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subcontractor for purposes of establishing a duty of care between any subconsultant or subcontractor and the City.
SECTION 19. CONTINUITY OF PERSONNEL.
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors / subconsultants, if any, assigned to perform the Services.
Consultant shall notify City of any changes in Consultant’s staff and subcontractors/subconsultants, if any, assigned to perform the Services prior to and during any such performance.
SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreem ent, with or without cause, at any time by giving written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress.
(b) Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant’s possession shall be returned to City. Consultant shall furnish to City a final invoice for work perf ormed and expenses incurred by Consultant, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
(e) Upon written notice, City may suspend all or any portion of Consultant’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City will pay to Consultant a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Consultant with written notice of the rescission, at which time Consultant would be required to resume performance in compliance with the terms and provisions of this Agreement. Consultant will be entitled to an extension of time to complete performance under th is Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
SECTION 21. EXCUSABLE DELAYS.
Neither Party shall be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of either Party. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E
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unusually severe weather. The ter m and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 22. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Hemet
Attn: City Manager
445 E Florida Avenue
Hemet, CA 92543
To Consultant: Willdan Engineering
Attn: Salvador Lopez Jr.
13191 Crossroads Parkway, North, Suite 405
City of Industry, CA 91746
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 23. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Co nsultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.
SECTION 24. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 26 “Amendment” and the City Manager’s contracting authority under the Hemet Municipal Code.
SECTION 25. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
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SECTION 26. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Consultant and by City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agree ment, as amended, would not exceed the City Manager’s contracting authority under the Hemet Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 27. WAIVER.
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 nor a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 28. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 29. ATTORNEY’S FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 30. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits and Addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression o f the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 31. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
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SECTION 32. INCORPORATION AND CONFLICTING TERMS. The following documents are incorporated and made part of this Agreement by this reference:
1. Insurance requirements (“Addendum 1”)
2. All Exhibits and Addendums
3. All amendments
4. Consultant’s proposal, if any
5. Any laws, regulations, requirem ents, or restrictions, applicable to the funding source used by City to pay Consultant for any portion of work done under Agreement (“Funding Restrictions”)
(b) The documents listed above shall be referred to collectively as the “Agreement Documents.” The Agre ement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, Exhibits and Addendums, and Consultant’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.
SECTION 33. TIME OF ESSENCE.
Time is of the essence for each and every provision of this Agreement.
[SIGNATURE PAGE FOLLOWS]
DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E
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DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E 1/13/2023
1/18/2023
1/13/2023
13.B
Exhibit A – Scope of Services
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EXHIBIT “A”
SCOPE OF SERVICES
A. Interim Community Development Director
1. Kevin Manning (“Interim Community Development Director”) will serve as the City’s Interim Community Development Director.
B. Services
1. Interim Community Development Director shall manage the development of Community Development and work directly under the supervision of the City Manager.
2. Interim Community Development Director shall work in the office participating in managing department staff, tracking project intake and workflow, review and manage work of the department staff as necessary, provide exceptional customer service and any other departmental and/or managerial tasks.
3. Interim Community Development Director shall perform all job duties as described in the City’s job description for the position for Community Development Director.
SCHEDULE OF PERFORMANCE
Interim Community Development Director is immediately available to begin work and shall remain available to the City until a permanent Community Development Director has been selected by the City and has begun full-time employment. Interim Community Development Director shall also assist the permanent Community Development in transitioning into the role of Community Development Director.
DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E
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Exhibit B – Compensation
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EXHIBIT “B”
COMPENSATION
Compensation for the Services shall not exceed fifty thousand ($50,000) dollars.
Interim Community Development Director shall be compensated at a rate of one-hundred ninety- five ($195) dollars per hour, which is a “fully burdened” or “all inclusive” billing.
DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E
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Addendum 1 – Insurance
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ADDENDUM “1”
INSURANCE
(A) INSURANCE REQUIREMENTS. Consultant shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Consultant, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultant shall provide the following scope and limits of insurance:
1. MINIMUM SCOPE OF INSURANCE. Consultant shall maintain the following types and limits of insurance.
2. MINIMUM LIMITS OF INSURANCE.
GENERAL LIABILITY INSURANCE. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
AUTOMOBILE LIABILITY INSURANCE. Consultant shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
WORKERS’ COMPENSATION INSURANCE. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.
UMBRELLA OR EXCESS LIABILITY INSURANCE. [Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Consultant may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E
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Addendum 1 – Insurance
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coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
(B) OTHER PROVISIONS. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. (C) OTHER REQUIREMENTS. Consultant agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Consultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Upon request from the City, Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Consultant’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
4. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E
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Addendum 1 – Insurance
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endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
6. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
DocuSign Envelope ID: 3577FD9A-0F87-4B93-B228-C3132EE34E4E
13.B
SECOND AMENDMENT TO
PROFESSIONAL SERVICES AGREEMENT
by and between
the
CITY OF HEMET
and
WILLDAN ENGINEERING
Dated May 3, 2023
13.B
SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
This Second Amendment to Professional Services Agreement (“Second Amendment”), which is dated for reference as indicated on the cover page, is hereby entered into by and between the CITY OF HEMET, a California municipal corporation (“City”), and Willdan Engineering , a California corporation (“Consultant”), City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as “Parties”.
RECITALS
A. City and Contractor entered in an agreement for Professional Services on January 18, 20 23 (“Agreement”). The Agreement provides that Contractor will provide Interim Staff Augmentation Services.
B. Due to Willdan Engineering personnel changes, Parties amended the Agreement to update scope of services and compensation.
C. The First Amendment thereby deleted Exhibit “A” in its entirety and replaced it with Exhibit “A-1”.
D. The First Amendment thereby deleted Exhibit “B” in its entirety and replaced with Exhibit “B-1”.
E. Section 4(a) of the Agreement provides that the Compensation shall not exceed $50,000.00
F. This Second Amendment increases the total Compens ation to not exceed $150,000.00
G. All other terms and conditions of the Agreement not inconsistent with this Second Amendment shall remain in full force and effect.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the parties do hereby enter into this Amendment which modifies and amends the Agreement as follows:
1. A MENDMENT. The Agreement is hereby modified and amended as follows:
1.1 [COMPENSATION]. Section 4(a) of the Agreement is hereby amended to increase the Not to Exceed Amount to one hundred and fifty thousand dollars ($150,000.00), unless additional compensation is approved in writing in accordance with Section 24 “Administration and Implementation” or Section 26 “Amendment” of this Agreement. Payment shall be made in accordance with City’s usual accounting procedures upon receipt and
13.B
2 approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to City at the address set forth in Section 22, “Notices” hereof. Under no circumstances shall the total amount paid to Consultant under this Agreement exceed the City Manager’s authority under Hemet Municipal Code Section 2-332
without approval by the City Council.
2. M ANDATORY INVOICE INFORMATION/NOTICES.
Consultant shall notify the City in writing whenever it has reason to believe that the costs the Consultant expects to incur under this Agreement in the following sixty (60) days, when added to all costs previously incurred, will exceed eighty percent (80%) of the Not to Exceed Amount specified herein. As part of the notification, the Consultant shall provide the City with a revised estimate of the total cost of performing this Agreement.
On invoices submitted to the City, Consultant shall identify at the top of the first page, the Agreement’s not to exceed amount, the total amount billed to date, the services rendered during the billing period, and the amount due for the statement invoice for which reimbursement is sought in the statement invoice.
3. R EMAINDER UNCHANGED. Except as specifically modified and amended in this Amendment, the Agreement remains in full force and effect and binding upon the Parties.
4. I N TEGRATION . This Amendment consists of pages 1 through 5, inclusive, which constitute the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements, including written or verbal communications between the Parties with respect to all or any part of the transaction discussed in this Amendment.
5. S EVER
ABILITY. If any portion of this Amendment is declared invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
6. E FFE
CTIVE DATAE. This Amendment shall not become effective until the date it has been executed by the appropriate authorities of the City and Consultant.
7. A P PLICABLE LAW. The laws of the State of California shall govern the interpretation and enforcement of this Amendment.
8. R EF ERENCES. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this Amendment.
(Signatures on Following Page.)
13.B
3 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the Agreement on the date and year first written above.
CITY:
THE CITY OF HEMET
By:_________________________________
Mark Prestwich, City Manager
ATTEST:
______________________________
John Maier, City Clerk
APPROVED AS TO FORM
______
Steven Graham, City Attorney
CONTRACTOR:
By:
Name:
Title:
By:
Name:
Title:
13.B
FIRST AMENDMENT TO
PROFESSIONAL SERVICES AGREEMENT
by and between
the
CITY OF HEMET
and
WILLDAN ENGINEERING
Dated March 15, 2023
DocuSign Envelope ID: 7CE8672C-AEBA-450F-9FE9-D2AD9CD704EB
13.B
FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
This First Amendment to Professional Services Agreement (“First Amendment”), which is dated for reference as indicated on the cover page, is hereby entered into by and between the CITY OF HEMET, a California municipal corporation (“City”), and Willdan Engineering , a California corporation (“Consultant”), City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as “Parties”.
RECITALS
A. City and Contractor entered in an agreement for Professional Services on January 18 , 20 23 (“Agreement”). The Ag reement provides that Contractor will provide Interim Staff Augmentation Services.
B. Due to Willdan Engineering personnel changes, Parties now desire to amend the Agreement to update scope of services and compensation.
NOW, THEREFORE, in consideration of the promises made and recited herein, the parties do hereby enter into this First Amendment which modifies and amends the Agreement as follows:
1. Exhibit “A” is hereby deleted in its entirety and replaced with Exhibit “A -1”, attached hereto and incorporated herein.
2. Exhibit “B” is hereby deleted in its entirety and replaced with Exhibit “B -1”, attached hereto and incorporated herein.
3. All other terms and conditions of the Agreement not inconsistent with this First Amendment shall remain in full force and effect.
OPERATIVE PROVISIONS
1. MANDATORY INVOICE INFORMATION/NOTICES.
Consultant shall notify the City in writing whenever it has reason to believe that the costs the Consultant expects to incur under this Agreement in the following sixty (60) days, w hen added to all costs previously incurred, will exceed eighty percent (80%) of the Not to Exceed Amount specified herein. As part of the notification, the Consultant shall provide the City with a revised estimate of the total cost of performing this Agreement.
On invoices submitted to the City, Consultant shall identify at the top of the first page, the Agreement’s not to exceed amount, the total amount billed to date, the services rendered during the billing period, and the amount due for the statement invoice for which reimbursement is sought in the statement invoice.
DocuSign Envelope ID: 7CE8672C-AEBA-450F-9FE9-D2AD9CD704EB
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2 2. REMAINDER UNCHANGED. Except as specifically modified and amended in this Amendment, the Agreement remains in full force and effect and binding upon the Parties.
3. INTEGRATION. This Amendment consists of pages 1 through 5, inclusive, which constitute the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements, including written or verbal communications between the Parties with respect to all or any part of the transaction discussed in this Amendment.
4. SEVERABILITY. If any portion of this Amendment is declared invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
5. EFFECTIVE DATAE. This Amendment shall not become effective until the date it has been executed by the appropriate authorities of the City and Consultant.
6. APPLICABLE LAW. The laws of the State of California shall govern the interpretation and enforcement of this Amendment.
7. REFERENCES. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contr ary in this Amendment.
(Signatures on Following Page.)
DocuSign Envelope ID: 7CE8672C-AEBA-450F-9FE9-D2AD9CD704EB
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3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above.
CITY:
THE CITY OF HEMET
By:_________________________________
Mark Prestwich, City Manager
ATTEST:
______________________________
John Maier, City Clerk
APPROVED AS TO FORM
______
Steven Graham, City Attorney
CONTRACTOR:
By:
Name:
Title:
By:
Name:
Title:
DocuSign Envelope ID: 7CE8672C-AEBA-450F-9FE9-D2AD9CD704EB Vanessa Munoz
President
Willdan Engineering
13.B
4 EXHIBIT “A-1”
SCOPE OF SERVICES
A. Interim Community Development Director
1. Salvador Lopez (“Interim Community Development Director”) will serve as the City’s Interim Community Development Director.
B. Services
1. Interim Community Development Director shall manage the development of Community Development and work directly under the supervision of the City Manager.
2. Interim Community Development Director shall work in the office participating in managing department staff, tracking project intake and workflow, review and manage work of the department staff as necessary, provide exceptional customer service and any other departmental and/or managerial tasks.
3. Interim Community Development Director shall perform all job duties as described in the City’s job description for the position for Community Development Director.
SCHEDULE OF PERFORMANCE
Interim Community Development Director is immediately available to begin work and shall remain available to the City until a permanent Community Development Director has been selected by the City and has begun full-time employment. Interim Community Development Director shall also assist the permanent Community Development in transitioning into the role of Community Development Director.
DocuSign Envelope ID: 7CE8672C-AEBA-450F-9FE9-D2AD9CD704EB
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5 EXHIBIT “B-1”
COMPENSATION
Compensation for Services shall not exceed fifty thousand ($50,000) dollars.
Interim Community Development Director shall be compensated at a rate of two hundred and twenty-six ($226) dollars per hour, which is “fully burdened” or “all- inclusive” billing.
DocuSign Envelope ID: 7CE8672C-AEBA-450F-9FE9-D2AD9CD704EB
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