2010/05/18 HdL Software, LLCPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT for Prot'essional Services ("Agreement") is made this 18th day of
May,20l0 ("Effective Date") by and between the City of Menifee ("City") and HdL Software,
LLC ("Consultant") (together sometimes referred to as the "Parties").
Section l. SERVICES. Subject to the terms and conditions set forth in this Agreement,
Consultant shall provide to City the services described in the Scope of Work attached as EEDi!
$, and incorporated here. Such work shall be provided at the time and place and in the manner
specified in Exhibit A. In the event of a conflict in or inconsistency between the terms of this
Agreement and Exhibit A. this Agreement shall prevail.
l.t Term of Services. The term of this Agreement shall begin on the Efl'ective Date
and shall continue until either party cancels the Agreement as set ollt in Section 8
hereof.
1.2 Standard ofPerformance, Consultant shall perform all services required
pursuant to this Agreement in the manner and according to the standards observed
by a competent practitioner ofthe prol'ession in which Consultant is engaged in
the geographical area in which Consultant practices its prot'ession and to the sole
satisf'action of the Contract Administrator.
f.3 Assignment of Pcrsonnel. Consultant shall assi gn only competent personnel lo
perlbrm services pursuant to Agreement. In the event that City, in its sole
discretion, at any time during the term ollhis Agreement, desires the
reassignment of arry such pcrsons, Consultant shall, immediately upon receiving
notice from City of such desire of City, reassign such person or persons.
l.-l @ Consultant shall devote such time to the performance of services pursuant
to this Agreemcnt as may be reasonably necessary to satisty Consultant's
obligations hereunder.
1.5 Authorization to Pcrform Serviccs. 'l-he Consultant is not authorized ttt perfbrm
any services or incur any costs whatsoever under the terms of this Agreement
until receipt ofauthorization liom the Contract Administrator.
I'roltssional Serviccr Agrecrnenl \'ith I Idl- Soli\\ilrc I ol 12
Section 2. COMPENSATION. City hereby agrees to pa1'Consultant a sum not to exceed
$20,000 notwithstanding any contrary indications thal may be contained in Consultant's
proposal. fbr services to be pclfbrmed plus reimbursable costs irrcurrcd under this Agreement.
Thc schedule tbr reimbursable costs and the hourly rales for the cost to converl data or provide
custom reports is set out in Exhibit A. In the event ofa conflict between this Agreement and
Exhibit A. regarding the amount ofcompensation. this Agreement shall prevail. City shall pay
Consultant fbr sen,ices rendercd pursuant to this Agreement at the lirne and in the manner set
forth herein. The payments specified below shall be the only payments from City to Consultant
for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in
the manner specified lrerein. Except as specifically authorized in advance by City, Consultant
shall not bilt City for duplicate services perfbrmed by more than one person or for additional
services as set out on Exhibit A.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following
information:
o Serial identifications ofprogress bills; i.e.. Progress Bill No. I for the first
invoice, etc.,
o The beginning and ending dates ofthe billing period;
. A Task Summary containing the original contract amount, the amount ofprior
billings, the total due this period, the balance available under the Agreement,
and the percentage of completion;
. At City's option, for each work item in each task, a copy ofthe applicable time
entries or time sheets shall be submitted showing the name of the person
doing the work, the hours spent by each person, a brief description ofthe
work, and each reimbursable expense;
r The total number ofhours of work performed under the Agreement by
Consultant and each employee, agent, and subcontractor of Consultant
performing services he"eunder necessary to complete the work described in
Exhibit A;
o Receipts for expenses to be reimbursed;
o The Consultant's signature.
2.2 Monthlv Pavment. Cit y shall make monthly payments. based on invoices
received, for services satisfactorily perlormed, and for authorized reimbursable
costs incurred. City shall have 30 days from the receipt ofan invoice that
complies with all of the requirements above to pay Consultant.
2.3 Intcntionallyomittcd
2.4 Total Pavment. Exce pt as set out here, City shall not pay any additional sum lor
any expense or cost whatsoever incurred by Consultant in rendering services pursuant to
this Agreement. City shall make no payment for any extra, further, or additional service
pursuant to this Agreement (See Exhibit A).
ln no event shall Consultant submit any invoice fbr an amount in excess ofthe
maximum amount of compensation provided above either for a task or lbr the
Professional Services Agreenlcnl wilh IldL Solilvare 2 of 1.2
entire Agreement, unless the Agreement is modified in writing prior to the
submission of such an invoice.
,<Hourlv Fees. Fees for work performed by Consultant on an hourly basis shall not
exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable ExDenses. Reimbursable ex penses are in addition to the amount
set out and shall be billed only in the amounts provided in Exhibit A. Payment of
Taxes. Consultant is solely responsible fbr the payment of employment taxes
incurred under this Agreement and any federal or state taxes.
2.8 Pavment unon Termination. In the event that the City or Consultant terminates
this Agreement pursuant to Section 8, the City shall compensate the Consultant
for all outstandirrg costs and reimbursable expenses incurred for work
satisfactorily completed as of the date of written notice of termination. Consultant
shall maintain adequate logs and timesheets in order to verify costs incurred to
that date.
,o Additional Services: HdL shall honor the discounts set out in its letter of May
10, 2010 attached and incorporated as Exhibit B, should City determine to
purchase future services, including but not limited to a software license andior
maintenance.
Section 3.I'ACILITIES AND EOUIPMENT. Exc ept as otherwise provided. Consultant
shall. at its sole cost and expense. provide all facilities and equipment necessary to perlorm the
serwices required by this Agreement. City shall make available to Consultant onty physical
facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for
Consultant's use while consulting with City employees and reviewing records and the
information in possession of the City. The location, quantity, and time of furnishing those
facilities shall be in the sole discretion of City. In no event shall City be required to furnish any
facility that may involve incurring any direct expense, including but not limited to computer,
long-distance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4.INS URANCE REOUIREMENTS. Before be ginning 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 the City. Consultant shall maintain the insurance policies
required by this section throughout the term of this Agreement. The cost olsuch insurance shall
be included in the Consultant's compensation. Consultant shall not allow any subcontractor to
commence work on any subcontract until Consultant has obtained all insurance required herein
lor the subcontractor(s) and provided evidence thereofto City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
Professional Services Agreement with HdL Sollware 3 of 12
4.1 Workers' Comrrensation. Consultant shall . at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance
for any and all persons employed directly or indirectly by Consultant. The
Statutory Workers' Compensation Insurance and Employer's Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS
($ I ,000,000.00) per accident. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program ofself-
insurance complies fully with the provisions of the Califomia Labor Code.
Determination ofwhether a self-insurance program meets the standards ofthe
Labor Code shall be solely in the discretion oi the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance
is provided, shall waive all rights ofsubrogation against the City and its officers,
oftlcials, employees, and authorized volunteers for loss arising from work
performed under this Agreement,
1.2 Commcrcial Gencral
Automobile Liabilitv Insurance.
4.2.1 General requirements. Consultant , at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the
term of this Agreement in an amount not less than ONE MILLION
DOLLARS ($ I ,000,000.00) per occurrence, combined single limit
coverage, for risks associated with the work contemplated by this
Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other lbrm with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work
to be performed under this Agreement or the general aggregate limit shall
be at least twice the required occurrence limit. Such coverage shall include
but shall not be limited to, protection against claims arising from bodily
and personal injury, including death resulting therefrom, and damage to
property resulting lrom activities contemplated under this Agreement,
including the use ofowned and non-owned automobiles.
4,2,2 Minimum scoDe of coverage. Cornrnercial general coverage shall be at
least as broad as lnsurance Services Office Commercial General Liability
occurrence form CG 0001 or GL 0002 (most recent editions) covering
comprehensive General Liability and Insurance Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability.
Automobile coverage shall be at least as broad as Insurance Services
Office Antomobile Liability form CA 0001 (ed. 12190) Code 8 and 9. No
endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the lbllorvin g shall be inclr.rded in the
insurance coverage or added as a certified endorsement to the policy:
I'rolessional Services ASrccnlcnl lvith lldL Soli\rare 4of12
The insurance shall cover on an occurrence or an accident basis,
and not on a claims-made basis.
Any failure of Consultant to comply with reporting provisions of
the policy shall not affect coverage provided to City and its
officers, employees, agents, and volunteers.
4.3 ProfessionalLiabilitvlnsurance.
4.3.1 Generalrequirements, Consultan t, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability
insurance for licensed professionals performing work pursuant to this
Agreement in an amount not less than ONE MILLION DOLLARS
($ I ,000,000) covering the licensed professionals' errors and omissions.
Any deductible or self-insured retention shall not exceed $150,000 per
claim.
4,3.2 Claims-made limitations. The followin g provisions shall apply if the
professional Iiability coverage is written on a claims-made fbrm
The retroactive date of the policy must be shown and must be
before the date ofthe Agreement.
a
b
il
Insurance must be maintained and evidence ol insurance must be
provided lbr at least five years after completion of the Agreement
or the work, so long as commercially available at reasonable rates
Ilcoverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that
precedes the date of this Agreement, Consultant musl provide
extended reporting coverage for a minimum of five years after
completion of the Agreement or the work. The City shall have the
right to exercise, at the Consultant's sole cost and expense, any
extended reporting provisions ofthe policy, if the Consultant
cancels or does not renew the coverage.
A copy olthe claim reporting requirements must be submitted to
the City prior to the commencement of any work under this
Agreement.
b
Proltssional Services ASrcenient rvith HdL Soliwarc 5of12
d.
c.
1.1.1 Accentability of insurers. All insurance required by this section is to be
placed with insurers with a Bests'rating of no less than A:VII
4.4.2 Verification of coverase. Prior to be ginning any work under this
Agreement, Consultant shalI fumish City with Certificates of Insurance,
and upon request, complete certified copies of all policies, including
complete certified r:opies ofall endorsements. AlI copies ofpolicies and
certified endorsements shall show the signature of a person authorized by
that insurer to bind uoverage on its behalf.
J.1.3 Noticc o f Reduction in or Cancellation ofCoverase. A certified
endorsement shall be attached to all insurance obtained pursuant to this
Agreement stating that coverage shall not be suspended, voided, canceled
by either party, or reduced in coverage or in limits, except after thirly (30)
days'prior written notice by certified. mail, return receipt requested, has
been given to the City. In the event that any coverage required by this
section is reduced, limited, cancelled, or materially affected in any other
manner, Consultant shall provide written notice to City at Consultant's
earliest possible opportunity and in no case later than ten (10) working
days after Consultant is notified of the change in coverage.
{.-1.{ Additional insured; prinran' insurance. Ci ty and its officers,
employees, agents, and authorized volunteers shall be covered as
additional insureds with respect to each ofthe following: liability arising
out of activities performed by or on behalf of Consultant, including the
insured's general supervision of Consultant; products and completed
operations of Consultant, as applicable; premises owned, occupied, or
used by Consultant; and automobiles owned, leased, or used by the
Consultant in the course ofproviding services pursuant to this Agreement.
The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or authorized
volunteers.
A certified endorsement must be attached to all policies stating that
coverage is primary insurance with respect to the City and its officers,
officials, employees and volunteers, and that no insurance or self-
insurance maintained by the City shall be called upon to contribute to a
loss under the cover:age.
4,4,5 Deductibles and Se lf-insured Retentions. Consultant shall disclose to
and obtain the approval of City fbr the self-insured retentions and
deductibles before beginning any ofthe services or work called for by any
term of this Agreement.
Professional Serviccs Agrecrrlent with LIdL solhvare 6of12
4,4 All Policies Requirements.
During the period covered by this Agreement, only upon the prior express
written authorization of Contract Administrator, Consultant may increase
such deductibles or sell-insured retentions with respect to City, its olficers,
employees, agents. and volunteers. The Contract Administrator may
condition approval of an increase in deductible or self-insured retention
levels with a requirement that Consultant procure a bond guaranteeing
payment of losses and related investigations, claim administration, and
defense expenses that is satisfactory in all respects to each of them.
4.4.6 Subcontractors, Consultant shall include all subcontractors as insureds
under its policies or shall furnish separale certificates and certified
endorsements for each subcontractor. All coverages for subcontractors
shall be subject to all ofthe requirements stated herein.
4.1.7 Variation. Contract Administrator may approve in writing a variation in
the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully
protected.
1.5 Remedies. In addition to a,r y other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may. at its sole option, exercise any of
the following remedies, which are alternatives to other remedies City may have
and are not the exclusive remedy for Consultant's breach:
Obtain such insurance and deduct and retain the amount ofthe premiums for
such insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and
withhold any payment, until Consultant demonstrates compliance with the
requirements hereot and/or
Terminate this Agreement.
Consultant shall indemnify, defend with counsel selected by the City and hold harmless the City
and its officials, officers, employees. agents and authorized volunteers fiom and against any and
all losses, liability, claims, suits, actions, damages and causes ofaction arising out ofany
personal injury, bodily injury, loss ollife or damage to property, or any violation ofany federal,
state or municipal law, regulation or ordinance, to the extent caused, in whole or in part, by the
ItolcssioDal Scrvices A8rccnrcnt wilh HdL Sofl$arc 7of12
Scction5. INDEMNIFICATION
willful misconduct or negligent acts or omissions ofConsultant or its employees, subcontractors
or agents, by acts for which they could be held strictly liable, The foregoing obligation of
Consultant shall not apply when (1) the injury, loss of life, damage to property or violation of
law arises wholly from the negligence or willful misconduct ofthe City or its olficers,
employees, agents or authorized volunteers and (2) the actions ofConsultant or its employees,
subcontractors or agents have contributed in no part to the injury, loss of life, damage to
property, or violation of law. It is understood that the duty of Consultant to indemnify and hold
harmless includes the duty to defend as set fo(h in Section 2778 of the California Civil Code.
Acceptance by City of insurance certificates and endorsements required under this Agreement
does not relieve Consultant from liability under this indemnification and hold harmless clause.
This indemnification and hold harmless clause shall apply to any damages or claims for damages
whether or not such insurance policies shall have been determined to apply. By execution ofthis
Agreement, Consultant acknowledges and agrees to the provisions olthis Section and that it is a
material element o l' consideration.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times duri ng the term of this Agreement,
Consultant shall be an independent contractor and shall not be an employee of
City. City shall have the right to control Consultant only insotar as the results of
Consultant's services rendered pursuant to this Agreement and assignment of
personncl pursuant to Subparagraph l.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services
rendered pursuant to this Agreement. Notwithstanding any other City, state. or
federal policy, rule. regulation, law, or ordinance to the contrary, Consultant and
any of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to any compensation, benefit,
or any incident of employment by City, including but not limited to eligibility to
enroll in the California Public Employees Retirement System (PERS) as an
employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
Section 7. LEGAL REQUIRXMEN l'S.
7.1 Covcrning Law.The laws ofthe State of California shall govem this
agreement.
7.2 Comnliance with Annlicable Laws. Consultant and an y subcontractor shall
comply with all applicable local, state and federal laws and regulations applicable
to the performance ofthe work hereunder.
7,3 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all licenses,
permits, qualifications, and approvals of whatsoever nature that are legally
Proltssional Services Agreement \rith HdL Soll\r,are 8 of 12
required to practice their respective professions. Consultant represents and
warrants to City that Consultant and its employees, agents, any subcontractors
shall, at their sole cost and expense, keep in effect at all times during the term or
this Agreement any licenscs, permits, and approvals that are legally required to
practice their respective professions. In addition to the foregoing, Consultant and
any subcontractors shall obtain and maintain during the term of this Agreement
valid Business Licenses from City. If City requires payment for such Permits, the
associated costs will be included with the next annual maintenance invoice.
Section 8.
8.1
TERMINATION AND MODIFICATION.
Termination. City may cancel this Agreement at any time and without cause
upon 30 days' written notification to Consultant
Consultant may cancel this Agreement upon 30 days'written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for
services performed to the effective date of termination; City, however, may
condition payment ofsuch compensalion upon Consultant delivering to City any
or all documents, photographs, computer software, video and audio tapes, and
other materials provided to Consultant or prepared by or for Consultant or the
City in connection with this Agreement.
8.3 Amendments. The parties may amend this Agreement only by a writing signed
by all the parties.
8.1 Assignment and Subcontractine. Cit y and Consultant recognize and agree that
this Agreement contemplatcs personal performance by Consultant and is based
upon a determination of Consultant's unique personal competence. experience.
and specialized personal knowledge. Moreover, a substantial inducement to City
for entering into this Agreement was and is the professional reputation and
competence of Consultant. Consultant may not assign this Agreement or any
interest therein without the prior written approval ofthe Contract Administrator.
Consultant shall not subcontract any portion ofthe perlormance contemplated aud
provided for herein, other than to the subcontractors noted in the proposal,
without prior written approval of the Contract Administrator. In the event that
key personnel leave Consultant's employ, Consultant shall notify City
immediately.
8.5 Survival. All obligations arising prior to the termination of this Agreement and
alI provisions of this Agreement allocating liability between City and Consultant
shalI survive the termination of this Agreement.
Proltssional Senrces Agreenlent $,ith HdL Software 9of12
8.6 Ontions un on Breach bv Consultant. lf Consultant materiall y breaches any of
the terms of this Agreement, City's remedies shall include, but not be limited to,
any or all of the following:
8.6.1 Immediately terminate the Agreement;
8,6,2 Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this
Agreement;
8,6.3 Relain a diflerent consultant to complete the work described in Exhibit A
not finished by Consultant; or
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data,
maps, models, charts, studies, surveys, photographs, memoranda, plans, studies,
specifications, records, files, or any other documents or materials, in electronic or
any other form that Consultant prepares or obtains pursuant to this Agreement and
that relate to the matters covered hereunder shall be the property of the City.
Consultant hereby agrees to deliver those documents to the City upon termination
of the Agreement. It is understood and agreed that the documents and other
materials, including but not Iimited to those described above, prepared pursuant to
this Agreement are prepared specifically tbr the City and are not necessarily
suitable tbr any future or other use. City and Consultant agree that, until final
approval by City, all data, plans, specitications, reports and other documents are
confidential and will not be released to third parties without prior written consent
of both parties unless required by law.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers.
books ofaccount. invoices, vouchers, canceled checks, and other records or
documents evidencing or relating to charges for services or expenditures and
disbursements charged to the City under this Agreement for a minimum olthree
(3) years, or for any longer period required by law, from the date offinal payment
to the Consultant to this Agreement.
9.-i InsDection and Audit of Records. Arr y records or documents that Section 9.2 of
this Agreement requires Consultant to maintain shall be made available for
inspection, audit, and/or copying at any time during regular business hours. upon
oral or written request of, the City. Under California Government Code Section
8546.7, if the amount ofpublic lunds expended under this Agreement exceeds
Ten Thousand Dollars ($10,000.00), the Agreement shall be subject to the
examination and audit ofthe State Auditor, at the request of City or as part ofany
Protessional Services Agreement with HdL Solhvare l0 of l2
audit ofthe City, for a period ofthree (3) years after final payment under the
Agreement.
Section 10.MISCELLANEO US PROVISIONS.
10.1 Attornevs' Fees, Ifeither party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing party shall be entitled to reasonable attomeys' fees and
expenses in addition to any other relief to which that party may be entitled. The
court may set such fees in the same action or in a separate action brought for that
purpose.
10,2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial ofsuch action shall be vested exclusively in
Riverside County.
10.3 Severabilig. If a court of com petent jurisdiction finds or rules that any provision
ofthis Agreement is invalid, void, or unenforceable, the provisions of this
Agreement not so adjudged shall remain in full force and effect. The invalidity in
whole or in part of any provision of this Agreement shall not void or affect the
validity olany other provision of this Agreement.
10.,1 No Imnlied Wa iver of Breach. The waiver of an y breach of a specific provision
ofthis Agreement does not constitute a waiver ofany other breach ofthat term or
any other tenn of this Agrecment.
t 0.5 Successors and Assisns, 'Ihe provisions of this Agreement shall inure to the
benefit ofand shall apply to and bind the successors and assigns ofthe parties
10.6 Consultant Rcprescutatrvc. All matters under this A greement shall be handled
for Consultant by
10.7 Citv Contract Administration. This A greement shall be administered by a City
Representative ("Contract Administrator"). All correspondence shall be directed
to or through the Contract Administrator or his or her designee.
Marta Bonnin
HdL Software, LLC
1340 Valley Vista Drive, Suite 200
Diamond Bar, CA 91765-3910
Professional Services Agreement with HdL Sollu'are
10.8 Notices. Any '*'ritten notice to Consultant shall be sertt to:
I I of 12
Any written notice to City shall be sent to the Contract Administrator with a copy
to:
City Manager
City of Menifee
2971 4 Haun Road
Menit'ee, CA 92586
10.9 IntentionallyOmittcd
10.10 Inteeration. This A greement, including the scope of work attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement
between City and Consultant and supersedes all prior negotiations,
representations, or agreemi:nts, either written or oral.
10.11 Counternarts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall constitute one
agreement.
The Parties have executed this Agreement as ofthe Effective Date.
CITY OF MENIFEE CONSULTANT
la cc n, Mayo
Attest:
a ui
y Bennett. City Clerk
Approved as to Forrn:
Karen Feld, City Attorney
Proicssional Services Agreement with HdL Software 12ol12
.l
Pr-"la