2024/03/06 Granite Construction Company Contract Services Agreement - Romoland Grid Area - 3RD Street - ATP Project2905/031858-0001
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CITY OF MENIFEE
CONTRACT SERVICES AGREEMENT
ROMOLAND GRID AREA - 3RD STREET - ATP PROJECT
THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this
_________ day of ___________, 2024 by and between the CITY OF MENIFEE, a California
municipal corporation, (“City”) and GRANITE CONSTRUCTION COMPANY, a C-
Corporation (“Contractor”). City and Contractor are sometimes hereinafter individually referred
to as “Party” and hereinafter collectively referred to as the “Parties”.
City sought, by issuance of a Request for Proposals or Invitation for Bids, for the
performance of the services defined and described particularly in this Agreement. Contractor,
following submission of a proposal or bid for the performance of the services defined and
described particularly in this Agreement, was selected by City to perform those services. Pursuant
to the City of Menifee’s Municipal Code, City has authority to enter into this Agreement and the
City Manager has authority to execute this Agreement. The Parties desire to formalize the
selection of Contractor for performance of those services defined and described particularly in this
Agreement and desire that the terms of that performance be as particularly defined and described
herein.
SECTION 1. SERVICES.
1.1 Scope of Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to City the services described in the Scope of Services, attached hereto as
Exhibit B, “Scope of Services” and incorporated herein by this reference (the “Services”).
Contractor will perform subsequent task orders as requested by the Contract Administrator (as
defined below), in accordance with the Scope of Services. The Scope of Services incorporates
Contractor’s scope of work or bid for the Services. In the event of a conflict in or inconsistency
between the terms of this Agreement and Exhibit B, this Agreement shall prevail.
1.2 Term of Services. The term of this Agreement shall begin on March 6, 2024.
Unless earlier terminated in accordance with Section 8 of this Agreement, this Agreement shall
continue in full force and effect until final written approval and acceptance of the work performed
under this Agreement by the Contract Administrator. The time provided to Contractor to complete
the Services required by this Agreement shall not affect City’s right to terminate this Agreement,
as provided for in Section 8.
1.3 Standard of Performance.
a. Quality of Work. As a material inducement to City entering into this
Agreement, Contractor represents and warrants that it has the qualifications, experience, and
facilities necessary to properly perform the Services required under this Agreement in a thorough,
competent, and professional manner, and is experienced in performing the Services contemplated
herein. Contractor shall at all times faithfully, competently, and to the best of its ability,
experience, and talent, perform all Services described herein. Contractor covenants that it shall
follow the highest professional standards in performing the Services required hereunder and that
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all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement,
the phrase “highest professional standards” shall mean those standards of practice recognized by
one or more first-class firms performing similar work under similar circumstances, and to the sole
satisfaction of the Contract Administrator.
b. Care of Work. Contractor shall adopt reasonable methods during the term
of this Agreement to furnish continuous protection to the Services, and the equipment, materials,
papers, documents, plans, studies, and/or other components thereof to prevent losses or damages,
and shall be responsible for all such damages, to persons or property, until acceptance of the
Services by City, except such losses or damages as may be caused by City’s own negligence.
c. Safety. Contractor shall execute and maintain its work so as to avoid injury
or damage to any person or property. In carrying out the Services, Contractor shall at all times be
in compliance with all applicable local, state, and federal laws, rules and regulations, and shall
exercise all necessary precautions for the safety of employees appropriate to the nature of the work
and the conditions under which the work is to be performed. Safety precautions as applicable shall
include, but shall not be limited to: (A) adequate life protection and life saving equipment and
procedures; (B) instructions in accident prevention for all employees and subcontractors, such as
safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are
necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the
proper inspection and maintenance of all safety measures.
d. Warranty. Contractor warrants all work under this Agreement (which for
purposes of this Subsection 1.3 shall be deemed to include unauthorized work which has not been
removed and any non-conforming materials incorporated into the work) to be of good quality and
free from any defective or faulty material and workmanship. Contractor agrees that for a period
of one (1) year (or the period of time specified elsewhere in this Agreement or in any guarantee or
warranty provided by any manufacturer or supplier of equipment or materials incorporated into
the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10)
days after being notified in writing by City of any defect in the work or non-conformance of the
work to this Agreement, commence and prosecute with due diligence all work necessary to fulfill
the terms of the warranty at Contractor’s sole cost and expense. Contractor shall act sooner as
requested by City in response to an emergency. In addition, Contractor shall, at its sole cost and
expense, repair and replace any portions of the work (or work of other contractors) damaged by
Contractor’s defective work or which becomes damaged in the course of repairing or replacing
defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective
work shall be reinstated for an additional one (1) year period, commencing with the date of
acceptance of such corrected work. Contractor shall perform such tests as City may require to
verify that any corrective actions, including, without limitation, redesign, repairs, and
replacements comply with the requirements of this Agreement. All costs associated with such
corrective actions and testing, including the removal, replacement, and reinstitution of equipment
and materials necessary to gain access, shall be the sole responsibility of Contractor. All
warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any
portion of the work, whether express or implied, are deemed to be obtained by Contractor for the
benefit of City, regardless of whether or not such warranties and guarantees have been transferred
or assigned to City by separate agreement and Contractor agrees to enforce such warranties and
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guarantees, if necessary, on behalf of City. In the event that Contractor fails to perform its
obligations under this Section, or under any other warranty or guaranty under this Agreement, to
the reasonable satisfaction of City, City shall have the right to correct and replace any defective or
non-conforming work and any work damaged by such work or the replacement or correction
thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse City for any
expenses incurred hereunder upon demand.
e. Skilled and Trained Workforce. Contractor, for itself and its subcontractors
at every tier, hereby provides an enforceable commitment to comply with California Public
Contract Code section 2600 et seq., which requires use of a skilled and trained workforce to
perform all work on the agreements that fall within an apprenticeable occupation in the building
and construction trades.
f. Inspection and Final Acceptance. The Services shall be performed to the
satisfaction of City. City may inspect and accept or reject any of Contractor’s work under this
Agreement, during performance and/or when completed. City shall reject or finally accept
Contractor’s work within forty five (45) days after submitted to City. City shall accept work by a
timely written acceptance, otherwise work shall be deemed to have been rejected. City’s
acceptance shall be conclusive as to such work except with respect to latent defects, fraud, and
such gross mistakes as amount to fraud. Acceptance of any work by City shall not constitute a
waiver of any of the provisions of this Agreement including, but not limited to, Section 4 and
Section 5, pertaining to insurance and indemnification, respectively.
1.4 Assignment of Personnel. Contractor shall assign only competent personnel to
perform the Services. Contractor shall make every reasonable effort to maintain the stability and
continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services.
Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any,
assigned to perform the Services, prior to and during any such performance. In the event that City,
in its sole discretion, at any time during the term of this Agreement, desires the reassignment of
any such persons, Contractor shall, immediately upon receiving notice from City of such desire of
City, reassign such person or persons.
1.5 Time. Time is of the essence in the performance of this Agreement. Contractor
shall devote such time to the performance of the Services pursuant to this Agreement as may be
reasonably necessary to satisfy Contractor’s obligations hereunder. Contractor shall commence
the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall
perform all Services within the time period(s) established in the Scope of Services. When
requested by Contractor, extensions to the time period(s) specified in the Scope of Services may
be approved in writing by the Contract Administrator but not shall not exceed one hundred
eighty (180) days cumulatively.
1.6 Force Majeure. The time period(s) specified in the Scope of Services for
performance of the Services rendered pursuant to this Agreement shall be extended because of any
delays due to unforeseeable causes beyond the control and without the fault or negligence of
Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe
weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight
embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor
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shall within ten (10) days of the commencement of such delay notify the Contract Administrator
in writing of the causes of the delay. The Contract Administrator shall ascertain the facts and the
extent of delay, and extend the time for performing the Services for the period of the enforced
delay when and if in the sole judgment of the Contract Administrator such delay is justified. The
Contract Administrator’s determination shall be final and conclusive upon the Parties to this
Agreement. In no event shall Contractor be entitled to recover damages against City for any delay
in the performance of this Agreement, however caused, Contractor’s sole remedy being extension
of this Agreement pursuant to this Section.
1.7 Suspension of Services. The City Engineer of City (“Engineer”) shall have the
authority to suspend the Services, wholly or in part, for such period as the Engineer may deem
necessary, due to unsuitable weather or to such other conditions as are considered unfavorable for
the suitable prosecution of the Services, or for such time as the Engineer may deem necessary due
to the failure on the part of Contractor to carry out orders given or to perform any provisions of
the Services. Contractor shall immediately comply with the written order of the Engineer to
suspend the Services wholly or in part and shall not resume the Services until ordered to do so in
writing by the Engineer. Such suspension shall be without liability to Contractor on the part of
City. In the event a suspension of work is ordered because of failure on the part of Contractor to
carry out orders given or to perform any provisions of the Services, such suspension of the Services
shall not relieve Contractor of responsibility to complete the Services within the time limit set forth
herein and shall not be considered cause for extension of the time for completion and, further, such
suspension of the Services shall not entitle Contractor to any additional compensation.
1.8 Familiarity with Work and Worksite. By executing this Agreement, Contractor
warrants that Contractor (i) has thoroughly investigated and considered the Services, (ii) has
carefully considered how the Services should be performed, and (iii) fully understands the
facilities, difficulties, and restrictions attending performance of the Services. If the Services
involve work upon any site, Contractor warrants that Contractor has or will investigate the site and
is or will be fully acquainted with the conditions there existing, prior to commencement of the
Services hereunder. Should Contractor discover any latent or unknown conditions, which will
materially affect the performance of the Services hereunder, Contractor shall immediately inform
City of such fact and shall not proceed until written instructions are received from the Contract
Administrator.
1.9 Further Responsibilities of the Parties. Both Parties agree to use reasonable care
and diligence to perform their respective obligations under this Agreement. Both Parties agree to
act in good faith to execute all instruments, prepare all documents, and take all actions as may be
reasonably necessary to carry out the purposes of this Agreement. Unless otherwise specified in
this Agreement, neither Party shall be responsible for the service of the other.
1.10 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in the “Special Requirements” attached hereto as
Exhibit A and incorporated herein by this reference. In the event of a conflict between the
provisions of Exhibit A and any other provisions of this Agreement, the provisions of Exhibit A
shall govern.
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SECTION 2. COMPENSATION.
2.1 Contract Amount. City hereby agrees to pay Contractor a sum not to exceed One
Million Two Hundred Thirty Seven Thousand One Hundred Dollars and Zero
Cents ($1,237,100.00) notwithstanding any contrary indications that may be contained in
Contractor’s proposal or bid, for the Services to be performed and reimbursable costs incurred
under this Agreement. This compensation may be administratively adjusted pursuant to Section
8.4 herein. In the event of a conflict between this Agreement and Exhibit B, regarding the amount
of compensation, this Agreement shall prevail. City shall pay Contractor for the Services rendered
pursuant to this Agreement at the time and in the manner set forth herein. The payments specified
in this Section 2 shall be the only payments from City to Contractor for the Services rendered
pursuant to this Agreement. Contractor shall submit all invoices to City in the manner specified
herein.
2.2 Method of Compensation. The method of compensation may include: (i) a lump
sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage
of completion of the Services, (iii) payment for time and materials based upon Contractor’s rates
as specified in the Scope of Services, provided that time estimates are provided for the performance
of subtasks, or (iv) such other methods as may be specified in the Scope of Services. In no event
shall compensation exceed the amount set forth in Subsection 2.1.
2.3 Invoices. Contractor 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. The invoice shall detail charges for all necessary and actual expenses by the
following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-
contractor contracts. Subcontractor charges shall also be detailed by such categories. Invoices
shall contain:
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;
c. A “Task Summary” containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the Services,
the hours spent by each person, a brief description of the Services, and each reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Contractor and each employee, agent, and subcontractor of Contractor performing the Services
hereunder necessary to complete the Services described in Exhibit B;
f. Receipts for expenses to be reimbursed;
g. The Principals’ signatures.
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Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.4 City Payment of Invoices. City shall independently review each invoice submitted
by Contractor to determine whether the work performed and expenses incurred are in compliance
with the provisions of this Agreement. City will use its best efforts to cause Contractor to be paid
within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. In the event any
charges or expenses are disputed by City, the original invoice shall be returned by City to
Contractor for correction and resubmission. Pursuant to California Public Contract Code Section
20104.50, Contractor is notified that for public works Services, City’s failure to pay undisputed
and properly submitted invoices within thirty (30) days shall be subject to interest at the legal rate
set forth in Code of Civil Procedure Section 685.010. Any invoice for public works Services
determined not to be a proper invoice suitable for payment shall be returned to the Contractor as
soon as practicable, but not later than seven (7) days, after receipt. An invoice returned pursuant
to the foregoing shall be accompanied by a writing stating the reasons why the invoice is not
proper.
2.5 Retention of Funds, Final Payment.
a. Contractor hereby authorizes City, in the sole discretion of the Contract
Administrator, to retain and deduct from any amount payable to Contractor not exceeding five
percent (5%) of the total compensation. The retained funds shall be paid to Contractor within
sixty (60) days after final acceptance of the Services by the City and after Contractor has furnished
City with full release of all undisputed payments under this Agreement. In the event there are any
claims specifically excluded by Contractor from the operation of the release, City may retain
proceeds of up to one hundred fifty percent (150%) of the amount in dispute. The failure of City
to exercise such right to deduct or to withhold shall not, however, affect the obligations of
Contractor to insure, indemnify, and protect City as provided in this Agreement.
b. Notwithstanding Paragraph a, California Public Contract Code Section
22300 permits the substitution of securities for any retention monies withheld by City for public
works Services. At the request and expense of Contractor, securities equivalent to the monies
withheld shall be deposited with City, or with a state or federally chartered bank in California as
the escrow agent, who shall then pay such monies to Contractor. City retains the sole discretion to
approve the bank selected by Contractor to serve as escrow agent. Upon satisfactory completion
of the Services, the securities shall be returned to Contractor. Securities eligible for investment
shall include those listed in Government Code Section 16430. Contractor shall be the beneficial
owner of any securities substituted for monies withheld and shall receive any interest thereon. In
the alternative, under California Public Contract Code Section 22300, Contractor may request City
to make payment of earned retention monies directly to the escrow agent at the expense of
Contractor. Also at Contractor’s expense, Contractor may direct investment of the payments into
securities, and Contractor shall receive interest earned on such investment upon the same
conditions as provided for securities deposited by Contractor. Upon satisfactory completion of the
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Services, Contractor shall receive from the escrow agent all securities, interest and payments
received by escrow agent from City pursuant to the terms of California Public Contract Code
Section 22300.
2.6 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Contractor in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement. In
no event shall Contractor submit any invoice for an amount in excess of the maximum amount of
compensation provided above either for a task or for the entirety of the Services performed
pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission
of such an invoice.
2.7 Hourly Fees. Fees for the Services performed by Contractor on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit B.
2.8 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement. Reimbursable expenses not listed in Exhibit B must be approved in
advance by the Contract Administrator, in his or her sole discretion. Contractor shall not be
entitled to any additional compensation for the attendance of meetings reasonably deemed
necessary by City for the execution of the Services.
2.9 Payment of Taxes. Contractor is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.10 Payment upon Termination. In the event that City or Contractor terminates this
Agreement pursuant to Section 8, City shall compensate Contractor for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
expenses as of the date of written notice of termination. Contractor shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
2.11 No Waiver. Payment to Contractor for Services performed pursuant to this
Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 3. FACILITIES AND EQUIPMENT.
3.1 Contractor Provides Facilities and Equipment. Except as otherwise provided,
Contractor shall, at its sole cost and expense, provide all facilities and equipment necessary to
perform the services required by this Agreement. In no event shall City be required to furnish any
facility or equipment that may involve incurring any direct expense.
3.2 Utility Relocation. Where applicable, pursuant to California Government Code
Section 4215, City is responsible for removal, relocation, or protection of existing main or
trunkline utilities to the extent such utilities were not identified in the invitation for bids or
specifications. City shall reimburse Contractor for any costs incurred in locating, repairing damage
not caused by Contractor, and removing or relocating such unidentified utility facilities.
Contractor shall not be assessed liquidated damages for delay arising from the removal or
relocation of such unidentified utility facilities.
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3.3 Trenches or Excavations. Pursuant to California Public Contract Code Sections
6705 and 7104, in the event the work included in this Agreement requires excavations more than
four (4) feet in depth, the following shall apply.
a. Contractor shall promptly, and before the following conditions are
disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material
that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required
to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of
existing law; (2) subsurface or latent physical conditions at the site different from those indicated
by information about the site made available to bidders prior to the deadline for submitting bids;
or (3) unknown physical conditions at the site of any unusual nature, different materially from
those ordinarily encountered and generally recognized as inherent in work of the character
provided for in this Agreement.
b. If the Services involve an estimated expenditure in excess of Twenty-Five
Thousand Dollars ($25,000) for the excavation of any trench or trenches five (5) feet or more in
depth, Contractor shall submit for acceptance by the City Engineer, in advance of excavation, a
detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for
worker protection from the hazard of caving ground during the excavation of such trench or
trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a
registered civil or structural engineer.
c. City shall promptly investigate the conditions, and if it finds that the
conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase
in Contractor’s cost of, or the time required for, performance of any part of the work shall issue an
order or amendment for additional services pursuant to Subsection 8.4 or 8.5 of this Agreement.
d. If a dispute arises between City and Contractor whether the conditions
materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost
of, or time required for, performance of any part of the work, Contractor shall not be excused from
any scheduled completion date provided for by this Agreement, but shall proceed with all work to
be performed under this Agreement. Contractor shall retain any and all rights provided either by
contract or by law which pertain to the resolution of disputes and protests between the Parties.
SECTION 4. INSURANCE AND BOND REQUIREMENTS.
Before beginning any work under this Agreement, Contractor, at its own cost and expense,
shall procure the types and amounts of insurance listed below and provide certified copies of
insurance policies and original endorsements, indicating that Contractor has obtained or currently
maintains insurance that meets the requirements of this Section and which is satisfactory, in all
respects, to City. Contractor shall also deliver the payment and performance bonds required by
this Section 4 with City. Contractor shall maintain the insurance policies required by this Section
throughout the term of this Agreement. The cost of such insurance shall be included in
Contractor’s compensation. Contractor shall not allow any subcontractor, Contractor or other agent
to commence work on any subcontract until Contractor has obtained all insurance required herein
for the subcontractor(s) and provided evidence thereof to City, and has delivered the required
bonds to City. Verification of the required insurance shall be submitted and made part of this
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Agreement prior to execution. Contractor acknowledges the insurance policy must cover inter-
insured suits between City and other insureds. Contractor agrees that the requirement to provide
insurance shall not be construed as limiting in any way the extent to which Contractor may be held
responsible for the payment of damages to any persons or property resulting from Contractor’s
activities or the activities of any person or persons for which Contractor is otherwise responsible
nor shall it limit Contractor’s indemnification liabilities as provided in Section 5. Insurance or
bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do
business in California, rated “A” or better in the most recent edition of Best Rating Guide, The
Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII
or better, unless such requirements are waived by the Contract Administrator in the Contract
Administrator’s sole discretion. If this Agreement continues for more than three (3) years
duration, or in the event the Contract Administrator determines that the Services to be performed
under this Agreement creates an increased or decreased risk of loss to City, Contractor agrees that
the minimum limits of the insurance policies and the performance bond required by Section 4 may
be changed accordingly upon receipt of written notice from the Contract Administrator; provided
that Contractor shall have the right to appeal a determination of increased coverage by the Contract
Administrator to the City Council of City within ten (10) days of receipt of notice from the
Contract Administrator.
4.1 Workers’ Compensation. Contractor shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all
persons employed directly or indirectly by Contractor 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, Contractor 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 Contractor, 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 Services performed under this
Agreement. Pursuant to California Labor Code Section 1860, Contractor is required to secure the
payment of compensation to Contractor’s employees. Pursuant to California Labor Code Section
1861, Contractor hereby submits to City the following:
I am aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for workers' compensation or to undertake
self-insurance in accordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the work of this contract.
Contractor Initial: _______
4.2 Commercial General and Automobile Liability Insurance.
a. General Requirements. Contractor, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
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an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) 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 Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use of hired, owned, leased, and non-owned automobiles.
b. 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 including “any auto” and endorsement CA 0025 or
equivalent). No endorsement shall be attached limiting the coverage.
c. Additional Requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
(ii) The policy must cover inter-insured suits and include a “Separation
of Insureds” or “severability” clause which treats each insured separately.
(iii) The insurance must be maintained for at least one (1) year following
the completion of the Services or the expiration or termination of this Agreement.
(iv) Any failure of Contractor to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents, and
volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Contractor, at its own expense, shall maintain
professional liability insurance appropriate to Contractor’s profession. This coverage may be
written on a “claims made” basis, and must include coverage for contractual liability. The
professional liability insurance required by this Agreement must be endorsed to be applicable to
claims based upon, arising out of, or related to the Services performed under this Agreement. The
insurance must be maintained for at least five (5) consecutive years following the completion of
the Services or the expiration or termination of this Agreement. During this additional five (5)-
year period, Contractor shall annually and upon request of City submit written evidence of this
continuous coverage.
b. Claims-Made Limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
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(i) The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
(ii) 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, Contractor 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 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 Services under this Agreement. City shall have the right
to exercise, at Contractor’s sole cost and expense, any extended reporting provisions of the policy,
if Contractor cancels or does not renew the coverage.
(iii) A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
4.4 Pollution Liability Insurance. Contractor, at its own expense, shall maintain
pollution liability insurance written on a per occurrence for bodily injury, personal injury and
property damage. The policy of insurance shall be in an amount not less than ONE MILLION
DOLLARS ($1,000,000.00) per pollution incident and ONE MILLION
DOLLARS ($1,000,000.00) in the general aggregate. The policy shall apply to any incidents at
or from any location on which Contractor performs the Services under this Agreement. The
insurance must be maintained for at least one (1) year following the completion of Contractor’s
services or the expiration or termination of this Agreement.
4.5 All Policies Requirements.
a. Verification of Coverage. Prior to beginning the Services under this
Agreement, Contractor shall furnish City with certificates of insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The certificate of insurance must include the following reference:
ROMOLAND GRID AREA - 3RD STREET - ATP PROJECT. The name and address for
additional insured endorsements, certificates of insurance and notice of cancellation is: City of
Menifee, 29844 Haun Road, Menifee, CA 92586. City must be endorsed as an additional insured
for liability arising out of ongoing and completed operations by or on behalf of Contractor.
b. Notice of Reduction in or Cancellation of Coverage. Contractor 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. In the event any of said policies of insurance are cancelled,
Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance
with this Section 4 to the Contract Administrator.
c. Additional Insured; Primary Insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
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the following: liability arising out of the Services performed by or on behalf of Contractor,
including the insured’s general supervision of Contractor; products and completed operations of
Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles
owned, leased, or used by Contractor in the course of providing the Services pursuant to this
Agreement. 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 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. The insurer is deemed hereof to waive all rights of subrogation and
contribution it may have against City, its officers, employees, agents, authorized volunteers, and
their respective insurers.
d. Deductibles and Self-Insured Retentions. Contractor shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any of the
Services. During the term of this Agreement, only upon the prior express written authorization of
the Contract Administrator, Contractor may increase such deductibles or self-insured retentions
with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator
may condition approval of an increase in deductible or self-insured retention levels with a
requirement that Contractor procure a bond guaranteeing payment of losses and related
investigations, claim administration, and defense expenses that is satisfactory in all respects to
each of them.
e. Subcontractors. Contractor shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
f. 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.
4.6 Payment and Performance Bonds. Concurrently with execution of this Agreement,
Contractor shall deliver to City a payment (labor and materials) bond and a performance bond,
each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which
secure the faithful performance of this Agreement. The bonds shall contain the original notarized
signature of an authorized officer of the surety and affixed thereto shall be a certified and current
copy of his power of attorney. The bonds shall be unconditional and remain in force during the
entire term of this Agreement and shall be null and void only if Contractor promptly and faithfully
performs all terms and conditions of this Agreement. Payment and performance bonds shall be
secured from a surety company rated Grade “A” or better in the most recent edition of Best Rating
Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial
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category Class VII or better, unless such requirements are waived by the Contract Administrator
due to unique circumstances, and shall be authorized to write such bonds in the State of
California. Contractor shall pay all bond premiums, costs, and incidentals. Pursuant to California
Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys
withheld to ensure performance under this Agreement may be permitted at the request and expense
of Contractor. Without limiting the foregoing, Contractor understands that Civil Code Section
9550 requires a payment bond for all public works contracts involving an expenditure of more than
Twenty-Five Thousand Dollars ($25,000).
4.7 Remedies. In addition to any other remedies at law or equity City may have if
Contractor 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 Contractor’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 Contractor to stop work under this Agreement or withhold any
payment that becomes due to Contractor hereunder, or both stop work and withhold any payment,
until Contractor demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Contractor shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents from and against
any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties of any kind (including costs and expenses incurred by City and
reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and
nature and, if Contractor 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 Contractor, its officers, agents, employees,
or subcontractors (or any entity or individual that Contractor shall bear the legal liability thereof)
in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Contractor shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and
all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Contractor or by any individual or entity for which
Contractor is legally liable, including but not limited to officers, agents, employees or
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subcontractors of Contractor. Contractor will promptly pay any judgment rendered against City,
its officers, agents, or employees for any such Claims arising out of or in connection with the
performance of or failure to perform such Services, operations or activities of Contractor
hereunder.
5.3 Subcontractors. Contractor shall incorporate similar indemnity agreements with its
subcontractors. Contractor shall be fully responsible to indemnify City, and failure of City to
monitor compliance with these provisions shall not be a waiver hereof.
5.4 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 of its officers, officials, employees, and agents acting in an official capacity.
In the event any applicable law contains a limitation on indemnification under this Agreement,
such limitation shall supersede the provisions herein only to the extent required by said law.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Contractor shall be an independent
contractor and shall not be an employee of City. City shall have the right to control Contractor
only insofar as the results of the Services rendered pursuant to this Agreement and assignment of
personnel pursuant to Subsection 1.4; however, otherwise City shall not have the right to control
the means by which Contractor accomplishes the Services rendered pursuant to this Agreement.
The personnel performing the Services under this Agreement on behalf of Contractor shall at all
times be under Contractor’s exclusive direction and control. Contractor shall not at any 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. Contractor shall not incur or have the power to
incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except
for the fees paid to Contractor as provided in this Agreement, City shall not pay salaries, wages,
or other compensation to Contractor for performing the Services hereunder for City. City shall
not be liable for compensation or indemnification to Contractor for injury or sickness arising out
of performing the Services hereunder. Notwithstanding any other City, state, or federal policy,
rule, regulation, law, or ordinance to the contrary, Contractor 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. Contractor shall perform all
Services required herein as an independent contractor of City and shall remain at all times as to
City a wholly independent contractor with only such obligations as are consistent with that role.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in
its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
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7.2 Compliance with Applicable Laws. Contractor and any subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance of
the work hereunder. Contractor 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. Contractor
acknowledges and agrees that it shall be independently responsible for reviewing the applicable
laws and regulations and effectuating compliance with such laws. Contractor shall require the
same of all subcontractors.
7.3 Prevailing Wages. Contractor acknowledges and agrees that it shall be
independently responsible for reviewing the applicable prevailing wage laws and regulations and
effectuating compliance with such laws, including, but not limited to the prevailing wage and
related requirements set forth in this Subsection 7.3. Contractor shall bear all risks of payment or
non-payment of prevailing wages under California law and/or the implementation of California
Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar
law.
a. Public Work. Contractor hereby expressly acknowledges and agrees that
City has never previously affirmatively represented to Contractor, its employees or agents in
writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the
California Labor Code. It is agreed by the Parties that, in connection with the development,
construction (as defined by applicable law) and operation of the Services, including, without
limitation, any public work (as defined by applicable law), if any, Contractor shall bear all risks of
payment or non-payment of state and/or federal prevailing wages and/or the implementation of
California Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended
from time to time, and/or any other provision of law. To the extent applicable, City will enforce
all penalties required by law for Contractor’s failure to pay prevailing wages.
b. California Labor Code. The Contractor’s attention is directed to Division
2, Part 7, Chapter 1 of the California Labor Code and especially to Article 2 (Wages); and Article
3 (Working Hours), thereof.
(i) In accordance with Sections 1773 and 1773.2 of the California
Labor Code, City has found and determined the general prevailing rates of wages in the locality in
which the public work is to be performed are those determined by the Director of Industrial
Relations and available at https://www.dir.ca.gov/OPRL/2022-1/PWD/Southern.html. Copies of
the prevailing rates of wages are maintained with City’s principal office and are available to any
interested party on request. Contractor shall post a copy of the prevailing rate of per diem wages
at each job site.
(i) Contractor is aware of and will comply with the provisions of
California Labor Code Section 1776, including the keeping of payroll records and furnishing
certified copies thereof in accordance with said Section. Pursuant to California Labor Code
Section 1771.4, Contractor must submit certified payroll records to the Labor Commissioner using
the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system.
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(ii) Pursuant to California Labor Code Section 1810, it is stipulated
hereby that eight (8) hours labor constitutes a legal day’s work hereunder.
(iii) Pursuant to California Labor Code Section 1815, work performed
by employees of contractors in excess of eight (8) hours per day, and 40 hours during any one
week, shall be permitted upon public work upon compensation for all hours worked in excess of
eight (8) hours per day at not less than 1 ½ times the basic rate of pay.
(iv) Pursuant to California Labor Code Section 1813, it is stipulated
hereby that Contractor shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker
employed in the execution of this Agreement by Contractor or by any subcontractor hereunder for
each calendar day during which such worker is required or permitted to work more than eight (8)
hours in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the
provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the
California Labor Code.
(v) Contractor is aware of and will comply with the provisions of
California Labor Code Sections 1777.5 and 1777.6 with respect to the employment of apprentices.
Pursuant to Section 1777.5 it is hereby stipulated that Contractor will be responsible for obtaining
compliance therewith on the part of any and all sub-consultants or subcontractors employed by
Contractor in connection with this Agreement.
(vi) Pursuant to California Labor Code Section 1775, it is hereby
stipulated that Contractor shall, as a penalty to City, forfeit not more than two-hundred dollars
($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates
as determined by the Director of Industrial Relations for the work or craft in which the worker is
employed for the Services by Contractor or any sub-consultant or subcontractor.
c. Bidding Eligibility. Pursuant to California Labor Code Section 1771.1, no
contractor or subcontractor (or consultant or subconsultant) may be listed on a bid proposal for a
public works project unless registered with the Department of Industrial Relations. Pursuant to
California Public Contract Code Section 6109, Contractor may not perform any Services hereunder
with a subcontractor who is ineligible to perform the Services pursuant to Section 1777.1 or 1777.7
of the California Labor Code.
d. DIR Monitoring. Pursuant to California Labor Code Section 1771.4,
Contractor is hereby notified that this project is subject to compliance monitoring and enforcement
by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5, Indemnification,
specifically encompasses Claims arising from or related to (i) the noncompliance by Contractor or
any party performing the 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
California 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 Contractor or any party performing the Services to
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provide any required disclosure or identification as required by California Labor Code Section
1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees, and Assessments. Contractor represents, warrants, and
covenants to City that Contractor and its employees, agents, and any subcontractors have all
licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to
practice their respective professions, and perform the Services. Contractor represents, warrants,
and covenants to City that Contractor 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 Services. In addition to the foregoing, Contractor and any subcontractors shall obtain
and maintain during the term of this Agreement valid business licenses from City. Contractor 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 Contractor’s
performance of the 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.
7.5 Conflicts of Interest. Contractor represents, warrants, and covenants that
Contractor presently has no interest, direct or indirect, which would interfere with or impair in any
manner or degree the performance of Contractor’s obligations and responsibilities under this
Agreement. Contractor further agrees that while this Agreement is in effect, Contractor 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 Contractor’s obligations and responsibilities under this
Agreement.
7.6 Unfair Business Practices Claims. In entering into this Agreement, Contractor
offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may
have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2,
(commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code),
arising from purchases of goods, services, or materials related to this Agreement. This assignment
shall be made and become effective at the time City renders final payment to Contractor without
further acknowledgment of the Parties.
7.7 Annual Appropriation of Funding. In accord with Article 16 Section 18 of the
California Constitution, payment of compensation under this Agreement is contingent upon annual
appropriation of funds by City for that purpose. Contractor acknowledges and agrees that to the
extent that the Services extend beyond one (1) fiscal year, payment for such Services is expressly
conditioned on City’s annual appropriation of funds for such Services for each year. If no funds
are appropriated then this Agreement shall be terminated. City pledges and agrees to process such
appropriation requests annually and in good faith. Nothing in this Subsection shall be construed
to limit the right of either Party to terminate this Agreement as provided herein.
7.8 Liquidated Damages. Since the determination of actual damages for any delay in
performance of this Agreement would be extremely difficult or impractical to determine in the
event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to
City the sum of FIVE HUNDRED DOLLARS ($500.00) as liquidated damages for each working
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day of delay in the performance of any of the Services. City may withhold from any monies
payable on account of the Services performed by Contractor any accrued liquidated damages.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may terminate this Agreement at any time and without cause
upon thirty (30) days’ written notification to Contractor. City may also terminate this Agreement
pursuant to Subsection 8.8.
8.2 Termination by Contractor. Contractor may terminate this Agreement upon sixty
(60) days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Contractor shall be
entitled to compensation for the Services satisfactorily performed up to the date of termination;
City, however, may condition payment of such compensation upon Contractor delivering to City
any or all materials provided to Contractor or prepared by or for Contractor or City in connection
with this Agreement. Upon receipt of any notice of termination, Contractor shall immediately
cease all Services hereunder except such as may be specifically approved by the Contract
Administrator.
8.4 Administrative Change Orders. City shall have the right at any time during the
performance of the Services, without invalidating this Agreement, to order extra work beyond that
specified in the Scope of Services or make changes by altering, adding to, or deducting from said
work. No such extra work may be undertaken unless a written change order is first given by the
Contract Administrator to Contractor, incorporating therein any adjustment in (i) the total
compensation, and/or (ii) the time to perform this Agreement, which said adjustments are subject
to the written approval of Contractor. Any increase in compensation of up to five percent (5%) of
the total compensation or TWENTY-FIVE THOUSAND DOLLARS ($25,000), whichever is less;
or in the time to perform of up to one hundred eighty (180) days may be approved in writing by
the Contract Administrator. Contractor understands and agrees that, if City grants an extension in
time without additional work, City shall have no obligation to provide Contractor with
compensation beyond the maximum amount provided for in this Agreement. Similarly, unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Contractor
for any otherwise reimbursable expenses incurred during the extension period. All other
extensions or modifications to this Agreement shall require a written amendment pursuant to
Subsection 8.5.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties. The Contract Administrator shall have the authority to execute amendments to this
Agreement which do not materially change the terms hereof, in the Contract Administrator’s
discretion, to the extent permitted by applicable federal, state, and local law. The Contract
Administrator may refer any proposed amendment to the City Council for review and approval.
8.6 Assignment and Subcontracting. City and Contractor recognize and agree that this
Agreement contemplates personal performance by Contractor and is based upon a determination
of Contractor’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
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professional reputation and competence of Contractor. Contractor may not assign this Agreement
or any interest therein without the prior written approval of the Contract Administrator. Contractor
shall not subcontract any portion of the performance contemplated and provided for herein, other
than to the subcontractors noted in the Scope of Services, without prior written approval of the
Contract Administrator. In the event of any unapproved assignment, including in connection with
any bankruptcy proceeding, this Agreement shall be void. No approved assignment shall release
Contractor or any surety of Contractor of any liability hereunder without the express consent of
City.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Contractor
shall survive the expiration or termination of this Agreement.
8.8 Disputes, Default. In the event that Contractor is in default under the terms of this
Agreement, City shall not have any obligation or duty to continue compensating Contractor for
any of the Services performed after the date of default. Instead, City may give notice to Contractor
of the default and the reasons for the default. The notice shall include the timeframe in which
Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be
extended, though not reduced, in the sole discretion of the Contract Administrator. During the
period of time that Contractor is in default, City shall hold all invoices and shall, when the default
is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion,
elect to pay some or all of the outstanding invoices during the period of default. If Contractor does
not cure the default, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Contractor pursuant to this Agreement;
c. Retain a different contractor to complete the Services; and/or
d. Charge Contractor the difference between the cost to complete the Services
that is unfinished at the time of breach and the amount that City would have paid Contractor
pursuant to Section 2 if Contractor had completed the Services.
Any failure on the part of City to give notice of Contractor’s default shall not be deemed
to result in a waiver of City’s legal rights or any rights arising out of any provision of this
Agreement.
8.9 Claims by Contractor. Claims, as that term is defined in California Public Contract
Code Section 9204, by Contractor and, where applicable, any subcontractor, in connection with a
public works project shall by subject to the mediation procedure in California Public Contract
Code Section 9204.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Documents and Data. All drawings, specifications, maps, designs, photographs,
studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans,
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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 (the
“Documents and Materials”) prepared or caused to be prepared by Contractor, its employees,
subcontractors, and agents in the performance of this Agreement shall be the property of City and
shall be delivered to City upon request of the Contract Administrator or upon the expiration or
termination of this Agreement, and Contractor shall have no claim for further employment or
additional compensation as a result of the exercise by City of its full rights of ownership use, reuse,
or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such
completed Documents and Materials for other projects and/or use of uncompleted documents
without specific written authorization by Contractor will be at City’s sole risk and without liability
to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, revise, or
assignment. Contractor may retain copies of such Documents and Materials for its own use.
Contractor shall have an unrestricted right to use the concepts embodied therein. All
subcontractors shall provide for assignment to City of any Documents and Materials prepared by
them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City
for all damages resulting therefrom.
9.2 Licensing of Intellectual Property. 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 the Documents and Materials.
Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive
and perpetual license for the Documents and Materials the subcontractor prepares under this
Agreement. Contractor represents and warrants that Contractor has the legal right to license any
and all of the Documents and Materials. Contractor makes no such representation and warranty
in regard to the Documents and Materials which were prepared by design professionals other than
Contractor or provided to Contractor by City. City shall not be limited in any way in its use of the
Documents and Materials 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 Records. Contractor shall keep, and require subcontractors to keep, such ledgers
books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to
payroll reports), studies, or other documents relating to the disbursements charged to City and the
Services performed hereunder (the “Books and Records”), as shall be necessary to perform the
Services required by this Agreement and enable the Contract Administrator to evaluate the
performance of such Services. Any and all such Books and Records shall be maintained in
accordance with generally accepted accounting principles and shall be complete and detailed. The
Contract Administrator shall have full and free access to such Books and Records at all times
during normal business hours of City, including the right to inspect, copy, audit, and make records
and transcripts from such Books and Records. Such Books and Records shall be maintained for a
period of three (3) years following completion of the Services hereunder, and City shall have
access to such Books and Records in the event any audit is required. In the event of dissolution of
Contractor’s business, custody of the Books and Records may be given to City, and access shall
be provided by Contractor’s successor in interest. 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
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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.
9.4 Reports. Contractor shall periodically prepare and submit to the Contract
Administrator such reports concerning the performance of the Services required by this Agreement
as the Contract Administrator shall require. Contractor hereby acknowledges that City is greatly
concerned about the cost of the Services to be performed pursuant to this Agreement. For this
reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances,
techniques, or events that may or will materially increase or decrease the cost of the Services
contemplated herein or, if Contractor is providing design services, the cost of the project being
designed, Contractor shall promptly notify the Contract Administrator of said fact, circumstance,
technique, or event and the estimated increased or decreased cost related thereto and, if Contractor
is providing design services, the estimated increased or decreased cost estimate for the project
being designed.
9.5 Confidentiality. City and Contractor agree that, until final approval by City, all
data, plans, specifications, reports, and other documents are confidential and will not be released
to third parties without prior written consent of both Parties unless required by law. Contractor,
its officers, employees, agents, or subcontractors, shall not, without prior written authorization
from the Contract Administrator or unless requested by the City Attorney, voluntarily provide
documents, declarations, letters of support, testimony at depositions, response to interrogatories,
or other information concerning the work performed under this Agreement. If Contractor, or any
officer, employee, agent, or subcontractor of Contractor, provides any information or work product
in violation of this Agreement, then City shall have the right to reimbursement and indemnity from
Contractor for any Claims caused by or incurred as a result of Contractor’s conduct. Contractor
shall promptly notify City should Contractor, its officers, employees, agents, or subcontractors be
served with any summons, complaint, subpoena, notice of deposition, request for documents,
interrogatories, request for admissions, or other discovery request, court order, or subpoena from
any party regarding this Agreement and the Services performed thereunder. City retains the right,
but has no obligation, to represent Contractor or be present at any deposition, hearing, or similar
proceeding. Contractor agrees to cooperate fully with City and to provide City with the
opportunity to review any response to discovery requests provided by Contractor. However, this
right to review any such response does not imply or mean the right by City to control, direct, or
rewrite said response. Response to a subpoena or court order shall not be considered a voluntary
disclosure so long as Contractor gives City notice of such court order or subpoena as provided
herein.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 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.
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10.2 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.
10.3 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.
10.4 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.
10.5 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 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 Contractor 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.
10.6 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.
10.7 Contractor Principals and Representatives. The following principals of Contractor
(“Principals”) are hereby designated as being the principals and representatives of Contractor
authorized to act in its behalf with respect to the work specified herein and make all decisions in
connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the
Principals were a substantial inducement for City to enter into this Agreement. Therefore, the
Principals shall be responsible during the term of this Agreement for directing all activities of
Contractor and devoting sufficient time to personally supervise the Services hereunder. All
personnel of Contractor, and any authorized agents, shall at all times be under the exclusive
direction and control of the Principals. For purposes of this Agreement, the Principals may not be
replaced nor may their responsibilities be substantially reduced by Contractor without the express
written approval of City.
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10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Diego Guillen, Senior Engineer (“Contract Administrator”). All correspondence shall
be directed to or through the Contract Administrator or his designee. It shall be Contractor’s
responsibility to assure that the Contract Administrator is kept informed of the progress of the
performance of the Services and Contractor shall refer any decisions which must be made by City
to the Contract Administrator. Unless otherwise provided by applicable law, the Contract
Administrator shall have the power to act on behalf of City for all purposes under this Agreement.
Unless otherwise provided in this Agreement, Contractor shall not accept direction or orders from
any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Contractor shall be sent to:
Granite Construction Company
Attn: Scott McArthur, Vice President, Regional Operations
5260 El Camino Real, #200
Carlsbad, CA 92008
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Diego Guillen, Senior Engineer
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
Any notice, demand, request, document, consent, approval, or communication either Party desires
or is required to give to the other Party or any other person shall be in writing and either served
personally or sent by prepaid, first-class mail. Either Party may change its address by notifying
the other Party of the change of address in writing. Notice shall be deemed communicated at the
time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as
provided in this Section.
10.10 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
10.11 Integration, Interpretation. This Agreement, including Exhibits A and B, represents
the entire and integrated agreement between City and Contractor 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
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for or against either Party by reason of the authorship of this Agreement or any other rule of
construction which might otherwise apply.
10.12 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.
10.13 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.
10.14 Nondiscrimination. Contractor 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. Contractor shall take
affirmative action to insure that applicants are employed and that employees are treated during
employment without regard to their race, color, creed, religion, sex, marital status, sexual
orientation, national origin, or ancestry.
10.15 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.
10.16 Nonliability of City Officers and Employees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Contractor, or any successor in
interest, in the event of any default or breach by City or for any amount which may become due to
Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
10.17 No Undue Influence. Contractor declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation of this Agreement, including any method of coercion, confidential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Contractor, or from any officer, employee, or agent of
Contractor, in connection with the award of this Agreement or any work to be conducted as a result
of this Agreement.
10.18 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 the Services to be performed under this Agreement.
[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
CONTRACTOR
Scott McArthur, Vice President, Regional
Operations
Joe Buckley, Area Manager
[Note: 2 officer’s signatures required if
Contractor is a corporation, unless provided
with a certificate of secretary in-lieu]
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EXHIBIT A
EXHIBIT A
SPECIAL REQUIREMENTS
INTENTIONALLY LEFT BLANK
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EXHIBIT B
EXHIBIT B
SCOPE OF SERVICES
Services shall include ROMOLAND GRID AREA - 3RD STREET - ATP PROJECT services,
including labor, materials, services and equipment is the total amount of all lump sum items and of all
unit price sums, determined by multiplying the unit price for each item times the actual quantity of
each such item, in the amount not to exceed One Million Two Hundred Thirty Seven Thousand
One Hundred Dollars and Zero Cents ($1,237,100.00) as further detailed in the attached pages
(if any). If the Services include Services pursuant to a request for proposals or bid, the Services
shall include the work contemplated by the entire “Bid Package” or “Request for Proposals” for
the Services, including all plans, addenda, documentation, and specifications attached thereto. A
copy of the Bid Package and/or Request for Proposals, as applicable shall be retained with a copy
of this Agreement. Contractor shall keep a copy of the same for at least three (3) years following
termination of this Agreement.
The numerical reference for the Bid Package or Request for Proposals is: ___#67 CIP 23-04
Romoland Grid Area - 3rd Street - ATP Project.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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19201719.4 a10/04/23 EXHIBIT B.
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