible classiljcation including, but not limited to. race. colot'. ct'cccl.
retigion, sex, marital status. sexual orientation. national origin. or anccstry.
-ti-267tl03tE58-0001
76305J0.2 a06/02/18
10.16 No 'fhird l)artv []erreficiarics. With the cxce ption ol'the specilic ltrovisions sct
lorth in this Agreement, there arc no intenclecl third-party bcnctjciarics trrrdcr this Agrcctrorl rtnd
no such other third parties shall ltave any rights or obligations hcrcuntlcr.
l0.l 7 Nonliabili of Citv Ofliccrs and Ent l')ovccs.No of'licer. ol'ficial. cmploycc. agcnt.
representative, or volunteer of'City shall be personalll' liablc to Consultant. or any succcssor rll
interest, in the event of any default or breach by Citl' or firr any anrourrt which nray becotttc dttc to
Consultant or to its successor, or I'or bleach of any obligation of'thc tcnns ol this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue inlluencc or
pressure is used against or in conceft with any ollicet or cnrployec ol'City in connection u'ilh the
award, terms or implementation of this Agrcenre nt. including any rncthod of coclcion. conljclcntial
financial arrangentent, or financial induccnrcnt. No olllccr or cnrployce ol'Cit1' shall leccrrc
compensation, directly or indirectly. fiom Consultant. or lirrnr an;- ol'licer. cnrplol'cc. or agct'tt ()l'
Consultant. in conneclion with thc ar.vard ol'this Agrcenrcut or anv "vork to bc conducted as a rcsult
of this Agreement.
10. I 9 No Beneflt to Arisc to Citr' Ernnlovces. No rnembcr. ollicer. or ent plol cc o f'(iit1 .
or their designees or agents. and no public olllcial who exercises aulhority over or has
responsibilities with respect to this Agreernent during his/her tenure or for one (l ) year therealier.
shall have any interest, direct or indirect. in any agreement or sub-agreement. or the prtlceeds
thereof, for the Services to be pelformed under lhis Agreement.
[Signatures on Following Page I
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,610550 2 a06/02118
IN WITNESS WHEREOF, the Partics hereto have executed and entered inlo this
Agreement as of the Effective Date.
CITY }- MENIFE,E CONSTILTANT
Ltsn A-SobaK , Mayor Arsalan [)adkhan. Presidcnt
A
A. Man ann g, City a ucll
[Note: 2 oll]ccr's signatures requilccl il'
Consultant is a corporation I
C
Approved as to Forrn:
.leffrey T.elching, City Attorney
Ar-
267 I /03 I 858-{'00 l
7610J50.2 a06/02/18 -15-
//^J/Z
.lohtt
EXIIIBIT A
SCOPE ()I,' SIiIIVICI,]S
267 r/03 t8J8-000t
7610550 2 a06r02 llt
SCOPE OF SERVICES
lnspections, documenVplan review, representation at technical meetings, and other storm
water consultation services for the City of Menifee
SCHEDULE OF FEES
January 1,2018
LABOR
GENERAL STORM WATER SERVICES
Classification Hourly Rate
Word Processor/Admin 61
Drafier 72
Technician 72
Senior Technician 82
Staff ScientisuEngineer 1 92
Staff ScientisVEngineer ll 102
Assistant Project ScientisVEngineer 1 18
Project Scientist/Engineer 133
Senior ScientisuEngineer 154
Principal ScientisvEngineer 174
Field and hourly services will be
charged portal to portal from our office,
with a two-hour minimum.
Appearance as expert witnesses at
court trials, mediation, arbitration
hearings and depositions will be
charged at S200/hour. Time spent
preparing for such appearances will be
charged at the above standard hourly
rates,
RECOVERABLE OOCUMEN T REVIEW
Classification Hourly Rate
Plan Reviewer
High Priority
Medium Priority
Low Priority
OTHER CHARGES
Subcontracted services. such as sub
consultants. outside testing, drilling. and
surveyors, will be charged at cost plus
15ol0. Other project-specific costs. such
as rentals, expendable or special
supplies, special project insuranc e
permits and licenses, shipping,
subsistence. tolls and parking. outside
copying/printing, etc.. will be charged at
cost plus 15%. Mileage will be charged
at the current IRS rate. Meals. lodging.
and travel expenses. when pre-
approved by the City, will be charged at
cost or at standard per diem rates, as
applicable.
Client will he responsible for any
applicable taxes in addition to the fees
due for Services.
245
220
195
26?l/031858-0001
7630550 2 a06/02 lE
111
RECOVERABLE INDU STRIAL/
COMMERCIAL BU SINESS IN SPECTION S
Type of Facilitv Per lnspection Rate
E\llllll'l-li
INSI.IIt,\NCIi
267rl01r858-000r
7610550.2 a06102r18