2015/11/10 Bucknam Infrastructure Group, Inc. GIS System servicesCITY OF MENIFEE
PROFESSIONAL SERVICES AGREE]VI ENl'
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this I st day of July, 201 5 ("Effective Date") by and between the CITY OF MENIFEE, a California
municipal corporation, ("City") and BUCKNAM INFRASTRUCTURE GROUP. INC., a
(Califomia Corporation, S Corporation) ("Consultant"). City and Consultant may sometimes
herein be referred to individually as a "Party" and collectively as the "Parties."
SECTION I. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, 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 ol
Services. In the event ofa conflict in or inconsistency between the terms ofthis Agreement and
Exhibit A this Agreement shall prevail.
l.l Term of Services. The term ofthis Agreement shall begin on November 10, 2015
and shall end on November 1O,2Ol7 unless the term ofthis Agreement is otherwise terminated
or extended as provided for in Section 8. The time provided to Consultant to complete the
Services required by this Agreement shall not affect City's right to terminate this Agreement, as
provided for in Section 8.
1.2 Standard ofPerFormance. 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 perf,orm 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 satislaction ofthe
Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform the Services pursuant to Agre€ment. 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 ofCity, reassign such person or
persons.
1.4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfo Consultant's obligations
hereunder.
l()71 lrlI Nin i,!nl a2<0 SCA}iilE
/alo/s 3:t8
1.5 Authorization to Perform Services. Consultant is not authorized to perForm any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
SECTION 2. COMPINSATION.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information.
a. Serial identifications of progress bills; i.e., Progress Bill No. I for the first
invoice, etc.;
b. The beginning and ending dates ofthe billing period;
d. At City's option, for each item in each task, a copy ofthe applicable time
entries or time sheets shall be submitted showing the name of the person perlorming the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each enrployee, agent, and subcontractor of Consultant perForming the
Services hereunder necessary to complete the Services described in Exhibit A,
Receipts for expenses to be reimbursed,
lnvoices shall be submitted to
Citv of Menif'ee
Attn. Accounts Payable
29714 Haun Road
Menifee, CA 92586
2.2 Monthlv Pa],ment. City shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
f
IriTl ollSjSrrrrol
City hereby agrees to pay Consultant a sum not to exceed Sixty Thousand and 00/100
DOLLARS ($60,000.00) notwithstanding 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 ofa conflict between this Agreement and Exhibit A, regarding the amount
ofcompensation, this Agreement shallprevail. City shatl pay Consultant for the Services rendered
pursuant to this Agreement at the time and in the manner set forth herein. The payments specified
below shall be the only payments llom City to Consultant lor 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.
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;
The Consultant Representative' s signature.
shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Pavment. City shall pay the last five percent (5%) otthe total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City ofa final invoice, if all ofthe Services required have been satisfactorily performed.
2.1 Total Pavrnent. 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 lor any extra, further, or additional service pursuant to this Agreenlent.
ln no event shall Consultant submit any invoice f,or an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety ol the
Services performed 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.
2.7 Pavment of Taxes. Consul tant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes
2.8 Payment upon Termination. ln the event that City or Consultant terminates thrs
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and lor reimbursable
expenses as ofthe date ofwritten notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verifo costs and reimbursable expenses incurred to that date.
SEC'I'ION 3. FACILITIES AND EQTIIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perfbrm the services required by this Agreement. Citv 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 ofCity. 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 flcilities.
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
16?1 (l1ts it 0001
2.6 Reimbursable Exoenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
sEC'r-roN 4. TNSURANCE REQ[IRf,MENTS.
requirements of this section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant's compensation. Consultant shall not
allow any subcontractor, consultant or other agent to mmmence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereofto City. Verification ofthe required insurance shall be submitted and made pan
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other Insureds.
4.1 Workers' Comoensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability lnsurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe 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 ($1,000,000.00) disease per policy. ln the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only ifthe program of self-insurance complies
fully with the provisions of the California Labor Code. Determination of whether a self-insurance
program meets the standards ofthe California Labor Code shall be solely in the discretion ofthe
Contract Administrator. The insurer, if insurance is provided, or Consultant, ifa program olself-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers lor loss arising from the Services performed under this
Agreement.
1.2 Commercial General and tomobile Liability Insurance
Ceneral utrenl nt Consultant, at its own cost and expense, shalla
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($,l,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Sewices contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000 00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) productVcompleted operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising lrom bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use ofhired, owned, and non-owned automobiles.
b. Minimum scope ofcoverage. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional reouirements. Each ofthe following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
167l 0llt5u-0']ol
a. The insurance shall cover on an occurrence or an accident basis. and
not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions olthe
policy shall not affect coverage provided to City and its officers, employees, agents.
and volunteers.
a General requirements. Consultant , at its own cost and expense, shall
maintain for the period covered by this Agreement prof'essional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($ I,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 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 Services.
c. lf 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 ofthis Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement
orthe complelion ofthe Services. Such continuation coverage may be provided by
one of the following: (l) renewal ofthe existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroaclive date no later
than the commencement ofthe Services under this Agreement. City shall have the
right to exercise, at Consultant's sole cost and expense, any extended reporting
provisions ofthe policy, if Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
4.4 AllPOliciesRequirements
a. Acceotability 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.
t(r7trr)J t6altrxx) I
4.3 ProfessionalLiabilitylnsurance.
b. Insurance must be maintained and evidence of insurance must be
provided lor 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.
b. Verification ol coveraqe Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Cenificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies ofall
policies, including complete certified copies of all endorsements. All copies of policies and
certified 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 following reference: i)(l:lt('
ol'\lenil'ee's( itruide Plreurent \lenugt'nrent l'rogr;rr. The name and address for Additional
lnsured endorsements, Certificates of Insurance and Notice of Cancellation is: City of Menifee.
297 14 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 Reductio n in or Cancellation of Coveraqe. Consultant shall
provide written notice to City within ten (10) working days if: (l) any ofthe required insurance
policies is terminated; (2) the limits ofany ofthe required polices are reduced; or (3) the deductible
or self-insured retention is increased.
d. Additional insured: Drimary insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services performed by or on behalf of Consultanl,
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 Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope of protection afforded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
for one ( I ) year after the expiration or termination ofthis Agreement or completion ofthe Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
Deductibles and Self-insured Retentions. Consultant shall obtain the
C
e
written approval of City for the self-insured retentions and deductibles before beginning any ofthe
Services.
f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements lor each
167l 0l tsaE{001
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 lor subcontractors shall be subject to all ofthe requirements stated
herein.
S 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 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 amounl. of the premiums
fbr such insurance from any sums due under this Agreement,
c
SI,CTION 5. INDEMNIFICAT'ION.
5.1 Indemnification for Prqftssional Liabilitv. Where the law establishes a
professional standard of care for performance of 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 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 ofany 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 fbr Other ,lruo rrnl'essional Liabilitv. Other than in the
pertbrmance 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 fiom 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 perlormance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to olficers, agents, employees or
subcontractors of Consultant.
167l:r)llsiri-r)rx,1
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both sop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof, and/or
Terminate this Agreement.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to
claims occurring as a result of City's sole or active negligence. The provisions of this Section 5
shall not release City from liability arising from gross negligence or willful acts or omissions of
City or any and all otits offrcers, officials. employees, and agents acting in an officia[ capacity
SECTION 6. STATTIS OF CONST]LTANT.
6. 1 lndependent Contractor. At all times during the term ofthis Agreement, Consultant
shall be an independent contractor and shall not be an employee ofCity. 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 perlorming the Services under this
Agreement on behalf ofConsultant shall at all times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its offrcers,
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 for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
quatify for or become entitled to any compensatioq benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the Califomia 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 RI]QUIREMENTS.
7 I Governing Law. The laws of the State of Calitbrnia shall govern this Agreement
7 .2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the perlormance 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
subcontractors. lt is understood that it is the responsibility of Consultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the California Department of
Industrial Relations C'DIR") pursuant to California Public Utilities Code, Sections 465,466, and
467 by calfing 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, offrcials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damage, cost or expenses (including but not limited to
1671,Oil lti!trnr)l
reasonable attomeys'fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any
party performing the Services ofany applicable local, state, and/or 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 ofSection
l78l of the Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) faiture by Consultant or any party performing the Services to provide any required
disclosure or identification as required by Labor Code Section 1781, as the same may be amended
from time to time. or any other similar law. It is agreed by the Parties that, in connection with
performance of the 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 California law and/or the implementation of Labor Code Section I 78 I , as the same may be
amended fiom time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same ofall subcontractors.
7.3 Licenses and Pernrits. Consultant represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all Iicenses, 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 ol
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions Inaddition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term of this Agreement valid Business Licenses fiom City.
SECTION 8. TERMINATION AND MODTFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon
written notifi cation to Consultanl.
8.2 Termination bv Consultant Consultant may cancel this Agreement upon 30 days'
written notice to Citv
8.3 Conseouences of Termination. In the event ol termination, Consultant shall be
entitled to compensation for the Services performed up to the date of termination; City, however,
may condition payment of such compensation upon Consultant delivering to City any or all
documents, photographs, computer software, video and audio tapes. and other materials provided
to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection l.l. Any such ertension shall require a
written amendment to this Agreement, as provided lor 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
t67l,r)lI lti8!00I
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
lor any otherwise reimbursable expenses incurred during the extension period.
85
all the Parties
Amendments. The Parties may amend this Agreement only by a writing signed by
8.6 Assi ent and S tn 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 fbr entering into this Agreement was and is the
prolessional reputation and competence ofConsultant. 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 perlormance contemplated and provided for herein. other
than to the subcontractors noted in Consultant's proposal, without prior written approval ol the
Contract Administrator. In the event that key personnel leave Consultant's employ, Consultant
shall notifu City immediately.
8.7 Survival. A-ll obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any ofthe
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
lollowing:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepard by Consultant pursuant to this Agreement;
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.
SEC'IION 9. KEEPING AND STATUS O['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,
tiles, or any other documents or materials, in electronic or any other form that Consultant prepares
or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property of City. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement. It is understood and agreed that the documents and other
materials. including but not limited to those described above, prepared pursuant to this Agreement
are prepared specifically for City and are not necessarily suitable for any future or other use. Any
use of such documents for other projects by City shall be without liability to Consultant. City and
Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
ofboth Parties unless required by law.
9.2 Licensins of lntellectual 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
ol authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and
Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and 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 ofthe Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
9.3 Consultant's Books and Records. Consultant shall maintain 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 ofthree (3) years, or for any longer period required by law, from
the date offinal 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.
9.4 lnspection and Audit of Records. Any records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, ifthe amount ofpublic funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit ofthe State Auditor, at the request of City or as part ofany
audit of City, lor a period olthree (3) years after final payment under this Agreement.
SECTION IO.M ISCELLANEOUS PROVISIONS.
l0.l Attornevs' Fees. IIeither Party to this Agreement brings any action, including an
action tbr declaratory reliel to enforce or interpret the provision ofthis Agreement, the prevailing
Party shall be entitled to reasonable attorneys' lees and expenses including costs. in addition to
any other reliefto 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
rnultiplied by the reasonable number of hours spent by the prevailing Party in the conduct ofthe
litigation. The court may set such lees in the same action or in a separate action brought for that
purpose
lO.2 Applicable Law: Venue. The internal laws of the State of Califbrnia shall govern
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. Ifany provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.4 Section Headin ss 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 of any breach of a specific provision of
this Agreement does not constitute a waiver ofany other breach ofthat term or any other term of
this Agreement.
10.6 Successors and Assigns. The provisions ofthis Agreement shall inure to the benefit
oland shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant ReDresentative. All matters under this Agreement shall be handled for
Consultant by Mr. Peter Bucknam ("Consultant's Representative") The Consultant's
Representative shall have full authority to represent and act on behalfofConsultant 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 Citv Contract Administration This Agreement shall be administered by a City
employee, Derek Williamson ("Contract Administratol'). All correspondence shall be directed to
or through the Contract Administrator or his designee. The Contract Administrator shall have the
power to act on behalfof 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
Mr. Peter Bucknam
Project Manager / President
Bucknam Infiastructure Group, lnc
3548 Seagate Way, Suite 230
Oceanside, CA 92056
Any written notice to City shall be sent to the Contract Administrator at
City of Menifee
29714 Haun Road
Menifee. CA 92586
Attn: Derek Williamson
City Clerk
City of Menifee
29714 Haun Road
Menifee, CA 92586
10. l0 Professional Seal Where applicable in the determination of the Contract
Administrator, the first page ofa technical report, first page ofdesign specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the reporUdesign 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.
l0.ll Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies ofthe 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. l2 Intesration. This Agreement, including the scope of services attached hereto and
incorporated herein as Exhibit A" represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terrns 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. l4 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 ofthis Agreement, and
(iv) that entering into this Agreement does not violate any provision ofany other Agreement to
which said Party is bound.
167Lrr)31s58-'r(I I
with a copy to.
I 0. I 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 ol any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
I 0. l6 No Third Party Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
10.l7 Nonliabilitv of Citv Offrcers and Emolovees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor ln
interest, in the event ofany default or breach by City or for any amount which may become due to
Consultant or to its successor, or for breach ofany obligation ofthe terms ofthis Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation of,this Agreement, including any method ofcoercion, confidential
flnancial arrangement, or financial inducement. No oflicer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or fiom any oflicer, employee, or agent ol
Consultant, in connection with the award ofthis Agreement or any work to be conducted as a result
of this Agreement.
10. I 9 No Benefit to Arise to Citv Emolovees. 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 hiVher tenure or for one ( I ) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
ISignatures on Following Page]
taTl rr. Si8,o(I]l
IN WITNESS WHEREOF. the Parties hereto have executed and entered into this
Agreement as the Eflective Date
CITY OF CONSULI'ANT
Scott A. Mann, Mayor
Attest:
Peter B Presi
K_
Kathy Bennett, City Clerk
Ap to Forml
Je T ching, City
ONt-P"t"'ffitr;'s""'"dt
fNote' 2 ofTicer's signatures required il
Consultant is a corporation]
EXHTBIT A
SCOPE OF SERVICES
Total Services not to exceed $60,000.00 as follows.
1. Base services per attached "Proposal lor the Update of Menifee's Citywide Pavement
Management Program," not to exceed $52,917.000.
2. Additional work at agreed price or on a Time and Materials basis per attached rate sheet
not to exceed $7,083.00. Work only to be perlormed with prior written authorization ftom
the City of Menifee. Markup shall not exceed 57o.
lr!71 l)j I ljiS olx rl
EXHIBIT A