2023/12/05 Michael Baker International, Inc. MASTER AGREEMENT FOR PROFESSIONAL ON CALL ENVIRONMENTAL AND PLANNING CONSULTING SERVICES
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CITY OF MENIFEE
MASTER AGREEMENT FOR PROFESSIONAL ON CALL ENVIRONMENTAL AND
PLANNING CONSULTING SERVICES
THIS MASTER AGREEMENT FOR PROFESSIONAL CEQA SERVICES
(“Agreement”) is made and effective this ______ day of __________, 2023 (“Effective Date”) by
and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and
MICHAEL BAKER INTERNATIONAL, INC., a Pennsylvania Corporation (“Consultant”).
City and Consultant may sometimes herein be referred to individually as a “Party” and collectively
as the “Parties.”
SECTION 1. GENERAL PROVISIONS.
1.1 Purpose. As a municipal entity, the City is required to fully comply with the
California Environmental Quality Act (Pub. Res. Code, § 21000 et seq.) (CEQA), which applies to certain
projects in the City, including to privately funded development projects. The City Council approved
Resolution No. 21-1073, which authorized the City Manager to execute agreements with approved
environmental firms to provide on-call environmental and planning consulting services for privately
funded development projects, including for CEQA services (“CEQA Services”). The purpose of this
Agreement is to designate Consultant as an approved environmental firm that may receive purchase orders
for CEQA Services from the City Manager, subject to the terms and conditions herein (each a “Purchase
Order”).
1.2 No Guaranteed Work. The Parties acknowledge that this Agreement serves as a
master services agreement to establish Consultant as an approved environmental firm which may perform
CEQA Services for the City pursuant to Purchase Order(s) issued in the discretion of the City Manager.
This Agreement does not guarantee that Consultant will be issued any work from City, or any particular
amount of work, including for CEQA Services. By entering into this Agreement Consultant is obtaining
the ability to receive Purchase Orders from the City Manager, and the City is obtaining the ability to issue
Purchase Orders without a requirement for subsequent City Council approval.
1.3 Term The term of this Agreement shall begin on July 1, 2023 and shall end on June
30, 2025, unless otherwise terminated or extended by the Parties pursuant to the terms of this Agreement.
1.4 Termination. The City may terminate this Agreement at any time without cause by
providing written notice to Consultant. The City may terminate this Agreement without cause for any
reason, including but not limited to the lack of budget allocation for or the revocation or modification of
Resolution No. 21-1073. In the event that either Party materially defaults on any of its obligations under
this Agreement, the non-defaulting Party shall provide written notice of such default and the defaulting
party shall have no less than ten (10) business days from receipt of notice to cure such default. Should
the defaulting Party fail to cure within the time period, the non-defaulting Party may terminate this
Agreement for cause upon written notice.
1.5 Contract Administrator. Molly Binnall, Management Analyst (“Contract
Administrator”) is the City’s primary contact representative for the purposes of this Agreement.
Consultant shall contact the Contract Administrator for all communications related to this Agreement.
City may change the Contract Administrator upon written notification to Consultant. Unless otherwise
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provided in this Agreement, Consultant shall not accept direction or orders from any person other than the
Contract Administrator or designee.
1.6 Consultant Representative. Alicia E Gonzalez, Senior Associate, is Consultant’s
primary contact representative for the purposes of this Agreement. City shall contact the Consultant
Representative for all communications related to this Agreement. Consultant may change the Consultant
Representative upon written notification to City. Consultant’s Representative shall have full authority to
represent and act on behalf of Consultant for all purposes under this Agreement.
1.7 Notices. Any written notice to Consultant shall be sent to:
MICHAEL BAKER INTERNATIONAL, INC.
Attn: Alicia E Gonzalez, Senior Associate
40810 County Center Dr, Suite 100
Temecula, CA 92591
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Molly Binnall, Management Analyst
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
SECTION 2. SERVICES.
2.1 Purchase Orders. Consultant agrees to furnish CEQA Services pursuant to
Purchase Order(s) issued by the City Manager in the form attached hereto as Exhibit “A” which is attached
hereto and incorporated herein by this reference. In no event shall compensation for CEQA Services
exceed the “not to exceed” compensation amount set forth in the Purchase Order.
2.2 Standard of Performance. Consultant represents that Consultant is a provider of
work and services contemplated under this Agreement and Consultant is experienced in performing the
CEQA Services contemplated herein and, in light of such status and experience, Consultant shall perform
the CEQA 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 (“Standard of Performance”).
2.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform the CEQA Services. In the event that City, in its reasonable discretion, at any time during the
term of this Agreement, desires the reassignment of any such persons, because it reasonably believe such
person is a threat to the safety of the project or personnel, is unable to perform to the Standard of
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Performance, or otherwise threatens the timely completion of the services, Consultant shall, as soon as
practicable upon receiving notice from City of such desire of City, reassign such person or persons.
2.4 Time. Consultant shall devote such time to the performance of the CEQA Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations hereunder.
2.5 Authorization to Perform Services. Consultant is not authorized to perform any of
the CEQA Services or incur any costs whatsoever under the terms of this Agreement until receipt of a
Purchase Order.
2.6 Representation. By executing this Agreement, Consultant represents that
Consultant has thoroughly investigated and considered the CEQA Services, has considered how they
should be performed, and fully understands the facilities, difficulties, and restrictions applicable to
performance of the CEQA Services.
2.7 Facilities and Equipment. Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the CEQA Services. 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 furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
SECTION 3. COMPENSATION.
3.1 Not to Exceed Compensation. Consultant shall be compensated for the CEQA
Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no
event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein.
Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule,
attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”). The
compensation set forth in the Purchase Order represents total compensation payable to Consultant without
limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in
performance of the Purchase Order.
3.2 Invoicing. Upon completion of a Purchase Order, or monthly for Purchase Orders
involving CEQA Services performed over periods of longer than one (1) month, Consultant shall submit
invoices to City based on the CEQA Services performed and any reimbursable expenses approved by City
in writing. Invoices shall comply with the City’s “Invoicing Requirements” attached as Exhibit “C” hereto
and incorporated herein by this reference, and shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for
the first invoice, etc.;
b. The beginning and ending dates of the billing period;
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c. A “Task Summary” containing the original Purchase Order amount,
the amount of prior billings, the total due this period, the balance available under the Purchase
Order, 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
CEQA Services, the hours spent by each person, a brief description of the CEQA 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 performing the CEQA
Services;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
h. Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
3.3 Payment. City shall have thirty (30) days from the receipt of an invoice that
complies with all of the requirements above to pay Consultant.
3.4 Payment Holds. City may withhold payment of any invoice for CEQA Services
not performed in accordance with the Standard of Performance until such CEQA Services are performed
in accordance with the Standard of Performance at no extra cost to City. City may hold payments
reasonably in dispute under this Agreement until resolution of the dispute.
3.5 Payment of Taxes. Consultant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
3.6 Payment Upon Termination. In the event City or Consultant terminates this
Agreement, City shall compensate Consultant for all outstanding costs and reimbursable expenses
incurred for CEQA Services completed in accordance with the Standard of Performance and for
preapproved reimbursable expenses as of the date of written notice of termination. Consultant shall
maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that
date. City may condition payment of such compensation upon Consultant delivering to City any or all
documents, photographs, computer software, video and audio tapes, and other materials provided to
Consultant or prepared by or for Consultant or City in connection with this Agreement.
SECTION 4. INDEMNIFICATION.
4.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of this Agreement, to the fullest extent permitted by law,
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Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and
any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims,
losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under
statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind
(including reasonable consultant and 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 of professional services under this Agreement.
4.2 Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant shall indemnify,
protect, 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.
4.3 Limitation of Indemnification for Design Professionals. Notwithstanding any
provision of this Section 4 to the contrary, design professionals, as that term is defined in Civil Code
Section 2782.8, are required to defend and indemnify City only to the extent permitted by Civil Code
Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed
architects, licensed landscape architects, registered professional engineers, professional land surveyors,
and the business entities that offer such services in accordance with the applicable provisions of the
California Business and Professions Code. This Subsection 4.3 shall only apply to Consultant if
Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
4.4 Limitation of Indemnification. The provisions of this Section 4 do not apply to
claims occurring as a result of City’s sole or active negligence or other wrongdoing. The provisions of
this Section 4 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.
4.5 Legal Requirements Related to Indemnification. If any applicable law would
render any of the requirements of this Section 4 void or unenforceable, the requirements hereunder shall
be construed to the greatest scope and applicability permitted by applicable law.
SECTION 5. INSURANCE.
5.1 Insurance Required. As a condition of entering into this Agreement, Consultant, at
its own cost and expense, shall procure the types and amounts of insurance specified below. Verification
of the required insurance shall be submitted and made part of this Agreement prior to execution.
Consultant acknowledges the insurance policy must cover inter-insured suits between City and other
insureds.
a. Workers’ Compensation. Consultant shall, at its sole cost and
expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability
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Insurance for any and all persons employed directly or indirectly by Consultant pursuant to the
provisions of the California 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 ($1,000,000.00) disease
per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the
alternative, Consultant may rely on a self-insurance program to meet those requirements, but only
if the program of self-insurance complies fully with the provisions of the California Labor Code.
Determination of whether a self-insurance program meets the standards of the California Labor
Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is
provided, or Consultant, if a program of self-insurance is provided, shall waive all rights of
subrogation against City and its officers, officials, employees, and authorized volunteers for loss
arising from the CEQA Services performed under this Agreement.
b. Commercial General and Automobile Liability Insurance.
i) 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 CEQA Services
contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate,
and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a
Commercial General Liability Insurance or an Automobile Liability Insurance form or other form
with a general aggregate limit is used, either the general aggregate limit shall apply separately to
the CEQA 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 CEQA Services contemplated under this
Agreement, including the use of hired, owned, and non-owned automobiles.
ii) Minimum scope of coverage. Commercial general coverage
shall be at least as broad as Insurance Services Office Commercial General Liability occurrence
form CG 0001. Automobile coverage shall 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.
iii) Additional requirements. Each of the following shall be
included in the insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an
accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting
provisions of the policy shall not affect coverage provided to City and its officers, employees,
agents, and volunteers.
c. Professional Liability Insurance.
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i) General 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 CEQA 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
ii) Claims-made limitations. The following provisions shall
apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and
must be no later than the commencement of the CEQA 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 CEQA 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 of the CEQA
Services. Such continuation coverage may be provided by one of the following: (1) renewal of
the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance
with a retroactive date no later than the commencement of the CEQA 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, if Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be
submitted to City prior to the commencement of the CEQA Services under this Agreement.
5.2 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 California.
5.3 Continuation of Insurance. Consultant shall maintain the insurance policies
required by this Section throughout the term of this Agreement.
5.4 Additional Insured. City must be endorsed as an additional insured on Consultant’s
Automobile and Commercial General Liability policies. City and its officers, employees, agents, and
authorized volunteers shall be covered as additional insureds, on the Automobile and Commercial General
Liability policies with respect to each of the following: liability arising out of the CEQA Services
performed 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 Consultant in the course of providing the CEQA
Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance
provided to City as an additional insured must apply on a primary and non-contributory basis with respect
to any insurance or self-insurance program maintained by City. Additional insured status shall continue
for one (1) year after the expiration or termination of this Agreement or completion of the CEQA Services.
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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.
5.5 Subcontractors’ Insurance. Consultant shall not allow any subcontractor,
consultant or other agent to commence work on any subcontract pursuant to this Agreement until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence
thereof to City.
5.6 RESERVED
5.7 Verification of Coverage. Prior to execution of this Agreement, Consultant shall
furnish City with standard ACORD certificates of insurance evidencing coverages required hereunder.
All copies of certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The name and address for endorsements and other insurance related matters is:
City of Menifee, 29844 Haun Road, Menifee, CA 92586.
5.8 Notice of Reduction in or Cancellation of Coverage. 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 of any of the required polices are reduced; or (3) the deductible or self insured
retention is increased.
5.9 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 of such insurance are either not commercially available, or that City’s interests are
otherwise fully protected. The Contractor Administrator shall approve in writing the submission of
certificates of insurance in lieu of policy copies, in which case the Certificate of Insurance must include
the following reference: City of Menifee: Master Agreement for Professional On Call Environmental
and Planning Services.
5.10 Remedies. In addition to any other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and
within the time herein required, City may, at its sole option, exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or 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
c. Terminate this Agreement.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during 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
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only insofar as the results of the CEQA Services and assignment of personnel pursuant to Section
2.3; however, otherwise City shall not have the right to control the means by which Consultant
accomplishes the CEQA Services. The personnel performing the CEQA Services on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant
shall not at any time or in any manner represent that it is or any of its officers, employees, or agents
are 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 Purchase Orders, City shall not pay
salaries, wages, or other compensation to Consultant for performing CEQA Services. City shall
not be liable for compensation or indemnification to Consultant for injury or sickness arising out
of performing CEQA Services due to no fault of City. 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 qualify
for or become entitled to any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in the 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.
7.1 Compliance 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 under this Agreement unless such person is properly documented and legally entitled
to be employed within the United States. 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 of all subcontractors.
7.2 Prevailing Wages. The Parties have determined that prevailing wage laws do not
apply to this Agreement because the CEQA Services do not include construction, alteration, demolition,
installation, or repair work or are otherwise exempt under California’s prevailing wage laws (Lab. Code,
§ 1720 et seq.). Notwithstanding the foregoing, it is agreed by the Parties that, in connection with
performance of this Agreement, including, without limitation, any and all public works (as defined by
applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under
California law and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be
amended from time to time, and/or any other similar law. Section 4, Indemnification, specifically
encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party
performing CEQA Services of any applicable local, state, and/or federal law, including, without limitation,
any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state
prevailing wages and hire apprentices); (ii) the implementation of Labor Code Sections 1726 and 1781,
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 under this Agreement to provide any required disclosure or identification as
required by Labor Code Section 1781, as the same may be amended from time to time, and/or any other
similar law.
7.3 Licenses and Permits, Fees and Assessments. Consultant represents to City that
Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications,
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and approvals of whatsoever nature that are legally required to practice their respective professions, and
perform the CEQA Services. Consultant represents, 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, and perform the CEQA Services. In addition to the foregoing, Consultant and any
subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from
City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable
penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s
performance of the CEQA Services, and shall indemnify, defend and hold harmless City, its officers,
employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied,
assessed, or imposed against City hereunder.
7.4 Conflicts of Interest, Political Reform Act. Consultant represents, warrants, and
covenants that Consultant presently has no interest, direct or indirect, which would interfere with or impair
in any manner or degree the performance of Consultant’s obligations and responsibilities under this
Agreement. Consultant further agrees that while this Agreement is in effect, Consultant shall not acquire
or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or
degree the performance of Consultant’s obligations and responsibilities under this Agreement. Consultant
acknowledges that pursuant to the provisions of the Political Reform Act (Government Code
Section 87100 et seq.), City may determine the Consultant to be a “consultant” as that term is defined by
2 California Code of Regulations Section 18700.3. In the event City makes such a determination,
Consultant agrees to complete and file a “Statement of Economic Interest” with the City Clerk to disclose
such financial interests as required by City. In such event, Consultant further agrees to require any other
person doing work under this Agreement to complete and file a “Statement of Economic Interest” to
disclose such other person’s financial interests as required by City.
7.5 Amendments. The Parties may amend this Agreement and/or any Purchase Order
only by a writing signed by all the Parties. The City Manager shall have the authority to execute
amendments to this Agreement and any Purchase Order which extend the time for performance or modify
the CEQA Services to be provided. Extensions of the time for performance of CEQA Services does not
entitle Consultant to additional compensation to the compensation initially provided in the applicable
Purchase Order.
7.6 Assignment and Subcontracting. 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. Neither Party may assign this Agreement or any interest therein without the
prior written approval of the other Party. Consultant shall not subcontract any portion of the performance
contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal,
without prior written approval of the Contract Administrator. In the event that key personnel leave
Consultant’s employ, Consultant shall notify City as soon as practicable.
7.7 Options upon Breach by Consultant. If Consultant materially breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following:
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a. Immediately terminate this Agreement, provided, however such
notice and cure period requirements under Section 1.3 have been fulfilled;
b. Following Consultant’s receipt of final payment, retain the plans,
specifications, drawings, reports, design documents, and any other work product prepared by
Consultant pursuant to this Agreement, provided, however, that City use or reliance upon any of
Consultant’s unfinished, incomplete, or unverified work shall be at City’s sole risk and without
liability or exposure to Consultant;
c. Retain a different consultant to complete the CEQA Services; and/or
d. Charge Consultant the difference between the cost to complete the
CEQA Services described in the relevant Purchase Order that is unfinished at the time of breach
and the amount that City would have paid Consultant pursuant to Section 3 if Consultant had
completed the CEQA Services.
SECTION 8. KEEPING AND STATUS OF RECORDS.
8.1 Records Created as Part of Consultant’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 Consultant prepares
exclusively or obtains exclusively pursuant to this Agreement and that relate to the matters covered
hereunder shall be the property of City following Consultant’s receipt of final payment. Consultant
hereby agrees to deliver those documents to City upon the expiration or termination of this
Agreement and following Consultant’s receipt of final payment. It is understood and agreed that
the documents and other materials, including but not limited to those described above, prepared
pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for
any future or other use. Any use of such documents for other projects by City shall be without
liability to Consultant and City shall indemnify and hold harmless Consultant from all claims,
damages, losses, and expenses, including reasonable attorneys’ fees, arising out of or resulting
therefrom. City and Consultant 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 of both Parties unless required by law. Nothing herein shall
be construed to grant ownership or any other rights to City of any of Consultant’s pre-existing
and/or background Intellectual Property or of any information, data, or property that was in
Consultant’s possession prior to the execution of this Agreement.
8.2 Licensing of Intellectual Property. Upon Consultant’s receipt of final payment, this
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense
any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other
documents or works of authorship fixed in any tangible medium of expression, including but not limited
to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium,
which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”).
Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and
perpetual license for any Documents and Data the subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any and all Documents
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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 and City shall indemnify
and hold harmless Consultant from all claims, damages, losses, and expenses, including reasonable
attorneys’ fees, arising out of or resulting therefrom.
8.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers,
books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges or expenditures and disbursements charged to City for CEQA Services under this
Agreement, if any for a minimum of three (3) years, or for any longer period required by law, from the
date of final payment to Consultant under this Agreement. All such records shall be maintained in
accordance with generally accepted accounting principles and shall be clearly identified and readily
accessible.
8.4 Inspection and Audit of Records. Any records or documents that Section 8.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or
copying at any time during regular business hours, upon oral or written request of City. Under California
Government 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 of three (3) years
after final payment under this Agreement.
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 Attorneys’ Fees. If either Party 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 attorneys’ fees and expenses including costs, in addition to any other relief
to which that Party may be entitled; provided, however, that the attorneys’ fees awarded pursuant to this
Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable
number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees
in the same action or in a separate action brought for that purpose.
9.2 Applicable Law, Venue. The laws of the State of California shall govern 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.
9.3 Severability. If any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in
full force and effect.
9.4 Section Headings and Subheadings. 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.
9.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term,
condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or
covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a
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waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this
Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of
any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by
a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any
waiver by either Party of any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of this Agreement.
9.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit
of and shall apply to and bind the successors and assigns of the Parties.
9.7 Rights and Remedies. 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, of any other rights or remedies for the same default or any other default by
the other Party.
9.8 Integration. This Agreement, including the Exhibits attached hereto, represents the
entire and integrated agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against either Party
by reason of the authorship of this Agreement or any other rule of construction which might otherwise
apply. In the event of a conflict between this Agreement and any of the Exhibits, this Agreement shall
control.
9.9 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.
9.10 Execution of Contract. The persons executing this Agreement on behalf of each of
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this
Agreement, such Party is 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.
9.11 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance of this Agreement there
shall be no discrimination against or segregation of, any person or group of persons on account of any
impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status,
sexual orientation, national origin, or ancestry.
9.12 No Third Party Beneficiaries. There are no intended third-party beneficiaries under
this Agreement and no such other third parties shall have any rights or obligations hereunder.
9.13 Nonliability of City Officers and Employees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest,
in the event of any default or breach by City or for any amount which may become due to Consultant or
to its successor, or for breach of any obligation of the terms of this Agreement.
9.14 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,
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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 of this Agreement or any work to be conducted as a result of this Agreement.
9.15 No Benefit to Arise to City Employees. No member, officer, or employee of City,
or their designees or agents, and no public official who exercises authority over or has responsibilities
with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest,
direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for any CEQA Services
performed hereunder.
9.16 ESTIMATES. Any estimates provided for cost of construction, financing, and
acquisition of land and rights-of-way shall be made in accordance with good engineering practice and
procedure. It is understood, however, that Consultant has no control over construction costs, competitive
bidding and market conditions, nor over costs of financing, acquisition of land or rights-of-way, and
Consultant does not guarantee the accuracy of such cost estimates as compared to actual cost or
contractors’ bids.
9.17 WAIVER OF CONSEQUENTIAL DAMAGES. In no event shall either
Consultant or the City have any claim or right against the other, whether in contract, warranty, tort
(including negligence), strict liability or otherwise, for any special, indirect, incidental, or consequential
damages or any kind or nature whatsoever, such as but not limited to loss of revenue, loss of profits on
revenue, loss of customers or contracts, loss of use of equipment or loss of data, work interruption,
increased cost of work or cost of any financing, howsoever caused, even if same were reasonably
foreseeable.
9.18 FORCE MAJEURE. In no event shall either Party have any claim or right against
the other for any failure of performance where such failure of performance is caused by or is the result of
causes beyond the reasonable control of the other party due to any occurrence commonly known as a
“force majeure,” including, but not limited to: acts of God; fire, flood, or other natural catastrophe; acts
of any governmental body; labor dispute or shortage; national emergency; insurrection; riot; or war.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
_______
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Christopher Alberts, PLS., Vice President/Office
Executive
Dawn L. Wilson, Vice President/Office Executive
[Note: 2 officer’s signatures required if Consultant
is a corporation, unless provided with a certificate
of secretary in-lieu]
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EXHIBIT A.
EXHIBIT A
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth
herein are guaranteed for any particular CEQA Services. The fields of each Purchase Order will
vary based on the CEQA Services required.
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18627215.8 a06/29/23 EXHIBIT B.
EXHIBIT B
RATE SCHEDULE
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18627215.8 a06/29/23 EXHIBIT B
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18627215.8 a06/29/23 EXHIBIT B
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18627215.8 a06/29/23 EXHIBIT B
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18627215.8 a06/29/23 EXHIBIT C.
EXHIBIT C
INVOICING REQUIREMENTS
As a government agency, the City of Menifee is responsible for monitoring all executed contract expenditures to ensure
all expenses are within the approved contract budget, as well as monitor all work completed to ensure the scope of work
requirements are being met on the approved contract timeline. At any time, project developers may request to view the
invoices for their project and ask questions of City staff for items billed. To assist City staff and project developers,
several items will be required to be submitted with each invoice in order to clearly and concisely standardize the
information presented on all invoices provided by contracted consultants.
Details of the contract fiscal information are to be presented within each invoice as a chart. This chart will have all tasks
listed with task numbers/sub-numbers, the amount due on the current invoice for each task, the amount that was
previously charged to each task, and the total amount billed to each task, as in the example below:
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18627215.8 a06/29/23 EXHIBIT C
In addition, a full work detail will be included in each invoice. This detail will identify the name and title of the person
who conducted the work, the task number/sub-number that was worked on, specific duties completed, date of work,
number of hours, cost per hour, and total amount due, as in the example below:
These details will be required on all future invoices submitted.
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