2018/07/01 Penco Engineering, Inc. FY18/19 On-Call EngineeringCITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY20l8/19 ON-CALL ENGINEERING SERVTCES (RECOVERABLE)
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and ellectivethis .1.y'.6uy of lt, rti,20l8 ("Effective Date") by and between the CITy OF MENII'EE, a
Calilbmia municipal corporation, ("City")and Penco Ensin eering. Inc.a Califomia 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 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 ofServices. The term of this Agreement shalt begin on July 1, 2018 and shall
end December 31,2018 unless the term ofthis 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 Perlbrmance. Consultant represents and warrants that Consultant is a
provider offirst class work and services and Consultant is experienced in perlorming the Services
contemplated herein and, in tight ol 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 ol 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 .3 Assisnm ent 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.
I .5 Authorization to Perform Services. Consultant is not authorized to perform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
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SECTION 2. COMPENSATTON.
City hereby agrees to pay Consultant a sum not to exceed FIFTY THOUSAND
DOLLARS AND ZERO CENTS ($50,000.00) notwithstanding any contrary indications that
may be contained in Consultant's proposal. for the Services to be pertbrmed and reimbursable
costs incurred underthis Agreement. In the event ofa confl ict between this Agreement and Exhibit
A. regarding the amount ofcompensation. this Agreement shall prevail. City shatl 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 palments from City to Consultant for the Services
rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specilied 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. lnvoices shall contain the following information:
a. Serial identifications of progress bilts; i.e., Progress Bill No. I for the first
invoice, etc.;
b. The beginning and ending dates ofthe billing period;
d. At City's option. ior each item in each task. a copy ofthe 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 ol the Services. and each
reimbursable expense:
Receipts fbr expenses to be reimbursed;
The Consultant Representative's signature.
lnvoices shall be submitted to:
City of Menit'ee
Attn: Accounts Payable
29714 Haun Road
Menifee. CA 92586
2.2 Monthly Pavment. City shall make monthly payments. based on invoices received.
fbr the Services satislactorily performed. and fbr authorized reimbursable costs incurrcd. C'ity
f.
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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 completionl
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent. and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A:
shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Parment. Ci ty shall pay the last ten percent (10%) oithe total amount due
pursuant to this Agreement within sixty (60) days after completion olthe Services and submittal
to City ofa llnal invoice. if all ofthe Services required have been satisf'actorily performed.
2.4 Total Payment. Ci ty 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
ma,timum amount of compensation provided above either for a task or fbr 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 perfbrmed b1 Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
2.7 Payment ofTaxes. Consultant is solely responsible for the payment ofemployment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Pavment upon Termination. [n the event that City or Consultant terminates this
Agreement pursuant to Section 8. City shall compensate Consultant tbr all outstanding costs and
reimbursable expenses incurred fbr Services satistactorily completed and for reimbursable
expenses as olthe date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verily costs and reimbursable expenses incurred to that date.
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 infbrmation in possession of City. The location, quantity. and time
of fumishing those f-acilities shall be in the sole discretion of City. In no event shall City be
required to furnish any facility that mav involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles. and
reproduction lacilities.
SECTION{. INSURANCE REQUIREMENTS,
Before beginning any work under this Agreement, Consultant. at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certificates of
Insurance. indicating that Consultant has obtained or currently maintains insurance that meets the
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SECTION 3. FACILITIES AND EQUTPMENT.
requirements of this secrion 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 fbr the subcontractor( s) and provided
evidence thereof to Cit1. Verification oithe 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.
4.2 Commercial General and Automobile l,iabilitv lnsurance
4.2.1 General requirements. Consultant, at its own cost and expense. shall
maintain commercial general and automobile liability insurance fbr the term of this Agreement in
an amount not less than ONE MILLION DOLLARS (S 1.000.000.00) 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 ($2.000.000.00) products/completed operations aggregate. lf a Commercial General
Liability Insurance or an Automobile Liability Insurance tbrm or other form with a general
aggregate limit is used. either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom. and
damage to property resulting from the Services contemplated under this Agreement. including the
use ofhired. owned. and non-owned automobiles.
1.2.2 Minimum sco oicovera . Commercial general coverage shallbe at least
as broad as Insurance Services Office Commercial General Liability occurrence iorm CC 0001.
Automobile coverage shall be at least as broad as lnsurance Services Office Automobile Liability
form CA 0001 Code 2, 8. and 9. No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
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4.1 Workers' Compensation. Consultant shall. at its sole cost and expense. maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance fbr any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe Califomia
Labor Code. Statutory Workers' Compensation lnsurance and Employer's Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($ 1.000.000.00) per
accident. ONE MILLION DOLLARS ($1.000.000.00) for disease per employee. and ONE
MILLION DOLLARS ($1.000,000.00) l'or disease per policy. In the alternative. Consultant may
rely on a self-insurance program to meet those requirements, but only if the program of self-
insurance complies fully with the provisions of the Calitbmia Labor Code. Determination of
whether a self-insurance program meets the standards ofthe Califomia Labor Code shall be solely
in the discretion of the Contract Administrator. The insurer. if insurance is provided, or
Consultant, iia program of self-insurance is provided, shall waive all rights ofsubrogation against
City and its officers. officials. employees, and authorized volunteers for Ioss arising from the
Sen,ices performed under this Agreement.
a. The insurance shall cover on an occurrence or an accident basis. and
not on a claims-made hasis.
b. Any failure ofConsultant to comply with reporting provisions ofthe
policy shall not affect coverage provided to City and its officers. employees. agents.
and volunteers.
4.3.1 Ceneral requirements. Consultant. at its own cosl and expense. shall
maintain for the period covered by this Agreement prot'essional liability insurance for licensed
professionals perlorming the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($ | ,000,000) covering the licensed professionals' errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. llthe deductible or
self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25.000). it musl be
approved by City.
4.3.2 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. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective
Date 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 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 of the policy. if Consultant cancels or does not rene\.r, 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.
4.1 AllPoliciesRequirements.
4.1.1 Acceptabilin' of insurers. All insurance required by this Section is to be
placed with insurers with a Bests' rating of no less than A:VII and admitted in Califomia.
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4.3 ProfessionalLiabilitvlnsurance.
4.4.2 Verification of coveraqe. Prior to be ginning the Services under this
Agreement, Consultant shall fumish City with Certificates of Insurance, additional insured
endorsement or policy Ianguage 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
coveEge on its behalt'. The Certificate of Insurance must include the tbllowing reference:
FY20l8/19 ON-CALL ENGINEERING SERVICES (RtrCOVERABLE). The name and
address for Additional Insured endorsements. Certificates of Insurance and Notice ofCancellation
is: City of Menifee. 29714 Haun Road. Menifee. CA 92586. City must be endorsed as an
additional insured for liability arising out ofongoing and completed operations by or on behalfof
Consultant.
4.4.3 Notice of Reduction in or Cancellation of Coveraqe. Consultant shall
provide written notice to City within ten (10) working days prior to the occurrence ofany ofthe
following: ( I ) any of the required insurance policies is terminated; (2) the limits of any of the
required potices are reduced; or (3) the deductible or self insured retention is increased.
4.4.4 Additional insured: primary insurance. City and its officers. employees.
agents. and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services performed by or on behalf of Consultant.
including the insured's general supewision of Consultant: 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 of protection afforded
to City or its officers. employees, agents. or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
for one ( I ) year after the expiration or termination ofthis Agreement or completion ofthe Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers. 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.
4.4.5 Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval ofCity for the self-insured retentions and deductibles before 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 ofticers. employees. agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond guaranteeing payment oflosses
and related investigations. claim administration. and defense expenses that is satisfactory in all
respects to each of them.
4.,1.6 Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certiticates and certified endorsements for each
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4.4.7 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. [n 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 fbllowing
remedies, which are altematives to other remedies City may have and are not the exclusive remedy
for Consultant's breach:
a. Obtain such insurance and deduct and retain the amount ofthe premiums
for such insurance from any sums due under this Agreementi
b. Order Consultant to stop work under this Agreement or withhold any
palrnent 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 Indemniflcation fbr ['rot-essional Liabilitl. Where the law establishes a
professional standard of care for performance of the Services, to the f'ullest extent permitted by
law, Consultant shall indemnifl. 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 oi 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 lees and
expenses ol 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 judgnent (collectively,
"Claims") to the extent same are caused in whole or in part by any negligent or wrongf'ul act. error,
or omission of Consultant. its ofl'icers. agents. employees. or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of protbssional
services under this Agreement.
5.2 Indemnification fbr Other than Prof-essional Liabilitl. Othcr than in the
performance of proi'essional services and to the f'ull extent permitted by law. Consultant shall
indemnify, protect, def'end (with counsel selected by City). and hold harmless City. and any and
all of its officers, employees, officials. volunteers. and agents fiom and against any and all Claims,
where the same arise out of. are a consequence oi or are in any way attributable to. in whole or in
part. the pertbrmance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable. including but not limited to otTicers. agents. employ'ees or
subcontractors oi Consultant-
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subcontractor. All coverages for subcontractors shall be subject to all ofthe requirements stated
herein.
5.3 [-imitation ol Indemnification. 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 f'rom liability arising from gross negligence or willful acts or omissions of
City or any and all of its otllcers. officials. employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times 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 officers. officials, employees, or agents ofCity. 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 for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation. law. or ordinance to the contrary, Consultant and any
of its employees, agents. and subcontractors providing services under this Agreement shall not
quatify 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 Calitbmia 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 REQUIR.EMENTS.
7.1 Ciovernine Law. The laws of thc Statc ol'Califomia shall govem this Agreement.
7.2 Comoliance with Applicable Laws. Consultant and any 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 perform work within City
or allow any person to perfbrm the Services required under this Agreement unless such person is
properly documented and legally entitled to be employed within the United States. Any and all
work subject to prevailing wages. as determined by the Director oflndustrial Relations ofthe State
of Califomia. will be the minimum paid to all laborers. including Consultant's employee and
subconlractors. It is understood that it is the responsibility of Consultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from 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 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. otllcials. oflicers. agents. representatives- employees. and volunteers harmless
lrom and against any liability. loss, damage. cost or expenses (including but not limited to
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reasonable attomeys' l'ees. expert witness t'ees, 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 f'ederal 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 from time to time. or any other similar law;
and/or (iii) failure by Consultant or any party perform ing the Services to provide any required
disclosure or identification as required by Labor Code Section I 78 I . as the same may be amended
f'rom time to time, or any other similar law. lt is agreed by the Parties that. in connection with
performance ofthe Services, including, without limitation, any and all public works (as defined
by applicabte law). Consultant shall bear all risks ofpayment or non-payment ofprevailing wages
under Califomia law and/or the implementation of Labor Code Section 178 | , as the same may be
amended fiom time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible tbr reviewing the applicable laws and regulations and
effectuating compliance with such la\.\.s. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications. and
approvals of whatsoever nature that are legally required to practice their respective prof'essions.
Consultant represents and wanants 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. Ci ty may cancel this Agreement at any time and without cause upon
u ritten notiflcation to ('onsultant.
8.2 Termination bv eoosutant Consultant ma y cancel this Agreement upon 30 days'
written notice to City
8.1 Consequences ot ltnn!!4!!an. In the cvent of termination. (onsultant shall be
entitled to compensation for the Services perfbrmed up to the date of terminationl City, however,
may condition pa)'ment of such compensation upon Consultant delivering to Cit)' any or all
documents. photographs. computer software. video and audio tapes. and other materials provided
to Consultant or prepared by or fbr 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 tbr in this Agreement. Similarly. unless
authorized by the Contract Administrator. City shall have no obligation to reimburse Consultant
lor any otherwise reimbursable expenses incurred during the extension period.
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8.5
all the Parties.
Amendments. The Parties may amend this Agreement only by a writing signed by
8.6 Assignment and Subcontractins. City 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 knowledge.
Moreover. a substantial inducement to City for entering into this Agrcement was and is the
professional reputation and competence of Consultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval ofthe Contract Administrator. Consultant
shall not subcontract any portion ofthe performance contemplated and provided for herein, other
than to the subcontractors noted in Consultant's proposal, without prior written approval of the
Contract Administrator. In the event that key personnel leave Consultant's employ, Consultant
shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Ootions uoon Breach b y Consultant. If Consultant materiall y breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
a. Immediately terminate this Agreement;
b. Retain the plans. specifications, drawings, reports, design documents. and
any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a diflerent 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. KEEPINC AND STATTIS OF RECORDS.
9.1 Records Created as Pan of Consultant's Performance. All re ports. data. maps.
models. charts. studies. survey.,s. 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 olCity. Consultant herebl- 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 fbr City and are not necessarily suitable for any luture or other use. Any
use of such documents fbr other projects by City shall be without liability to Consultant. City and
Consultant agree that. until tinal approval by City. all data. plans. specifications. reports. and other
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documents are confidential and will not be released to third parties without prior written consent
ofboth Parties unless required by law.
9.2 Licensins of Intellectual Propertv. This Agreement creates a non-exclusive and
perpetual license for City to copy. use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction. and other intellectual property embodied in plans, specifications, studies.
drawings, estimates, test data. survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression. including but not limited to, physical
drawings. digital renderings. or data stored digitally. magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and
Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the 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 walranty in regard to
Documents and Data which w'ere prepared by design professionals other than Consultant or
provided to Consultant by the C ity. Cityshall notbe limited in anyway in itsuse ofthe 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 for the Services or expenditures and disbursements charged to City under
this Agreement for a minimum ofthree (3) years, or for any longer period required by law. from
the date offinalpaymentto 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. An y records or documents that Section 9.3 of
this Agxeement 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 8546.7, ifthe amount ofpublic t'unds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($ I 0,000.00), this Agreement shall be
subject to the examination and audit ofthe State Auditor, at the request of City or as part ofany
audit of City, for a period ofthree (3) years after final payment under this Agreement.
SECTION IO.MISCELLANEOTIS PROVISIONS.
l0.l Attomeys' Fees. lfeither Pan y to this Agreement brings any action. including an
action lbr declaratory relief. to enforce or interpret the provision of this Agreement. the prevailing
Party shall be entitled to reasonable attomeys'fees and expenses including costs. in addition to
any other reliefto 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 of hours spent by the prevailing Party in the conduct of the
litigation. The court may set such lees in the same action or in a separate action brought for that
purpose.
10.2 Aoplicable Lau': Venue. The intemal laws of the State of'Calitbmia shall govem
the interpretation and entbrcement of this Agreement. In the event that either Party brings any'
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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. [f any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.4 Section Headin tn . The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 No 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 ofthis Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns ofthe Parties.
10.8 City Contract Administration. This Agreement shall be administered by the City
employee Jonathan Smith. Public Works Director/City Engineer ("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 this
Agreement. Unless othenvise provided in this Agreement. Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any uritten notice to Consultant shall be sent to:
Penco Engineering. Inc.
16842 Von Karman Ave. Suite 150
Irvine- CA 92606
Attn: Gary Solsona. PE, QSD
Anr *ritten notice to Citl shall be sent to the Contract Administrator at
City of Menifee
29714 Haun Road
Menifee. CA 92586
Attn: Jonathan Smith, Public Works Director/City Engineer
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10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by Jeff Cooper ("Consultant's Representative"). The Consultant's Representative
shall have full authority to represent and act on behalf of Consultant 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 for all means, methods, techniques, sequences,
and procedures and for the satisfactory coordination of all portions of the Services under this
Agreement.
with a copy to:
Cit), Clerk
City of Menifee
29714 Haun Road
Menifee. CA 925 86
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 professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and
Signature ol Registered Prolessional with report/design responsibility." as in the following
example.
Seal and Signature of Registered Prolbssional with
report/desi gn responsibil it1.
l0.ll Riehts and Remedies. Ex cept with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties 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 diflerent times, of any other rights or remedies for the same default
or any other default 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 of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
l0.l 3 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 executing this Agreement 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 of said Party. (iii) by so
executing this Agreement. such Party is tbrmally 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.
I 0. I 5 Nondiscrimination. Consultant covenants that. by and tbr itself'. its heirs. executors.
assigns. and all persons claiming under or through them, that in the perlbrmance of this 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 Iimited to. race. color, creed.
religion, sex, marital status. sexual orientation. national origin, or ancestry.
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10.16 No Third Party Beneficiaries. With the ex ception of the specific provisions set
tbrth 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 {Icers and Emolovees. No officer . official. employee. agent.
representative, or volunteer of City shall be personally liable to Consultant. or any successor rn
interest. in the event ofany default or breach by City or for any amount which may become due to
Consultant or to its successor. or for breach ofany obligation ofthe terms ofthis Agreement.
10.18 No Undue Influence. 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 of coercion. confidential
financial arrangement, or flnancial 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 Ci t\Em D lo VCCS No member, officer, or employee of City.
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during his/her tenure or for one (l ) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreemenl, or the proceeds
thereof, for the Services to be performed under this Agreement.
ISignatures 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 F MENIFEE CONS ANT
I A' Sohr E , MaYorlr,\111^.. Principal
Attest:
Man Cit-v Clerk Garv P . Public Works
as to Form:[Note:2 officer's signatures required if
Consultant is a corporation]
J Attorney
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Melching.
EXHIBIT A
SCOPE OF SERVICES
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I Pub i6 Works Entrneering Department Ccn!r.ct Servrces
2
SCOPE OF SERVICES
Pla n Check Services / Development Site Pla n Review Services
PENCO shall provide general plan che.k services for land development and capital improvement
projects to ensure their adherence to the Departments of Public Works/Engineering standards
and design policies, conditions of approval for all development projects. The work may include
the plan checking of grading plans, storm drain plans, street improvement plans, traffic signal
plans, water and sewer plans, and all associated structural or technical studies associated with
the plans and the plan checkint of tract and parcel maps, record of surveys, lot line adjustments,
and easement documents may also be required.
Project Man3gement
PENCO shall provide overall planning, coordination and control of a project from the inception to
completion in order to produce a functionally and financially viable prorect that will be completed
on time within authorized cost and to the required quality standards. The role of PENCC)r'S Project
Manager includes acquiring resources and coordlnatlng the effortr of team members and third-
party contractors or consultanls in order to deliver projects according to established deadlines
and within budget. PENCO'S Project Manager will also define the project's objectives, oversee
quality control throughout the project life cycle and facilitate the coordination with other
atencies. includint but not limited to the Riverside County Transportation Commission {RCTC),
Riverside County Flood Controland Water Conseruation District, and Gltrans.
WQMP Review Services
PENCO shall review the WQMP submittals fo, compliance with WqMP Guidance, City LID BMP
Design Handbook and City preferences. Submittals will be checked for the followingl
. Project Descriptions and site information
. Pollutants of Concern
. Hydrologic Conditions of Concern
. Site oesign BMPs
. Source Control BMP!
. Treatment Control BMPS
. Equival€nt Treatment Control Altematives
. Regionally-Ba5ed Treatment Control BMPs
. Operations& Maintenance for BMPS
. Funding
. supporting Documents
. lf there is a difference from the requirements, reviewer will make comments ad
"redlines" on WQMP or WQMP checklist that was provided with the review and prepare
a Corrections memo.
l
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PENGO
Cr:ent Success is Our Success
FEE SCHEDULE
fffective January 1, 2Ol8 through December 31, 2018
PERSONNEL
Principal
Engineering Manrger
Survey Manager
Senior Project Manager
Project Manager
Senior Project Engineer
Project Engineer
Supervisint Sr. De5ign Engineer
Senior 0eslBn Englneer
Design Engineer
fusociate Engineer
EnBineering Technician
Project Ascistant
Processor
Senior Project Surveyor
Project Surveyor
Senior Su rvey Tech nician
Survey Technician
z-Man Survey Crew
2-Man Survey Crew Prevailing Wage
l-Man Survey Crew
HOURI.Y RATE
S 230.m
s 210.00
s 210.00
s 19s.00
s 185.00
s 16s.00
s 1ss.00
s 1s0.00
S 1,10.00
512s.00
s 10s.00
s 9s.00
$ 100.00
s 10o.0o
s 160.00
s 13S.00
S 12o.oo
5 95.00
S 23o.oo
$ 28o.oo
t 175 00
Any work performed after the above date shall be billed under new fee schedule rates at a 3yo increase
A new fee !.hedulewil be issued on or before December 31" of ea(h y€ar
REIMBURSASTE COSTS
R.productions; deliv.ri.s; traval; m.rls.nd lodging; f:csimilesj models, r.nd.rings and lhorosi Mr.rs; and CDs,
not included in scope ofwork.
Allreimbursable costs rhall be billed atcost plus 15%
Mileage shall be billed at the current lRSstan&rd mileage rate
Aliaccounts are due net 30days tiom the &te of invoi(e
OutstandinS atcouhlsshall be ch.rged 1.0% per month
All required ovenime work shall be lilled at 15oyo ofthe hourly r.te
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EXHIBIT B
INST]RANCE
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