Item Title: 10.14 Agreement for Lines A and B Storm Drains and Appurtenances for Oak Hills Development by Woodside 05S, LP.
Item Page Number: 51
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Jennifer Hernandez, Management Analyst I
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
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RECOMMENDED ACTION
1. Award bid and authorize the City Manager to execute a Professional Services Agreement with Kimley-Horn and Associates, Inc. for preparation of the Menifee Local Roadway Safety Plan in the amount not-to-exceed of $98,604.27.
DISCUSSION
The Local Roadway Safety Plan (LRSP) is a specialized study that provides local agencies with an opportunity to address unique and individualized roadway safety needs in their jurisdiction.
The LRSP contributes to the Strategic Highway Safety Plan (SHSP) which is a federal regulation requirement for each state. In order to apply and qualify for future federal Highway Safety Improvement Program (HSIP) funding cycles, agencies will be required to have an LRSP.
The California Department of Transportation (Caltrans) allocated funding to assist agencies in meeting the LRSP requirements for future HSIP cycles. In June of 2021, the City submitted an application to Caltrans for funding to support preparation of the Menifee LRSP. The estimated cost of the Menifee LRSP at the time of application was $100,000. This cost was based on calculations provided by Caltrans utilizing local population, centerline miles, and lane mile information.
Funding for the Menifee LRSP was approved by Caltrans in the amount of up to $100,000 of which the City must commit $10,000 as a required 10% local match. On July 21, 2021, the City Council accepted the LRSP grant funding award. Following City Council acceptance, staff immediately began coordination with Caltrans on preparation of the Menifee LRSP.
Because the Menifee LRSP is a Caltrans Grant funded plan, procurement procedures outlined in the Caltrans Local Assistance Procedures Manual (LAPM) Chapter 10 Consultant Selection were Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 1
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
LRSP Kimley-Horn Agreement
January 19, 2022
8 1
2 utilized. The selection of a consultant is solely based on technical evaluation of proposals and their ranking. The LAPM requires that only the fee proposal of the highest-ranking firm is opened and reviewed after a selection is made.
On September 2, 2021, the City administered a Request for Proposal (RFP 2022-3) soliciting services for preparation of the Menifee Local Roadway Safety Plan. A total of six proposals were received from the following firms:
Kimley-Horn and Associates, Inc.
KOA Corporation
Linscott, Law & Greenspan, Engineers
Michael Baker International
STC Traffic, Inc.
TJKM Transportation Consultants
An evaluation committee comprised of City staff evaluated the six submittals. The proposals were evaluated based on criteria set forth in RFP 2022-3. To ensure fair and thorough evaluations, instructions to potential proposing firms required fee proposals to be submitted separately. The evaluation committee focused their reviews on each firms’ project understanding, scope of work, staff qualifications, firm qualifications, project schedule, and the quality and responsiveness of the proposal. Initial proposal scores were calculated for each firm.
After initial scoring was completed, the three top-scoring firms were invited to interview with City staff. The finalists were evaluated on their presentation, which represented 50% of their overall interview score, and a questions and answers session, which represented the remaining 50% of the overall interview score. The evaluation team then ranked the three firms from 1 to 3, with 1 being the highest ranking. An overall average ranking was calculated for each firm, resulting in a tie ranking between two firms: Kimley-Horn and Michael Baker.
To address the tie between these two firms, each of their initial proposal scores were reviewed and the firm with the higher initial proposal score was considered to be the top ranked firm.
Ultimately, Kimley-Horn was determined to be the overall highest-ranking firm as shown below.
Table 1
Firm Name Initial Proposal Score
Interview Average
Qualification Rank
Score
*Kimley-Horn and Associates, Inc. 90.67 1.67
Michael Baker International 90.00 1.67
STC Traffic, Inc. 91.67 2.33
*Tie breaker for firm selection was based on initial proposal score.
Consistent with LAPM guidelines, staff opened and reviewed only Kimley-Horn’s fee proposal as the overall top-ranking firm. Staff has determined Kimley-Horn’s proposed fee of $98,604.27 is in alignment with their proposed scope of work and within the estimated Menifee LRSP cost and available budget.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 2
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
LRSP Kimley-Horn Agreement
January 19, 2022
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2 STRATEGIC PLAN OBJECTIVE
Safe and Attractive Community
FISCAL IMPACT
The full cost for preparation of the Menifee LRSP is proposed in the amount of $98,604.27, which is within the established budget of $100,000 for the project. The City is responsible for 10% of project costs as a local match. The remaining 90% of the project cost will be reimbursed through funding previously awarded to the City from Caltrans. Available budgets and estimated expenditures for the Menifee LRSP are summarized in Table 2 below.
Table 2 – LRSP Project Funding Summary
Fund Project Account
Number
Available
Budget
Estimated
Expenditures
General Fund Local Roadway Safety Plan 100-4555-58139 $10,000 $ 9,860 Grant Fund Local Roadway Safety Plan 301-4555-58139 $90,000 $88,745 Total $100,000 $98,605
*Note - amounts in table are rounded
ATTACHMENTS
1. Agreement with Kimley-Horn and Associates, Inc.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 3
Menifee Mayor and City Council January 19, 2022
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CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
CITY OF MENIFEE: LOCAL ROAD SAFTEY PLAN (LRSP)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this _______ day of ______, 2022 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and Kimley-Horn and Associates, Inc., a North Carolina Corporation (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.” SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated herein by this reference (the “Services”). Consultant will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on January 19, 2022 and shall end on December 31, 2024 unless the term of this Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a provider of first class work and services and Consultant is experienced in performing the Services contemplated herein and, in light of such status and experience, Consultant shall perform the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 4
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1.6 Covid-19 Safety. If Consultant enters City property or meets in person with City employees during the performance of the Services, Consultant shall comply with all State, County, and local emergency orders, directives, protocols, and best practices related to the COVID-19 pandemic, including, but not limited to: (A) wearing facial coverings, (B) maintaining adequate physical distancing when possible, (C) regular hand washing, and (D) regular hand sanitizing.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed NINETY EIGHT THOUSAND SIX HUNDRED FOUR DOLLARS AND TWENTY SEVEN CENTS ($98,604.27) notwithstanding any contrary indications that may be contained in Consultant’s proposal, for the Services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for the Services rendered pursuant to this Agreement.
Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 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 Consultant and each employee, agent, and subcontractor of Consultant performing the Services hereunder necessary to complete the Services described in Exhibit A; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
Invoices shall be submitted to:
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 5
Menifee Mayor and City Council January 19, 2022
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City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total amount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice 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.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant 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. Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 6
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limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and which is satisfactory, in all respects, to City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter-insured suits between City and other Insureds.
4.1 Workers’ Compensation. Consultant 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 Consultant pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self- insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self- insurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) 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, and non-owned automobiles.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 7
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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. 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:
a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
b. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion 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 Consultant’s sole cost and expense, any extended reporting provisions of the policy, if Consultant cancels or does not renew the coverage.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 8
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d. A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California. b. Verification of coverage. Prior to beginning the Services under this Agreement, Consultant 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: CITY OF MENIFEE: LOCAL ROAD SAFTEY PLAN (LRSP). 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 Consultant. c. Notice of Reduction in or Cancellation of Coverage. Consultant shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self-insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Consultant, including the insured’s general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the 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.
e. Deductibles and Self-insured Retentions. Consultant 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, Consultant may increase such deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. The Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 9
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Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
f. Subcontractors. Consultant 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.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 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, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 10
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indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 5 to the contrary, design professionals are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
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.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 11
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7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages, as determined by the Director of Industrial Relations of the State of California, will be the minimum paid to all laborers, including Consultant’s employee and subcontractors. It is understood that it is the responsibility of Consultant to determine the correct scale. The State Prevailing Wage Rates may be obtained from the California Department of Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and 467 by calling 415-703-4774. Appropriate records demonstrating compliance with such requirement shall be maintained in a safe and secure location at all times, and readily available at City’s request. Consultant shall indemnify, defend, and hold City and its elected and appointed boards, members, officials, officers, agents, representatives, employees, and volunteers harmless from and against any liability, loss, damage, cost or expenses (including but not limited to reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any party performing the Services 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 Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the Parties that, in connection with performance of the Services, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 12
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8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to the date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; c. Retain a different consultant to complete the Services described in Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 13
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a09/23/21 -11-
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law.
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 plans, specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non- exclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 14
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a09/23/21 -12-
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 Section 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.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. 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. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term 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 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Kari Cano (“Consultant’s Representative”). The Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City employee, Haile Ford, Senior Engineer, CIP and NPDES (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 15
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a09/23/21 -13-
Kimley-Horn and Associates, Inc.
Attn: Kari Cano
3880 Lemon Street, Suite 420
Riverside, CA 92501
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Haile Ford, Senior Engineer, CIP and NPDES
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 16
Menifee Mayor and City Council January 19, 2022
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7630376.2 a09/23/21 -14-
10.14 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.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 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]
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 17
Menifee Mayor and City Council January 19, 2022
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7630376.2 a09/23/21 -15-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Brian Gillis, Vice President
Leo Espelet, Assistant Secretary
[Corporation must have two signatures]
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 18
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include City of Menifee: Local Road Safety Plan (LRSP) in the amount not to exceed
NINETY EIGHT THOUSAND SIX HUNDRED FOUR DOLLARS AND TWENTY SEVEN CENTS ($98,604.27) as further detailed in the following pages.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 19
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 20
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A. -2-
Item Title: 10.15 Agreement with Kimley-Horn and Associates, Inc., for the Menifee Local Roadway Safety Plan Item Page Number: 21
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Premier/Menifee Lakes Resurfacing Improvement Project Acceptance
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Jennifer Hernandez, Management Analyst I
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Accept the improvements for Premier/Menifee Lakes Resurfacing Improvement Project, located east of Interstate 215 and south of Newport Road; and
2. Authorize the City Clerk’s Office to file the Notice of Completion for Premier/Menifee Lakes Resurfacing Improvement Project, Capital Improvement Project No. CIP21-15, with the Riverside County Recorder’s Office.
DISCUSSION
The Premier/Menifee Lakes Resurfacing Project, located east of Interstate 215 (I-215) and south of Newport Road, completed the rehabilitation of existing roadways. Improvement work included grind and overlay work, restriping, and the replacement of noncompliant ADA ramps. Streets included in the resurfacing project were:
Calle Pompeii
Avenida Marbella
Somme Court
Marne Way
Dijon Court
Avenida Pacifica
Loire Valley Lane
Reviere Drive
Avenir Way
Oise Drive
Biarritz Court
On May 5, 2020, the City Council approved a project construction budget of $952,032.71. The construction was completed on time and under budget with a final construction cost of $856,032.71. The project required one contract change order (CCO) as detailed in the attached CIP21-15 Premier/Menifee Lakes Contract Change Order Summary and is outlined in Table 1 on the following page:
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 1
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
Premier/Menifee Lakes Resurfacing Acceptance
January 19, 2022
8 1
3 Table 1
CCO # Description Total Cost
1 New asphalt curb construction items added to contract $4,815.72 TOTAL $4,815.72
Filing a Notice of Completion (NOC) protects the City from future claims against the project by providing proper noticing to each contractor, subcontractor, and material supplier that the project has been completed. The Payment Bond (Labor and Materials Bond) and Performance Bond would be released 30 days after the date of recording of the NOC, provided no Stop Payment Notices are filed preventing these releases.
Public Works and Engineering staff have inspected the materials supplied, the quantity of the materials, the construction methods used, and contractor workmanship. Staff has confirmed the improvements and related work performed by Onyx Paving Company, Inc., meet the project requirements as specified in the contract documents.
STRATEGIC PLAN OBJECTIVE
Safe and Attractive Community
FISCAL IMPACT
There is no fiscal impact associated with the recommended action.
ATTACHMENTS
1. Project Location
2. Notice of Completion
3. Close out Documents
4. Contract Change Order Summary
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 2
Menifee Mayor and City Council January 19, 2022
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Path: E:\Project_Specific_Maps\Engineering_PublicWorks\Premier_Menifee_Lakes_Resurfacing_Staff_Report\Premier_Menifee_Lakes_Resurfacing_Staff_Report.aprx Date: 10/15/2021 Premier / Menifee Lakes Resurfacing (CIP 21-15)
Project Location Map
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 3
Menifee Mayor and City Council January 19, 2022
Recording Requested By:
CITY OF MENIFEE
After Recording Mail To:
CITY CLERK
CITY OF MENIFEE
29844 HAUN ROAD
MENIFEE, CA 92586
Record without fee subject to Govt. Code 6103
NOTICE OF COMPLETION
(Public Works – Civil Code Sec. 9204)
PREMIER & MENIFEE LAKES RESURFACING, CIP 21-15
Notice is hereby given that:
Work of improvements on the project herein described was accepted as complete on November 3, 2021. The project improvements consist of resurfacing the existing road by doing a grind and overlay. The road will be re-striped where appropriate. The existing non-compliant accessible curb ramps will be removed and replaced with compliant accessible curb ramps. The project was done in the city right-of-way in the residential neighborhood of Premier and Menifee Lakes in the City of Menifee, County of Riverside, State of California.
1. The full name of the Owner is: CITY OF MENIFEE
2. The full address of the Owner is: 29844 HAUN ROAD
MENIFEE, CA. 92586
3. The undersigned is a Corporate Officer of the Owner of the interest stated below in the property herein described:
PUBLIC STREET IN
MENIFEE, CA 92586
4. The name of the contractor for such work of construction is:
Onyx Paving Company Inc.
2890 E. LaCresta Ave
Anaheim, CA 92806
5. The property on which said work of improvement was completed is within the City of Menifee, County of Riverside, State of California.
STATE OF CALIFORNIA)
Ss
COUNTY OF RIVERSIDE)
I, Sarah A. Manwaring, hereby certify that I am the City Clerk of the City of Menifee, a municipal corporation, which is the owner of the properties described within this Notice of Completion, executed on behalf of the City; that I have read the notice and know the contents thereof and that the facts therein stated are true of my own knowledge under penalty of perjury under the laws of the state of California; that I make this verification on _________________, 20___ for and on behalf of the City.
_____________________________
Sarah A. Manwaring, City Clerk
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 4
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 5
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 6
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 7
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 8
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 9
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 10
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 11
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 12
Menifee Mayor and City Council January 19, 2022
Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 13
Menifee Mayor and City Council January 19, 2022
Contract Change Order Summary
Premier/Menifee Lakes Resurfacing Project
(CIP 21-15)
CCO #/ CA # Amount %Additional TimeDate ApprovedCCO #1 4,815.72$ 0.57% 0 12/8/2021Construction$848,000.00$4,815.72$852,815.72Revised Contract Amount:Original Contract Amount:4,815.72$ Total Change Order Amount:
DescriptionAdded items to the contract due to new asphalt and curb contstruction that removed items in the field and adjustment to bid items that were either under or over the bid estimateChange Order Total0.57%0 Item Title: 10.16 Premier/Menifee Lakes Resurfacing Improvement Project Acceptance Item Page Number: 14
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Haile Ford, Senior Engineer
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Award bid and authorize the City Manager to execute a Professional Services Agreement with KOA Corporation for design services of the Menifee Road Resurfacing Project, Capital Improvement Project No. CIP22-06, in the amount not-to-exceed of $94,901.71.
DISCUSSION
Menifee Road between Newport Road and Holland Road is a four-lane major arterial road that runs north to south. This corridor has also been identified as a priority area for roadway improvements in the City’s Active Transportation Plan.
The Menifee Road Resurfacing Project (“Project”) consists of resurfacing the existing asphalt concrete (AC) pavement, upgrading existing ADA ramps, analysis of a pedestrian crosswalk, and re-striping of the roadway to include dedicated bicycle lanes. The Project will also construct a raised median on Menifee Road from Newport Road to approximately 600 feet north of Newport Road at the entrance of Fire Station No. 76.
On October 5, 2021, staff solicited quotes through a Request for Proposals/Quotations (RFQ) for design services from the list of firms previously approved by the City Council. The requested design services include project administration, data collection, and preparation of the Plans, Specifications, and Estimates (PS&E) package for the project. The three firms selected to receive the solicitation were:
C&S Engineers, Inc.
K&A Engineering, Inc.
KOA Corporation
Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 1
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
CIP 22-06 Menifee Road Improvement Agreement Award
January 19, 2022
8 1
6 The City had only received a single proposal from KOA Corporation as of the submittal deadline.
To obtain additional proposals, City staff conducted follow up outreach to both K&A Engineering Inc., and C&S Engineering, Inc. After several outreach attempts were made, both firms were deemed unresponsive. City staff determined a re-issuance of the Informal Request for Proposals would result in a similar outcome. Results of the solicitation are in Table 1:
Table 1
Firm Name Fee Proposal
KOA Corporation $94,901.71
K&A Engineering, Inc. Unresponsive
C&S Engineers, Inc. Unresponsive
KOA’s proposed fee of $94,901.71 is under the independent cost estimate of $129,395. After review of their proposal, it was determined that KOA Corporation met all qualifications to conduct the requested design services for the Project.
STRATEGIC PLAN OBJECTIVE
Safe and Attractive Community
FISCAL IMPACT
The cost of design services for the Menifee Road Resurfacing Project is $94,901.71. Project budgets were previously approved in fiscal year 2021/22 in the following account:
Table 2 - Existing Project Funding
Fund Project Account Number Available
Balance
Amount
Requested
Measure DD Menifee Rd. Resurfacing
(Holland-Newport) 105-4555-58122 $230,000 $94,901.71
ATTACHMENTS
1. Project Location Map
2. Agreement with KOA Corporation
Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 2
Menifee Mayor and City Council January 19, 2022
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Path: E:\Project_Specific_Maps\Engineering_PublicWorks\Menifee_Road_Resurfacing_Holland_Newport\Menifee_Road_Resurfacing_Holland_Newport.aprx Date: 1/3/2022 Menifee Road Resurfacing from Holland to Newport (CIP 22-06) Project Location Map
Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 3
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a09/23/21
CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
CIP 22-06: MENIFEE ROAD IMPROVEMENT PROJECT DESIGN SERVICES (CIVIL DESIGN PLANS, SPECIFICATIONS, AND ESTIMATE ("PS&E")) SERVICES THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this _______ day of ______, 2022 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and KOA CORPORATION, a California S- Corporation (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.”
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated herein by this reference (the “Services”). Consultant will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on January 19, 2022 and shall end on December 31, 2022 unless the term of this Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a provider of first class work and services and Consultant is experienced in performing the Services contemplated herein and, in light of such status and experience, Consultant shall perform the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations hereunder.
Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 4
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
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1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
1.6 Covid-19 Safety. If Consultant enters City property or meets in person with City employees during the performance of the Services, Consultant shall comply with all State, County, and local emergency orders, directives, protocols, and best practices related to the COVID-19 pandemic, including, but not limited to: (A) wearing facial coverings, (B) maintaining adequate physical distancing when possible, (C) regular hand washing, and (D) regular hand sanitizing.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed NINETY FOUR THOUSAND NINE HUNDRED ONE DOLLARS AND SEVENTY ONE CENTS ($94,901.71) notwithstanding any contrary indications that may be contained in Consultant’s proposal, for the Services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for the Services rendered pursuant to this Agreement.
Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 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 Consultant and each employee, agent, and subcontractor of Consultant performing the Services hereunder necessary to complete the Services described in Exhibit A; f. Receipts for expenses to be reimbursed;
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g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total amount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice 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.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant 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. Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 6
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and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and which is satisfactory, in all respects, to City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter-insured suits between City and other Insureds.
4.1 Workers’ Compensation. Consultant 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 Consultant pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self- insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self- insurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) 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 Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 7
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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, 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. 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:
a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
b. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion 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 Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 8
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right to exercise, at Consultant’s sole cost and expense, any extended reporting provisions of the policy, if Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California. b. Verification of coverage. Prior to beginning the Services under this Agreement, Consultant 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: CIP 22-06: MENIFEE ROAD IMPROVEMENT PROJECT DESIGN SERVICES (CIVIL DESIGN PLANS, SPECIFICATIONS, AND ESTIMATE ("PS&E")) SERVICES. 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 Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self-insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Consultant, including the insured’s general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the 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.
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e. Deductibles and Self-insured Retentions. Consultant 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, Consultant may increase such deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
f. Subcontractors. Consultant 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.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 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, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 10
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“Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 5 to the contrary, design professionals are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
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.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not 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 Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 11
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Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages, as determined by the Director of Industrial Relations of the State of California, will be the minimum paid to all laborers, including Consultant’s employee and subcontractors. It is understood that it is the responsibility of Consultant to determine the correct scale. The State Prevailing Wage Rates may be obtained from the California Department of Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and 467 by calling 415-703-4774. Appropriate records demonstrating compliance with such requirement shall be maintained in a safe and secure location at all times, and readily available at City’s request. Consultant shall indemnify, defend, and hold City and its elected and appointed boards, members, officials, officers, agents, representatives, employees, and volunteers harmless from and against any liability, loss, damage, cost or expenses (including but not limited to reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any party performing the Services 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 Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the Parties that, in connection with performance of the Services, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
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SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to the date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
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c. Retain a different consultant to complete the Services described in Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law.
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 plans, specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non- exclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
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9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 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 Section 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.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. 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. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term 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 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Min Zhou (“Consultant’s Representative”). The Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
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10.8 City Contract Administration. This Agreement shall be administered by a City employee, Haile Ford, Senior Engineer, CIP and NPDES (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
KOA Corporation
Attn: Min Zhou
2141 West Orangewood, Suite A
Orange, CA 92868
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Haile Ford, Senior Engineer, CIP and NPDES
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 16
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Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and 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.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 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]
Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 17
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Min Zhou, CEO
Juan Gutierrez, CFO
[Corporation must have two signatures]
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EXHIBIT A
SCOPE OF SERVICES
Services shall include but are not limited to comprehensive Civil Design, Plans, Specifications, and Estimate (PS&E) Services for CIP 22-06 Menifee Road Improvement Project in the amount not to NINETY FOUR THOUSAND NINE HUNDRED ONE DOLLARS AND SEVENTY ONE CENTS ($94,901.71) as further detailed in the following pages.
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Item Title: 10.17 Agreement with KOA Corporation for Design of the Menifee Road Resurfacing Project Item Page Number: 25
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Valley Boulevard Widening Project Agreements
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Jennifer Hernandez, Management Analyst I
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
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RECOMMENDED ACTION
1. Award bid and authorize the City Manager to execute a Professional Services Agreement with Dokken Engineering for Civil Engineering Design and Environmental Services for the Valley Boulevard Widening Project, Capital Improvement Project No. CIP22-02, in the not-to-exceed amount of $1,244,031.81; and
2. Award bid and authorize the City Manager to execute a Professional Services Agreement with Dennis Janda, Inc. for surveying services for the project in the not-to-exceed amount of $44,000.
DISCUSSION
Valley Boulevard between Chambers Avenue and Murrieta Road is currently a two-lane rural corridor located in the northwestern part of the City. Under the City of Menifee General Plan, this segment of Valley Boulevard is designated as an arterial highway that would ultimately provide for four lanes of traffic. Due to increases in residential and commercial developments in the area, the need for additional lanes has increased.
The proposed Valley Boulevard Widening Project (“Project”) would consist of widening the existing two-lane road to a four-lane corridor and establish horizontal and vertical alignments to meet the requirements of the California Highway Design Manual and City standards.
On October 18, 2021, the City issued a Request for Proposals (RFP 2022-4) to provide professional environmental and civil engineering design services for the Project. These include:
Project management
Reconnaissance and Field Surveys
Environmental Analysis
Utility Coordination
Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 1
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City of Menifee Staff Report
CIP 22-02 Valley Blvd. Widening Agreement
January 19, 2022
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0 Right-of-way (ROW) Engineering
ROW Acquisition
Permitting
Construction Document Development
A total of 13 proposals were received from the following firms:
CivilPros
CNS Engineers
Dokken Engineering
Dynamic Geotechnical
ERSC
Hunsaker & Associates
KOA & Associates
Mark Thomas
Michael Baker
NV5
IMEG Corporation
Kimley-Horn and Associates, Inc.
TKE
An evaluation committee comprised of City staff reviewed the submittals. As part of the RFP process, the proposals were evaluated based on criteria set forth in RFP 2022-4. To ensure fair and thorough evaluations, instructions to proposing firms required fee proposals to be submitted separately. The evaluation committee’s initial reviews focused on each firm’s professional qualifications, proposed team and organization, detailed work plan, project schedule, experience, proposal quality, and responsiveness. Each firms proposal was provided an initial score based on the review.
The three top-scoring firms were then invited to interview with City staff. The top three firm proposals were evaluated on their presentation, which represented 50% of their overall interview score, and a question and answers session representing the remaining 50% of the overall interview score. The firms were then ranked accordingly from 1 to 3 with a ranking of 1 representing the highest ranking firm.
Dokken Engineering received the highest overall ranking through the interview process and was determined to be the most qualified to conduct the requested services. Staff opened and reviewed the fee proposals submitted by the top scoring firms. Results of the rankings are shown in Table 1 below:
Table 1: Firm Ranking Summary
Firm Name Qualification Rank
Dokken Engineering 1
Mark Thomas 2
NV5 3
Staff reviewed Dokken Engineering’s fee proposal of $1,860,351.81 and determined items related to construction support services and bid support services are City standard and don’t require Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 2
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City of Menifee Staff Report
CIP 22-02 Valley Blvd. Widening Agreement
January 19, 2022
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0 specialized support. Other tasks were also removed or reduced resulting in a negotiated reduction of $616,320, including $170,545 for surveying services, from Dokken’s original fee proposal, leaving a final cost of $1,244,031.81.
Due to the high surveying costs in Dokken’s fee proposal, staff solicited two additional quotes through a Request for Proposals/Quotations (RFQ) from the list of firms previously approved by the City. The City requested quotes from the following firms:
Dennis Janda Inc.
TKE Engineering Inc.
Staff reviewed the proposals from the two firms and determined Dennis Janda Inc. met all the qualifications to conduct the requested surveying services for the Project. Results of the solicitation and original fee for the same services submitted by Dokken Engineering as part of their initial proposal are summarized in Table 2:
Table 2: Surveying Services Summary
Firm Name Fee Proposal
Dennis Janda Inc. $44,000
TKE Engineering $47,500
*Dokken Engineering $170,545
*Fee initially submitted by Dokken for surveying services as part of their submitted proposal for RFP 2022-4
STRATEGIC PLAN OBJECTIVE
Safe and Attractive Community
FISCAL IMPACT
The total anticipated cost for professional services for the Valley Boulevard Widening Project, including surveying services, would be $1,288,032. The item is currently budgeted within this fiscal year and summarized in Table 3 below:
Table 3: Existing Project Funding
Fund Project Account
Number
Available
Balance
Cost of
Services
526 DIF Valley Blvd.
Widening 526-4555-58118 $1,300,000.00 $1,288,032
TOTAL $1,300,000.00 $1,288,032
ATTACHMENTS
1. Project Location Map
2. Agreement with Dokken Engineering
3. Agreement with Dennis Janda Inc.
Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 3
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Path: E:\Project_Specific_Maps\Engineering_PublicWorks\Valley_Blvd_Widening\Valley_Blvd_Widening.aprx Date: 12/21/2021 Valley Blvd. Widening (CIP 22-02)
Project Location Map
Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 4
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CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
CIP 22-02: VALLEY BLVD. WIDENING PROJECT (PROFESSIONAL
ENVIRONMENTAL AND CIVIL ENGINEERING DESIGN SERVICES)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this ______ day of __________, 2022 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and DOKKEN ENGINEERING, a California C Corporation (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.”
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated herein by this reference (the “Services”). Consultant will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on January 19, 2022 and shall end on June 30, 2023 unless the term of this Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a provider of first class work and services and Consultant is experienced in performing the Services contemplated herein and, in light of such status and experience, Consultant shall perform the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations hereunder.
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1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
1.6 Covid-19 Safety. If Consultant enters City property or meets in person with City employees during the performance of the Services, Consultant shall comply with all State, County, and local emergency orders, directives, protocols, and best practices related to the COVID-19 pandemic, including, but not limited to: (A) wearing facial coverings, (B) maintaining adequate physical distancing when possible, (C) regular hand washing, and (D) regular hand sanitizing.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed ONE MILLION TWO
HUNDRED FORTY FOUR THOUSAND THIRTY ONE DOLLARS AND EIGHTY ONE CENTS ($1,244,031.81) notwithstanding any contrary indications that may be contained in Consultant’s proposal, for the Services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein.
Except as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 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 Consultant and each employee, agent, and subcontractor of Consultant performing the Services hereunder necessary to complete the Services described in Exhibit A; f. Receipts for expenses to be reimbursed;
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g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last five percent (5%) of the total amount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice 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.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant 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. Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 7
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and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and which is satisfactory, in all respects, to City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter-insured suits between City and other Insureds.
4.1 Workers’ Compensation. Consultant 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 Consultant pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self- insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self- insurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) 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 Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 8
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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, 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. 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:
a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
b. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion 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 Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 9
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right to exercise, at Consultant’s sole cost and expense, any extended reporting provisions of the policy, if Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California. b. Verification of coverage. Prior to beginning the Services under this Agreement, Consultant 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: CIP 22-02: VALLEY BLVD. WIDENING PROJECT (PROFESSIONAL ENVIRONMENTAL AND CIVIL ENGINEERING DESIGN SERVICES). 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 Consultant. c. Notice of Reduction in or Cancellation of Coverage. Consultant shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Consultant, including the insured’s general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the 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.
e. Deductibles and Self-insured Retentions. Consultant shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services.
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During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Consultant may increase such deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
f. Subcontractors. Consultant 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.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 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, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
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5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages, as determined by the Director of Industrial Relations of the State Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 12
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of California, will be the minimum paid to all laborers, including Consultant’s employee and subcontractors. It is understood that it is the responsibility of Consultant to determine the correct scale. The State Prevailing Wage Rates may be obtained from the California Department of Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and 467 by calling 415-703-4774. Appropriate records demonstrating compliance with such requirement shall be maintained in a safe and secure location at all times, and readily available at City’s request. Consultant shall indemnify, defend, and hold City and its elected and appointed boards, members, officials, officers, agents, representatives, employees, and volunteers harmless from and against any liability, loss, damage, cost or expenses (including but not limited to reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any party performing the Services 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 Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the Parties that, in connection with performance of the Services, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to the date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
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8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; c. Retain a different consultant to complete the Services described in Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
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SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law.
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 plans, specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non- exclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
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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 Section 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.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. 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. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term 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 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Pamela Dalcin-Walling, Project Manager (“Consultant’s Representative”). The Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City employee, Carlos Geronimo, Principal Engineer (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement.
Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
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DOKKEN ENGINEERING
Attn: Pamela Dalcin-Walling, Project Manager
110 BLUE RAVINE ROAD, SUITE 200
FOLSOM, CA 95630
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Carlos Geronimo, Principal Engineer
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
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10.14 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.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 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
CONSULTANT
John A. Klemunes, Jr, President
Cathy Chan, Secretary
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
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EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include Professional Environmental and civil engineering design services for CIP 22-02: Valley Blvd. Widening Project. in the amount not to exceed ONE MILLION TWO
HUNDRED FORTY FOUR THOUSAND THIRTY ONE DOLLARS AND EIGHTY ONE CENTS ($1,244,031.81) as further detailed in the following page(s).
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EXHIBIT A.
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EXHIBIT A.
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CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
CIP 22-02: VALLEY BLVD. WIDENING PROJECT
(TOPOGRAPHICAL SURVEY SERVICES)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this _______ day of ______, 2022 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and DENNIS JANDA, INC., a California S- Corporation (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.”
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated herein by this reference (the “Services”). Consultant will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on January 19, 2022 and shall end on June 30, 2023 unless the term of this Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a provider of first class work and services and Consultant is experienced in performing the Services contemplated herein and, in light of such status and experience, Consultant shall perform the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations hereunder.
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1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
1.6 Covid-19 Safety. If Consultant enters City property or meets in person with City employees during the performance of the Services, Consultant shall comply with all State, County, and local emergency orders, directives, protocols, and best practices related to the COVID-19 pandemic, including, but not limited to: (A) wearing facial coverings, (B) maintaining adequate physical distancing when possible, (C) regular hand washing, and (D) regular hand sanitizing.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed FORTY FOUR THOUSAND DOLLARS AND ZERO CENTS ($44,000.00) notwithstanding any contrary indications that may be contained in Consultant’s proposal, for the Services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified below shall be the only payments from City to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 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 Consultant and each employee, agent, and subcontractor of Consultant performing the Services hereunder necessary to complete the Services described in Exhibit A; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
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Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total amount due pursuant to this Agreement within sixty (60) days after completion of the Services and submittal to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice 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.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant 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. Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 41
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required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and which is satisfactory, in all respects, to City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter-insured suits between City and other Insureds.
4.1 Workers’ Compensation. Consultant 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 Consultant pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self- insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self- insurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) 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 Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 42
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damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, 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. 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:
a. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
b. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion 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 Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 43
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right to exercise, at Consultant’s sole cost and expense, any extended reporting provisions of the policy, if Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California. b. Verification of coverage. Prior to beginning the Services under this Agreement, Consultant 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: CIP 22-02: VALLEY BLVD. WIDENING PROJECT (TOPOGRAPHICAL SURVEY SERVICES). 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 Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self-insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Consultant, including the insured’s general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by Consultant in the course of providing the 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.
e. Deductibles and Self-insured Retentions. Consultant shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services.
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During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Consultant may increase such deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
f. Subcontractors. Consultant 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.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 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, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
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5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 5 to the contrary, design professionals are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
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.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not 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.
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SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages, as determined by the Director of Industrial Relations of the State of California, will be the minimum paid to all laborers, including Consultant’s employee and subcontractors. It is understood that it is the responsibility of Consultant to determine the correct scale. The State Prevailing Wage Rates may be obtained from the California Department of Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and 467 by calling 415-703-4774. Appropriate records demonstrating compliance with such requirement shall be maintained in a safe and secure location at all times, and readily available at City’s request. Consultant shall indemnify, defend, and hold City and its elected and appointed boards, members, officials, officers, agents, representatives, employees, and volunteers harmless from and against any liability, loss, damage, cost or expenses (including but not limited to reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any party performing the Services 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 Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the Parties that, in connection with performance of the Services, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
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SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled to compensation for the Services performed up to the date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 48
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c. Retain a different consultant to complete the Services described in Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of City. Consultant hereby agrees to deliver those documents to City upon the expiration or termination of this Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for City and are not necessarily suitable for any future or other use. Any use of such documents for other projects by City shall be without liability to Consultant. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law.
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 plans, specifications, studies, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non- exclusive and perpetual license for any Documents and Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents and Data. Consultant makes no such representation and warranty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
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9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 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 Section 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.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. 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. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term 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 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Dennis Janda (“Consultant’s Representative”). The Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
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10.8 City Contract Administration. This Agreement shall be administered by a City employee, Nick Fidler, Public Works Director/City Engineer (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
DENNIS JANDA, INC.
Attn: Dennis Janda
42164 Remington Ave
Temecula, CA 92590
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Nick Fidler, Public Works Director/City Engineer with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 51
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Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and 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.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 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]
Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 52
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a01/03/22 -15-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Dennis Janda, President
Tricia Janda, Vice President/Owner
[Corporation must have two signatures]
Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 53
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a01/03/22 EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include Professional topographical survey services, including, but not limited to ADA level survey as they relate to the CIP 22-02: Valley Widening Project. in the amount not to exceed FORTY FOUR THOUSAND DOLLARS AND ZERO CENTS ($44,000.00) as further detailed in the following page(s).
Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 54
Menifee Mayor and City Council January 19, 2022
2671/031858-0001
7630376.2 a01/03/22 EXHIBIT A. -2-
Item Title: 10.18 Valley Boulevard Widening Project Agreements Item Page Number: 55
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Jennifer Hernandez, Management Analyst I
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Award bid and authorize the City Manager to execute an Owner-Contractor Agreement with Calpromax Engineering in the amount of $982,106.50 to perform construction of two traffic signal improvement projects at Menifee Road and La Piedra Road, Capital Improvement Project No. CIP21-07, and Murrieta Road and Rouse Road, Capital Improvement Project No.
CIP21-10; and
2. Approve a Budget Adjustment Resolution appropriating additional funding in the total amount of $276,028 from DIF Citywide-Circulation Fund No. 526 available fund balance.
DISCUSSION
The traffic signal improvements on Menifee Road/La Piedra Road and Murrieta Road/Rouse Road consist of the installation of new traffic signals, controller cabinet foundations, service cabinets, a closed-circuit television (CCTV) camera system, wireless radios, an ethernet switch, new poles with foundations, conduit, pull boxes, detection loops, signing/striping, and pedestrian curb ramps.
Due to a similar scope of work for both projects, staff administered a competitive bid process for both locations under one bid solicitation in order to achieve economies of scale and reduce costs.
The projects were legally advertised in accordance with the California Public Contract Code. An electronic bid opening was held on December 14, 2021. A total of 12 bids were received and are summarized in Table 1 on the following page.
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 1
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
CIP 21-07 and 21-10 Traffic Signals Award
January 19, 2022
8 2
3 Table 1- Bid Response Summary
Bidders
(Lowest to Highest)
Menifee
Road/La Piedra
Road Bid
Murrieta
Road/Rouse
Road Bid
Total Bid
Lowest
Responsible
Bidder
Engineer’s Estimate $523,180.00 $488,000.00 $1,011,180.00 Calpromax
Engineering $494,606.50 $487,500.00 $ 982,106.50 X
Elecnor Belco
Electric, Inc. $507,711.00 $495,192.00 $1,002,903.00
California
Professional
Engineering, Inc.
$517,940.00 $499,482.00 $1,017,422.00
KDC, Inc.
dba Dynalectric L.A. $563,369.00 $496,716.00 $1,060,085.00 Alfaro
Communications
Construction, Inc.
$532,527.50 $537,550.00 $1,070,077.50
Crosstown Electrical
& Data, Inc. $583,184.00 $492,485.00 $1,075,669.00
Ferreira Coastal
Construction
Company
$517,283.00 $562,553.00 $1,079,836.00
DBX, Inc. $539,563.00 $586,788.00 $1,126,351.00
MSL Electric, Inc. $615,548.00 $548,249.00 $1,164,837.00 Lekos Electric, Inc. $623,086.30 $645,457.74 $1,268,544.04 International Line
Builders, Inc. $670,025.00 $655,347.00 $1,325,372.00
JFL Electric, Inc. $841,425.00 $647,500.00 $1,488,925.00 Staff reviewed the apparent lowest bidder and determined Calpromax Engineering met all the requirements for recommendation as the lowest responsive and responsible bidder.
The City received one protest letter from the second lowest bidder, Elecnor Belco Electric, Inc.
After reviewing the submitted protest, the City determined the concerns presented would not result in the disqualification of Calpromax Engineering and therefore rejected the bid protest.
Attached is the City’s response with the bid protest letter attached.
The anticipated costs include construction, materials testing, labor compliance, inspection, and other costs typically associated with construction for each project. Construction management would be performed by City staff, while material testing and labor compliance would be performed by a consultant.
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 2
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
CIP 21-07 and 21-10 Traffic Signals Award
January 19, 2022
8 2
3 If approved by the City Council, the tentative Project schedule is as follows:
Construction Start: February 14, 2022
Construction End: June 17, 2022
City Council Acceptance: July 20,2022
*The above timeline assumes no delays due to weather or unforeseen conditions.
Environmental Impact
The proposed projects have been determined to be Categorically Exempt (“Existing Facilities”) under the California Environmental Quality Act (CEQA) and CEQA Guidelines, Section 15301.
Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination. Class 1 includes the following example of a project that would be exempt under this section: (c) [minor alterations to] Existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (this includes road grading for the purpose of public safety). The proposed improvements are a negligible expansion of the existing use, considered to be minor alterations to existing streets or similar facilities.
These projects are exempt per Section 15301. All improvements are within existing city right-of- way. Additionally, this project is exempt under CEQA Guidelines, Section 15302 – Replacement or Reconstruction. Since the projects involve the replacement and reconstruction of the concrete sidewalk and ramps and concrete spandrels such that the new concrete sidewalk and ramps and concrete spandrels will be located on the same site and will have substantially the same purpose and capacity as that which is being replaced, this project is exempt per Section 15302.
The proposed projects are also exempt under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA (Section 15061(b)(3)). There is no possibility that the activity in question will have a significant effect on the environment because the proposed projects are occurring in an area that is already heavily disturbed and is not environmentally sensitive. Notices of Exemptions for both projects were recorded with the County of Riverside on October 27, 2021.
STRATEGIC PLAN OBJECTIVE
Safe and Attractive Community
FISCAL IMPACT
The anticipated total construction cost for the two projects is estimated at $1,185,318, of which $596,568 is for the Menifee Road/La Piedra Road Traffic Signal and $588,750 is for the Murrieta Road/Rouse Road Traffic Signal. The cumulative available funding for both traffic signal projects within the fiscal year 2021/22 adopted budget is $909,290 and is summarized in Table 2 on the following page. Additional funds in the total amount of $276,028 (rounded) are needed to support Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 3
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
CIP 21-07 and 21-10 Traffic Signals Award
January 19, 2022
8 2
3 completion of the projects. Additional funding support is available from unappropriated DIF Citywide Circulation Fund balance and will be distributed between the two projects as indicated in Table 3.
Table 2- Existing Project Funding
Fund Project Account
Number
Anticipated
Project Cost
Remaining
Available
Budget
Additional
Budget
Required
DIF
Citywide
Circulation
Menifee
Road/La Piedra
Traffic Signal
526-4555-58105 $596,568 $458,033 $138,535
DIF
Citywide
Circulation
Murrieta
Road/Rouse
Road Traffic
Signal
526-4555-58108 $588,750 $451,257 $137,493
Total $1,185,318 $909,290 $276,028
Table 3 – Additional Funding Required
Fund Project Account
Number
Amount
Requested
Menifee Road/La Piedra
Traffic Signal 526-4555-58105 $138,535*DIF Citywide
Circulation Murrieta Road/Rouse Road
Traffic Signal 526-4555-58108 $137,493
Total: $276,028
The current available DIF-Citywide Circulation Fund balance is $493,912 (rounded). If approved, this fund would have a remaining unencumbered fund balance of approximately $217,884.
ATTACHMENTS
1. Project Location Map
2. Owner-Contractor Agreement
3. Budget Amendment Resolution
4. City Bid Protest Response with exhibits
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 4
Menifee Mayor and City Council January 19, 2022
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Path: E:\Project_Specific_Maps\Engineering_PublicWorks\Menifee_Murrieta_Traffic_Signals\Menifee_Murrieta_Traffic_Signals.aprx Date: 12/22/2021 Menifee Road / La Piedra Road Traffic Signal (CIP 21-07) Project Location Map
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 5
Menifee Mayor and City Council January 19, 2022
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Path: E:\Project_Specific_Maps\Engineering_PublicWorks\Menifee_Murrieta_Traffic_Signals\Menifee_Murrieta_Traffic_Signals.aprx Date: 12/22/2021 Murrieta Road / Rouse Road Traffic Signal (CIP 21-10)
Project Location Map
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 6
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a09/30/21 Page 1
CITY OF MENIFEE BID AND CONTRACT DOCUMENTS
OWNER-CONTRACTOR AGREEMENT
CIP 21-07 & CIP 21-10: MENIFEE ROAD / LA PIEDRA ROAD AND MURRIETA
ROAD / ROUSE ROAD TRAFFIC SIGNAL IMPROVEMENT PROJECTS
This Owner-Contractor Agreement (“Agreement”) is made and entered into for the above referenced Project by and between the City of Menifee (“Agency”), and CALPROMAX ENGINEERING, INC (“Contractor”), whose principal business address is 700 S. VAN BUREN ST. STE. C, PLACENTIA, CA 92870 on the ________ day of ______________, 20_______.
In consideration of the mutual covenants and agreements set forth herein, the Agency and Contractor have mutually agreed as follows:
1. CONSTRUCTION
The Contractor agrees to do all the Work and furnish all the labor, services, materials and equipment necessary to construct and complete the Project in accordance with the Contract Documents (as hereinafter defined), including all work, labor, services, materials and equipment described and reasonably inferable from documents enumerated in Exhibit “A” attached hereto and incorporated herein by reference (such construction and furnishing of labor, service, materials and equipment hereinafter referred to as the “Work”) in a good worker-like and substantial manner and to the satisfaction of the Agency, in connection with the CIP 21-07 & CIP 21-10: MENIFEE
ROAD / LA PIEDRA ROAD AND MURRIETA ROAD / ROUSE ROAD TRAFFIC SIGNAL IMPROVEMENT PROJECTS to be constructed at the in the City of Menifee, California. The term Contract Documents shall mean this Agreement, and all of the items enumerated in Exhibit “A” and all change orders or addenda issued by the Agency with respect thereto. Agency must consent in writing to any changes in the scope of Work. Exhibit “A” shall be deemed revised in accordance with any revisions for which Agency’s consent has been issued.
Any revisions to the scope of Work for which Agency’s consent has not been issued shall be null and void.
2. CONTRACT PRICE
Agency hereby agrees to pay and the Contractor agrees to accept as full compensation for all Work performed in accordance with these Contract Documents the Contract Price as set forth in Exhibit “B”, Contract Price, attached hereto and incorporated herein by reference. Payments to the Contractor shall be made in the manner described in the Special Provisions.
3. TIME FOR PERFORMANCE
Time is of the essence in the performance of Work for this Agreement and all timing requirements shall be strictly adhered to unless otherwise modified by the Agency in accordance with these Bid and Contract Documents.
The Contractor shall complete the Work in every detail to the satisfaction of the Agency, exclusive of maintenance periods, within the specified duration set forth in the Notice to Proceed.
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 7
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a09/30/21 Page 2
4. DELAYS AND EXTENSIONS OF TIME
See Section 6-6 of the Special Provisions.
5. COVID-19 SAFETY
If Contractor or subcontractor(s) enters City property or meets in person with City employees during the performance of the Services, Consultant shall comply with all State, County, and local emergency orders, directives, protocols, and best practices related to the COVID-19 pandemic, including, but not limited to: (A) wearing facial coverings, (B) maintaining adequate physical distancing when possible, (C) regular hand washing, and (D) regular hand sanitizing.
6. LABOR CODE REQUIREMENTS
Pursuant to Labor Code Section 1771.1, the Contractor and all subcontractors shall be registered with the Department of Industrial Relations. Pursuant to Labor Code Section 1771.4, the Contractor is hereby notified that this Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. [EFFECTIVE APRIL 1, 2015.]
7. NON-DISCRIMINATION
In the performance of this Agreement, the Contractor shall not refuse or fail to hire or employ any qualified person, or bar or discharge from employment any person, or discriminate against any person, with respect to such person’s compensation, terms, conditions or privileges of employment because of such person’s race, religious status, sex or age.
8. AUTHORIZED AGENCY REPRESENTATIVES
On behalf of the Agency, the City Engineer of the City of Menifee shall be the Agency’s authorized representative in the interpretation and enforcement of all Work performed in connection with this Agreement. The City Engineer may delegate authority in connection with this Agreement to his/her assigned designees.
9. WORKERS’ COMPENSATION INSURANCE
a) By my signature hereunder, as Contractor, I certify that I am aware of the provisions of Section 3700 of the Labor Code, which requires 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 Agreement.
b) The Contractor shall require each subcontractor to comply with the requirements of Section 3700 of the Labor Code. Before commencing any Work, the Contractor shall cause each subcontractor to execute the following certification:
“I am aware of the provisions of Section 3700 of the Labor Code, which requires every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 8
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a09/30/21 Page 3
provisions of that Code, and I will comply with such provisions before commencing the performance of the Work of this Agreement.”
10. ENTIRE AGREEMENT; CONFLICT
The Contract Documents comprise the entire agreement between the Agency and the Contractor with respect to the Work. In the event of conflict between the terms of this Agreement and the bid of the Contractor, then this Agreement shall control and nothing herein shall be considered as an acceptance of the terms of the bid conflicting herewith.
11. MAINTENANCE OF AGREEMENT DOCUMENTATION
Contractor shall maintain all books, documents, papers, employee time sheets, accounting records and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by Agency and copies thereof shall be furnished to Agency if requested.
12. INDEPENDENT CONTRACTOR
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee, agent, partner or joint venturer of the Agency. Agency shall have the right to control Contractor insofar as the results of Contractor’s services rendered pursuant to this Agreement; however, Agency shall not have the right to control the means by which Contractor accomplishes such services.
13. LICENSES AND PERMITS
Contractor represents and declares to Agency that it has all licenses, permits, qualifications and approvals of whatever nature which are legally required to practice its profession. Contractor represents and warrants to Agency that Contractor shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any licenses, permits, qualifications or approvals which are legally required for Contractor to practice its profession.
14. GOVERNING LAW, VENUE
This Agreement and the Contract Documents shall be construed under and in accordance with the laws of the State of California, and the appropriate venue for any action or proceeding arising from this Agreement and/or the Contract Documents shall be had in the Superior Court of Riverside, Temecula Branch
15. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original.
16. FALSE CLAIMS
Contractor acknowledges that if a false claim is submitted to the Agency, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that the False Claims Act, California Government Code sections 12650, et seq., provides for civil penalties Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 9
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a09/30/21 Page 4
where a person knowingly submits a false claim to a public entity. These provisions include within their scope false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. In the event the Agency seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorneys’ fees. Contractor hereby acknowledges that the filing of a false claim may the Contractor to an administrative debarment proceeding wherein Contractor may be prevented from further bidding on public contracts for a period of up to five (5) years.
I have read and understood all of the provisions of this Section 15, above:
(Initial) (Initial)
17. AGREEMENT MODIFICATION
This Agreement and the Contract Documents may not be modified orally or in any manner other than by an amendment in writing and signed by the Agency and the Contractor.
IN WITNESS WHEREOF this Agreement is executed as of the date first written above.
AGENCY:
City of Menifee
By:
Armando G. Villa, City Manager
CONTRACTOR:
CALPROMAX ENGINEERING, INC
By:
Name: NIZAR KABBANY_________________
Its: PRESIDENT
APPROVED AS TO FORM:
By:
Jeffrey T. Melching, City Attorney
By:
Name: MARIA ARMOGEDA
Its: VICE-PRESIDENT
ATTEST:
By:
Sarah A. Manwaring, City Clerk
Contractor’s City Business License No.
Class A and B
State Contractor License No. & Class
700 S. VAN BUREN ST. STE. C
Street Address
PLACENTIA, CA 92870
City, State, Zip Code
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 10
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a09/30/21 Page 5
[NOTE: In the event the Contractor is a Corporation, the signatures of two separate persons holding different offices must be provided.]
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 11
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a09/30/21 Page 6
EXHIBIT A
CONTRACT DOCUMENTS
Owner-Contractor Agreement
Bid Schedule
Addenda
Plans
Special Provisions (Specifications)
Standard Specifications for Public Works Construction and Regional Supplements State Standard Specifications
State Standard Plans
Permits issued by jurisdictional regulatory agencies
Electric, gas, telephone, and cable television company specifications and standards Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 12
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a09/30/21 Page 7
EXHIBIT B
CONTRACT PRICE
Nine Hundred Eighty Two Thousand One Hundred Six Dollars and Fifty Cents ($982,106.50)
The Contract Price for performing all Work described in the Contract Documents, 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, as determined by the Agency.
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 13
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a00/00/00 Page 8
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 14
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a00/00/00 Page 9
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 15
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a00/00/00 Page 10
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 16
Menifee Mayor and City Council January 19, 2022
290/031858-0008
7645681.2 a00/00/00 Page 11
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 17
Menifee Mayor and City Council January 19, 2022
RESOLUTION NO. 21-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE, CALIFORNIA, AMENDING THE FISCAL YEAR 2021/22 OPERATING BUDGET
WHEREAS, the City of Menifee, California adopted a budget for the fiscal year 2021/22 with Resolution No. 21-1033 on June 2nd , 2021; and
WHEREAS, from time to time the City of Menifee receives unanticipated revenues, experiences unanticipated expenditures, and/or identifies alternative funding sources; and WHEREAS, it is in the best interest of the citizens of the City of Menifee to allocate budget resources to continue the operations of the City of Menifee; and WHEREAS, the City Council of the City of Menifee needs to amend the fiscal year 2021/22 budget as follows:
AMENDMENTS TO ADOPTED BUDGET:
Citywide Circulation Fund 526 Adopted FY 2021/22 Revenue Budget: $2,002,000
CITY COUNCIL
MEETING DESCRIPTION ACCOUNT # AMOUNT
TOTAL: $0
Amended Citywide Circulation Fund 526 Fund FY 2021/22 Revenue Budget: $2,002,000 Citywide Circulation Fund 526 Adopted FY 2021/22 Expenditure Budget: $3,440,000
2. Record Appropriation(s):
CITY COUNCIL
MEETING DESCRIPTION ACCOUNT # AMOUNT
October 6, 2021 FY20/21 Budget Carry-
Overs
526-xxxx-xxxxx $4,023,477.31
December 15, 2021 CIP 21-09: Murrieta Rd
& Sun City Blvd Traffic
Signal Project
526-4555-58107 $189,955.60
January 19, 2021 CIP 21-07: Menifee Rd
and La Piedra Rd
Traffic Signal Project
526-4555-58105 138,535
January 19, 2021 CIP 21-10: Murrieta
Rd and Rouse Rd
Traffic Signal Project
526-4555-58108 137,493
TOTAL: $4,489,460.91
Amended Citywide Circulation Fund 526 FY 2021/22 Expenditure Budget: $7,929,460.91 Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 18
Menifee Mayor and City Council January 19, 2022
Amending the Fiscal Year 2021/22 Citywide Circulation Fund 526 Budget CIP 21-07 & 21-10 (Menifee Rd/La Piedra Rd & Murrieta Rd/Rouse Rd Traffic Signal Projects) 2 4
4 4
6 8
3. Record Transfer of Funds:
FROM ACCOUNT # TO ACCOUNT # AMOUNT
TOTAL: 0
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MENIFEE DOES HEREBY RESOLVE AS FOLLOWS:
The annual budget for the Citywide Circulation Fund 526 for the City of Menifee for fiscal year 2021/22 is hereby increased and amended to reflect unanticipated revenues and expenditures as follows:
Revenues:
Citywide Circulation Fund 526 FY 2021/22 Budget $2,002,000 Expenditures:
CIP 21-07: Menifee Rd & La Piedra Road Traffic Signal Project $138,535 CIP 21-10: Murrieta Rd & Rouse Road Traffic Signal Project $137,493
Amended Citywide Circulation Fund 526 FY 2021/22 Budget $7,929,460.91
PASSED, APPROVED AND ADOPTED this 19th day of January 2022. _____________________________
Bill Zimmerman, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________ Sarah A. Manwaring, City Clerk Jeffrey T. Melching, City Attorney Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 19
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 20
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 21
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 22
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 23
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 24
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 25
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 26
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 27
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 28
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 29
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 30
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 31
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 32
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 33
Menifee Mayor and City Council January 19, 2022
Item Title: 10.19 Menifee Road/La Piedra Road Traffic Signal and the Murrieta Road/Rouse Road Traffic Signal Agreement
Item Page Number: 34
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Resolution of Intention to Establish Underground Utilities District No. 2022-1
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Jennifer Hernandez, Management Analyst I
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Adopt a Resolution of Intention to establish Underground Utility District No. 2022-1, located on Goetz Road near Vista Way, and to set a public hearing for February 16, 2022.
DISCUSSION
The State of California Public Utilities Commission (CPUC) established policies and procedures for the conversion of overhead power lines and other equipment to underground facilities, commonly known as “undergrounding.” Projects under Rule 20 are funded either through utility rate money, combination utility rate money and local tax proceeds, or private funds specifically defined by Rule 20A, Rule 20B, or Rule 20C provisions respectively.
Rule 20A credits are collected from all electric rate payers through a levy on every utility bill. All projects accomplished through Rule 20A money are paid by all Southern California Edison (SCE) customers and ratepayers, not just those who live in the locations where facilities are undergrounded. As such, SCE allocates Rule 20A credits to cities annually. To date, the City of Menifee has a credit balance of $814,345.
For an undergrounding project to qualify for full funding through Rule 20A credits, projects must be in the interest of the general public and meet one of the following criteria:
1. The undergrounding will reduce or eliminate a heavy concentration of overhead electric facilities.
2. The location is in a heavily traveled area.
3. The existing overhead facilities pass through a civic area, public recreation area, or area of unusual scenic interest to the general public.
4. The location qualifies as an arterial street or major collector.
Item Title: 10.20 Resolution of Intention to Establish Underground Utilities District No. 2022-1 Item Page Number: 1
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
UUD 2022-1 Resolution of Intention
January 19, 2022
8 0
9 In order to utilize funds under Rule 20A, the City must first identify a project area, create an underground utility district by adoption of a Resolution, and work with SCE through the various phases of undergrounding.
The City anticipates forming Underground Utility District (UUD) No. 2022-1 on Goetz Road near Vista Way, as shown in Exhibit A to the Resolution of Intention (Attachment 2). The proposed location of the UUD is considered a major collector roadway under the City’s General Plan, thereby satisfying the required criteria under Rule 20A for fund utilization. The proposed undergrounding extends about 645 feet, exceeding the minimum length requirement of 600 feet under Rule 20A. Undergrounding the overhead utilities at this site will improve the area and prepare for future traffic installation in the project area and widening improvements along Goetz Road.
The Resolution of Intention is the first step in the process of forming the UUD. The attached Resolution declares the City’s intention to establish UUD No. 2022-1 and calls for a public hearing.
The public hearing will consider if the public necessity, health, safety, or welfare requires the removal of poles, overhead wires and associated overhead structures within the proposed UUD location and undergrounding the installation of wires and facilities supplying electric, communication, or similar or associated services.
The public hearing on the matter will take place on February 16, 2022 and at that time the City Council would formally consider approval to establish UUD No. 2022-1.
STRATEGIC PLAN OBJECTIVE
Safe and Attractive Community
FISCAL IMPACT
There is no fiscal impact associated with the recommended action.
ATTACHMENTS
1. City of Menifee Rule 20A Allocation
2. Resolution of Intention
Item Title: 10.20 Resolution of Intention to Establish Underground Utilities District No. 2022-1 Item Page Number: 2
Menifee Mayor and City Council January 19, 2022
Julio Felix
Project Manager,
Distribution Project Management
Rule 20
9500 Cleveland Avenue
Rancho Cucamonga, CA 91730 E-mail: [email protected]
May 28, 2021
City of Menifee
Mr. Armando G. Villa
City Manager
29844 Haun Road
Menifee, CA 92586
SUBJECT: City of Menifee 2021 Rule 20A Work Credit Balance
Dear Mr. Villa:
Southern California Edison (SCE) has filed with the California Public Utilities Commission (CPUC) its annual report of SCE’s 2021 budget for capital spending under Tariff Rule 20A, Replacement of Overhead with Underground Electric Facilities. For calendar year 2021, the budget is $ 12,083,257.
Pursuant to the formula set out in Tariff Rule 20A, the portion of this amount allocated to the City of Menifee is $0. Under the tariff, allocated work credits not committed to a qualifying project in a given year are carried over to the next year. As of this writing, the City of Menifee’s work credit balance is $814,345.
In addition to the work credit balance, CPUC Decision 01-12-009 codified the opportunity for local governments to “mortgage” or borrow up to an additional five years of work credits in order to be able to undertake a qualifying Rule 20A project sooner than they otherwise could.
In accordance with the Decision, and when requested by you, SCE will meet with you and community residents at least once every six months when projects are in queue, and at least once every other month once a conversion project is underway. The decision requires local government to give notice of the meetings and provide the venue. Please feel free to call me any time to schedule such a community meeting or, if you have any questions about Rule 20A or any other matters affecting SCE’s service to you.
Regards,
Julio Felix
New Development Project Manager, Rule 20 Program
cc:
Elias Bermudez, Senior Manager, New Development Planning Jeremy Goldman Government Affairs Manager
Talisa Lee, Business Advisor, Rule 20, New Development Planning
Item Title: 10.20 Resolution of Intention to Establish Underground Utilities District No. 2022-1 Item Page Number: 3
Menifee Mayor and City Council January 19, 2022
1 RESOLUTION NO. 22-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE,
CALIFORNIA, DECLARING ITS INTENTION TO ESTABLISH UNDERGROUND UTILITIES DISTRICT NO. 2021-1 OF THE CITY OF MENIFEE ON GOETZ ROAD FROM CASA BONITA AVENUE TO 270 FEET SOUTHEAST OF VISTA WAY INTO THE CITY’S RIGHT-OF-WAY AND ON VISTA WAY FROM GOETZ ROAD
TO CONEJA DRIVE
WHEREAS, the California Public Utilities Commission (CPUC) has authorized electric utilities to convert overhead utility lines and facilities to underground pursuant to Electric Rule 20; and
WHEREAS, Rule 20A allows Southern California Edison to remove poles, overhead wires, and associated overhead structures, and the underground installation of wire and facilities for supplying electric, communication, and similar services to underground utility districts; and WHEREAS, pursuant to Rule 20A, a City is authorized to create an underground utility district where the City has determined, after consultation with SCE and after holding a public hearing on the subject, that such undergrounding is in the public interest, and provided that the City adopt an ordinance requiring: (i) that all existing overhead communication and distribution facilities in the proposed district be removed, (ii) that each property to be served with the necessary improvements to receive service from the underground facilities, and (iii) authorizing SCE to discontinue its overhead service; and
WHEREAS, pursuant to Rule 20A, the City of Menifee desires to convert the overhead facilities to underground utilities along Goetz Road near Vista Way more particularly described in Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, the City of Menifee desires to hold a public hearing to determine whether the public necessity, health, safety or general welfare, and to adopt required underground installation of all utilities within the area described in Exhibit A as required by Rule 20A.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Menifee, California:
Section 1.Recitals. The above recitals are true and correct .
Section 2.Statement of Intent. The City hereby states its intention to declare the area shown on Exhibit A, as an underground utility district in accordance with the requirements of Rule 20A, and that the proposed underground utilities district will be known as “Underground Utilities District No. 1,” and the boundaries of the proposed underground utilities district are described and shown on Exhibit A attached hereto.
Item Title: 10.20 Resolution of Intention to Establish Underground Utilities District No. 2022-1 Item Page Number: 4
Menifee Mayor and City Council January 19, 2022
Resolution Description
2 4
4 3
4 3
Section 3.Public Hearing. The City Council hereby fixes 6:00 p.m., or as soon thereafter as practicable, on Wednesday, February 16, 2022 in the City Council Chambers located at 29844 Haun Road, Menifee, California 92586, as the time and place when and where the City Council will conduct a public hearing to consider adopting an ordinance creating the proposed Underground Utility District No. 1, depicted in Exhibit A hereto.
PASSED, APPROVED AND ADOPTED this 19th day of January, 2022 __________________________
Bill Zimmerman, Mayor
Attest:
___________________________
Sarah A. Manwaring, City Clerk
Approved as to form:
___________________________
Jeffrey T. Melching, City Attorney
Item Title: 10.20 Resolution of Intention to Establish Underground Utilities District No. 2022-1 Item Page Number: 5
Menifee Mayor and City Council January 19, 2022
Resolution Description
3 4
4 3
4 3
Exhibit A
Item Title: 10.20 Resolution of Intention to Establish Underground Utilities District No. 2022-1 Item Page Number: 6
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Chet Robinson, Associate Engineer
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Accept the public road/drainage, water system and sewer system improvements for Tract Map (TM) 36485-1, located northeast of Newport Road and Goetz Road; and
2. Approve the 90% bond reduction for road/drainage, water system, and sewer system improvements in TM 36485-1; and
3. Approve the release of the survey monument bond for TM 36485-1.
DISCUSSION
Tract Map (TM) 36485-1 is a proposed subdivision of 16.78 gross acres into 70 lots for residential use. The project is located northeast of Newport Road and Goetz Road, as shown on the attached project map. To comply with the project’s conditions of approval, the master developer, Sutter Mitland 01, LLC, posted the required securities to guarantee the construction of the required road, drainage, water, and sewer improvements.
Sutter Mitland 01, LLC has now fully completed construction and is requesting that the City accept the completed improvements into the City’s maintenance system. Staff has inspected the completed improvements and determined the public improvements have been constructed according to City specifications and standards and that all project conditions of approval have been met. The associated bonds are summarized in Table 1 on the following page. The remaining 10% of the improvement bonds will be held as a warranty for a period of one year in accordance with the City Municipal Code.
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
Bond Reduction TM 36485-1
January 19, 2022
8 3
6 Table 1- TM 36485-1 Bond Reduction
Improvement Security Faithful
Performance
(Original Amount)
Labor &
Materials
(Original
Amount)
Faithful
Performance
(90%
Reduction)
Labor &
Material
Road &
Drainage
TM 5190099
/ 015050555
$ 1,113,500 $ 556,750 $ 111,350 N/A
Water System TM 5190099
/ 015050555
$ 415,000 $ 207,500 $ 41,500 N/A
Sewer
System
TM 5190099
/ 015050555
$ 186,000 $ 93,000 $ 18,600 N/A
TOTAL $ 1,714,500 $ 857,250 $ 171,450 N/A
Table 2- Survey Monument Bond Release
Improvement Security Faithful Performance
(Original Amount)
Labor & Materials
(Original Amount)
Monument 929630702 $ 63,000 N/A
TOTAL $ 63,000 N/A
STRATEGIC PLAN OBJECTIVE
Accessible and Interconnected Community
FISCAL IMPACT
The developer has paid all necessary fees and deposits to cover costs of the required inspection of completed improvements. Ongoing maintenance costs for the improvements will be budgeted as part of future fiscal year operating budgets.
ATTACHMENTS
1. Project Map with Vicinity Map
2. Tract Map 36485-1
3. Road Improvement Bond Agreement
4. Water System Improvement Bond Agreement
5. Sewer System Improvement Bond Agreement
6. Improvement Bonds
7. Survey Monument Bond and Agreement
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
Item Title: 10.21 Security Improvement Bond Reduction, Tract Map 36485-1 by Sutter Mitland 01, LLC Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01
LLC
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Chet Robinson, Associate Engineer
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Accept the streetscape landscape improvements on Honeyrun Road associated with the Audie Murphy Ranch Tract Map (TM) 31822-F, located east of Goetz Road and north of Audie Murphy Road North.
DISCUSSION
Tract Map 31822-F is a proposed subdivision of 45.95 gross acres of land into 147 lots for residential use, located east of Goetz Road and north of Audie Murphy Road North. To comply with the project’s conditions of approval, the master developer, Sutter Mitland 01, LLC, constructed streetscape landscape improvements at the western end of Honeyrun Road where the roadway terminates and abuts Tract Map 31822-F.
Sutter Mitland 01, LLC has completed construction of the Honeyrun Road streetscape landscape improvements and is requesting the City accept the completed improvements into the City’s maintenance system. Staff has inspected the completed improvements and determined the public improvements have been constructed according to City specifications and standards and that all project conditions of approval have been met.
STRATEGIC PLAN OBJECTIVE
Safe and Attractive Community
FISCAL IMPACT
The developer has paid all necessary fees and deposits to cover the costs of required inspection of the completed improvements. Ongoing maintenance costs for the improvements would be budgeted as part of future fiscal year operating budgets.
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 1
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
Acceptance PM 31822-F
January 19, 2022
8 3
7 ATTACHMENTS
1. Project Map with Vicinity Map
2. Tract Map 31822-F
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 2
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 3
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 4
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 5
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 6
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 7
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 8
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 9
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 10
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 11
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 12
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 13
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 14
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 15
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 16
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC
Item Page Number: 17
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 18
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 19
Menifee Mayor and City Council January 19, 2022
Item Title: 10.22 Streetscape Landscape Improvements Acceptance, Honeyrun Road, Parcel Map 31822-F by Sutler Mitland 01 LLC Item Page Number: 20
Menifee Mayor and City Council January 19, 2022
CITY OF MENIFEE
SUBJECT: CivilPros for the Scott/Bundy Canyon Road Widening Project Agreement Amendment
MEETING DATE: January 19, 2022
TO: Mayor and City Council
PREPARED BY: Jennifer Hernandez, Management Analyst I
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute amendment no. 3 to the professional services agreement with CivilPros, Inc. for the Bundy Canyon/Scott Road Widening Project, Capital Improvement Project No. CIP20-01, in the not-to-exceed amount of $520,900, and extending the term of services through June 30, 2024.
DISCUSSION
In July of 2019, the City of Menifee contracted with CivilPros, Inc. to provide services for the completion of the environmental, design, and right-of-way services for the widening of Scott Road from Haun Road to Sunset Boulevard. In November of 2020, the City Council approved Amendment No.1 with CivilPros, Inc., after the investigation phase of the project resulted in the finding that additional work was necessary to meet the project’s environmental and design requirements. On July 7, 2021, the City Council approved Amendment No. 2 for preparation of additional CEQA environmental documents and studies requested by the jurisdictional approving environmental agencies (CA Fish and Wildlife, Western Riverside County Regional Conservation Authority).
At the time of the approval of Amendment No. 2, the Investing in a New Vision for the Environment and Surface Transportation (INVEST) in America Act was being considered for approval which would provide funding towards modernizing public infrastructure, fight climate change, and make transportation systems more equitable. Now approved, the INVEST in America Act will provide opportunities for federal funding through competitive grant programs.
When pursuing competitive federal funding grant opportunities, projects that have already met federal environmental requirements and are considered “shovel ready” are more likely to be approved for funding.
Item Title: 10.23 CivilPros for the Scott/Bundy Canyon Road Widening Project Agreement Amendment Item Page Number: 1
Menifee Mayor and City Council January 19, 2022
City of Menifee Staff Report
Scott Road Widening NEPA Amendment
January 19, 2022
7 8
9 To ensure the project is competitive in time for federal grant funding opportunities, it must meet National Environmental Policy Act (NEPA) requirements. Currently, the scope of work under the existing agreement with CivilPros does not provide for NEPA compliance services. An amendment is necessary in order to proceed with NEPA requirements and thereby provide for a more competitive application when federal grant opportunities arise. Additional work required for NEPA compliance is identified below:
1.New environmental efforts to prepare NEPA Environmental Document:
a. Services to complete the NEPA Environmental Assessment (EA) phase. b. Research, investigation, and refinement of the purpose and need for the project.
Preparation of the preliminary environmental study and environmental footprint of the project.
c. Preparation of reports and technical studies
Environmental footprint to identify physical boundaries of project study area Natural Environment Study
Biological assessment
Historical Properties Survey Report
Archaeological Survey Report
Air Quality Assessment
Noise Impact Analysis
Relocation Impact Report
Community Impact Assessment
d. Preparation of Environmental Documents
The total fee associated with this task is $355,034.
2.Additional Project Management to support NEPA phase: Increase monthly meeting attendance and general administration to complete the NEPA process and supporting technical studies. The total fee associated with this task is $21,648
3.Additional Civil efforts: Preparation of exhibits and information in support of the NEPA efforts. The total fee associated with this task is $7,575
4.Traffic Impact Analysis: Preparation of a Traffic Impact Analysis to support the NEPA efforts. The total fee associated with this task is $71,893
5.Water Quality Assessment Report: Preparation of a water quality assessment report to support the NEPA phase of the project. The total fee associated with this task is $64,750
The total cost for the additional work is $520,900 and would call for an extension of the current agreement with CivilPros through June 30, 2024 to ensure timely completion of the NEPA process. The amendment would revise the total not-to-exceed contract value for Civil Pros to $2,996,759. This amount represents the original agreement, all previous amendments and this proposed amendment no. 3.
Item Title: 10.23 CivilPros for the Scott/Bundy Canyon Road Widening Project Agreement Amendment Item Page Number: 2
Menifee Mayor and City Council January 19, 2022