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2019/07/01 NV5, Inc. FY19/20 On-Call Engineering Services (Land Development Review)CITY OF MENIFEE PROFESSIONAL SERVICES AGRf, EMENT FY2()I9/20 ON.CALL ENCINEERING SERVICES (LAND DEVELOPMENT REVIEW) (RECOVERABLE) THIS PROF.ESSIONAL SERVICES AGREEMENT ("Agreement") is made and eft'ectrve tnis /?4day ol)g[2019 ("Eft'ective Date") by and between the CITY oF MENIFEE. a Califomia municipal corporation. ("City") and NV5. Inc., a Calilornia S-Corporation ("Consultant"). City and Consultant may sometimes herein be referred to individually as a "Party" and collectively as the "Parties." SECTION I. SERVICES. Subject to the terms and conditions set lorth in this Agreement. Consultant shall provide to City the services described in the Scope olServices, 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 ola conflict in or inconsistency between the terms of this Agreement and Exhibit A. this Agreement shall prevail. l.l Term ofSerrices. The term of this A greement shall begin on July 1,2019 and shall end on June 30, 2020 unless the term olthis Agreement is otherwise terminated or extended as provided lor in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect Citl's right to terminate this Agreement, as provided tbr in Section 8. 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, 1.4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations hereunder. 1671,03t858-0001 76-10176I a06 0a 19 1.2 Standard of Perflormance. Consultant represents and warrants that Consultant is a provider offirst class work and services and Consultant is experienced in perfbrming thc Services contemplated herein and, in light ol such status and experience, Consultant shall perfbrm the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner ol the profession in w'hich Consultant is engaged in the geographical area in which Consultant practices its prof'ession and to the sole satisfaction of the Contract Administrator. 1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms ol this Agreement until receipt of authorization from the Contract Administrator. SICTION 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed FIFTY THOUSAND DOLLARS AND ZERO CENTS (550,000.00) not withstanding any contrary indications that may be contained in Consultant's proposal, lor the Services to be performed and reimbursable costs incurred under this Agreement. ln the event ofa confl ict betr.reen this Agreement and Exhibit A, regarding the amount ofcompensation. this Agreement shall prevail. City shallpay Consultant lor 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 Citl'to Consultant lor the Services rendered pursuanl 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 fbr duplicate services perfbrmed by more than one person. 2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost fbr the Services perfbrmed and reimbursable costs incurred prior to the invoice date. lnvoices shall contain the following information: a. Serial identifications of progress billsr i.e., Progress Bill No. I for the first invoice. etc.: b. The beginning and ending dates ofthe billing period; c. A "Task Summary" containing the original contract amount, the amount of prior billings. the total due this period. the balance available under this Agreement. and the percentage of completion; d. At City's option, for each item in each task. a copy of the applicable time entries or time sheets shall be submitted showing the name of the person perlorming the Services, the hours spent by each person, a brief descriptir:rn of the Services, and each reimbursable expense; e. The total number ol hours of work pertbrmed under this Agreement by Consultant and each employee, agent. and subcontractor ol Consultant performing the Services hereunder necessar) to complete the Services described in Exhibit A: Receipts for expenses to be reimbursed: The Consultant Representative's sigrrature. Invoices shall be submitted to: City ol Menilee Attn: Accounts Pavahle 267 t 03tE5E-000t f. E. 29844 Haun Road Menifee. CA 925 86 2.2 Monthly Payment. Cit y shall make monthly payments, based on invoices received. for the Services satisfactorily peribrrned. and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements above to pay Consultant. 2.3 Final Payment. Cit y shall pay the last ten percent ( l0%) of the total anrount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City ofa flnal invoice, ifall olthe Services required have been satisfactorily perforrned. 2.4 Total Pavment. City shall not pay any additional sum for any expense or cosl whatsoever incurred by Consultant in rendering the Services pursuant to this Agreernent. City shall make no payment fbr an1 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 1'or a task or fbr the entirety ol the Services perlormed pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an inr oice. 2.5 Hourly Fees. Fees tbr the Services perfbrmed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A 2.6 ReimbLrrsablc[.-rpcnscs. RcirnbLrrsablccx penses are included u ithirr the maximunr arnount of this Agreement 2.7 Payment of Taxes. Consultant is solel y responsible for the payment of ernployment taxes incurred under this Agree,nent and arry'f'ederal or state taxes. 2.8 Pa\ment upon Termination. In the event that Cit v or Consulrant terminates thi' Agreement pursuant to Section 8. City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred fbr Services satist'actorily completed and for reimbursable expenses as olthe date oIwritten notice oltermination. Consultant shall maintain adequate logs and timesheets in order to verili costs and reimbursable expenses incurred to that date. SECTION 3. FACILITIES AND EQUIPMENT. Except as otherwise provided. Consultant shall. at its sole cost and expense, provide all facilities and equipment necessar) to perform the services required by this Agreement. City shall make available to Consultant onl)'physical facilities such as desks, filing cabinets, and conf-erence space, as may be reasonably necessary lor Consultant's use while consulting with City employees and reviewing records and the infbrmation in possession of City. The location, quantity. and time of furnishing those facilities shall be in the sole discretion of City. ln no event shall City be required to fumish 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. 3 2671,011858-0001 7630i76 2 a06/08/ l9 SECTTON .r. TNSURANCE REQUIREMENTS. Before beginning any work under this Agreement. Consultant. at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance. indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and which is satisfactory. in all respects. to City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in Consultant's compensation. Consultant shall not allow any subcontractor. consultant or other agent to commence *ork on any subcontract until Consultant has obtained all insurance required herein fbr the subcontractor(s) and provided evidence thereof to City. Verification olthe required insurance shall be submitted and made part ol this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter-insured suits between City and other Insureds. 4.1 Workers' Compensation. Consultant shall. at its sole cost and ex pense. rnaintain Statutory Workers' Compensation lnsurance and Employer's Liability lnsurance l'or any and all persons employed directll or indirectly by Consultant pursuant to the provisions ofthe California Labor Code. Statutory Workers' Compensation Insurance and Employ'er's Liability lnsurance shall be provided rvith Iimits of not less than ONE MILLION DOLLARS ($1.000.000.00) per accident, ONE MILLION DOLLARS (S 1,000.000.00) disease per employee. and ONE MILLION DOLLARS (S1.000.000.00) disease per policy. In the alternative. Consultant may rely on a sell- insurance program to meet those requirements, but only if the program ol'self'-insurance complies fully rvith the provisions ofthe California Labor Code. Determination ofwhether a self-insurance program meets the standards olthe California Labor Code shall be solely in the discretion ofthe Contract Administrator. The insurer. ifinsurance is provided. or Consultant. ifa program ofsell- insurance is pror ided. shall uaive all rights of subrogation against Citl and its of-Ucers. officials, emplol'ees. and authorized volunteers for loss arising from the Services performed under this Agreement. 4.2 Comrrercial General and Automobilc Liabilitl lnsurance. (lenera u trements Consultant. at its own cost and expense, shalla. maintain commercial general and automobile liability'insurance tbr the term of this Agreemenr in an amount not less than ONE MILLION DOLt.ARS ($1.000.000.00) per occurrence. combined sin-ele limit coverage. tbr 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 aggregare. Il a Commercial General Liability Insurance or an Automobile Liability Insurance form or other form r.r,ith a general aggregate limit is used, either the general aggregate limit shall apply separately to the Services to be perfbrmed 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 fiom bodily and personal injury, including death resulting therefrom, and damage to property resulting from the Services contemplated under this Agreement, including the use ofhired, owned. and non-owned automobiles. b. Minimum sc ofcoveraqe . Commercial general coverage shall beat least as broad as lnsurance Services Office Commercial General Liabilitv occurrence form CG 0001. 26? t,0l r858 000 r -1- Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability tbrm CA 0001 Code 2, 8, and 9. No endorsement shall be attached Iimiting the coverage. Additional rcquirernents. Each of the fbllorvi ng shall be included in thec insurance coverage or added as a certified endorsement to the policy: a. The insurance shall cover on an occurrence or an accident basis. and not on a claims-made basis. b. Any failure of Consultant to comply with reporting provisions of the policy shall not afftct coverage provided to City and its officers, employecs, agents. and volunteers. 4.3 Prol'essionalLiabilitr lnsurance. a.General requircme-nts. Consultant. at its olvn cost and ex pcnsc. shall maintain for the period covered by this Agreement prof'essional liability insurance fbr licensed professionals pertbrming the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. Any deductible or self'-insured retention shall be sholvn on the Certificate. llthe deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25.000). it must be approved by Cit1. b. Claims-rnade lirnitations. The iollowing provisions shall apply if the prolessional liability coverage is llritten on a claims-made fonn: a. The retroactive date ofthe 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 ol 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 policl' fbrm r.r'ith a retroactive date that precedes the Ef-fective Date of this Agreement. Consultant must provide extended reporting coverage lor a minimum of five (5) lears atier the expiration or termination of this Agreement or the completion ofthc Services. Such continuation coverage may be provided by' one ofthe following: ( l) renewal ofthe existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement ofthe Services underthis 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 Services under this Agreement. 2671i011858-0001 76]0176 1.06 08 l,5 4.4 All Policies R eourrements. a.Accepta bilitv of insurers. All insurance re quired by this Section is to be placed with insurers with a Bests' rating olno less than A:VII and adrnitted in California. n of coveraqe. Prior to be sinninu the Scrvices under thts Agreement. Consultant shall lumish 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 endorsernents. All copies of policies and certitled endorsements shall show the signature ofa person ar,rthorized by- that insurer to bind coverage on its behalf. The Cenificate oi Insurance must include the tbllorving reference: FY2OI9/20 ON-CALL ENGINEERING SERVICES (LAND DEVELOPMENT REVIEW) (RECOVERABLE). The name and address lor Additional Insured endorsements. Certificates ol Insurarrce and Notice of Cancellation is: Citl of Menil'ee. 298:l.l l-laun Road. Menifee, CA 92586. City rnust be endorsed as an additional insured for liability arising out olongoing and completed operations by or on behalf of Consultant. Notice ol Reduction in o r Cancellation of' Coveraee. Consultant shall b. Veriflcatio provide written notice to City uithin ten (10) working days il: (l) any of the required insurance policies is terminatedr (2) the limits ofany ofthe required policcs are reduced: or (3) the deductible or sell'-insured retcntion is increased. d. Additional insured:orimarv insurancc. Cit y and its oflicers, employees. agents. and authorized volunteers shall be covered as additional insureds with respect to each of the tbllo*ing: liabilitl arising out of the Services perfbrmed b1 or on behall ol Consultant. inctuding the insured's general supervision ol Consultant: products and completed operations of Consultant. as applicable: premises ow'ned. occupied. or used b1 Consultant: and automobiles ouned. 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 of protection aflorded to City or its olficers. employees, agents. or authorized volunteers. The insurance provided to City as arr additional insured must apply on a primary and non-contribtrtor) basis with respect to any insurance or self'-insurance program maintained by City. Additional insured status shall continue lor one ( I ) year alter the expiration or termination ofthis Agreement or com pletion ofthe Services. A certified endorsement must be attached to all policies stating that coverage ts primarl insurance with respect to City and its officers. ot}jcials. 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. DedLrctiblcs arrd Self-insured Retentions. Consultant shall obtain the c written approval of City for the sell'-insured retentions and deductibles betbre beginning any ofthe Services. During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator. Consultant may increase such deductibles or self- insured retentions with respect to City, its officers. employees. agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured 267 t 01tE58,000t 76.10176 I n06 08 l9 -6- retention levels with a requirement that Consultant procure a bond guaranteeing payment of Iosses and related investigations. claim administration. and defense expenses that is satisfactory in all respects to each of them. t'. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall fumish separate cer-tificates 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, approvc 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 firlly 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 r.r,ithin the time herein required. City may. at its sole option, exercise any of the following remedies, which are alternatives to other remedies Citl mav have and are not the exclusive remed) for Consultant's breach : a. Obtain such insurance and deduct and retain the amount ofthe 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 rvithhold an1' payment. until Consuhant demonstrates compliance with the requirements hereof: and/or c Terminate this Agreement SECTION 5. INDEMNIFICATION. 5.1 Irrdernn illcation fbr I'rofessional Liabilin. Whcrc thc llw establishcs a professional standard ofcare fbr perlormance ofthe Services, to the fullest extent permitted by law. Consultant shall indemnity, protect, det'end ($'ith counsel selected by City). and hold harmless City and any and all ol its ofllcers, emplolees. offlcials, 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 la\.\, in equity, or other*ise) charges. awards. assessments, fines, or penalties of any' kind (including reasonable consultant and expert lees and expenses of investigation. costs of \,,hatever 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. "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 thereot) in the performance of professional services under this Agreement. 5.2 Indemnillcation for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, def'end (with counsel selected by City), and hold harmless City, and any and :6? t/011858-0001 7610376 2 a06 08 19 7- allofits officers. employees, officials, volunteers, and agents from and against any and allClaims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part. the perfbrmance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable. including but not limited to officers. agents. employees or subcontractors of Consultant. 5.3 t.irni n f ln mnificati r Desi n Professionals Notwithstanding anyn provision of this Section 5 to the contrary, design professionals are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term "design professional" as deflned in Section 2782.8, is limited to licensed architects. licensed landscape architects, registered prof'essional engineers, prolessional land surveyors, and the business entities that off'er such services in accordance with the applicable provisions of the California Business and Pro t-essions Code. 5.4 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result olCity's sole or active negligence. The provisions of this Section 5 shall not release City from liability arising lrom gross negligence or r,r'illful acts or omissions o[' City or any' and all of its officers. officials, employees. and agents acting in an ofllcial capacity. SECTION 6. STATUS OF CONSULTANT. 6.1 Indcpendent Contractor. Atall times duringtheterm 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 insothr as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3: holl'ever, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel pertbrming the Services under this Agreement on behalf of Consultant shallat all times be under Consultant's exclusive direction and control. Consultant shall not at an) time or in any manner represent that it or any of its officers, employees. or agents is in any manner offlcers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt. obligation. or liabilitl whatever against Cit1. or bind Citl in any manner. Except for the f-ees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant tbr perfbrming the Services hereunder fbr City. City shall not be liable fbr 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 ernployees, agents, and subcontractors providing services under this Agreement shall not qualify tbr or become entitled to any compensation. benefit, or any incident of employment by City. including but not limited to eligibility to enroll in the Calilornia Public Ernployees Retirement System ("PERS") as an employee of City and entitlement to any contribution to be paid by City fbr employer contributions and/or employee contributions for PERS benefits. SECTION 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of Califbrnia shall 267 t,03t858-0001 7610i76 2 a06 08 19 -8 govern th is Agreement. liance with Aoolicable Laws. Consultant and an y subcontractor shall comply with all applicable local, state. and f'ederal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages. as determ ined by the Director ol lndustrial Relations olthe State of California. witl 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 t'rom the Califomia Department of Industrial Relations ("DIR") pursuant to Califbrnia 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 sat'e and secure location at all times, and readily available at Citl''s request. Consultant shall indemnit,r, defend. and hold City and its elected and appointed boards" members. otficials. ofllcers. agents. representati! es. emplol'ees, and volunteers harmless from and against any liability. loss. damage. cost or expenses (including but not limited to reasonable attorneys' t'ees, expert uitness fees. court costs, and costs incurred related to any inquiries or proceedings) arising f'rorn or related to (i) the noncompliance by Consultant or any party performing the Services olany applicable local. state. and/or t'ederal law, including. without limitation, any applicable lederal and/or state labor laws (including. without limitation. the requirement to pay state prevailing wages and hire apprentices): (ii) the implementation olSection I 781 of the Labor Code, as the same ma1 be amended from time to time. or an)' other sim ilar lau : and/or (iii) failure by Consultant or an) part) perfonning the Services to provide any required disclosure or identitlcation as required by Labor Code Section I 781 . as the same may be arnended liom time Io time. or any other similar law. lt is agreed by the Parties that. in connection with performance of the Services" including. without lirnitation. any and all public works (as defirred by applicable law). Consultant shall bcar all risks ofpayment or non-payment ofprevailing wages under Califbrnia lau' and/or the implementation of Labor Code Section 1 781 , 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 tbr reviewing the applicable law's and regulations and effectuating compliance *ith such lans. Consultanl shall require the same ofall subcontractors. 7.3 l,icenses and Permits. Consultant represr'nts 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 Cit)' 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 loregoing. Consultant and any subcontractors shallobtain 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 Consultant. 8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days' written notice to City. 7 .2 Comp -9267 t/03185E-000t ,630376 : !06/08i l9 8.1 Consequences of Termination. In the event of termination . Consultant shall be entitled to compensation for the Services performed up to the date of termination: City, however. may condition payment of such compensation upon Consultant delivering to City any or all documents. photographs. computer software. video and audio tapes. and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement. 8.4 Extension. City may. in its sole and exclusive discretion. extend the end date of this Agreement beyond that provided for in Subsection l.l. Any such extension shall require a written amendment to this Agreement. as provided for herein. Consultant understands and agrees that. if City grants such an extension. City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized b) the Contract Administrator, City shall have no obligation to reimburse Consultant tbr any otherw ise reimbursable expenses incurred during the extension period. 8.5 all the Parties Amendments. The Parties ma y amend this Agreement onll' by a writing signed by 8.6 Assisnment arrd Subcontracting. Ci ty and Consultant 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 know'ledge. Moreover. a substantial inducement to City for entering into this Agreement was and is the protbssional reputation and competence of Consultant. Consr-rltant may not assign this Agreement orany interesttherein \r'ithout the priorwritten approval ofthe Contract Administrator. Consultant shall not subcontract any portion ofthe perfbrmance contemplated and provided for herein, other than to the subcontractors noted in Consultant's proposal. without prior lrriuen approval of the Contract Administrator. ln the event that key personnel leave Consultant's employ. Consultant shall notit) City immediately. 8.7 Survival. All obligations arising prior to the expiration or termination ol 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 ODtions uDo n Breach bv Consultant. lfConsultant materiall y breaches any of the terms of this Agreement, City's remedies shall include. but not be limited to, any or all of the following: il Immediately terminate this Agreement: b. Retain the plans, specifications, drawings, repons. design documents. and any other work product prepared by Consultant pursuant to this AgreemenU 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. 26',r 0.1t858{001 7610376I a06 0E 19 -10- SECTION 9. KEEPING AND STATTIS OF RECORDS. 9.1 Records Created as l)aft of ConsLrltant's Performance All repots. 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. 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 b) 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 confldential and will not be released to third parties r.l ithout prior r.lritten consent olboth Panies unless required b1 law. 9.2 l.icensirrs of IntellectLr al ProDert\.This Agreement creates a non-exclusive and perpetual license for City to copy. use. rnodity'. reuse. or sublicense any and all copyrights. designs. rights of reproduction. and other intellectual propenl embodied in plans, specifications. studies. draw,ings. estimates. test data. survey results, models, renderings. and other documents or works ofauthorship fixed in any tangible medium ofexpression. including but not limited to. physical drau ings. digital renderings. or data stored digitalll. magnetically, or in any other medium. r.r'hich are prepared or caused to be prepared by'Consultant under this Agreement ("Documents and Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non- exclusive and perpettral license for any DocLlments and Data the subcontractor prepares under this Agreement. Consultant represents and r\arrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and uarranty in regard to Documents and Data *'hich *ere prepared by design prottssionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time. provided that an)'such use not within the purposes intended by this Agreement shall be at City's sole risk. 9.3 Consu ltant's Books and Records . Consultant shall maintain any and all ledgers. books olaccount. 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 for a minimum olthree (3) years, or lor an1 longer period required by law. lrom thedateolfinal payment to Consultant underthis Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. 9.4 lnspection and Audit of Records Any 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 Government Code Section 85,16.7, ifthe amount ofpublic funds expended under this Agreement exceeds TEN TI{OUSAND DOLLARS ($ I 0.000.00)' 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. 26? t/03185E-0001 -il- SECTION IO.NTISCELLANEOUS PROVISIONS. I 0. I Attorne 'Fe . If either Party to this Agreement brings any action. including ans action for declaratory relieL to enforce or interpret the provision olthis 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 attorneys' fees awarded pursuant to this Section shall not exceed the hourly rate paid by City fbr legal services multiplied by tlre reasonable number ofhours spent by the prevailing Party in the conduct ofthe litigation. The court ma,v- set such fees in the same action or in a separate action brought for that purpose- licablc [-au: Venue. The internal la$s of the State olCalitirrnia shall govern the interpretation and entbrcement of this Agreement. ln the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County. 10.3 Severabilitv. ll any provision of this Agreement is held invalid. the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in t'ull lorce and effect. 10.,t Section Headinqs and Subheadines. The section headin gs and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwtse affect the terms of this Agreement. 10.5 No Im iver of Breach The waiver ofany breach ofa specitic provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.6 Successors nd Assiqns The provisions of this Agreement shall inure to the benefit ofand shall apply to and bind the successors and assigns ofthe Parties. 10.7 Consulta nt Reoresentative. All matters under this A greement shall be handled for Consultant by Carrren Kasner ("Consultant's Representative"). The Consultant's Representattve shall have full authority to represent and act on behalf ol Consu ltant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services. using his best skill and attention, and shall be responsible lbr all means, methods. techniques. sequences, and procedures and tbr the satisfactory coordination olall portions of the Services under this Agreement. r0.8 Citv Contract Administ ration. This A greement shall be administered by a City employee. Jonathan Smith, Public Works Director/City E.ngineer ("Contract Administratoi'). All correspondence shall be directed to or through the Contract Adminisrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders fiom any person other than the Contract Administrator or his designee. 10.9 Notices. Any written notice to Consultant shall be sent to: 10.2 ADD 267r 03l85E-0001 7610176I a06 08 19 -t2- NV5, Inc. Attn: Carmen Kasner I 5092 Avenue of Science. Suite 200 San Diego, CA 92128 Any written notice to City shall be sent to the Contract Administrator at: City of Menifee 29844 Haun Road Menifee. CA 925 86 Attn: Jonathan Smith. Public Works Director/City Engineer City Clerk City of Menifee 298.14 Haun Road Menifee. CA 925 86 10.l0 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 for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Prolessional with report/design responsibility," as in the fbllowing example. Seal and Signature of Registered Prolessional with repor design responsibi I ity. l0.ll Riehts and Ren:edjes. Exce pt r.vith respect to rights and remedies expressly declared to be exclusive in this Agreernent, the rights and remedies of the Panies are cumulative and the exercise by either Party of 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 for the same delault or any other default by the other Party. 10.12 Intesration. This A greement. 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 lbr or against either Party by reason ofthe authorship ol this Agreement or any other rule of construction which might otherwise apply. 10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all olwhich together shall constitute one agreement. -13-267ll031E58-0001 7630376 2 a06r08r'19 with a copy to: l0.l.l Execution ofContract. The persons executing this Agreement on behallof'each of the Parties hereto represent and wanant that (i) such Pany 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 Nondiscrim ination. Consultant covenants that. byand for itself. its heirs. executors. assigns. and all persons claiming under or through them. that in the performance ofthis Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including. but not limited to. race, color. creed. religion. sex. marital status. sexual orientation. national origin, or ancestry. I 0.16 No Third Partv Beneficiaries. With the exce ption of the speciflc provisions set tbrth in this Agreernent. there are no intended third-party beneficiaries under this Agreement and no such other third panies shall have any rights or obligations hereunder. 10.17 Non liabilitv of C itv Officers and Employees. No offlcer. ofticial. employee, agent, representative. or volunteer ol City shall be personally liable to Consultant, or any successor in interest. in the event olany delault or breach by City or for any amount ll'hich may become due to Consultant or to its successor. or lor breach ofany obligation of the terms of this Agreement. 10.18 No []rrduc Intluence. Consultant declares and warrants tlrat no undue irrlluence or pressure is used against or in concert with any officer or employee olCity in connection with the award. terms or implementation of this Agreement. including any method of coercion. confldcntial tjnancial arrangernent. or flnancial 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 ra ith the award ofthis Agreement or any \.',ork to be conducted as a result of this Agreement. 10.19 No Benetit to Arise to City Emplovees. No member, officer, oremployee olCity, or their designees or agents. and no public official ll'ho exercises authorit) over or has responsibilities with respect to this Agreement during his/her tenure or fbr one ( l) year therealier. shall have any interest, direct or indirect, in any agreement or sub-agreement. or the proceeds thereof. for the Services to be perlbrmed under this Agreement. ISignatures on Following Page] 267t 0lt85rJrxx)t -14- IN WITNESS WHEREOF. the Parties hereto have executed and entered into this Agreement as ofthe Effective Date. CITYOFMENIFEE CONSULTANT Carrncn Kasner. Rcgional Chief F-xecutivc .t S hA.M an\\ ar Il'l Citl Clerk Marr Jo C)rien. CAO/Secretary ICorporation must have two signatures] Form: hing. City' -t5-2671,011858-0001 1,/Xh/C,,,,* aitt zi.,(gfru!fuiyo, EXHIBIT A SCOPE OF SERVICES Consultant shall provide the following services in the amount FIFTY THOUSAND DOLLARS AND ZERO CENTS ($s0,000.00): o Comprehensive Ceotechnical Engineering Plan Check and Review Services as requested by City of Menifee Public Works/Engineering staff. 267t,01t85ll-000t EX}IIBIT A tw MENIFEE New' Better Be5l. HOURLY RATE SCHEDULE: lPlease list all tlons on Technical Services Engineering Aide $72.00 $74.00 s76.00 $78.00 Project Assistant $99.00 $102.00 $105.00 $108.00 Project Administrator $124.00 $128.00 $132.00 $'r35.00 s108.00CADD Technician I $1 11.00 $1 15.00 $118.00 CADD Technician ll $134.00 s'r 38.00 9142.00 $146.00 CADD Technician lll $140.00 $144.00 $149.00 $ 1s3.00 Sr. CAOD Tech./Designer $149.00 $153.00 $163.00 Oesign Supervisor $170.00 175.00 $ 180.00 s186 00 Professional Services Junior Engineer/Surveyor s129.00 $133.00 $ 137.00 s141.00 Atlllt. Enqir€cr/Surveyo.Eeobgl3t $149.00 $153.00 $158.00 $163.00 Asloc Engnc€r/Survelor6€olooi3t $165.00 s170.00 $175.00 $180.00 S€nio. Engn!!r/Sury€yor/G€ologilt $181 00 $186.00 $ 192.00 $198.00 Manager $199 00 s205.00 $211.00 $217.00 Structural Engineer $181 00 $185.00 $192 00 s198 00 Associate $221 00 $228.00 $234.00 $24'r 00 Principal $263 00 $271.00 $279.00 $287.00 Construction Mgmt.Junior Field Engineer $122 00 $126.00 s129 00 $133 00 Assistant Field Engineer $144.00 $148.00 s153.00 $157.00 Associate Field Engineer $157.00 $162.00 $167.00 $171.00 Senior Field Engineer $104.00 $169.00 s174.00 $179.00 Construction Manager $179 00 $184.00 $190 00 $196.00 Surveying 'l -Person Survey Cre$, PW t161 00 $166.00 $171.00 $176.00 2-Person SuNey Crew PW $252 00 $260.00 $267.00 $27s.00 Survey Manager $192.00 s198.00 $204 00 $210 00 PuDr'c l.ro.tr h!p..ioi S.toE .'Public Works lnspector Pw $108.00 $108.00 $108.00 sl08 00 'R.bt rrc clhiv! thrcugn lhc t.lm ot lh. conlr.ct f conE d a!.8n.n6nt.tLnd! b.yond lh. dEt , l{V5 will ,r€.t widr tha Cty lo collfm a mulu.iy .cc.ptabb in.r!.$ nol b Grcrad t'la Conlufirr Prica lndax lb. Rive.ldo Counly Rel6t b*tad on 'Prlvailng Wa!p" (PW) tu Pl.6Ic Wo,t! hip.clion S.Ilic.s SPECIALTY TITLE & DESCRIPTION YEAR 1 (2018/19) YEAR 2 12019t20t YEAR 3 (2020t211 o 267 r/03 r 858-0001 7630376 2 a00 00,00 _1 HOURLY RATE (5) YEAR ,i l20z't tz022l s 158.00 TW MENIFEE New. Better. Best LIST ALL A}TICIPATED REIMBURSABLE COSTS Note: List att equipment hot rly rate on a separate sh€et as neeH. City reserves th€ right to negotiate this price m a project-by-project basis. PLEISE 141p9 4II ACKNOWGEIIIENTS AND COMPLETE FOLLOWING SECTION: Z nre lrogocal p.ovld€d reflectr lny .ddltio.El .ddendum(') ltiucd wfth r6pect to thir RFq NV5, lnc. Mileage Per Current IRS Rate Subsistence Cost Ploftlngiln-house Reproduction Cost other Expense Cost Su bconsu ltants Cost AI,IOUNT (at cost) Cornp y [ame 15092 Avenue of Science, Suite 200 Add16! San Diego CA 92128 Clty ,858,385.0500 State Zip Code ,858,385.0400 Tel€phone Number Conp.ny Typel d Corpordtioo O PrrtrErrhip tr T,ust/Btate tr lndividual/Sole Proprietor or ringte mfirber LIC tr Other: Ctr-"- PE Carmen C. Kasner, PE F.r Numb€r tr Limited Liability Cornpany {tIC) Regional Managing Director Print Name Ti e 267|0i 1858-0001 7610:t16.2 a00,00100 -3- REIMBURSABLE COST DESCRIPTION