2017/07/01 NV5, Inc. FY17/18 On-Call Engineering ServicesCITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY I7lI8 ON-CALL ENGINEERING SERVICES (RECOVERABLE)
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this 2ls day of JLTNE, 201 7 ("Elfective Date") by and between the CITY OF MENIFEE, a
California municipal corporation, ("City") and NV5. INC., an S Corporation, ("Consultant"). City
and Consultant may sometimes herein be relerred to individually as a "Party" and collectively as
the "Parties."
SE('TION I. SER\'ICE,S.
Subject to the terms and conditions set forth in this Agreemerrt, Consultant shallprovide 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 beloiv), in accordance with the Scope of
Services. In the event of a conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
l.l Term olServices. The term of this A greement shall begin on JULY 1.2017 and
shall end on JLINE 30. 2018 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 Sen'ices 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 \.varrants that Consultant is a
provider offirst class rvork and services and Consultant is experienced in pertbrming the Serr,ices
contemplated herein and, in light of such status and experience. Consultant shall perform the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction of the
Contract Administrator.
I .4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
1.5 Authorization to Pcrtbrnr Services. Consultant is not iruthorized to perform any ol
the Services or incur any costs whatsoevcr under the terms of this Agreement until receipt of
nuthorization from the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement. desires the reassignment ofany such persons, Consultant
shall, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
S E CT ION 2. CO\IPE :\..S,{T I O-\...
City hereby agrees to pay Consultant a sum rrot to cxceed FIFTY THOUSAND
DOLLARS AND ZERO CENTS ($50.000.00) notvithstandin g any contrary indications that
may be conlained in Consultant's proposal. for the Services to be performed and reimbursable
costs incurred under this Agreernent. [n lhe event ofa confl ict betrveen this Agreement and Exhibit
A. rcgarding the amount ofcompensation, this Agreement shall prevail. City shall pay Consultant
lor the Services rendered pursuant to this Agreement at the time and in the manner set lorth herein.
The payments specificd below shall be the only payments lrom City to Consultant for thc Services
rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specificd 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 for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a.
invoice, etc.:
Serial idcntitjcations of progress bills; i.e.. Progress Bill No. 1 fbr thc llrst
b. The beginning and ending dates of the 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 lhe
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 expensct
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 Al
The Consultant Representative's signature
lnvoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
2971 .1 Haun Road
Menille. CA 92586
2.2 Monthly Payment City shall make monthly payments. based on invoices receivcd,
lor the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
f.
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Reccipts lbr expenses to be reimbursed:
2.3 Final Payment. Ci ty shall pay the last ten percent ( l0%) of the total amount due
pursuant to this Agreement rvithin sixty (60) days after completion of the Services and submittal
to City of a final invoice. ifall of the Services required have been satisthctorily performed.
2.4 Total Pa),ment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourlv Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schcdule included with Exhibit A
1.6 Rcimbursable Expenses. Reinrbursablc cx penses are included r.vithin the maximum
amount of this Agreement.
2.7 Payment of Taxes. Consultant is solel y responsible for the payment ofemployrnent
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant lor all outstanding costs and
reimbursable expenses incurred for Services satislactorily completed and for reimbursable
cxpenses as of the date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to thal date.
SECT|ON 3. FACTLTTIES AND EQUIPME)tT.
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Except as othenvise provided. Consultant shall. at its sole cost and expense, provide all
fhcilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facrlities 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
ol tirmishing those lacilities 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 facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the tlpes and amounts of insurance checked below and provide Certificates of
lnsurance, rndicating 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 orr 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 submrtted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between Citv and other Insureds.
4.1 Workers' Compensation. Consultant shall . at its sole cost and expensc. maintain
Statutory Workers' Compensation Insurance and F.mployer's Liability Insurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ol-the Califbnria
Labor Code. Statutory Workers' Compensation Insurancc and Employer's Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS (S 1,000,000,00) per
accident, ONE MILLION DOLLARS (S 1.000.000.00) disease per employee, and ONE MILLION
DOLLARS ($ 1,000.000.00) disease per policy. In the altemative, Consultant may rely on a sell-
insurance program to meet those requirements, but only ilthe program ofseltinsurance complies
fully rvith the provisions of the Calilomia Labor Code. Determination olwhethcr a sell-insurance
program meets the standards of the Calilornia Labor Code shall be solely in the discretion of the
Contract Administrator. The insurer. ifinsurance is provided, or Consultant, ifa program olsell-
insurance is provided. shall rvaive all rights of subrogation against City and its olficers. officials,
employees, and authorized volunteers lor loss arising lrom the Sen,ices performed under this
Agreement.
4.2 Commercial General and A tomobile Liabilitv Insurance
Cerreral requirements. Consultant , at its own cost and expense, shalla.
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS (S1,000.000.00) per occurence, 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 aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general 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 from the Services contemplated under this Agreement, including the
use of hired, owned. and non-owned automobiles.
b. Minimunr scone of covcraue Comnrercial general coveragc shall be at least
as broad as Insurance Services Ofllcc Comnrercial General Liability occurence tbrm CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Officc Automobile Liability
form CA 0001 Code 2. 8. and 9. No endorsement shall be attached limiting the coverage.
c. Additional requirements. Each of the lollorving shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occuffence or an accident basis. and
not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the
policy shall not alfect coverage provided to City and its officers, employees, agents.
and volunteers.
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b. Claims-made limitations. The following provisions shall apply if the
professional hability coverage is r.vritten on a claims-made form:
a. The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
b. lnsurance must be maintained and evidence of insurance nrust 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 i.vith
another claims-made policy form with a retroactive date that precedes the Effcctive
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum ol five (5) years after the expiration or termination of this Agreement
or the completion of the Services. Such continuation coverage may be provided by
one of the tbllolving: (l)renewal olthe existingpolicy. (2) an extended reporling
period endorsement; or (3)replacement insurance with a retroactive date no later
than the commencement of the Services under this Agreement. City shall have the
right to exercise. at Consultant's sole cost and expense. any extended reporting
provisions ofthe policy. if Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Seruices under this Agreement.
4.4 All Policies Requirements
Acceptability of insurers. All insurance re quired by this Section is to be
placed r.vith insurers with a Bests' rating of no less than A:VII and admitted in Calilornia
Prior to beginning the Services under this
Agreement. Consultant shall lumish City with Certiflcates of Insurancc. additional insured
endorsement or policy language granting additional insured status complete certified copies olall
policies, rncluding complete certified copies of all endorsements. All copies of policies and
certified endorsements shall shorv the signature of a person authorized by that insurer to bind
coverage on its behalL The Certificate ol Insurance must include the following reference: FY
l7l18 ON-CALI. ENGINEERIN SERVICES (RECOVERABLE). The name and address for
Additional lnsured endorsements. Certificates oflnsurance and Notice ofCancellation is: City of
Menifee. 29714 Hawt Road. Menifee. CA 92586. City must be endorsed as an additional insured
for liability arising out ofongoing and completed operations by or on behalf o f Consultant.
a
b. Verification of coverage
4.3 ProfessionalLiabilitylnsurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain lor the period covered by this Agreement prof'essional 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.
c Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten (10) working days if: (l)any of the required insurance
policies is terminated; (2) the limits of any of the required polices are reduced: or (3) the deductible
or sell-insured retention is increased.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance rvith respect to City and its officers, officials, 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.
During the term ol this Agreement. only upon the prior express written
authorizatlon olthe 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 ol an increase in deductible or self-insured
retention levels rvith a requirement that Consultant procure a bond guaranteeing payment oflosses
and related investigations. claim administration, and defense expenses that is satisfactory in all
respects to each of them.
I 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 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 ol'such insurance are either not commercially available, or that
City's interests are otherwise fully protected.
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d. Additional insured: orimar), insurance. City and its officers, employees,
agents. and authorized volunteers shall be covered as additional insureds rvith respect to each of
the following: liability arising out of the Services perlbrmed by or on behalf of Consultant.
including the insured's general supervisron of Consultant: products and completed operations of
Consultant, as applicable: prcmises orvned. occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultant in the course ol providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations o the scope ofprotection afforded
to City or its officers, employees. agents, or authorized volunteers. The insurance provided to Crty
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 alter the expiration or termination of this Agreement or completion of the Services.
e. Deductibles and Self-insured Retentions. Consultant shall obtarn the
i.vritten approval of City for the self-insured retentions and deductibles before beginning any ofthe
Services.
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 tvithhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereot andror
c. Terminate this Agreement.
SE,CTION 5. INDEMNIFICATION.
5. I Indemnification lbr Pr ottssional Liabilitv. Where the lalv establishes a
professional standard of care for perfbrmance of the Services, to the fullest extent permitted by
larv, 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 expen fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City, the legal costs of counsel retained by City) and any judgment (collectively,
"Cllaims") to the extent same are caused in whole or in parl by any negligent or wrongful act, error,
or omission of Consultant, its officers, agents, employees. or subcontractors (or any enlity or
individual that Consultant shall bear the legal liability thereofl in the performance ofprofessional
services undcr this Agreement.
5.2 Ind emnification for Other than Professional Liabilitv . Other than in the
performance ol professional serv'ices and to the full extent permitted by larv, 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.
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 legally liable, including but not Iimited to officers, agents, employees or
subcontractors of Consultant.
5.3 Limitation ol Indemnification for Design Professionals. Notrvithstandin g any
provision of this Section 5 to the contrary, design professionals are required to defend and
indemnily City only to the extent permitted by Civil Code Section 2782.8. The term "design
professional" as defined in Section 2782.8. is limited to licensed architects, licensed landscape
architects, registered professional engineers, professional land surveyors. and the business entities
that offer such services in accordance rvith the applicable provisions of the Califomia Business
atrd Professions Code.
5.4 Limitati n fln The provisions of this Section 5 do not apply to
claims occurring as a result of City's sole or active negligence. The provisions of this Section 5
shall not release City from liability arising lrom gross negligence or willlul acts or omissions of
City or any and all olits officers, oflflcials, employees, and agents acting in an official capacity.
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ST]('TI()\ 6. STATUS OF CO\SUI,I-,,\){T.
6.1 Independent Contractor. At alltimes durin g 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 insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; horvever. othenvise City
shall not have the right to control the means by rvhich Consultant accomplishes the Services
rendered pursualrt 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, otlcials, 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 lor the fees paid to Consultant as provided in this Agreement.
City shall nol pay salaries, wages, or other compensation to Consultant for perfomrrng the Services
hereunder lbr City. City shall not be liable lor 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. larv. or ordinance to the contrary. Consultarrt and any
of its enrployees. 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 Califomia Public Employees
Retirement System ("PERS") as an employee of City and entitlement to any contribution to be
paid by City tbr employer contributions andior employee contributions for PERS benefits.
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SECTION 7. I,EGAI, REQUIREMENTS.
7 .1 Goveming Larv. The laws of the State of California shall govenr this Agreement.
7.2 Comoliance with Apnlicable Laws. Consultant and any subcontractor shall comply
rvith all applicable local, state, and federal laws and regulations applicable to the performance of
thc work hereunder. Consultant shall not hile or employ any person to perform rvork rvithin 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 rvages. as determined by the Director oflndustrial Relations ofthe State
ol'Calilonria. rvill be the minimum paid to all laborers. including Consultanl's employee and
subcontractors. It is understood that it is the responsibility ofConsultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the Califomia Department of
Industrial Relations ("DIR") pursuant to 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
City's request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members. olficials. officers, agelrts, represell tatives, employees, and volunteers harmless
from and against any liability. loss, damage. cost or expenses (including but not limlted to
reasonable attonreys' fees, expert witness lees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) lhe noncompliance by Consultant or any
party performing the Services ofany applicable local. state. and/or federal law, including, without
limitation, any applicable federal and/or state labor laws (including. without limitation, the
requirement to pay state prevailing wages and hire apprentices); ( ii) the implementation ofsection
l78l of the Labor Code, as the same may be amended lrom time to time, or any other similar law;
and/or (iii) failure by Consultant or any party performing the Services to provide any required
7.3 Licenses and Permrts. 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 required to practice their respective professions.
Consultant represents and rvarrants to City that Consultant and its employees. agents, and
subcontractors shall, at their sole cost and expense, keep in elfect at all times during the term of
this Agreement any licenses, permits. and approvals that are legally requrred to practice their
respective professions. In addition to the lbregoing. Consultant and any subcontractors shallobtain
and maintain during the term of this Agrecment valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
tt. I Ternrination. Crt y mav canccl this Agreemcnt at any timc and rvithout ca(rse upoll
rvritten notifi cation to Consultant
8.2 Termination bv Consultant Consultant may cancel this Agrecment upon 30 days'
written noticc to Citv
t'(.i Conscqucnccs ol- Tcnlination. [n the cvcnt of terminltiorr . Consultant shall be
entitled to compensation lor the Services performed up to the date of termination: City. horvever.
may condition paynent of such comperrsation upon Consultant delivering to City any or all
documcnts. photographs, computer soltware. video and audio tapes. and other materials provided
to Consultant or prepared by or for Consultant or City in conneclion rvith 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 I .1. Any such extension shall require a
rvrilten 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 rvith
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 otherwise reimbursable expenses incurred during the extension period.
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all the Partics
Amendmetrts. The Parties nra y amend this Agreement only by a ivriting srgned by
8.6 Assicnmcnt and Subcon tractin c. ci ty and Consultarrt recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination
of Consultant's unique personal competence, experience. and specialized personal krrorvledge.
Moreover. a substantial inducement to City for entering into this Agreemenl was and is the
prolessional reputation and competence ol-Consultant. Consultant may not assign this Agreement
orany interest therein without the priorwritten approval olthe Contract Administrator. Consultant
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disclosure or identification as required by Labor Code Section I 78 I , as the same may be amended
from time to time, or any other similar law. It is agreed by the Parties that. in connection with
performance of the Services, including, rvithout 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,lor the implementation of Labor Code Section I 781. as the same may be
amended lrom time to time. and/'ol any other similar larv. Consultant acknorvledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
elfectuating compliance with such laws. Consultant shall require the same ofall subcontractors.
shall not subcontract any portion of the performance contemplated and provided tbr herein, other
than to the subcontractors noted in Consultant's proposal. rvithout prior written approval of the
Contract Administrator. ln the event that key personnel leave Consultant's employ. Consultant
shall notily City immcdiatcly.
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 Options upon Breach bv Consultant. IfConsultant materially breaches any ofthe
terms of this Agreement. City's remedies shall include, but not be limited to, any or all of the
lollowing:
lmmediately terminate this Agreementiil
b. Rctain the plans. specifications. drawings, repoms. design documents. and
any other rvork 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 betrveen 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. KE,EPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. AII reports. data. maps,
models. charts, sludies, 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 ofCity. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination 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 ofsuch documents for other projects by City shall be rvithout liability to Consultant. City and
Consultant agree that. until final approval by City, all data, plans, specifications, repo(s, and other
documents are confiderrtial and rvill not be released to third parties rvithout prior written consent
ofboth Parties unless required by law.
9.2 Licensing of lntellectual Pronertr-. This Agreement creates a non-exclusive and
perpetual license lor City to copy, use, modify. reuse. or sublicense any and all copyrights, designs.
rights of reproduction. and other intellectual property embodied in plans, specifications. studies,
drawings, estimates. test data. survey results, models. renderings. and other documents or works
ol authorship fixcd in any tangible medium of expression. including but not limited to, physical
drarvings, digital renderings. or data stored digitally. magnetically, or in any other rnedium, rvhich
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and
Data"). Consultant shall require all subcolrtractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
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Agreement, Consultant represents and wamants 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 rvhich 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 trny 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 any and all ledgers,
books ofaccount, invoices. vouchers, canceled checks, and other records or documents evidencing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreement lor a minimum of three (3) years, or for any longer period required by law. from
thedateoffinal payment to Consultant underthis Agreement. All such records shallbe nraintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.1 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, audrt.
andior copying at any time during regular business hours, upon oral or written request of City.
Under Califonria Govenrnrent Code Section 8546.7. if the amount ofpublic funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS (S 10,000.00), this Agreement shall be
subject to the examination arrd audit of the State Auditor, at the request of City or as part of any
audit of City, lor a period ofthree (3) years after final payment under this Agreement.
SE('TION IO.}I IS('EI-LA\EOT'S PROVISIO\S.
10. I Attomeys' Fccs. If eithcr Part y to this Agreemenl brings any action, including an
action for declaratory relref, to enforce or interpret the provision of this 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 entitledl provided, however, that the attomeys' fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 App licable Larv: Venue. The internal laws of the State of Califomia shall goven'r
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 Severability. If an y provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts ol this Agreement shall
nevertheless be in full lorce and effect.
10.,1 Scction Hcadings and Subheadirus. Thc scction hetdin gs and subheadings
contained in this Agreement are included lor convenience only and shall not limit or otherwise
affect the terms of this Agreemenl.
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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 ofthat term or any other term of
this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns ofthe Parties.
10.7 Consultant Reoresentative. All matters under this Agreement shall be handled lor
Consultant by Philip Kern. PE Eneineering Manager ("Consultant's Representativc"). The
Consultant's Representative shall have tull authority to represent and act on behalf of Consultant
lor all purposes under this Agreement. The Consultant's Representative shall supervise and direct
the Services, using his best skill and atlention, and shall be responsible lor all means, methods,
techniques. sequences, and procedures and for the satisfactory coordination of all portions of the
Services under this Agreement.
10.8 Cit), Contract Administration. This Agreement shall be administered by a City
employee, Jonathan G. Smith ("Contract Administrator"). All correspondence shall be directed
to or through the Contract Administrator or his designee, The Contract Administrator shall have
the power to act on behalf of City for all purposes under thrs 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 Notrces. Any written notice to Consultant shall be sent to:
NV5. Inc.
I 5092 Avenue of Science, Suite 200
San Diego. CA 921 28
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
2971 4 Haun Road
Menifee. CA 92586
Attn: Steve Glynn
with a copy to
City Clerk
City of Menifee
2971 4 Haun Road
Menifee. CA 92586
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10.10 Professional Seal Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page ofdesign specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible forthe reporudesign preparation. The stamp/seal shall be in a block entitled "Seal and
Signature ol Registered Professional with report/design responsibility." as in the following
example.
Seal and Signature of Registered Professional with
report/desi gn responsibi lity.
t0. ll Ri ts and R Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies ofthe Parties are cumulative
and the exercise by either Party ofone or more ofsuch rights or remedies shall not preclude the
exercise by it. at the same or different times, of any other rights or remedies for the same default
or any other delault by the other Party.
10. l2 lntegration. This A greement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement betrveen City and
Consuttant 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 of construction which might otherwise apply.
I 0. I 3 Countemarts. This A greement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreemetrt
I 0- I 4 Execution of Contract. The persons executing this Agreemetrt on behalfofeach 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 olsaid Party. (iii)by so
executing thrs Agreement, such Party is formally bound to the provisrons of this Agreement. and
(iv) that entering into this Agreement does nol violate any provision of any other Agreement to
which said Party is bound.
10. l5 Nondiscrirrrnat . Consultant covenants that. by and for itsell 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 oi any person or group of persons on
account of any impermissible classification including. but not limited to, race. color, creed,
religiorr, sex. marital status, sexual orientation, national origin. or ancestry.
l0.l 6 No Third Partv Beneficiaries. With the exc eption of the specific provisions set
iorth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City O fficers and Emplovecs. No ol'ficer . otll cial, employee, agent,
representative. or volunteer of City shall be personally liable to Consultant. or any successor in
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intercst. in the even( of any default or breach by City or for any amount lvhich may become due to
Consultant or to its successor. or for breach ofany obligation of the terms of this Agreement.
t0. l8 o []nduc In llucn c. Consultant dcclares and warrants that no undue influcncc or
pressure is used against or in concert rvith any officer or employee of City in connection with the
award, terms or implementation of this Agreement. including any method olcoercion, confidential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, lrom Consultant. or from any officer, employee. or agent of
Consultant. in connection rvith the arvard ofthis Agreement or any work to be conducted as a result
of this Agreement.
10. I 9 No Benefit to Arise to City Emplovees. No member, officer. or employee of City,
or their designees or agents. and no public official who exercises authority over or has
responsibilities rvith respect to this Agreement during his/her tenure or for one ( I ) year thereafter,
shall have any interest, direct or indirect, in any agreemerrt or sub-agreement, or the proceeds
thereof, f,or the Services to be performed under this Agreement.
IS ignatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFE,E \\'5 t\('
C Bv:
Neil R.inter. Mayor
Name: Camren Kasn CI
Attest:lts: Recional Chief Exccutive
S A. Manrvaring. City Cl erk
Approved as to Fonn:
.le elching. City ey
Name
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G,J^___-
ks: Z..,m..f.oft1&1oo(:fl,1e
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(/
EXHIBIT A
SCOPE OF SERvIC]ES
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MENIFEE
N\r5, lrrc
Southern Ca liforn ia
2017 CHARGE RATE SCHEDULE
Office:
Technica I 5ervices
Projecr Assistrnr.........
CADD Technician L..................................
570.00 ,/ hour
596.00lhour
SI20.00,/hour
S105.00,/hour
S Ii0.00lhour
51i6.00lhour
SlJ5.f[/hour
S170.00lhour
CADD Tcchniciao IfI...............................
Professio na I
F ie ld:
Construction Management
.f unior Field Engineer,......
S125.00lhour
sl{5.00,/hour
S165.00l hour
S176.00,/hour
.............. S199.00lhour
,\ssociate Ensineer / Phnner/Sun,er.or .....
StnrcrunJ Engineer...S176.00lhour
S221.00lhour
S255.00/ horu
Sl I8.l)0/ hour
S140.00,/hour
S152.00lhour
S 159.00lhour
s174.00,/ hour
Sl6l.00lhour
S115.00,/hour
522200 / hour
Si l5.00lhour
S 186.00lhour
Scruor Field Engineer
Surveylng
| -Pcrson Suvey Crcrv
l-Penol Surver Crov
2-Pcrsoo Suner. Crev
3-Penoo Surver Crerv
Expenses:
Plorring lnd Inlrouse Rcproduction.............................. l.15 x Cost
l.l5 x Cost
O drer Espenscs - fncluding Subconsultants & purchrscd Sen ices tlrrough Subconulos................ LI5 s Cost
Per rcceptcd IR-S nte
Rates arc.effecrive drrouglt December 31, 201t. If contrnct
^ssignmeDt exten<ls bet'oud that date, a ne\! rate schedulc
X*:_i1j:1 l1-1-.-.-.j]i.:: Litigation supporr rvill be bircd a;S3oo.0o per hor.rr. Rares bascd on .,pre'ailiog \\'age,, forLonsLnrcoon Nranagement and Sun'e1ing rvilJ bc dctcrmined bv projec and counn,pcr califoroir la1:
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