2017/04/19 PlayMax, LLC Rancho Ramona Park Playground Resurfacing Project No CS013CITY OF MENIFEE
CONTRACTOR AGREEMENT
Rancho Ramona Park Playground Resurfacing Project No. CSOl-3
THIS CONTRACTOR AGREEMENT ("Agreement") is made and effective tni" lltuy
of W,l .20-]_7("Ellective Date") by and between the CITY OF MENIFEE. a Califomia
municlpal corporation, ("City") and PlayMax, a (Califomia Corporation, C Corporation, Limited
Liability Corporation, Limited Liability Partnership, Sole Proprietorship, etc.) ("Contractor").
City and Contractor may sometimes herein bc 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, Contractor shall provide to
City the serviccs dcscribed in thc Scope of Scrvices, attached hereto as Exhibit A and incorporated
herein by this reference (the "Services"). Contractor will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. [n the event ofa conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agrcement shall prevail.
l.l Term ofServices. The term ofthis A greement shall begin on April 19, 2017 and
shall end on September 30,2017 unless the term of this Agreement is otherwise terminated or
extended as provided for in Section 8. The time provided to Contractor to complete the Services
rcquired by tlris Agrcement shall not affect City's right to terminatc this Agreement, as provided
for in Section 8.
1.2 Standard of Periormance. Contractor represents and wanants that Contractor is a
provider of first class work and services and Contractor is experienced in performing the Services
contemplated hercin and, in light of such status and experiencc, Contractor shall perform thc
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Contractor is engaged in the
geographical area in which Contractor practices its profession and to the sole satisfaction of the
Contract Administrator.
P nnel. Contractor shall assi gn 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, Contractor
shall, immediately upon receiving noticc from City ofsuch desire of City, reassign such person or
persons.
1.4 !!qg. Contractor shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Contractor's obligations
hereunder.
1.3 Assi lll
:671 r)t |r5r1-000t I-'-XHIT}IT A
1.5 Authorization to Perform Services. Contractor is not authorized to perforrn any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
SEC'TION 2. COMPT],NSA'I'ION.
City hereby agrees to pay Contractor a sum not to exceed SEVENTY THOUSAND EIGHT
HLTNDRED AND TWENTY FOUR DOLLARS AND FIFTY NINE CENTS (S70824.59)
notwithstanding any contrary indications that may be contained in Contractor's proposal, for the
Services to be performed and reimbursablc costs incurred under this Agreement. Intheeventofa
conflict betwecn this Agreement and Exhibit A, regarding the amount of compcnsation, this
Agreement shall prevail. City shall pay Contractor for the Services rendered pursuant to this
Agreement at the time and in the manner set forth herein. The payments specified below shall be
the only payments from City to Contractor for the Services rendered pursuant to this Agrecment.
Contractor shall submit all invoices to City in thc manner specified hcrein. Except as specifically
authorized in advance by City, Contractor shall not bill City for duplicate services performed by
more than one person.
2.1 lnvoices. Contractor shall submit invoiccs monthly during the term of this
Agreement, based on the cost for the Services pcrformed and reimbursable costs incurred prior to
the invoice date. lnvoices shall contain the following infonnation:
a. Serial identifications of progress bills; i.e., Progress Bill No. I for the first
invoice, etc.;
b. The bcginning and ending dates oftlrc billing period;
c. A "Task Summary" containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City's option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Contractor and each eniployee, agent, and subcontractor of Contractor perfomring the
Services hcrcunder necessary to complete the Services described in Exhibit A;
f. Receipts for cxpenses to bc rcimbursed;
g. The Contractor Representative's signature
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
rt67 I ,01 I 6Jtr-000 I
76-10549.2 a04 :6/17 _)_q/
297 l4 Haun Road
Menifee. CA 92586
2.2 Monthly Payment. Cit y shall make rnonthly payments, based on invoices received,
for the Serviccs satisfactorily performed, and for authorized reimbursable costs incurred. City
shall havc thirty (30) days from the rcceipt of an invoicc tlrat complies with all ofthe requircmcnts
above to pay Contractor.
2.3 Final Payment. Clit y shall pay the last five percent (5%) of the total amount due
pursuant to this Agrecmcnt within sixty (60) days aftcr completion ofthc Services and submittal
to City ofa tlnal invoice. ifall ofthe Services requircd have been satisthctorily performed.
2.4 Total Pavment. Cit y shall not pay any additional sum for any expense or cost
whalsoever incurred by Conlractor in rendering the Services pursuanl to this Agreerrent. City
shall makc no payrncnt for any cxtra, f'urther, or additional service pursuant to this Agrccmcnt.
In no event shall Contractor submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoicc.
2.6 Rcimbursable [ixpenses. Reimbursablc ex penses are included within the maximum
amount of this Agreement
2.7 Payment ofTaxes. Contractor is solel y responsible for the payment of employment
taxes incumed under this Agreement and any lederal or state taxes.
2.8 Payment upon Termination. ln the event that Cit y or Contractor terminates this
Agrcemcnt pursuant to Section 8, City shall compcnsate Contractor for all outstanding costs and
reimbursable expenses incurred tbr Services satisfactorily completed and for reimbursable
expenses as of the date of written notice of termination. Contractor shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Contractor shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make availablc to Contractor only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably neccssary for Contractor's use while consulting with City employees
and reviewing records and the inforration in possessiou of City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
required to fumish any facility that may involve incuning any direct expense, including but not
limited to computer, long-distancc telephonc or othcr communication charges, vehicles, and
reproduction facilities.
2671l01lrj5E'000|
1630549.2 a04l26t 11 -J
I
2.5 Hourlv Fees. Fees for the Services performed by Contractor on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
a)
SECTIoN4. INSURANCE REQUIREMENTS.
Belore beginning any work under lhis Agreement, Contractor, at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certificates of
Insurancc, indicating that Contractor has obtained or currently maintains insurancc that mccts the
requiremcnts of this section and which is satisfactory, in all respects, to City. Contractor shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Contractor's compensation. Contractor shall not
allow any subcontractor, consultant, or other agent to commence work on any subcontract until
Contractor has obtained all insurance rcquired herein for the subcontractor(s) and provided
evidence thereofto City. Verification ofthe required insurance shall be submitted and made part
of this Agreement prior to execution. Contractor acknowledges the insurance policy musl cover
intsr-insurcd suits betwcen City and othcr Insureds.
4.1 Workcrs' Compensation. Contractor shall, at its sole cost and expense. maintain
Statutory Workers' Compensation Insurance and Employer's Liability lnsurance for any and all
persons employed directly or indirectly by Contractor pursuant to the provisions ofthe California
Labor Code. Statutory Workers' Compcnsation Insurance and Employcr's Liability Insurance
shall bc provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($ 1,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1.000.000.00) disease per policy. In the alternative, Contractor may rely on a sell-
insurance program to meet those requirements, but only if the program of self-insurance complies
fully with thc provisions ofthe California Labor Code. Dctcrmination ofwhether a self-insurance
program meets the standards ofthe Califomia Labor Code shall be solely in the discretion ofthe
Contract Administrator. The insurer, ilinsurance is provided, or Contractor. ila program olself-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employccs, and authorizcd volunteers for loss arising from thc Services performed undcr this
Agreement.
a- Cencral requirements. Contractor, at its own cost and expense. shall
maintain commercial gencral and automobile liability insurance for the term of this Agreemcnt in
an amount not less than ONE MILLION DOLLARS ($1,000.000.00) per occurrence, combined
single limit coverage, lor risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability lnsurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggrcgatc limit shall be at least twice the
required occurrence limit. Such coveragc shall include but shall not bs lirnited to, protcction
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting lrom the Services contemplated under this Agreement. including the
use of hired, owned, and non-owned autornobiles.
b. Minirnum sco c 0f covcragc. Con-tmcrcial gcncral covcragc shall bc at lcast
as broad as lnsurance Services Office Commercial General Liability occurrence form CG 0001
f
2671/01[t5x-000t
7610549.1a04/26 t7 -4-
4.2 Corrmercial General and Autonrobile Liabilitv lnsurance.
ar
Automobile coveragc shall be at least as broad as lnsurance Services Office Automobilc Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
itional U Each of the lbllowing shall be included in thec.
insurance coveragc or added as a certified endorsement to thc policy
a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any thilure of Contractor to comply with reporting provisions of the
policy shallnot affect covcrage provided to City and its officers, ernployccs, agcnts,
and volunteers.
4.3 ProlessionalLiabilitylnsurance.
a. Gcneral requirements. Contractor , at its own cost and cxpcnse. shall
maintain for thc pcriod covercd by this Agreement profcssional liability insurancc for licensed
professionals perforrning 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 shown on the Certificate. If the deductible or
self-insured rctcntion cxcccds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
b. lnsurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
Agrccment or completion of the Services, so long as commercially available at
reasonable rates.
c. lf coverage is canceled or not renewed and it is not replaced with
anothcr claims-made policy fomr with a retroactive date that precedes the Effective
Datc of this Agrccmcnt, Contractor must providc extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreernent
or the completion ofthe Services. Such continuation coverage may be provided by
onc ofthe following: ( l) renewal ofthe existing policy; (2) an extended reporting
pcriod endorsement; or (3) replacement insurancc with a retroactivc datc no later
than the commencement of the Services under this Agreement. City shall have the
right to exercise, at Contractor's sole cost and expense, any extended reporting
provisions ofthe policy, ifContractor cancels or does not renew the covcrage.
d. A copy of the claim reporting rcquirements must be submitted to
City prior to the comlnencement of the Services under this Agreement.
I2671/0U t85X-000r
?6-10549.2 .0.1/?6/ I 7 5 t
a. The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
oJ
a. Acceptabilitv 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 California.
b. Verification of covcrage. Prior to beginning the Serviccs undcr this
Agreement, Contractor shall fumish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies ofall
policies, including complete certified copies of all endorsements. All copies of policies and
certified cndorscmcnts shall show thc signature of a person authorized by that insurcr to bind
coverage on its behall'. The Certificate of lnsurance must include the following referencc: Rancho
Ramona Park Playground Resurfacing CS013 the name and address for Additional Insured
endorsements, Certificates of Insurance and Notice of Cancellation is: City of Menifee,
29714 Haun Road, Menifee, CA 92586. City must be cndorsed as an additional insured for
liability arising out ofongoing and completed operations by or on behalfof Contractor.
c Notice of Reduction in or Cancellation ol Coverage. Clontractor shall
provide writlen notice to City within ten ( I 0) working days if: ( I ) any of the required insurance
policies is terminatcd; (2) the Iimits ofany ofthe required policcs arc reduced; or (3) thc deductible
or self insured retention is increased.
d. Additional insuredl primary insurance. Cit y 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 performcd by or on bchalf of Contractor,
including the insurcd's general supewision of Contractor; products and completed operations of
Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles
owned, leased, or used by Contractor in the course of providing the Services pursuant to this
Agreement. Thc coverage shall contain no special limitations on the scope ofprotcction afforded
to City or its officcrs, employees, agents, or authorized voluntcers. 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 aftcr thc expiration or tcnnination ofthis Agreemcnt or completion ofthe Services.
A certified endorsement must be attached to all policies stating that covcragc 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 coveragc.
c. Dsductibles and Sclf-insured Rctcntions. Contractor shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any ofthe
Services.
During the tenn of this Agreement, only upon thc prior cxprcss written
authorization of the Contract Administrator, Contractor 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
rctention levels with a rcquirement that Contractor procure a bond guarantecing paymcnt oflosses
,tr1671/01t85E-000t
7630549 2 a04,'26,/l 7 -6-
4.4 All Policies Reqquqtql]b.
})
and related investigations, claim administration, and defense expenscs that is satisfactory in all
respects to each of them.
f. Subcontractors. Contractor shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. Al[ coverages fbr subcontractors shall be subject to all of the requircments stated
herein.
g. Variation. The Contract Administrator may, but is not required to, approve
in writing a variation in the forcgoing insurance requirements, upon a determination that thc
coverage, scope, limits, and forms ofsuch insurance are either not commercially available, or that
City's interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if
Contractor fails to provide or nraintain any insurancc policies or policy endorsements to the extent
and within the tin.re herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives lo other remedies City may have and are not the exclusive remedy
for Contractor's breach:
a. Obtain such insurance and deduct and retain thc amount of the premiums
for such insurance from any sums due under this Agteement;
b. Order Contractor to stop work under this Agreement or withhold any
payment that becomes due to Contractor hereunder, or both stop work and withhold any
payment, until Contractor dcmonstrates compliance with thc rcquirements hereof; and/or
Terminate this Agreement
To the fullest extent pennittcd by law, Contractor shall indemnify, protect, defend (with
counsel selected by City), and hold harmless City, and any and all of its officers, employees,
officials, volunteers, and agents from and against any and all claims, losses, costs, damages,
expenses, liabilities, liens, actions, causes ofaction (whether in tort, contract, under statute, at Iaw,
in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including
rcasonablc consultant and cxpcrt fees and expenses of investigation, costs of whatever kind and
nature and, ifContractor fails to provide a defense for City, the legal costs ofcounsel retained by
City) and any judgment, where the same arise out of, are a consequence of, or are in any way
attributable to, in whole or in part, the performance of this Agreement by Contractor or by any
individual or cntity for which Contractor is legally liable, including but not limited to officcrs,
agents, employees or subcontractors of Contractor.
The provisions of this Section 5 do not apply to claims occurring as a resull of City's sole
or active negligence. The provisions of this Section 5 shall not release City from liability arising
from gross negligence or willful acts or omissions of City or any and all of its officers, officials,
employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONTRACTOR.
-7-2671 0118584001
7610549.2 i0.l/26 17
c.
SECTION 5. INDENlNIFICATION.
ur
6. 1 Independcnt Contractor. At all times during the temr ofthis Agrecnrent, Contractor
shall be an irrdependent contractor and shall not be an employee of City. City shall have the right
to control Contractor only insofar as the results ofthe Services rendered pursuant to this Agreement
and assignment ofpersonnel pursuant to Subparagraph 1.3; however, otherwise City shall nothave
the right to control thc nreans by which Contractor accomplishes the Scrviccs rendered pursuant
to this Agrcement. The personnel performing the Services under this Agreement on behalf of
Contractor shall at all times be under Contractor's exclusive direction and control. Contractor
shall not at any timc or in any manner represent that it or any of its officers, cmployees, or agents
is in any manner officcrs, of'ficials, employees, or agents of City. Contractor shall not incur or
have the power to incur any debt, obligation, or liability whatever against City, or bind City in any
manner. Except lor the lees paid to Contractor as provided in this Agreement, City shalI not pay
salaries, wages, or othcr cornpensation to Contractor for perfonning thc Services hereunder for
City. City shall not bc liable for compensation or indcmnification to Contractor for injury or
sickness arising out of performing the Services hereunder. Notwithstanding any other City, state,
or federal policy, rule, regulation, law, or ordinance 1o the contrary, Contractor and any of its
employees, agents, and subcontractors providing services under this Agreement shall not qualify
for or becomc cntitlcd to any compensation, bencfit, or any incidcnt of cmployment by City,
including but not limited to eligibility to enroll in the Califomia Public Employees Retirement
System ("PERS") as an employee of City and enlillement to any contribution to be paid by City
for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. I,EGAL REQUIREMENTS.
7 .l GoveoringLav. The laws of the State of Califomia shall govem this Agreement
7.2 Compliance with ApplicablE Laws. Contractor and an y subcontractor shall comply
with all applicable local, state, and federal laws and rcgulations applicablc to the performance of
the work hereundcr. Contractor shall not hire or cmploy 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 determined by the Director of lndustrial Relations ofthe State
of Califomia, will bc thc minimum paid to all laborers, including Contractor's cmploycc and
subcontractors. It is understood that it is the responsibility of Contractor to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the Califomia Department of
Industrial Relations ("DlR") pursuant to Califonria Public Utilities Code, Scctions 465,466. and
467 by calling 415-703-4774. Appropriatc 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. Contlactor shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officcrs, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damagc, cost or expenses (including but not limited to
reasonable attorneys' fees, expert witness fees, oourt costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Contractor or any
party performing the Services ofany applicable local, state, and/or Gderal law, including, without
limitation, any applicablc federal and/or statc labor laws (including, without limitation, thc
requirement to pay state prevailing wages and hire apprentices); (ii) the irnplerncntation 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 Contractor or any party performing the Services to provide any required
267 t/031858-000 L ll-o)
disclosure or identification as required by Labor Code Scction I 78 I , as the same may be amcnded
from time to time, or any other similar law. It is agreed by lhe Parties that, in connection with
perfonnance ol'the Services, including, without limitation, any and all public works (as defined
by applicable law), Contractor shall bear all risks ofpaynent or non-paymcnt ofprevailing wages
undcr California law and/or the implemcntation of Labor Code Section I 78 I , as the samc tray be
amended from time to time, and/or any other similar law. Contractor acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such Iaws. Contractor shall require the same ofall subcontractors.
7.3 Licenses and Permits. Contractor represents and warrants to City that Contractor
and its employees, agents, and any subcontractors have all licenses, pennits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Contractor represents and warrants to City that Contractor and its employees, agents, and
subcontractors shall, at thcir sole cost and expense, keep in effect at all times during the tcrm of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Contractor and any subcontractors shall obtain
and maintain during thc tcm of this Agreement valid Business Licenses from City.
SECTI()N 8. TERMINATION AND MODIFICATION.
8. t Termination. Ci ty may cancel this Agreement at any time and witlrout cause upon
wrillcn noti Ilcation to Conlractor.
8.2 Termination bv Contractor Contractor nray cancel this Agrecmcnt upon 30 days'
writtcn noticc to City.
8.3 Consequences of Termination. In the event ol termination, Contractor shall be
entitled to compensation lor the Services performed up to the dale of terrnination; City. however,
may condition payrnent of such compcnsation upon Contractor dclivcring to City any or all
documents. photographs, computer softwarc, vidco and audio tapes, and other matcrials provided
to Contractor or prepared by or lor Contractor or City in connection with this Agreement.
8.4 Extension. Ci ty may, in its sole and exclusive discretion, extend the end date of
this Agrecment beyond that providcd for in Subsection I .l . Any such extension shall rcquirc a
written amendment to this Agreement, as provided for herein. Contractor understands and agrees
that, if City grants such an extension, City shall have no obligation to provide Contractor witlt
compensation beyond the maximum amount provided for in this Agreement. Similarly, unless
authorized by the Contract Administrator, City shall havc no obligation to reimburse Contractor
for any otherwise reinrbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amer,d this Agreement only by a writing signed by
all the Parties.
8.6 Assiqnmcnt and Subcontractins. City and Contractor rccognize and agrec that this
Agreemcnt contemplates personal performance by Contractor and is bascd upon a determination
of Contractor's unique personal competence, experience. and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence ofContractor. Contractor may not assign this Agreement
2671/0lt85E-m0t
76-,054e.: a0:l/:6/17 -9-CJ
or any interest therein without the prior written approval ofthe Contract Administrator. Contractor
shall not subcontract any portion ofthe performance contemplated and provided lbr herein, other
lhan to the subcontractors noted in Contractor's proposal, without prior written approval of the
Contract Administrator. In the evcnt that key personnel leave Contractor's cmploy, Contractor
shall notify City imrnediately.
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 Contractor
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Contractor. [f Contractor materiall y brcachcs any of thc
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 contractor pursuant to this Agreement;
c. Retain a different Contractor to complete the Services described in
Exhibit Al and/or
d. Charge Contractor the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the time o[ breach and the amount that CiIy
would have paid Contractor pursuant to Section 2 ifContractor had completed the Services.
SEC'IION 9. KEEPING AND STATUS OF RT]CORDS.
9.1 Records Created as Part of Contractor's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form that Contractor prepares
or obtains pursuant to this Agreement and that rclate to the matters covered hercundcr shall bc thc
property of city. contractor hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement. lt is understood and agreed that the documents and other
materials, including but not limited to those describcd above. prepared pursuant to this Agreement
are prcpared specifically for City and are not neccssarily suitablc for any futurc or othcr use. Any
use ofsuch documents for other projects by City shall be without liability to Contractor. Cityand
Contractor agree that, until final approval by City, all data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
ofboth Parties unlcss required by law.
9.2 Liccnsins of Intellectual P lonL't'tv This Agreement creates a non-exclusive and
perpelual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodred in plans, specifications, studics.
drawings, estimates, tcst data. survcy rcsults, models, renderings. and other documcnts or works
of authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data slored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Contractor under this Agreement ("Documents and
2671 ,01 I 85rJ{rI) I
?610549.: ao,t/26'17 - l0-a)a!
Data"). Contractor shall require all subcontractors to agree in writing that City is grantcd a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Contractor represents and warrants that Contractor has the legal right to license any
and all Documents and Data. Contractor makes no such represcntation and warranty in rcgard to
Documents and Data which were preparcd by design professionals other than Contractor or
provided to Contractor by the City. City shall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
9.3 Contractor's Books and Records. Contractor shall maintain any and all ledgers,
books ofaccount, invoices, vouchers, canceled checks, and other records or docurnents evidencing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreement lbr a minimum ofthree (3) years, or for any longer period required by law, from
thedateoffinal payment to Contractor underthis Agreement. All such records shall bc maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 Inspcction and Audit of Rccords. An y records or documcnts that Scction 9.3 of
tliis Agrecmcnt requires Contracbr to maintain shall bc rnadc 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, ilthe amount ofpublic funds expended under
this Agrccmcnt cxcecds TEN THOUSAND DOLLARS (S10,000.00), this Agrcement shall be
subject to the cxanrination and audit of thc State Auditor, at thc rcquest of City or as part of any
audit of City, for a period ofthree (3) years after final payment under this Agreement.
SECTION IO.MISCELLANEOUS PROVISIONS.
l0.l Attomcys' Fees. lfeithcr Part y to this Agrcemcnt brings any action, including an
action for declaratory rclief, to enforce or interprct the provision of this Agreement, the prevailing
Party shall be entitled to reasonable attomeys' fees and expenses including costs, in addition to
any other relief to which that Party may be entitled; provided, however, that the attomeys' fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for lcgal serviccs
multiplied by thc reasonable number of hours spent by the prevailing Parry in thc conduct ofthe
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Law: Venue. The internal laws of thc State of Califomia shall govem
the interpretation and enforcement of this Agreement. In the evcnt that either Party brings any
action against the other under this Agreement, the Parties agree that trial ofsuch action shall be
vested exclusively in Riverside County.
10.3 Scvcrabilitv. If any provision of this Agrcemcnt 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 force and eff'ect.
2671/01l85E-0001
7610549.2 a04i26ll7 -l l-
Ia)\
10.4 Section Hcadings and Subheadings. The section hcadin gs and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
I 0.5 No ImplicdlUajyetpf Brcagh. 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.
I 0.6 Successors and Assigns. The provisions ofthis Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns ofthe Parties.
10.7 Contractor Representative. All matters under this Agreement shall be handled for
Contractor by Joel lbarra ("Contractor's Representative"). The Contractor's Representative shall
have full aulhority to represent and act on behalf of Contractor for all purposes under this
Agreement. The Contractor's Representative shall supervise and dircctthc Scrvices. usinghis 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.
10.8 City Contract Administration. This A greement shall be adrninistercd by a City
employee, Joe Solano ("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 otherwise provided
in this Agreement, Contractor shall not accept direction or orders from any person other than the
Contract Administrator or his dcsigncc.
10.9 Notices. Any written notice to Contractor shall be sent to:
Joc Solano
Park Landscape/Maintenance Supcrintcndcnt
j sol ano(!c i tyofmeni fee.us
Any written notice to City shall be sent to the Contract Adrninistrator at
City of Mcnifee
29714 Haun Road
Menifee, CA 92586
Attn: Joe Solano
with a copy 10:
City Clerk
City of Menifee
29714 Haun Road
Mcnifcc, CA 92586
10.10 Professional Seal Where applicable in the determination of the Contract
Administrator, the first page ofa techrrical report. first page ofdesign specificalions, and each page
DI'
I
167l/011858-0001
76305.19.2 a04/26,17 -12-
C,)
of construction drawings shall be stampcd/sealed and signed by the liccnscd profcssional
responsible lbr the report/design preparation. The starnp/seal shall be in a block entitled "Seal and
Signature ol Registered Professional with report/design responsibility," as in the following
cxample.
Seal and Signature of Registered Professional with
rc rtldcsi lt rcs onsibilit
10. I I Rishts and Remcdics. Exc cpt with rcspcct to rights and rcnrcdics cxprcssly
declared to be exclusive in this Agreement, the rights and remedies ofthe Parties are cuntulative
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 default
or any othcr default by the other Party.
10.12 lntegration. This A greement, including the scope of sewices attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Contractor and supersedcs all prior negotiations. representations, or agreements, either written or
oral. Thc tcrms of this Agrecment shall bc construed in accordancc with thc meaning of the
language used and shall not be construed for or against either Party by reason ofthe authorship of
this Agreement or any other rule olconstruction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute onc 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 ol said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions ofthis A$eement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
I0.15 Nondiscrimination. Contractor covenants that, byand for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performancc ofthis Agrcement
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impemrissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
l0.l 7 Nonli iti of rt Offic and Em s. No officcr , official, employee, agent,
rcpresentativc, or voluntccr of City shall bc personally liable to Contractor. or any succcssor ln
interest, in the event ofany default or breach by City or for any amount which lnay become due to
Contractor or to its successor, or for breach ol any obligation of the terms of this Agreement.
?rr7l/0318511-0001
7630549.2 r0:1,:6'17 -13-E
I0)
10.18 No Undue Influence. Contractor declarcs and warants that no undue influencc 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 Agleement, including any method of coercion, confidential
financial arrangcment, or financial inducement. No officer or employee of City shall receive
compensation, dircctly or indircctly, fiom Contractor, or from any officer, cmployee, or agent of
Contractor, in connection with the award of this Agreement or any work to be conducted as a result
of this Agreement.
I 0. l9 No Elenefit to Arise to ltly Enplayggr No mcmber, officcr, or em ploycc of City,
or their dcsignecs 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-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
\
2671,'r)t tE58-00r)t
76J05.19 : a0'1, 16 I 7 -14-PttLilt;(,^,
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
and year first-above written.
CITY:
CITY OF' MENIFEE. a Califomia municipal
corpqralian6^a-<,4
Manwari C ('lerk
Ronald E. Bradley, lnterirn City Manager
CONTRACTOR:
P Max
By:
.I Melching, C trcrney
a
By:
Namc
Title :
Name:
Tirle:
P )--Nr t Gt^,
C dt\ts wo.-g
s ec ni=1-44-7 #6. 6Te {\\Address:C
Two signaturcs arc rcquircd if a corporation
NOTE: CONTRACTOR,S SIGNATURES SHALL BE DULY NOTARIZED. AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE
I]YLAWS. ARTICLES OI' INCORPORATION, OR OTHER RULES OR RTJGULATIONS
APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY.
Ptr)"jdI\
t
+
SBAl,+
*
+*
:67Il01I85E-000I
76105:1s.2 n04726r l7 -15-N
ATTEST:
APPROVED AS TO FORM:
'/
)I *
I
.1,!
I
c ora alJA. c4
1? atl'
CALIFORTiIIA ALL.PUBPOSE ACK OWLEDG E T CIVIL CODE S 1189
A notary public or other ofncer completing this certificate verilies only the ;w;;;;*;;;;;-l
racy, or validity of that docunEnt.
I
document to which this certifcate is attached, afid not the Yuthfulness, accu
State oi Califomia
County of
personally appeared
who proved to me on the basis of satisfactory evidence to be the personlg-whose namg(sf(j$are
subscribed to the within instrument and acknowledged to me that 6rshe,/they executed the same in
(Ei6/her/their authorized capacity(ies), and that bydMer/their signature(s) on the instrument the person(s),
or the entity upon behall of which the person(s) acted, executed the instrumant.
I certify under PENALTY OF PERJURY under the laws
of the State of Califomia that the loregoing paragraph
is true and conect.
WITNESS my official seal.
Signature
Place Notary Seal Above
OPTIONAL
Though th,b section is optional, completing this information can deter alteration of the document or
fraudulent realtachment of this fom to an unintended document.
Description of Attached Document
'lltle or Type o, Docu ment:C" ^ -,n., ,n,, /\q,r<p r..g,+r-
Document Date:Number of Pages:t(
Signer(s) Other Than d ove
capacity(ies)Claimed by Signer(
Signer's Narne
ll Partner - Limited -- Ge n
tr lndividual i- Attorney in Fact
i-l Trustee r- Guardian or Conservator
ll Other:
Signer ls Representing
@2016 Nalional Notary Association . www.NationalNotary.org . 1-800-US NOTARY (r -800-876-6827) Item #5907
I
Notary
Corporate Officer - Title(s):
Partner - il Limited Ll General
)
)
on 4ty Ztt ?*ll beforeme, AuKl7++6ttqcV /\|'(\', {,lrtrc,I Date \Here ,nsert Name and Ttle of the ffi&r
^'tame(s)
of Signeds)
.-l lndividual tr Attomey in Fact- Trustee D Guardian or Conservator
. . Olher: _
Signer ls Bepresenting: _
t\orary Pubhc ' Calllornia
Riverside CountY
Commitsion * 2173367
AtEX
Corporate Resolution
The undersigned certify that:
They are the president and the secretary, respectively. of (PLAYMAX SURFACING,
lNC.) a California Corporation.
Be it hereby resolved that CHRISTOPER DALE WOLF, aka "CHRIS WOLF" in the
role of both president and secretary is granted the ability to execute contracts,
agreements and documents legally binding to the corporation using one
signature.
Resolved this date August 10, 2015.
Christopher Wolf, President
r
Christopher Dale Wolf, Secretary
Corporate Seal
fw\?!1"