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2020/07/01 Kimley-Horn and Associates, Inc. FY20/21 On-Call Planning Environmental Review ServicesDocuSrgn Envelope lD: E2F92D29-AA70-4395-AE97'206DFF8S4264 CITY OF MENIFEE PROFESSIONAL SERVICES AGREEMENT FY2020l2t ON-CALL PLANNTNG (ENVTRONMENTAL REVTEW) SERVICES THIS PROFESSIONAL SERVICES AGRIIEMENT ("Agreement") is made and effective this I Sl day of loty ,2020 ("Effective Date") by and between the CITY OF MENIFEE, a California municipal corporation, ("City") and Kimlev-Horn and Associates. Inc., a North Carolina Corporation ("Consultant"). City and Consultant may sometimes herein be relerred 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 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 of this Agreement and Exhibit A, this Agreement shall prevail. l.l Term of Services. The term of this A greement shall begin on July l, 2020 and shall end on June 30,2021 unless the term of this Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect City's right to terminate this Agreement, as provided for in Section 8. 1.2 Standard of Performance. Consultant represents and warrants that Consultant is 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 ofthe prolession 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 Assiqnment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. ln the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment ofany such persons, Consultant shall, immediately upon receiving notice flrom City ofsuch desire of City, reassign such person or persons. 1.4 1j119. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations hereunder. 1.5 Authorization to Perform Services. Consultant is not authorized to pcrform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. 2671/031858-000r 1610421.2 i05/22t24 Docusign Envelope lD E2F92D29-AA70-4395-AE97 206DFF894264 SECTION2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed ONE HUNDRED FIFTY THOUSAND DOLLARS AND ZERO CENTS ($150,000.00) notwithstanding any contrary indications that may be contained in Consultant's proposal, lor the Services to be performed and reimbursable costs incurred under this Agreement. In the evcnt of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City. Consultant shall not bill City for duplicate services performed by more than one person. 2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost lor 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 €nding 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 shall be submitted showing the name of the person performing the Services, the hours spent by each person, a brief description of the Services, and each reimbursable expense; e. The total number of hours of work performed under this Agreement by Consultant and each employee, agent, and subcontractor ol Consultant perlorming the Services hereunder necessary to complete the Services described in Exhibit A; Receipts for expenses to be reimbursed; The Consultant Representative's signature Invoices shall be submitted to: City of Menifee Attn: Accounts Payable 29844 Haun Road Menifee. CA 925 86 2.2 Monthly Payment. C--i ty shall make monthly payments, based on invoices received, lor the Services satisfactorily performed. and for authorized reimbursablc costs incurred. City f. 12671/0lr 8rE{00r 163042t 2 a05/22t2o Docusign Envelope lD: E2F92D29-AA70-4395-AE97-206DFF894264 shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements above to pay Consultant- 2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, flurther, or additional service pursuant to this Agreement. ln no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entirety of the Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an invoice. 2.5 Hourly Fees. Fees lor the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedulc included with Exhibit A. 2.6 Reimbursable Expenses. Reimbursable ex penses are included within the maximum amount of this Agreement. 2.7 Payment of Taxes. Consultant is solel y responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes. 2.8 Payment upon Termination. In the event that Cit y or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses as ofthe date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incuned to that date. SECTION 3. FACILITIES AND EQUIPMENT. Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. SECTION 4, INSURANCE REQUIREMENTS. Before beginning any work under this Agreemcnt, Consultant, at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the 2671/03lEtE-000t 7610421 2 ai5t22t2o -J- 2.3 Final Pavment. City shall pay the last five percent (5%) of the total amount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City of a final invoice, ifall ofthe Services required have been satisfactorily performed. DocuSign Envelope lD E2F92D29-AA70-4395-AE97-206DFF894264 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 thereofto City. Verification ofthe required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter-insured suits between City and other Insureds. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance lor the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single Iimit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability lnsurance or an Automobile I-iability lnsurance form or other form with a general aggregale limit is used, either the general aggregate limit shall apply separately to the Services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therelrom, and damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, and non-owned automobiles. b. Minimum scopc ol'coverage . Commcrcial general coverage shall be at least as broad as lnsurance Services Office Commercial General Liability occurence form CG 0001. Automobile coverage shall be at least as broad as lnsurance Services Office Automobile Liability lorm CA 0001 Code 2,8, and 9. No endorsement shall be attached limiting the coverage. Additional requirements. Each of the followinc. insurancc covcrage or added as a certified endorsement to thc policy: 2671/0318J8-000r 1630421 1 a05/22/2A 4- g shall be included in the 4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability lnsurance for any and all persons employed directly or indirectly by Consultant pursuant to the provisions ofthe Califomia Labor Code. Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self- insurance program to meet those requirements, but only il'the program of self- insurance complies fully with the provisions of the Calilomia Labor Code. Determination of whether a self-insurance program meets the standards ofthe Califomia Labor Code shall be solely in the discretion ofthe Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program ofself- insurance is provided, shall waive all rights ol'subrogation against City and its ofTicers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement. 4.2 Commercial General and Automobile Liabilitv Insurance. DocuSi9n Envelope lD: E2F92029,AA7G439s-AE97-206DFF894264 a. The insurance shall cover on an occurrence or an accident basis. and not on a claims-made basis. b. Any lailure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its ofTicers, employees, agents, and volunteers. 4.3 Professional [,iabilitv Insurance. a. General requirements Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS (S1,000,000) covering the licensed professionals' errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE, THOUSAND DOLLARS ($25,000), it must be approved by City. b. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form: a. The retroactive date of the policy must be shown and must be no later than the commencement ofthe Services. b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates. c. Ifcoverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the E,ffective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion ofthe Services. Such continuation coverage may be provided by one ofthe following: (l) renewal ofthe existing policy; (2) an extended repo(ing period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement ofthe Services under this Agreement. City shall havethe right to exercise, at Consultant's sole cost and expense, any extended reporting provisions ofthe policy, if Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement. 4.4 All Policies Re quirements Acceptability of insurers. AII insurance re quired by this Section is to bea. placed with insurers with a Bests' rating of no less than A:VII and admitted in Califbmia. 2671l011858-0001 7630421 2 a05t22t20 DocuSign Envelope lD: E2F92D29-AA70-439s,AE97-206DFF894264 b. Verification of coyerase. Prior to beginning the Services under this Agreement, Consultant shall furnish City with Certificates ol Insurance, additional insured endorsement or policy language granting additional insured status complete certified copies ofall policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. The Certificate of Insurance must include the following reference: RYzOzOlzl ON-CALL PLANNING (ENVIRONMENTAL REVIEW) SERVICES. The name and address for Additional Insured endorsements, Certificates of lnsurance and Notice of Cancellation is: City of Menifee,29844 Haun Road, Menifee, CA 92586. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant. Notice of Reduction in or Cancellation of Coveragc. Consultant shall provide writtcn notice to City within ten ( l0) working days if: ( | ) any of the required insurance policies is terminated; (2) the limits ofany ofthe required polices are reduced; or (3) the deductible or self insured retention is increased. d. Additional insurcdl primary insurance. Ci ty and its olficers, cmployees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the lollowing: liability arising out of the Services performed by or on behalf of Consultant, including the insured's general supervision of Consultanti products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope ofprotection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City. Additional insured status shall continue for one ( I ) year after the expiration or termination ofthis Agreement or completion ofthe Services. A certified endorsement must be attached to all policies stating that coverage ls primary insurance with respect to City and its officers, oflicials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage. Deductibles and Sclf-insured Retentions. Consultant shall obtain the c. written approval of City for the self-insured retentions and deductibles before beginning any ofthe Services. 2671/03t 858-0001 1$447.1 2 a05172/20 During the term of this Agreement. only upon the prior express written authorization ofthe Contract Administrator, Consultant may increase such deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention Ievels with a requirement that Consultant procurc a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satislactory in all respects to each of them. -6- DocuSign Envelope lD: E2F92D29-AA70-43Ss-AE97 206DFF894264 I'. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages lor subcontractors shall be subject to all ofthe 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 ofsuch insurance are either not commercially available, or that City's interests are otherwise fully protected. 4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy lor Consultant's breach: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder. or both stop work and withhold any payment. until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement. SECTION 5. INDEMNIFICATION. 5.1 Indemnification for Prolessional Liabili tv Where the law cstablishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges. awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a delense for City, the legal costs of counsel retained by City) and any judgment (collectively, "Claims") to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance ofprofessional services under this Agreement. 5.2 Indcmnification for Other than Professional Liability. Othcr than in thc performance ol professional services and to the full extent pernitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officcrs, employees, officials, volunteers. and agents from and against any and all Claims. where the same arisc 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 2671/03r 858 0001 7614421 2 ^05122120 1 DocuSign Envelope lD: E2F92D29-AA70-4395-AE97-206DFF894264 Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant. 5.3 Limitation of lndemnification. l he provisions of this Section 5 do not apply to claims occurring as a result of City's sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity. SECTION 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At alltimes durin g the term ofthis Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents is in any manner o{ficers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant lor 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 .2 Compliance with Applicable Laws. Consultant and an y subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perlorm work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages, as determined by the Director of Industrial Relations ofthe State of Califomia, will be the minimum paid to all laborers, including Consultant's employee and subcontractors. It is understood that it is the responsibility ofConsultant to determine the correct scale. The State Prevailing Wage Rates may be obtained from the California Department of fndustrial Relations ("DlR") pursuant to Califomia Public Utilities Code, Sections 465,466, and 467 by calling 415-703-4774. Appropriate records demonstrating compliance with such requirement shall be maintained in a safe and secure location at all times, and readily available at 267 t/01t858-0001 1674421 2 a05/22120 -8 7.1 Governins Law. The laws of the Statc of Califomia shall govern this Agreement. DocuSign Envelope lD: E2F92O29-AA70-4395 AE97,206DFF894264 City's request. Consultant shall indemnify, defend, and hold City and its elected and appointed boards, members, officials. olficers, agents, representatives, employees, and volunteers harmless lrom and against any liability, loss, damage, cost or expenses (including but not Iimited to reasonable attomeys' fees, expert witness fees, court costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any party performing the Services ofany applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation ofSection I 781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section I 781, as the same may be amended lrom time to time, or any other similar law. It 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 under Califomia law and/or the implementation of l,abor Code Section I 78 I , as the same may be amended from time to time, and./or any other similar law. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same ofall subcontractors. 7 -3 Licenses and Permits. Consultant re presents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. SECTION 8. TERMINATION AND MODIFICATION. 8.1 Termination. Cit y may cancel this Agreement at any time and without cause upon written notification to Consultanl 8.2 Tcrmination by Consultant. Consultant ma y cancel this Agreement upon 30 days' written notice to Citv 8.4 Extension. City may, in its sole and exclusivc 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 2671/03 t858 0001 1630421.2 a05r22120 9- 8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to thc date of termination; City, however, may condition payment of such compensation upon Consultanl delivering to City any or all documents, photographs, computer software, video and audio tapes. and other materials provided to Consultant or prepared by or l'or Consultant or City in connection with this Agreement. DocuSign Envelope lD: E2F92D29-AA70-4395-A897-206DFF894264 that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any othcrwise 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. 8.6 Assisnment and Subcontractinq. City and Consultant recognize and agree that this Agreement contemplates personal perforrnance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence ofConsultant- Consultant may not assign this Agreement or any interest therein without the prior written approval ofthe Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant's proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant's employ, Consultant shall notify City immediately. 8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive thc expiration or termination of this Agreement. 8.8 Options upon Breach by Consultant. [fConsultant materially breaches any ofthe terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following: a. lmmediately terminate this Agreement; b. Retain the plans, specifications. drawings, reports. design documents, and any other work product prepared by Consultant pursuant to this Agreement; c. Retain a different consultant to complete the Services described in Exhibit A; and/or d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services. SECTION 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Crcated as Pat1 of Consultant's Performancc. All re ports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement. lt is understood and agreed that the documents and other 2671/01lE58-0001 1630421 1 aA5l22l20 -10- materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that. until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law. 9.2 Licenshg of Intellectual Property. 'fhis Agreement creates a non-exclusive and perpetual license for City to copy! use, modily, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, test data, survey resulls, models, renderings, and other documents or works of authorship fixed in any tangible medium ofexpression, including but not limited to, physical drawings, digital renderings, or data storcd 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 Chy is granted a non- exclusive and perpetual license lor any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be lim ited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 9.3 Consultant's Books and Records. Consultant shall maintain an y and all ledgers, books ofaccount, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges lor the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from thedate offinal payment to Consultant underthis Agreement. Allsuch records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. 9.4 Inspection and Audit of Records. An y records or documents that Section 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. Under Califomia Covemment Code Section 8546.7, ifthe amount ofpublic funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period ofthree (3) years after final payment under this Agreement. SECTION 10.MISCELLANEOUS PROVISIONS. l0.l Attorncys' Fccs. Ileither Pa rty to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision ofthis Agreement, the prevailing Party shall be entitled to reasonable attomeys' fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attomeys' fees awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number ofhours spent by the prevailing Party in the conduct ofthe 2671l0r 1E58-0001 163042t 2 a05122t20 -lt- DocuSign Envelope lD: E2F92D29-AA70-4395-AE97-206DFF894264 Docusiqn Envelope lD E2F 92D29-AA7O-4395-AE97-2 06 DF F 8S4264 litigation. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Aoolicable Law: Venue. The intemal laws of the State of Califomia shall govern the interpretation and enforcement of this Agreement. [n the event that either Party brings any action against the other under this Agreement, the Parties agree that trial ol such action shall bo vested exclusively in Riverside County. 10.3 Severability. Ifany 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 lull force and effect. 10.4 Section Headinss and Subheadines. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise alfect the terms of this Agreement. 10.5 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver ofany other breach of that term or any other term of this Agreement. 10.6 Successors and Assisns. The provisions ofthis Agreement shall inuretothe benefit ofand shall apply to and bind the successors and assigns ofthe Parties. 10.7 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Kevin Thomas, Senior Environmental Manager ("Consultant's Representative"). The Consultant's Representative shall have full authority to represent and act on behalf of Consultant forall purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions ofthe Services under this Agreement. 10.9 Notices. Any written notice to Consultant shall besentto: Kimley-Horn and Associates, Inc. Attn: Kevin Thomas, Senior Environmental Manager 3880 Lemon Street, Suite 420 Riverside, CA 92501 Any written notice to City shall be sent to the Contract Administrator at: 267tl03tE5E-000t 1630421 2 ^o5t21t2o City of Menilee -t2- 10.8 Citv Contract Administration. This Agreement shall be administered by a City employee, Kevin Ryan, Planning Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf ol City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consulant shall not accept direction or orders from any person other than the Contract Administrator or his designee. DocuSign Envelope lD: E2F92D29-AA70-4395-AE97-206DFF894264 29844 Haun Road Menifee, CA 92586 Attn: Kevin Ryan, Planning Manager 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 ofa technical report, first page ofdesign specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed prolessional responsible lor thc report/design preparation. 'fhe stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Seal and Signature of Registered Professional with repor/desi gn responsibi I ity. l0.ll Riehts and Remedies. Exce pt with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of thc Parties are cumulative and the exercise by cither Party ol one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies lor the same default or any other delault by the other Party. 10.12 Intesration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason ofthe authorship of this Agreement or any other rule ofconstruction which might otherwise apply. 10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 10.14 Execution ofContract. The persons executingthis Agreement on behalfofeach of the Partics hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. 10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance ofthis Agreement 2671l01lE5E-000t 1630421 2 aO5t22DA -13- DocuSign Envelope lD: E2F92D29,AA70-4395-AE97-206DFF8S4264 there shall be no discrimination against or segregation ot, any person or group ol persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry. 10.16 No l'hird Party Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder. I 0.17 Nonliabilitv of City Officers and Employees. No officer, olficial, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the evcnt ofany delault or breach by City or lor any amount which may become due to Consultant or to its successor, or for breach ofany obligation of the terms of this Agreement. 10.18 No Undue lnfluence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method oflcoercion, 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 work to be conducted as a result of this Agreement. 10.19 No Benefit to Arise to Citv Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one ( I ) 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] 2671l03 tE5E-0001 1630421 2 a05/22/2A -14- DocuSign Envelope lD: E2F92D29-AA70-439s,AE97-206DFF894264 IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as ofthe Elfective Date. CITY OF MENIFEE CONSULTANT fuaw AUt Armando G.illa, City Manager ll nan ts,ice President .l A. Manwaring. City Clerk as to F orm: . Melching,ttorney frb^-) frlLl, flssistar^} S unluy Margit Allen, AICP, Assistant Secretary [Note: 2 officer's signatures required if Consultant is a corporation, unless provided with a certificate of secretary in-lieu] 267 r/031858-000 r 7670421 2 ^05122/20 -15- DocuSign Envelope lD: E2FS2D29,AA70-4395-AE97-206DFF894264 EXHII}IT A SCOPE OF SERVICES Consultant shall provide the fbllowing services in the amount not to exceed ONE HUNDRED FIFTY THOUSAND DOLLARS AND ZERO CENTS (SI5O,OOO.OO). Preparation and/or Peer Review: Environmental Services Firm shalI provide environmental services with demonstrated expertise in processing apptications for various types of projects (residentiat, commerciat-industriat, mixed use) and preparing environmentat review documents as required by CEQA and/or NEPA that inctude, but not limited to, one or more of the fotlowing planning and environmental tasks: - lnitiaI Site Assessments - Preparation of CEQA/NEPA studies (ElR, MND, ND and CE) - Noise Studies - Archeotogicat, Cutturat Resources, and PateontotogicaI Resource Services - Air Quality Studies - Traffic Studies - Greenhouse Gas - Biologicat Resources Services, inctuding but not limited to: o Biotogical resource technical reports o Western Riverside County Muttiple Species Habitat Program (MSHCP) documents inctuding, MSHCP Habitat Assessment and Consistency Analysis, Determination of BiotogicaI Equivatent or Superior Preservation (DBESP) reports, and Criteria Refinements o Habitat mitigation and restoration ptans o Sensitive species surveys o Oak tree surveys o Fue[ modification reports o Jurisdictionat detineations/regutatory permitting o BiotogicaI resources construction comptiance monitoring and reporting o Witdtife and regulatory agency coordination (USFWS, CDM, USACE, RWQCB) o Biological resource-related CEQA documents - EnvironmentaI Mitigation Studies/ Reports - Coordinate and distribute environmental documents and notices - Mitigation Monitoring and Reporting Ptans - Presentations at community meetings and public hearings Assignments may also include third-party peer reviews of environmentat documents and technicaI studies, generatty retated to development apptication review. 267 I /01 I 858-000 I 76104?1 2 a00/00/00 DocuSign Envelope lD: E2F92D29-4A70-4395-AE97,206DFF894264 HOURLY RATE SCHEBJLE:list oll tr MENIFEE New. Eetter. Best o 3 Civit Design Servicer 5rr2 sll5 5lae 516,1 Civil Derign Servicet Sl r9 stl2 5146 Civit Design Service5 t270 s281 Sl04 Civit Design Services 52r8 s22l s2l6 Civil Design Services s r98 5206 s214 s223 Civit Design Services s 161 s r6E 5r 74 51E 1 Civit oesign Services s140 s r16 5r52 s r59 Civil oesign Services Sr. support St.ff sr6r 5168 sl l.5161 civiL oesign Services S!pport 5t.tl 51r5 s119 5124 5129 EnvironnEnt l 5.Nic6 5335 51,{9 !16! EnvlronE!€rn.l serrc.t s307 s319 5132 5346 Envlronm€rtal Services t77O s28r S2e?5104 [nviron ertal Service!s2r8 5227 52i6 5246 tnvironFEnt.l 5!rvic.t 5198 s206 5214 szZl EnvlrontrEntat Sdic.e 5161 sr 68 s1/4 518 ! tnvi.onrpntal Servic?s 5140 S1{6 5152 s 15e Environftntal S€rvlc€3 Sr. Suppon Stall 5r 61 sr68 51t4 srEl €nvironnEltat Servica,Suptort Statf 5r15 sr 19 5124 5i29 YEAR 2 YEAR ] (2021t2?t (m2uzrl SPECIALTY HOURLY RATE (S)TITLE & DESCRIPTION YEAR I t2019120r IEAR .t (202U211 26? t/0I856-0001 7610421 2 a00/00/00 I sror I I T-F-- DocuSign Envelope lD : E2F92D29- AA7 0- 4395-AE97-206DFF894264 ffi MENIFEE New. Bette. geat LIST ALL ANTICIPATED REItitSURSA8LE COSTS Note: List att equipment hourly ,ate on a separate sheet a5 needed. City reserves the right to negotiate this price on a project-by-project basis PLEASE MARK ALL ACKNOWGEMENTS AND COIAPLETE FOLLOWING SECTION: E the troposal provlded reflectr.ny eddltlonal .ddendum(s) lrsued wlth respcct to thli RFQ El Srb.ttt"l of thl, proposal indlcatei we have .evlewed the propGed wrlttan agrccnent lnd lf selected would accept all terms of the propored eg.€ement. Ki ley-Hom and Associates. lnc. Company llame 1880 Lemon Sreet. Suite 420 Address Rirers;dc CA 9:It68 City I 951 ) 5,1.]-9868 State Zip Code ) N.A Telephone Numbet Company Type: I Corporation I Pannership I Trust/Estate I lndividual/sole Proprielor or singte member LLC I I Other: : Limited Liabitity Company (LLC) ,7 Print Name Title REIA.IBURSAELE COST DESCRIPTION AMOUNT (at cort) 2671l031858-0001 7610421.2 a00/00/00 4- SiSnqd 8y Jason rriatson, P.E. o OocuSign Envelope lDr E2F92D29 AA70-4395-AE97-206DFF894264 ATTACHMENT A: HOURLY RATE SCHEDULE ffi MENIFEE New. Better Best. RFq 2018-3 Annual On C.ll Prof.ssion.l Seryice3 (Pl.nnlnt s6rvlc65) Conrultant N.m€:BCR Consuttinq LLC Address 505 We5t 8th Street City, State and Zip Code:Ctaremont, catlfornia 91711 Please provide detaited Hourly Rates for each staff po6ition and any other irKidental or additionat costs required in the spac$ provided betow to comptete the Scope of Work requirements. PROPOSED SERVICESi (Please mark all thqt awlyl Pl.nninl sorvic6s I Generat Ptanning.ReLated Oevelopment and Land Ure Proiect Reviel,,r' SeMces I Lardscape Design Ptan Review Services 3 Archeotogicat, Cutturat Reiources, and Pateontologicat Resource services I Environmental Review (CEQA/NEPA) Service! I Municipat Financiat Review Services (Fiscal lmpact Anatysis) o 26?l/031858-0001 7610421 2 a00/00/00 DocuSign Envelope lD: E2F92D29-AA70-4395-AE97-206DFF894264 HOURLY RATE SCHEDULEI tr MENIFEE New. Better Best. list oll itiorB anti 6- o Cutlurat Resources Principal Archaeoloqist s 120.00 S126. oo s126.00 s132.00 CulturaI Resources PriEipat Archit.(urrL Hi5ton.n s120.00 s126.00 sr 26.00 s 132.00 CulturalRe6ources PrinciDat Paleontotoeist s120.00 s126.00 5112.00 CuLt!rat Resources Ar<h.stog'c:t Projec t M.n.80 r s100.00 S105.oo s r 05.00 5r1o.oo cLrltural Reaour.ea P.t.ontotogcat Proiect l,un.t r s100.00 s105.00 s105.00 s r 10.00 cutturaI Resources ArchitecbJrat Historv Proi.ct Lrdr 5100.00 s105.00 s 10s.00 s110.00 CutturaI R6ourc6 Gocr.phi. lnfo Syst nE Spe.iati:t s85.00 s90-00 s90.00 s94.00 Cuttura( Resources St:ft Archr.obin/Momlor s6s.00 s68 oo S68.oo 571.00 Cultural Resources St ff P.l.ontologist/llrni ior s65.00 s68.00 s68.00 571.00 Cuttural R6ourc6 Strf f Hisbrian/Ra56ir.h.r 565.00 s68.00 s68.00 s71.00 YEAR 4 l2o21tTr2Zl II I I HOURLY RATE (S) YEAR 3 (?ozotztl III I I YEAR 2 (2oletml IIIIIIIIIIIIIIIIIIII III YEAR I lzJ1Al19' TITLE & DESCRtFftOT{ SPECIALTY 267rl01tE5E-0001 7630421 2 a00/00/00 fI ltll DocuSign Envelope lDr E2F92D29-AA70-439s-AE97-206DFF894264 ffi MENIFEE New. Eetter Besl LIST ALL ANTICIPATED REIMSURSABLE COSTS Note: List all equipment hourty rate on a separate sheet as needed, City reserves the right to negotiate this price on a project'by"project basis. PLEASE i,tARK ALL ACKNOWGE^4ENTS AND COtvtPLETE FOLLOWING SECTION: E The Proposal provided reflectg any additlonal addendum(s) lssued wlth resPect to this RFQ E Srbaltt"lof thl. proposal lndlcatel we have revlewed the proposed wrltten agreement and lf selected would accept all term! of the proposed agreement. BCR Consuttinq LtC Company Name 5O5 WF<l Ath Slr.el Address Ctaremont California 91711 City Zip Code Company Typ€: I Corporatioo Partnership I Trust/Estate I lndividual/Sote ProprieLor or singte mernber LLC I Other x Limited Liability Company (LLC) Signed By David Brunze(I. Pnncipat Archaeoloqist Print Name Ti e 550.00 oer day S0.56 oer mite 5110.00 per REIMBUR5ABLE COST OESCRIPTION AMOUNT (at cost) 267 t03 I E,E.O00l 7630421 2 100/00,00 -7- I I State I eoe,W(-909-)992:1065-- T€lephon€ Number Fax Number nrL-/ Docusign Envelope lD E2F92D29 AA70-4395-AE97-206DFF894264 ATTACHMENT A: HOURLY RATE SCHEDULE ft MENIFEE New. B€tler. BFst. RFq 2018-3 Annu.l On C.ll Profes3lonal servlcca (Pl.nnint Servicei) Con5ultant Name:.Iericho Sy6teme, Inc. Addrass:47 N lst Street. Suite .L City, St te rnd Zip Codsr Redlands, CA 92373 Please provide detaited Hourty Rates for each staff po6ition and any other incidental or additiona{ costs required in the spaces provided betow to comptete the kope of work requirements. PROPOSED SERVICESt lPleose mork oU thot owlyl Plannint serM.es I Generat PLanning"Related Devel@ment and Land Use Proiect Reviq, SeMces ] LaMscape Design Ptan Revi€rd services I Archeotogicat, Cuttural Resources, and Paleontotogical Resource SeMces 3 Environmental Review (CEQA/NEPA) Services ] Municipat Financial Review Services (Fiscat lmpact Anatysis) 2671l03185E-000r ?630421 2 a00/00/00 -8- nr\-/ DocuSign Envelope lD: E2F92D29-AA70-4395-AES7-206DFF894264 HOURLY RATE SCHEDULE:eose list oll ions antk ffi MENIFEE New. Better Best. Jericho lnc BiologicaI Resources Principal ln Charge s 150 5158 5155 5174 BiologicaI Resources Project l,lanaqer s145 s153 5160 s 168 Biotogicat Resources Reg Speciatist-Lead sr 35 5142 s150 s157 Biological Re5ources Ecdoqist - Lead 5r l5 5142 5150 s157 BiotogicaI Resources Site l,tanager . Lead S1l5 5150s142 5157 BiologicaL Resources FAA Licensed UAV Piolot 5125 51 31 s138 s 145 Biotogicat Resources Biotogist-Specialty Permit s120 s126 s132 5139 Eiotogical R6ources 51r0 5116 s122 s128 Biotogicat Relources Biotogist . Support 595 5100 5105 5'110 Biotogical R$ources Gls - Lead s9s s 100 5105 s110 Biotogical Relources Construction Mmitor 595 s 100 s10s 5110 Bioloqicat Resources 550 Ssl 5s6 s59 TITLE & DESCRIPTION SPECIALTY HOURLY RATE (S) YEAR 2 (20211221 IIIIIIrIII I YEAR .I r2o't9lml YEAR ! tm2a23l I III YEAR 4 (zo23t24l 2671l011858-0001 7630421 2 a00/00/00 9- o Biologist - Lead Administrative r Docusign Envelope lD E2FS2D2S 4A70,4395 AE97 206DFF894264 ft MENIFEE New. Eetter. Best LIST ALL ANTICIPATED REIAABURSABLE COSTS Note: List all equipment hourty rdte on a separate sheet as needed. City reserves the right to negotiate thjs price oo a project-by-proiect basis PLEASE MARK ALL ACKNOWGEMENTS AND COMPLETE FOLLOWING SECTION: E the Proposal provided reflects any additional .ddendum(s) isrued with relpect to this RFQ E subritt"l of thi, propos.l indicates w€ have r6viewed the proposed written aSreement and if selected would accept allterm! of the proposld agrcement. Jericho Systems, lnc Compeny Name 47 N. Irt Street, suite 1 Catifornia 9?373 City (909) State Zip Code 915-5900 Telephone Number Fax Number Partncrship Trust/Estate LimitcJ Liability Company (LtC) : lndividuat/sole roprietor or single rnember LtC - Other: Shay Lawrey, President Print Name company Type X Corporation Miteage Current IRS Rate PhotocopyinS At cort Speciat Vehicte Rental, Speciat Fietd Equipment At cost Hotet, Per Diem Current GSA Rate for Menifee REI^.IBURSABLE COST DESCRIPTIO}I A TOUNT (at cost) 267tl0ll85E-0001 7630421 2 a00/00/00 - 10- Add.ess Redlands I Tirle