2019/09/18 Proactive Engineering Consultants, Inc. FY19/20 Interim Assistant City Engineer Services (3)CITY OF MENIFEE
FYI9/20 INTERIM ASSISTANT CITY ENGINEER SERVICES
S PROFF]SSIO NAL SERVICES AGREEMENT ("Agreement") is made and effective
thk 1y
Califomia
aay or.*fr'
munlclpal
2019 ("Effective Date") by and between the CITY OF MENIFEE, a
corporation, ("City") and P A IV NGINEERING
CONSU LTANTS. INC., a S Corporation ("Consultant"). City and Consultant may sometimes
herein be referred to individuatly as a "Party" and collectively as the "Parties."
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope ofServices, attached hereto as Exhibit A and incorporated
herein by this reference (the "Services"). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event ofa conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
l.l Term of Services. The term ofthis A greement shall begin on September 18, 2019
and shall end on June 30, 2020 unless the term ol this Agreement is otherwise terminated or
extended as provided for in Section 8. The time provided to Consultant to complete the Services
required by this Agreement shall not affect City's right to lerminate this Agreement, as provided
for in Section 8.
1.2 StandardofPerformance. Consultant represents and warrants that Consultant is a
provider offirst class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perform the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction of the
Contract Administrator.
I .3 Assisn ment 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.
I .4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
1.5 Authorization to P rm 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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PROFESSIONAL SERVICES AGREEMENT
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed FIFTY THOUSAND
DOLLARS AND ZERO CENTS ($50,000.00) not withstanding any contrary indications that
may be contained in Consultant's proposal, for the Services to be performed and reimbursable
costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit
A, regarding the amount ofcompensation, this Agreement shall prevail. City shall pay Consultant
for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified below shall be the only payments from City to Consultant for the Services
rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specified herein. Except as specifically authorized in advance by City, Consultant shall not bill
City for duplicate services performed by more than one person.
2.1 lnvoices. Consultant shall submit invoices monthl y during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following inflormation:
a.Serial identifications of progress bilts; i.e., Progress Bitl No. I for the first
rnvolce, 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 ofthe applicable time
entries or time sheets shall be submitted showing the name olthe person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant perflorming the
Services hereunder necessary to complete the Services described in Exhibit A;
Receipts for expenses to be reimbursed;
The Consultant Representative's signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Pavment. Cit y shall make monthly payments, based on invoices received,
for the Services satisfactorily perfbrmed, and for authorized reimbursable costs incurred. City
f.
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shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total amount due
pursuant to this Agreement within sixty (60) days after completion olthe Services and submittal
to City ofa final invoice, if all ofthe Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice lor an amount in excess of the
maximum amount of compensation provided above either lor a task or for the entirety of the
Services perlormed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission olsuch an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable ex penses are included within the marimum
amount of this Agreement
2.7 Payment of Taxes. Consultant is solel y responsible for the payment olemployment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. ln the event that Ci ty or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incuned for Services satisfactorily completed and for reimbursable
expensss as ofthe date of written notice oltermination. Consultant shall maintain adequate logs
and timesheets in order to verily costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
SECTION 4. 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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Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks. filing cabinets, and conference
space, as may be reasonably necessary for Consultant's use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
required to 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.
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 ofsuch insurance shall be included in Consultant's compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereof to City. Verification ofthe required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between Citv and other Insureds.
4.1 Workers' Compensation. Consultant shall , at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance lor any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe Califomia
Labor Code. Statutory Workers' Compensation Insurance and Employer's Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($ I ,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($ I,000,000.00) disease per policy. In the altemative. Consultant may rely on a self-
insurance program to meet those requirements, but only ifthe program of self-insurance complies
fully with the provisions of the Califomia Labor Code. Determination of whether a self-insurance
program meets the standards ofthe Califomia Labor Code shall be solely in the discretion ofthe
Contract Administrator. The insurer. if insurance is provided, or Consultant, ifa program ofself-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
a. General requirements. Consultant, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, 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) productsicompleted operations aggregate. If a Commercial General
Liability lnsurance or an Automobile Liability Insurance form or other lorm 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.
b. Minimum scope of coveraqe. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurence tbrm CG 0001.
Automobile coverage shalI be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2. 8, and 9. No endorsement shall be attached limiting the coverage.
Additional requirements. Each of the followic.
insurance coverage or added as a ce(ified endorsement to the policy:
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ng shall be included in the
4.2 Commercial General and Automobile Liabilitv Insurance.
a, The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any lailure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
4.3 ProfessionalLiabilitv lnsurance.
a. Ceneral requirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($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 retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims-made limitations. The follo wing provisions shatl 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 of the Services under this Agreement. City shall have the
right to exercise, at Consultant's sole cost and expense, any extended reporting
provisions of the policy, ifConsultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submiued to
City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a- Acceptability 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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b. Verificalion of coverage. Prior to beginning the Services under this
Agreement, Consultant shall fumish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The Certificate of Insurance must include the lollowing reference:
Fyl9l20INTERIM ASSISTANT CITY ENGINEER SERVICES. The name and address for
Additional Insured endorsements, Certificates of Insurance and Notice ofCancellation is: City of
Menifee,29844 Haun Road, Menifee, CA 92586. City must be endorsed as an additional insured
for liability arising out ofongoing and completed operations by or on behalf of Consultant.
Notice of Reduction in or Cancellation of Coverase. Consultant shall
provide written notice to City within ten (10) working days if: (1) any of the required insurance
policies is terminated; (2) the limits ofany olthe required polices are reduced; or (3) the deductible
or self-insured retention is increased.
d. Additional insuredi primary insurance. Ci ty and its offrcers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services perlormed by or on behalf of Consultant,
including the insured's general supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultanl in the course ol providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope ofprotection afforded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
lor one ( I ) year after the expiration or termination of this 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.
Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles belore beginning any ofthe
Services.
f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall fumish separate certificates and certified endorsements for each
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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
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.
subcontractor. All coverages for subcontractors shall be subject to all ofthe requirements stated
herein.
g. Variation. The Contract Administrator may, but is not required to, approve
in writing a variation in the foregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms ofsuch insurance are either not commercially available, or that
City's interests are otherwise fully protected.
4.5 Remedies. In addition 1o any other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are 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 of the premiums
lor such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 lndemnification fbr Professional Liabili tv Where the law establishes a
professional standard of care for performance ol the Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents lrom and against
any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
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 thereof) in the performance ofprofessional
services under this Agreement.
5.2 lndemnification for Other than Professionat Liabilitv. Other than in the
performance of professional services and to the lull extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and
all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to officers, agents. employees or
subcontractors of Consultant.
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c.
5.3 Limitation of Indemnification for Desisn Professionals. Notwithstandin g any
provision of this Section 5 to the contrary, design professionals are required to defend and
indemnify City onty to the extent permitted by Civil Code Section 2782.8. The term "design
proflessional" as defined in Section 2782.8, is limited to licensed architects, licensed landscape
architects, registered professional engineers, professional land surveyors, and the business entities
that offer such services in accordance with the applicable provisions of the Calilomia Business
and Professions Code.
5.4 Limitation of Indemnification. The provisions ol 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 lrom liability arising from gross negligence or willful acts or omissions ol
City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times duri ng the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; 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 alI 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 of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant lor
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
qualily for or become entitled to any compensation, benefit, or any incident of employment by
City, inctuding but not limited to eligibility to enroll in the California Public Employees
Retirement System ("PERS") as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7 .2 Comnliance 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 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 oflndustrial Relations ofthe State
of California, will be the minimum paid to all laborers, including Consultant's employee and
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7.1 Governinq Law. The laws of the State of Califomia shall govem this Agreement.
subcontractors. It is understood that it is the responsibility ofConsultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the Califomia Department of
Industrial Relations C'DIR") pursuant to Califomia Pubtic 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. officials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss. damage, cost or expenses (including but not limited to
reasonable attomeys' fees, expert witness fees, court costs. and costs incuned related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any
pa(y performing the Services ofany applicable local, state, and/or lederal 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 performing the Services to provide any required
disclosure or identification as required by Labor Code Section I 781, as the same may be amended
lrom time to time, or any other similar law. It is agreed by the Parties that, in connection with
performance ofthe Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks ofpayment or non-payment ofprevailing wages
under Califomia law and/or the implementation of Labor Code Section 1781, as the same may be
amended from time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same olall subcontractors.
7 .3 Licenses and Permits. Consultant re presents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. Ci ty may cancel this Agreement at any time and without cause upon
written notifi cation to Consultant.
8.2 Termination bv Consultant. Consultant may cancel this Agreement upon 30 days'
w tten notice to City.
8.3 Consequences of Termination. [n the event of terminatio n. 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 comection with this Agreement.
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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 by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5
all the Pa(ies.
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 Agreement 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 lor herein. other
than to the subcontractors noted in Consultant's proposal, without prior written approval ofl 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.
Immediately terminate this Agreement;a
b. Retain the plans, specifications, drawings, reports, 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.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications. records,
hles, or any other documents or materials, in electronic or any other form that Consultant prepares
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8.8 Options upon Breach by Consultant. IfConsultant materially breaches any ofthe
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
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 lor City and are not necessarily suitable for any future or other use. Any
use of such documents for other projects by City shall be without liability to Consultant. City and
Consultant agree that, until final approval by City, alt data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
ofboth Parties unless required by law.
9.3 Consultant's Books and Records. Consultant shall maintain any and all ledgers.
books ofaccount, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreement for a minimum of three (3) years, or for any longer period required by law, from
the date offinal payment to Consultant under this Agreement. Al[ such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 Inspection and Audit of Records. An y records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available lor inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of City.
Under Califomia Govemment Code Section 8546.7, if the amount of public funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit of the State Auditor, at the request of City or as part of any
audit of City, for a period ofthree (3) years after final payment under this Agreement.
SECTION IO.MISCELLANEOUS PROVISIONS.
10.1 Attomeys' Fees. If either Part y to this Agreement brings any action, including an
action for 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
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9.2 Licensing of Intellectual Prooertv. 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 perpelual 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 warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shall not be 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.
10.2 Applicable Law: Venue. The intemal laws of the State of Califomia shall govem
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remaindsr 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 Headinss and Subheadinss.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 ofany breach ofa specific provision of
this Agreement does not constitute a waiver of any 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 of the Parties.
10.7 Consultant Reoresentative. All matters under this Agreement shall be handled for
Consultant by Tom Braun ("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.
10.8 City Contract Administration. This Agreement shall be administered by a 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 ol City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
PROACTIVE ENGINEERING CONSULTANTS, INC.
Attn: Tom Braun
2OO S. MAIN STREET STE 3OO
CORONA, CA 92882
267 t/01t858-000t
7630316 2 a08/21 t19 -12-
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 for legal services
multiplied by the reasonable number ol hours spent by the prevailing Party in the conduct ofthe
litigation. The court may set such fees in the same action or in a separate action brought lor that
purpose.
Any written notice to City shall be sent to the Contract Administrator at:
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee. CA 92586
10.10 Prof'essional 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 of Registered Professional with report/design responsibility," as in the following
example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except 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 different times, ofany other rights or remedies for the same default
or any other default by the other Party.
10.12 Inteqration. This Agreement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either Party by reason ofthe authorship of
this Agreement or any other rule 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 of which together shall constitute one agreement.
10. 14 Execution of Contract. The persons executing this Agreement on behalf of each of
the Parties hereto represent and wanant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
167 t/011858-000 t
16tOJ762 8127 fi9
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Jonathan Smith, Public Works Director/City Engineer
- l3-
10.1 5 Nondiscrimination. Consultant covenants that. by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance ofthis Agreement
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.
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 pa(ies shall have any rights or obligations hereunder.
I 0. I 7 Nonliability of City Officers and Emoloyees. No officer, official, employee, agent,
representative. or volunteer ol City shall be personally liable to Consultant, or any successor in
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 of this 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 financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant, in connection with the award ofthis Agreement or any work to be conducted as a result
of this Agreement.
ISignatures on Following Page]
267 t/031858-0001
7610]76 2 a08/27/19
10. l9 No Benefit to Arise to Cit), Emoloyees. 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 hisftrer tenure or for one (l) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, lor the Services to be performed under this Agreement.
-14-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFEE CONST]LTANT
BiII Z
Attest:
Mayor Thomas E.S.- P.E.- Princioal
a-4niaft Prbs,rla4
S A.Citv Clerk
as to Form:
elchin Attomey
[trporak &@
J
[Corporation mus! have two signatures]
/le 5t / u h on QCc e' r, t 1'417, 7''
Alrernlt ) t
267tl0llE5E-000t
7630376 ). a08121119 -15-
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fgR@/rcTNE
t l6 r i a E a l t a G 0 t 3 u ( i l i I t
n I'Il.t.nt tnnl ot.atnpnnr
Certified Resolution
For Callfornla Corporations
l, Thomas E. 8raun, President ar!!lCorporate Secretary of Proactive Entineerint Consultants, lnc a
corporatron organized and existing under the laws of the State ot California (the 'company"), do he.eby
certily that the iollowinS is a true and correct copy ol a resolutlon duly adopted at a meeting ofthe
Board of Oirecto6 of the Company duly held and convened on luly 1, 2012, at which meetint a dulY
constituted quorum ot the Boaad o, Directors was present and actinS throu8hout, and thet such
resolution has not been modified, rescinded or revoked, and is at present in fullforce and effect:
RESOl,vE0r That Thomas E. Braun (also known as Tom Eraun), Preiident and Corporate
Secretary of Proactive Edgineering Consultants, lnc. is empowered and authorized to execute contracts
on beh.lfof the Company
lN wlTNESs wHEREOF, the undersigned hat affixed his si8nature this 1" day of ,ulY, 2012. The
Company has no corporate teal.
Authorizer, Thomas €. 8(aun
EXHIBIT A267rl03t858-0001
1630376-2
^08127119
EXHIBIT A
SCOPE OF SERVICES
Services include as-neededion-call Interim Assistant City Engineer Services as further detailed in
the following pages, in the not to exceed amount ol FIFTY THOUSAND DOLLARS AND
zERO CENTS ($50,000.00).
2671r03185E 0001
76101162 a08i27llt)
.,
PRopcTIVE
ENGINEERI]'IG CONSULTANTS
A different kind ol company
AUGUST 28, 2019
MR. JONATHAN SMITH
DIRECTOR OF PUBLIC IA/ORKS
CIry OF MENIFEE
29844 Haun Road
Menifee, CA, 92586
Re: PROPOSAL FOR lt{TERI ASS|STAI{T ClTy ENGTNEER SERVTCES
Thank you for the opportunity to present our qualilications for your consideralion
to serve you and the Ctty of Menife€ in lhe capacity of an lnterim Assistant City
Engineer for a maximum of 6-months. Our understanding is that you are looking
for an individual wilh strong municipal engineering background to manage the
engineering division of publicworks which consists of land developmonl, traffic and
transportation, Capital lmprovement Program planning, design, @nstruction
inspection and permitting.
As highlighted in the aftached resume, Ati EskaMari is a seasoned professional
with an extensive Public Wo*s management background, having served some of
the festest growing cities. Based on my understanding of the desired level of
service, she would be pleased to futfill all duties of the Assistant City Engineer on
an interim basis. Her sch€dule would enable her to work part{ime from aity Hall,
three days a week, for a total of 12 hours, and be available from our ofiice on as
needed basis, answering staff and management team questions, or review
pro.iects.
We pride ourselves in working seamlessly with City staff in an effective and
officient manner. Our main obiective is to build long-term client relationships by
providing a focused high-quality service to our clients.
fl zOo Sour, u.,n sr."r s-r.5fl,
fI r, ss,arorroo
/:_:_:-_."
J.
2671/031858{001
1610116 2 a08t21i19
Dear Jonathen:
PRffiTIVE
EIIGIiIEERIIIG COI{SULTANTII
A different kind or.ompany
Our standard hourly rata is as follow:
NAME & CLASSIFICATION HOURLY RATE
Ati Eskandari, P.E. - Associate $ 165
We are grateful for lhis opportunity to present our qualifications and look toMard
to serving you and the beautitul city of Menifee. lf selecled, we would futly comply
with the City's contract requirements and provide an exceptional service. Should
you have any queEtions, or need further informalion, please do not hesitate to
contact me at (951)280-3302
Eest Regads;
51.,,)
Tom Braun, M.S., P.E.
Principal
Proactive Engineering Consultants
ll zo<r s-rr' u* srd s',n :oo
Il r. es r rrro.rrooIl c,csrlta,ozn
// _.",,.._,"-"".-,....
-4-2671lot t858-0001
1630376-2 a08l27t19
PROrcTME
ATI ESKANOARI, PE, QSD
Ourlitlcrtion3:
Ati brings over 30 ye.rs ot Public Works and land dovelopment p.olecl drlivery exponence.
She has exleNive Public Ag€ncy cxperience. Her past expc ences includc aerving es an
lnterim City Engineer for the City ot Laguna Nigu€l & City of Lake Elsinorc. She scrved as the
City Engineer tor the City of Pomona in charF of Public Works & Utility Dcperlm€nt .ngins6ring
and construclion for ovor four yearu dslivering ov6r S6M in Water/Sewcr improvemont projects.
and ovar t32M in intsrcharEe and roadway improvemenls. She work€d for over 22 years al thc
City of Corona and was the AssBtant Public Wofts Oirector at her dcparlur!. While ssrving the
City of Corooa, she managrd the Land Devalopmenl, Sp€cial Proje€ts, and CFD Construclion
Districts. She recently compl€ted managing two lntGrchange lmprov.mcnts PA&ED and PS&E
for the City of Lake Elsinor€. Hsr drsign, dan{heck and projecuconstruclion managem€nt
experience enablg her to implemcnt Value Enginaering early on through the design procass.
Educltion:
Bachalor of SciEnc€ in Civil Enginsering - Wayne State Unive6ity, Michigan 198'l
Registration: Professional Civil Engineer, RCE * 63390
Public Wo7ts Program rnd Projcct Manrgomcnt Expariencg:
lntorim Caty Engin..r - City of Ltgun. Nigucl (Jan 20lsJuly 20'15)
Mrs. Eskandari served as an interim City Enginaer for the City of Laguna Niguel oveGeeing the
Cepital lmprovemenl, Land Development, Traffic, inspecition and permit seclion of Public Works
Oepartm€nt. She work€d closely with slafi and management leam to devrlop a land
development process and procgdurc. She updated the City's short-range and long-rsngo CIP
based on City's ne€ds and projec{ed tuoding availability. She assistod the City with tho
recruitment process of the permanent City Engineer
lnterim Clty Enginoor - City of L.ke Elsinoro (Sept 201s-April 20la)
Mrs. Eskandari served as an interim City Engineer for the City of Lake Elsinore overseeing the
day-today operation of the Land Development and Capital lmprovemert division of Public
Works Department She worked closely with Management stafi and oth€r departments. SIl€
assisted in securing regional funding for the PA&ED phase ot critical interchange projecl. She
evaluat6d th€ operational efficiency of the department, and established the shorl{ango and
long-range Capital improvement programming to meet the infrastructure nscds oflhe
Community.
Deputy Pubric Worts DitBctor/Cw Englna€.t - City ol Pomone, (Oct 2OlGJunG 2Or3)
Mrs. Eskandari served as the Doputy Public Works Director/City Engineer for the City of Pomona
leading th6 Capital lmprovemenl ProjBcl Delivery, Engineering, inspection, Traffic
Engin€ering/Operation. and Permit Division of Public Works Department with 20 staff msmbers and
annual operating and CIP budget ot S70M, reporting dareclly to the Public Works Direclor.
Und€rstanding the City Council. City Manager and the Public Work Director's goals/objeclives as
well as Department's limited regources due to recent budget cuts, she focused on improving the
26?l/01l85E{001
'1610316 2 aOA/21 l19 -5
RESUME - ATI ESKAN DARI, P.E,. QSD
PROACTIVE
Division's customcr service end projecl delivery by caretully assessing the resourcgs and pnoritics
of thc City and initiated the tollowtng stepg which improved dGpartmcr 's p(oductivity, accountability
and effciency. She impl.mentod iriordisciplinary QA/QC, constsuctabitity review during th6 d$ig;
proccas to reducG/sliminatc costly chan96 oders and improvBd the project d8livsry by
implementing th6 proj€ct manag€ment written procedure and approval process.
She aciively workcd closaly wrth CaltraN, Los Ang6l6s County Public Works Oept.. MTA, Los
Ang.l6 Flood Control DBt c1, and oth€r agencies to improrc multi-agenc"y vrorting
rolationypartn€ring, proiect lunding/schrduling.
D.puty Dincbr/Progr.m [reneg.r - Ciay of Coron , (Oct 200*May 2(nA)
Oepuly director in charg€ of Land Dcvelopmant, Spccial DEtricts. Stom Wat6r euality, Utility
Coordination, Flood Phin Managemsnt and lmpec{ion Diyision of PuHic Worb Department.
R6ponsibilitica induded rqviaw and approval of all land davelopmsnt proj€cts, inspeclion and
construction ovcr3iJht. Special Distrid projecl management and construction oversight.
C.mtno D.l Noda Alignmcnt St rcly A Fh.l De6,lgn (CW of Lrkc Elsinorc)
Projccl Managcr in chaE€ of elignment study and final cngineering design for 1.s{nilo master
planned roadway for ths City o, Lake Ebinore. Ths projccl scopo included a prelim. alignment
study, €nvironmenlal studass, hydrology/hydreulics, Watar & S6wer master planning, final
engineering and right-or-way mapping, and stakoholdar coordination with an estimated construclion
cost of $3 8.
Tomescal C.nWa Bddg. lmprcv.m.nE (City ol L.k6 Elslnota)
Projecl Managcr leading the efiort during the PA&ED approval of the Foposed realigned 4-lane
bridg€ over ths Tcmescal Wash, westedy of Lake Street. The existing Endge is subject to
flooding and has been rankad as functionally obsolota by Caltrans. The proposed project oncs
sonstructed would maot th6 cunant design requiremcnts. The project managoment
responsibilities included insuring poect Fedsral comptianc€ and obligating the required funds
for the design and consuuctron. Coordination with EVi,WO for the Utitity r6location6. On-goang
coordination with Resource Agencies and RCA for revisw and approval of the Habitjt
replacoment ratio and poposed proiecl impact to the MSHCP Conidor.
-6
R ES UME ATI ESKANDARI. P.E.. QSD. PM. Continued..
t-1a/Nain Si..t lntarch.nge lmproy,,rrn's (Ctty ol L,,ke ElslnoG)
Project Manager leading thG cffort for th! engineering d$ign seMcas cf Mein Stlceul-.ls
interchange improvlmsnts to handl€ tho City's buildout traffic volume. The Scop€ of work
includes drsign oversight, Caltrans and stekeholder's coordination during the PA&EO and
PS&E phasa of this project. Thc pIoj6ct con8trudion cost is estimated at $4.3 M. The scope oI
improvemenls includes widening the southbound and northbound exit ramps, widening of the
Main Street underpass by construdion ol retaining walls, widening the northbound enfance and
installation ol traffic signals.
2671/011858-0001
7630376 2 a08/27l19
PROACTIVE
Irirslon Blvd. .nd Slvll Gndc Scp,,ntion Prol.ct (CW ol Pomone)
Poccl Managor acting on bohalf ol th€ City overseeing the construction of $47M Grade
Separatbn Project by the City ol Pomona. The proiscl managomsnt responsibility for this projec{
3ta.t.d on Ocl 2010, while the projed was oxperioncing maior dslay3 due to unrosolved R/W and
drsign i$ues. ln order to r€solva projccl challengca, initiated tocus meetings with property
owncrs, dcsign angincer, and Caltrans Oistricl 7 to ,esolvo outstanding issurs As result of these
eflorls successfully brought the projlcl back on track by complBting p€nding R/w acquisitions
and transter ot required Ft/W from abutting property orm6rs and Caltrans Ostrict 7, wnich had
ca6ed major d6lay in consln ction schodul.. Loading the tsam by effeclively address design
modiUcations, projcct schedul€, cost control and maintaining cloEo coordination with Caltrans
Diltrict 7 environmental, design end lraftic oparation during the construdion stage. Establishod a
Dbputc Resolution Board, reviewod and negotiated contracto/s delay claims. provide prcreci
updat* lo the Cily Council and Co.nmunrty by holding quarterly Commuoity Meetings, and
Council prascntations Construction was completed by Aprit 2012 and accaptad by Catrans
District 7 for maintenance aod operation on May 2013.
-7-2671/03 t858-0001
1630316 2 a08t21 /19
RESUME - ATI ESKANDART. P.E.. OSO. pM. Continued.