2019/07/01 D-Max Engineering, Inc. FY19/20 On-Call Stormwater Management Program Services (Non-Recoverable)PROFESSIONAL SERVICES AGREEMENT
FYIOIqI}OON-CALL STORMWATER MANAGEMENT PROGRAM SERVICES
(NON.RECOVERABLE)
. THtS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
tnis 186 aay ofdq.rLkzolg ("Effective Date") by and between the CITY OF MENIFEE, a
califomia municipal corporation, ("city") and D-Max Engineerins. Inc, a california S-
Corporation (,'Coniutt nti. 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 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 event ofa conflict in or inconsistency between the terms ofthis Agreement and
Exhibit A, this Agreement shall prevail.
l.l Term of services. The term of this Agreement shall begin on July 1,2019 and
shall
"nd
on Jrne 30,2020 ,.rnl"ss 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 rerl-t'ired
by this Agreement shall not affect City's right to terminate this Agreement, as provided for in
CITY OF MENIFEE
rmance. Consultant re presents and warants that Consultant is a
Section 8.
1.2 Standard of Perfo
provider of first class work and
contemplated herein and, in li
Services required pursuant to
observed by a competent prac
geographical area in which Co
Contract Administrator.
services and Consultant is experienced in performing the Services
ght of such status and experience, Consultant shall perform the
this Agreement in the manner and according to the standards
titioner of the profession in which Consultant is engaged in the
nsultant practices its profession and to the sole satisfaction of the
perform the Services pursuant to Agreement. In the event that City, in
iime during the term of this Agreement, desires the reassignment ofany
shall, immidiately upon receiving notice from City of such desire of Cit
I .3 Assis nment of Personnel. Consultant shall assign only competent personnel to
its sole discretion, at any
such persons, Consultant
y, reassign such person or
persons.
1.4 Time. consultant shall devote such time to the performance of the, Services
pursuant,o hls agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
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Authorization to Perfo rm 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.
SECTION2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed FORTY FI\'E THOUSAND
DOLLARS AND ZERO CENTS ($45,000.00) not withstanding any contrary indications that
may be contained in Consultant's proposal, for the Services to be performed and reimbursable
cosis incurred under this Agreement, In the event ofa conflict between this Agreement and Exhibit
A, regarding the amount ofcompensation, this Agreement shall prevail. City shall pay Consultant
for thi Services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified bilow 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 lnvoices. 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' I for the first
invoice, etc.;
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;
d. At City's option, for each item in each task, a copy of the applicable time
entries or time sheets shali 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. TheConsultantRepresentative'ssignature.
lnvoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
1.5
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.',
2.4 Tota I Pavment. City shalt 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 Hourlv 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 Reimbursa ble Expenses. Reimbursable ex penses are included within the maximum
amount of this Agreement.
2.7 Pavment of . Consultant is solely responsible for the payment of employmentES
taxes incurred under this Agreement and any federal or state taxes.
2.8 Pavment uDon Termination. In the event that Cit y or Consultant terminates this
and
able
logs
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shatl 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 Pa me nt City shall pay the last ten percent (10%) ofthe total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City ofa final invoice, if all ofthe Services required have been satisfactorily performed.
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs
reimbursable expenses incurred for Services satisfactorily completed and for reimburs
expenses as ofthe date of written notice of termination. Consultant shall maintain adequate
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. [n 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 faci I ities.
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SECTION4. 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
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 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 ofthe required insurance shall be submitted and made part
ofthis 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
and all
lifornia
Statutory Workers' Compensation Insurance and Employer's Liability lnsurance for any
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe Ca
Labor Code. Statutory Workers' Compensation Insurance and Employer's Liability lnsurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000'000.00) per
accident, ON E MI LLION DOLLARS ($ 1,000,000.00) disease per employee, and ONE MI LLION
DOLLARS ($1,000,000.00) disease per policy. In the altemative, 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 Califomia 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
bontract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive all rights ofsubrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4,2 Commerc
a-
ial General and Autom obile Liabilitv Ins urance
Ceneral uirements. Consul tant, 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 th;n 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 ($2,000,000.00) products/completed operations aggtegate. If a Commercial Ceneral
Liability Insurance or an Automobile Liability Insurance form or other form with a general
agg.egit" limit is used, either the general aggregate limit shall apply separately to the Services to
bi peiformed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall nol be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
d;mage to property risulting from the Services contemplated under this Agreement, including the
use of hired, owned, and non-owned automobiles.
Commercial general coverage shall be at leastb.Minimum sco ofcoverase.
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
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Automobile coverage shall be at least as broad as lnsurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage'
c.Additionalreouirements.Eachofthefollowingshallbeincludedinthe
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b, Any failure ofConsultant to comply with reporting provisions ofthe
policy shall not affect coverage provided to City and its officers, employees, agents,
a. General reouirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals periorming the Services pursuant to this Agreement in an amount not less than ONE'trAIlllON DOLLARS ($t,OOO,OOO; covering the licensed professionals' errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or
seli-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
and volunteers,
Professional Liabilitv Insurance.
b.Claims-made limitations. The followi ng provisions shall applY if the
prof'essional 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 ofthe Services'
4.3
b. lnsurance 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 ofthis 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 Services. Such continuation coverage may be provided by
one ofthe iollowing: (l) renewal ofthe existing policy; (2) an extended reporting
period endorsementi or (3) replacement insurance with a retroactive date no later
ihan the commencement ofthe Services underthis Agreement. City shall havethe
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'
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a.Acceotabili 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.
Verification of coverase. Prior to beginning the Services under this
Agreement, Consultant shall fumish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies olall
policies, including complete certified copies of all endorsements. All copies of policies and
iertified 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:
FY201.9NO ON-CALL STORMWATER MANAGEMENT PROGRAM SERVICES (NON.
RECOVERABLE). The name and address for Additional Insured endorsements, Certificates of
Insurance and Notice of Cancellation is: Cityof Menifee,29844 Haun Road, Menifee, CA92586.
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 Cance llation of Cove rage Consultant shall
b
c
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. Additio I insured: orimarv i nsurance City and its officers, employees,
Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any o fthe
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'i generai supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, oi 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 ofthis Agreement or completion ofthe Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, offrcials, employees, and volunteers, and
ihat no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
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
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4.4 All Policies Requirements.
retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses
and related investigationi, 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,
g. 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 afe otherwise fully protected.
4.5 Remedies. ln 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 timi 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 withtold_any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
SECTION 5, INDEMNIFICATION.
lndemn ification for Professional Liab ilitv Where the law establishes a
professional standard of care for perfo rmance 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, emp loyees, 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 reasonab le consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and,if Consultant fails to provide a
defense lor City, the legal costs of counsel retained by City)an d any judgment (collectivelY,
"Claims") to the extent same are caused in whole or in part by an y negligent or wrongful act, error,
or omission of Consultant,its officers, agents, employees, or subcontractors (or any entity or
5.1
individual that Consultant shall bear the legal liabitity thereof) in the performance ofp
services under this Agreement.
5.2 emnification Other than Professiona Liabilit Other than in the
rofessional
performance of professional services and to the full extent permitted by law, Consultant s
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any
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hall
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 tegally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
5.3 Limitation of Indemnification for Desisn ProGss ionals.Notwithstanding any
provision of this Section 5 to the contrary, design professionals are requ
indemnify City only to the extent permitted by Civil Code Section 2782'8.
professional" as defined in Section 2782.8, is limited to licensed architects,
architects, registered professional engineers, professional land surveyors, and
that offer such services in accordance with the applicable provisions of the
and Professions Code.
ired to defend and
The term "design
licensed landscape
the business entities
Califomia Business
5.4 Limitat on of Indemnifi cation 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 Sect
shall not release City from liability arising from gross negligence or willful acts or omissio
City or any and all of its officers, officials, employees, and agents acting in an official capac
ion 5
ns of
itv.
SECTION 6. STATUS OF CONSULTANT.
6.1 Indeoendent Contractor. Atall timesdurin g the term of this Agreement, Consultant
right
this
shall be an independent contractor and shall not be an employee of City. City shall have the
to control Consultant only insofar as the results of the Services rendered pursuant to
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 ;ot 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 Goveminq Law. The laws of the State of califomia shall govem this Agreement.
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with all appticable local, state, and federal laws and regulations applicable to the performance of
the work hereunder. Consultant shall not hireoremploy 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 Califomia, will be the minimum paid to all laborers, including Consultant's employee and
subcontractors. lt 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 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
Ciiy's request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damage, cost or expenses (including but not limited to
reasonable attorneys' fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any
party performing the Services ofany applicable local, state, and/or federal law, including, without
iimitation, any applicable federal and/or state labor taws (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 identifrcation as required by Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law. lt is agreed by the Parties that, in connection with
performance ofthe 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
undiicatirornia 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 ofall subcontractors.
7 .2 ComDliance with Aonlicable Laws. Consultant and an y subcontractor shall comply
7 .3 Licenses and Permits. Consultant re presents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses,
approvals of whatsoever nature that are legally required to practice
Consultant represents and warrants to City that Consultant and
subcontractors shall, at their sole cost and expense, keep in effect at
permits, qualifi cations, and
their respective professions.
its employees, agents, and
all times during the term of
this Agreement any Iicenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subcontractors shalI obtain
and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION'
8.1 Termi nation. Ci ty may cancel this Agreement at any time and without cause upon
written notifi cation to Consultant.
8.2 Termination Consultant may cancel this Agreement upon 30 days'
written notice to City.
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Consultant.
-9-
8.3 Conseouences of T ermination. In the event oi termination
8.6 nt and Subcon n City and Consultant recognize and agree that this
upon a determination
personal knowledge.
ment was and is the
, 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
doiuments, 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
compensatio; beyond the maximum amount provided for in this Agreement. Similarly' unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties.
Agreement contemplates personal performance by Consultant and is based
of Consultant's unique personal competence, experience, and specialized
Moreover, a substantial inducement to City for entering into this Agree
professional reputation and competence of Consultant, Consultant may not assign this Agreement
Lr any interest iherein without the prior written approval ofthe Contract Administrator. Consultant
shall not subcontract any portion ofthe 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 Ootions u non Breach by C onsultant. If Consultant materiall y breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or a ll 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 ExhibiiA 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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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 oiCity. Consultant hereby agrees to deliver those documents to City upon the expiration
or Grmination 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 ofiuch doiuments 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.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance.All reports, data, maps,
9.2 Licensin s of Intellectual ProDertv 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, an d other intellectual prope(y embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderi ngs, and other documents or works
of authorship fixed in any tangible medium of expression. includi ng 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 su bcontractor 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 representat ion 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 Consultan t's Books and Records. Consultant shalI maintain any and all ledgers,
books ofaccount, invoices, vouchers, canceled checks, and other records or documents evidenc ing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreiment foi a minimum ofthree (3) years, or for any longer period required by law, from
thedaGof 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.
this Agreement requires Consultant to maintain shall be made available
and/or copying at any time during regular business hours, upon oral or w
Under Caiifornia Covernment Code Section 8546.7, ifthe amount ofpublic
9.4 InsDection and Audit of Records.Any records or documents that Section 9.3 of
for inspection, audit,
ritten request of City.
funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subjecito the examination and audit ofthe 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'
-l l-267 t/03 I E5E-0001
1630316-2 a06l05/19
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 entitled; provided, however, that the attorneys' fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct ofthe
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
Consultant by Arsalan Dadkhah ("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 beit 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.
10.2 A licable nue. The internal laws ofthe State of Califomia shall govern
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
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 Headinss and Subheadinss.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 Imp lied Waiver of Breach. The waiver of an y breach of a 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 s. The provisions ofthis Agreement shall inure to the benefit
of and shall apply to and bind the successors and assigns of the Parties
10.7 Consultant Reoresentative. All matters under this A greement shall be handled for
SECTIONIO. MISCELLANEOUSPROVISIONS.
I 0. I Attorne s' Fe . If either Party to this Agreement brings any action, including an
10.8 Cit v Contract A dministration This Agreement shall be administered by a City
Administrator"). All
or his designee. The
I purposes under this
employee, Jonathan Smith, Public Works Director/City Engineer ("Contract
correspondence shall be directed to or through the Contract Administrator
Contract Administrator shall have the power to act on behalf of City for al
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:
267tl03t85E-000t
1630376.2 .O6tO5/ 19 -12-
D-Max Engineering, lnc
Attn: Arsalan Dadkhah
7220 Trade Street, Suite I l9
San Diego, CA 92121
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Jonathan Smith, Public Works Director/City Engineer
with a copy to:
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 ofatechnical report, first page ofdesign speciflcations, and each page
of construction drawingi 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 Proiesiional with report/design responsibility," as in the following
example.
l0.ll Riehts and Remedies. Except with respect to rights and remedies expressly
declared to b" "ilu.i* in this Agreement, the rights and remedies of the Parties are cumulative
and the exercise by either Party oi 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.
I0.12 Inteqration. This Agreement, including the scope ofservices attached herelo and
incorporated t "r.in ur g*niUit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The t"..r of thir Agreiment shall be construed in accordance with the meaning of the
language used and shall noibe construed for or against either Party by reason ofthe authorship of
this Agreement or any other rule ofconstruction which might otherwise apply'
Seal and Signature of Registered Professional with
rtldesi nsibilreres
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.
26?t/031858-0001
7610176.2 &06/05/ l9 - 13-
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 ofany other Agreement to
which said Party is bound.
10. I 5 Nondiscriminatio . Consultant covenants that, by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance ofthis 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.
l0.l 6 No Third Party Beneficiaries. With the exc eption 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.I 7 Nonliabilit v of Citv o lcers 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.
I 0.1 8 No Undue lnfluence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or emptoyee 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 ofthis Agreement or any workto be conducted as a result
of this Agreement.
10.r9 N o Benefit 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 his/her 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]
26?v03tE58-000t
7$0376.2 aO6/05/19 -14-
lN WITNESS WHEREOF'. thc Parties hereto lrave executed and entered into this
Agreement as ofthe Effective Date.
CI'I'Y OF MT]NIFN,E coNStrLl'ANT
V,A'Yl.;inz;^,@w;y*
Alte
A. Man ar g, City Cl
A Forrn:
.lc flie ing, Citl- A e)
Arsalan Dadkharr- President
John r(jurv
[Corporation must have two signatures]
/
21,71,01l85l!)001 -15-
-'--
).-
EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide the following services:
o Comprehensive Commercial/Industrial Stormwater Inspection Services as requested by
City of Menifee Public WorkVEngineering stafl including but not limited to:
lnspections, documenuplan review, representation at technical meetings, and other storm
water consultation services for the City of Menifee
In the not to exceed amount of FORTY FIVE THOUSAND DOLLARS AND ZERO
cENTS ($4s,000.00).
26rrl031858-0001
7630316.2 506105/19 EXHIBIT A
ffi MENIFEE
New. Better. Bcsl.
o
Slorm Wstar Mrnrgarnonl
and Suppon Word Proc6lror / Admln 61 63 65 a7
Slorm Wetar Mlnagomcnl
end Supporl Draller 72 71 76 78
Slonn Wataa ManaoanEnt
8nd SuDpon T.chnician 72 74 76 70
S'tdm Waiar M.naeomant
end Suppo.l Sanior Todnldrn 82 84 al 90
Storm Wrtar Manog€rll6nt
end supporl Slrfl Scionlltt / Enginad I 92 95 98 101
Slorm Wator Managomant
3nd Supporl Slrtr Sdanflrt / Englnoor ll 102 r05 108 111
Stonn Wat.r M.nrgooonl
and Suppon
A$Btant Proj€ct Sai.nurli /
Engin€ar ll8 122 124 130
Slorft Wsl6r MEnagrmGnt
and supporl ProicdSai.Jn / Enel^aor 133 137 14',1 145
Sloarn Walt Manaeanrcnt
and Supfo.t Senior ScLntid ./ EnCituar 15{159 194 169
Slorm Watar Mana0c, nl
and Sl.ppoit Pdncipal Scbnti.l / Ertin cr 171 179 184 190
WOMP/ Hydroloey Rwbw 133 r37 141 ,45
I
267rl0]r858-0001
76]0376 2 a00/00/00 EXHIBIT A
ILY RATE (5}
YEAR ]
t2020l2'l
TIILE 6
DESCRIFTION
YEAR 2
201917(
YEAR 4
2021t2022
YEAR 1
r201t/1,
ffi MEN!FEE
Nrw. gottor. B.at
LIST ALL AXTICIPATED cosTs
Note; List atl. equipment hourty rate on a s€garate sheet as needed.
Clty reserves the rlght to ncgotlata this price on a project-by.project barts.
PLEASE A,iAR( ALL ACKNOWGEMENTS AND COI,IPLETE FOLLOWING SECTION:
El lhe Propo$l provtd.d rcllcctr rny lddltloi.l .dd.ndum(r) lt.uod wlth r6p.ct to thl. RFq
D-Max Engineering, lnc. (D-Max)
Cofiplny Nalna
7220 Trade Strael Ste. I 19
Addaaa6
San Dlego CA 9212'lc-
(8s8) 586-6600
St.tC Zlp Code
(8s8) s86{644
Tolephone Numb€r Fax Xumber
Cortlp.Iry Typ.:
d Co.poration E PlrtncRhlp E Tauit/Ettate
O lndivlduat/sole Proprletor or rlnite mernber l.IC l] Ottlef:
tr Limlted Llablllty Cornplny (LLC)
o
Mlloag€IRS Rel6
PorlsCc / O6l,vBry Dlroct Oolivory Co3t
Documcnl R6produclion Oir€ct Roproduclion Co3l
L.bootory Anelyri! (it n€edod)Di6cl Lab Cosl
REIMBURSAOLE COST DESCRIPTION AIlOUNT tdt costl
2671l031858-0001
?630376 2 s00/00/00 -2-
I