Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 21
Menifee Mayor and City Council
April 2, 2025
Page
268 of 1198
PS/2457 16
full force and effect until (i) DISTRICT FACILITIES are accepted by DISTRI CT as complete and (ii) CITY FACILITIES are accepted by CITY as complete ; at which time, the bond amount may be reduced to ten percent (10%) for a period of one year to guarantee against any defectiv e work, labor or materials.
8. Notify DISTRICT (Attention: Contract Services Section) and CITY in writing at least twenty (20) days prior to the start of construction of PROJ ECT. Construction shall not begin on any element of PROJECT , for any reason whatsoever, until DISTRICT and CITY have issued to DEVELOPER a written Notice to Proceed authorizing DEVELOP ER to commence construction of PROJECT.
9. Grant DISTRICT and CITY, by execution of this Agreement, the right to enter upon DEVELOPER's property where necessary and convenient for the purpose of gaining access to and performin g inspection service for the construction of PROJ ECT as set forth herein .
10. If applicable , obtain and provide DISTRICT (Attention : Plan Check Section), at the time of providing written notice to DISTRI CT and CITY of the start of construction as set forth in Section 1.8. or not less than twenty (20) days prior to the recordation of the final maps for Tract No. 31456 , with duly exec uted Irrevocable Offers(s) of Dedication to the public for flood control and drainage purpos es, including ingress and egress, for the rights of way deemed necessary by DISTRICT for the construction , inspection, operation and maintenance of DISTRICT FACILITIES. The Irrevocabl e Offer(s) of Dedication shall be provided to CITY to accept on behalf of DISTRICT, in a form approved by DISTRICT and shall be executed by all legal and equitable owners of the propert y described in the offer(s) .
11. If applicable, furnish DISTRICT (Attent ion: Plan Check Section) , when submittin g the Irrevoca ble Offer(s) of Dedic ation as set forth in Section I. 10., with Preliminar y - 8 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 22
Menifee Mayor and City Council
April 2, 2025
Page
269 of 1198
PS/2457 I 6
Reports on Title dated not more than thirty (30) days prior to date of submission of all the property described in the In-evocable Offer(s) of Dedication.
12. Furnish DISTRICT (Attention: Contract Services Section) and CITY, at the time of providing written notice to DISTRICT and CITY of the start of construction as set forth in Section I.8., with a complete list of all contractors and subcontractors to be performing work on PROJECT , including the corresponding license number and license classification of each. At such time, DEVELOPER shall further identify in writing its designated superintendent for PROJECT construction.
13. Furnish DISTRICT (Attention: Contract Services Section) and CITY, at the time of providing written notice to DISTRICT and CITY of the start of construction as set forth in Section I.8., a construction schedule which shall show the order and dates in which DEVELOPER or DEVELOPER's contractor proposes to carry out the various parts of work, including estimated start and completion dates. As construction of PROJECT progresses , ,
DEVELOPER shall update said construction schedule as requested by DISTRICT and/or CITY .
14. Furnish DISTRICT with final mylar plans ("RECORD DRAWINGS") for PROJECT, and assign their ownership to DISTRICT prior to the staii on any portion of PROJECT construction.
15. Not permit any change to or modification of DISTRICT and CITY approved IMPROVEMENT PLANS without the prior written permission and consent of DISTRICT and CITY.
16. Comply with all Cal/OSHA safety regulations , including but not limited to regulations concernin g confined space and maintain a safe working environment for DEVELOP ER, DISTRICT and CITY employees on the site.
- 9 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 23
Menifee Mayor and City Council
April 2, 2025
Page
270 of 1198
PS/245716
17. Furnish DISTRJCT (Attention: Contract Services Sect ion) and CITY , at the time of providing written notice to DISTRJCT and CITY of the start of construct ion as set forth in Section 1.8., with a confined space entry procedure specific to PROJECT. The procedure shall comply with requirements containe d in California Code of Regulations , Title 8, Section 5158, Other Confined Space Operations; ,Sect ion 5157 , Permit Required Confined Space; and District Confined Space Procedures, SOM-18. The procedure shall be reviewed and approved by DISTRJCT and CITY prior to the issuance of a Notice to Proceed, which shall be given by DISTRJCT to DEVELOPER upon DISTRJCT's and CITY's approva l.
18. DEVELOPER shall not commence operations until DISTRJCT (Attention: Contract Services Section) and CITY have been furnished with original certificate(s) of insurance and original certified cop ies of endorsements and, if requested, certified original policies of insurance , includin g all endorsements and any and all other attachments. Prior to DISTRJCT issuing a Notice to Proceed to DEVELOPER's construction contractor(s) to begin construction of PROJECT, an origina l certificate of insurance evidencing the required insurance coverage shall be provided to DISTRJCT and CITY. At minimum, the procured insurance coverages shou ld adhere to DISTRICT's and CITY's required insurance provided in Exh ibit "C", attac hed hereto and made a part hereof.
Failure to maintain the insurance required by the above paragraph shall be deemed a material breach of this Agreement and shall authorize and constitute authority for DISTRJCT or CITY, at their sole discretion , to provide written notice to DEVELOPER that either DISTRJCT or CITY will no longer be required to perform their obligations of this Agreement , nor accept responsibility for ownership , operation and maintenance of DISTRJCT FACILITIES or CITY FACILITIES due , either in whole or in part , to DEVELOPER's said breach of this Agreement.
- 10 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 24
Menifee Mayor and City Council
April 2, 2025
Page
271 of 1198
P8/2457 16
19. Construct or cause to be constructed PROJ ECT at DEVELOPER's sole cost and expense in accordance with DISTRJCT and CITY approved IMPROVEM ENT PLANS and this Agreement.
20. Within two (2) weeks of completing PROJECT construction, provide DISTRJCT (Attention: Construction Management Section) and CITY with written notice that PROJECT construction is substantially complete and requestin g that DISTRJCT conduct a final inspection of DISTRICT FACILITIES and CITY conduct a final inspection of PROJECT.
21. If right of way conveyance to DISTRICT is required , upon completion of PROJ ECT construction and upon acceptance by CITY of all rights of way deemed necessary by DISTRJCT and CITY for the operation and maintenance of PROJ ECT, but prior to DISTRICT acceptance of DISTRJCT FACILITIES for ownership , operation and maintenance , convey or cause to be conveyed to DISTRJCT (Attention: Plan Check Section) the flood control easement(s) , including ingress and egress , and/or grant deed( s) for the rights of way, as shown in concept in hatching on Exhibit "D" attached hereto and made a part hereof.
22. At the time of recordation of the conveyance document(s) as set forth in Section 1.21., furnish DISTRJCT (Attention: Real Estate Services Section) with policies of title insurance , each in the amount of not less than (i) fifty percent (50%) of the estimated fee value, as determined by DISTRICT, for each easement parcel to be conveyed to DISTRICT or (ii) one hundred perc ent (100%) of the estimated value , as determined by DISTRJCT , for each fee parcel to be conveyed to DISTRJCT , guaranteeing DISTRJCT's interest in said property as being free and clear of all liens, encumbrances , assessments , easements , taxes and leases (recorded or umecorded), and except those which, in the sole discretion of DISTRICT , are acceptable.
23. Accept ownership and sole respons ibility for the operation and maint enance of PROJECT until such time as (i) DISTRJCT accept s ownership and responsibility - 11 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 25
Menifee Mayor and City Council
April 2, 2025
Page
272 of 1198
PS/24 57 16
for the inspection , operation and maintenance of DISTRICT FACILITIES, and (ii) CITY accepts responsibility for the inspection , operation and maintenance of CITY FACILITIES.
24. Pay, if suit is brought upon this Agreement or any bond guaranteeing the completion of PROJECT , all costs and reasonable expenses and fees, including reasonable attorneys' fees, and acknowledge that, upon entry of judgment , all such costs , expenses and fees shall be computed as costs and included in any judgment rendered.
25. Upon completion of PROJ ECT construction , but prior to (i) DISTRICT acceptance of DISTRICT FACILITIES for ownership , operation and maintenance , and (ii) CITY acceptance of CITY FACILITIES for ownership , operation and maintenance , provide or cause its civil engineer ofrecord or construction civil engineer ofrecord , duly registered in the State of California , to provide DISTRICT and CITY with a redlined RECORD DRAWINGS copy of PROJECT plans. After DISTRICT and CITY approval of the redlined RECORD DRAWINGS , DEVELOPER's engineer shall schedule with DISTRICT a time to transfer the redlined changes onto DISTRICT's original RECORD DRAWINGS at DISTRICT's office , after which the engineer shall review, stamp and sign the original PROJECT engineering plans RECORD DRAWINGS.
26. Ensure that all work performed pursuant to this Agreement by DEVELOPER , its agents or contractors is done in accordance with all applicable laws and regulations , including but not limited to all applicable provisions of the Labor Code , Business and Professions Code, and Water Code. DEVELOPER shall be solely responsible for all costs associated with compliance with applicable laws and regulations.
SECTION II
DISTRICT shall:
- 1 2 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 26
Menifee Mayor and City Council
April 2, 2025
Page
273 of 1198
PS/245716
1. Review IMPROVEMENT PLANS and approve when DISTRJCT has determined that such plans meet DISTRICT standards and are found acceptable to DISTRICT prior to the start of PROJECT construction.
2. Provide CITY an opportunity to review and, if CITY deems appropriate in its sole and absolute discretion, approve IMPROVEMENT PLANS prior to DISTRICT's final approval. DISTRICT shall not approve IMPROVEMENT PLANS until CITY has provided its approval pursuant to this Section.
3. Upon execution of this Agreement, record or cause to be recorded a copy of this Agreement in the Official Records of the Riverside County Recorder.
4. If applicable , DISTRJCT shall request CITY review any requested Irrevocable Offer(s) of Dedication in connection with the PROJECT and accept any such Irrevocable Offers of Dedication on behalf of DISTRJCT. In the same action that it accepts an Irrevocable Offer of Dedication, CITY shall immediately convey the property interest(s) associated with the requested Irrevocable Offer(s) of Dedication to DISTRICT via quitclaim or other similar conveyance document, which shall be prepared by DISTRICT. DISTRJCT shall be deemed to have accepted the property interest(s) associated with the requested Irrevocable Offer(s) of Dedication upon the recordation of the conveyance document. Neither this section nor Section I.l O restricts CITY's abi lity to require any other lawful Irrevocable Offer(s) of Dedication from DEVELOPER.
5. Inspect construction of DISTRICT FACILITIES.
6. Keep an accurate accounting of all DISTRICT costs associated with the review and approval of IMPROVEMENT PLANS , the review and approval of right of way and conveyance documents , and the processing and administration of this Agreement. - 13 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 27
Menifee Mayor and City Council
April 2, 2025
Page
274 of 1198
PS/24 5716
7. Keep an accurate accounting of all DISTRlCT construction inspection costs, and within forty-five (45) days after DISTRJCT acceptance of DISTRJCT FACILITIES as being complete , submit a final cost statement to DEVELOP ER. If the deposit , as set forth in Section I.3., exceeds such costs, DISTRJCT shall reimburse DEVELOPER the excess amount within sixty (60) days after DISTRICT acceptance of DISTRICT FACILITIES as being complete.
8. Prior to DISTRICT acceptance of ownership and responsibility for the operation and maintenance of DISTRICT FACILITIES, PROJECT shall be in a satisfactorily maintained condition as solely determined by DISTRJCT and shall have been accepted by DISTRICT for ownership , operation and maintenance. If, subsequent to the inspection and in the sole discretion of DISTRJCT , DISTRICT FACILITIES are not in an acceptable condition , corrections shall be made at sole expense of DEVELOPER.
9. Accept ownership and sole responsibility for the operation and maintenance ofDISTRlCT FACILITIES from DEVELOP ER upon (i) DISTRICT inspection of DISTRICT FACILITIES in accordance with Section I.20., (ii) DISTRJCT acceptance of DISTRICT FACILITIES construction as being complete, (iii) DISTRICT receipt of stamped and signed "RECORD DRAWINGS" of PROJECT plans , as set forth in Section I.25., (iv) DISTRICT acceptance of all rights of way as deemed necessary by DISTRICT and CITY for the ownership , operation and maintenance of DISTRICT FACILITIES, (v) CITY acceptance of CITY FACILITIES, and (vii) DISTRICT's sole determination that DISTRICT FACILITIES and are in a satisfactorily maintained condition .
10. Provide CITY with a reproducible duplicate copy of RECORD DRAWINGS of PROJECT plans within 10 days of receipt.
- 14 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 28
Menifee Mayor and City Council
April 2, 2025
Page
275 of 1198
PS/2457 16
11. In the event CITY wishes to utilize DISTRICT's construction inspection , materials testing and construction survey services , and CITY provides DISTRICT with a written request for such services under Section III.3., DISTRICT shall provide a timely response whether or not they have the resources to perform such services. If DISTRICT wishes to provide such services, DISTRICT shall provide all necessary construction inspection, materials testing and construction survey services for PROJECT and assist CITY as needed with the administration of PROJECT's construction contract. DISTRICT hereby agrees to pay all DISTRICT costs associated with the inspection of PROJECT construction , as set forth herein.
SECTION III
CITY shall:
1. Review and approve IMPROVEMENT PLANS pnor to the start of PROJECT construction .
2. Accept CITY and DISTRICT approved faithful performance and payment bonds submitted by DEVELOPER as set forth in Section 1.7., and hold said bonds as provided herein.
3. Inspect PROJECT construction or cause PROJECT's construction to be inspected by its construction manager , to be reimbursed by DEVELOPER. In the event CITY wishes to utilize DISTRICT's construction inspection , materials testing and construction survey services, CITY shall provide DISTRICT with a written request (Attn: Construction Management) for such services pursuant to Section II.1 I above.
4. Upon request by DISTRICT , CITY shall review any requested Irrevocable Offer(s) of Dedication in connection with the PROJECT and accept any such Irrevocable Offers of Dedication on behalf of DISTRICT. In the same action , CITY shall immediatel y convey the property interest(s) associated with the requested Irrevocab le Offer(s) of Dedication to - 15 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 29
Menifee Mayor and City Council
April 2, 2025
Page
276 of 1198
PS/245716
DISTRICT via quitclaim or other similar conveyance document , which shall be prepared by DISTRICT. DISTRICT shall be deemed to have accepted the property interest(s) associated with the requested Irrevocable Offer(s) of Dedication upon the recordation of the conveyance document.
5. Grant DISTRICT , by execution of this Agreement , the right to inspect , operate and maintain DISTRICT FACILITIES within CITY rights of way, provided DISTRICT (including its employees , supervisors , agents, contractors and anyone else operating under their direction) exercises such right( s) in a safe and reasonable manner that does not adversely impact the public health and safety.
6. Accept ownership and sole responsibility for the inspection, operation and maintenance of CITY FACILITIES, upon (i) CITY inspection of PROJECT in accordance with Section 1.20., (ii) CITY and DISTRICT acceptance of PROJECT construction as being complete , (iii) CITY receipt of signed reproducib le duplicate copy of RECORD DRAWINGS of PROJECT plans, as set forth in Section II.10., (iv) CITY acceptance of all rights of way as deemed necessary by DISTRICT and CITY for the ownership , operation and maintenance of DISTRICT FACILITIES , and CITY FACILITIES, as outlined in this Agreement, and the (v) CITY's sole determination that PROJECT is in a satisfactorily maintained condition. In addition to the foregoing , CITY's acceptance under this section shall not be effective until DISTRICT's acceptance of DISTRICT FACILITIES , under Section II, above . As such, until DISTRICT accepts DISTRICT FACILITI ES, the ownership and maintenance obligations regarding the CITY FACILITIES shall be the sole responsibilit y of DEVELOPER.
7. Releas e occupancy permits in accordance with the approved conditions of approva l.
- 16 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 30
Menifee Mayor and City Council
April 2, 2025
Page
277 of 1198
P8/2457 I 6
8. Notwithstanding any of the foregoing , prior to accepting ownership of CITY FACILITIES, PROJ ECT shall be in a satisfactorily maintained condition as solely determined by CITY. If, subsequent to the inspection and in the sole discretion of CITY , CITY FACILITIES are not in an acceptab le condition , corrections shall be made at sole expense of DEVELOPER.
9. Upon DISTRICT and CITY acceptance of PROJ ECT construction as being complete, accept sole responsibility for the adjustment of all PROJECT manhole rings and covers located within CITY rights of way which must be performed at such time(s) that the finished grade along and above the underground portion of DISTRI CT FACILITIES is improved , repaired , replaced or changed. It being further understood and agreed that any such adjustments shall be performed at no cost to DISTRICT.
SECTION IV
It is further mutually agreed by the parties hereto that:
1. AU work involved with PROJECT shall be inspected by DISTRICT and CITY, and shall not be deemed complete until DISTRICT and CITY mutually agree in writin g that construction of the PROJECT is complet ed in accordance with DISTRICT and CITY approved IMPROVEM ENT PLANS.
2. CITY and DEVELOPER personnel may observe and inspect all work being done on PROJECT , but shall provide any comments to DISTRICT personnel who shall be solely responsible for all guality control communications with DEVELOP ER's contractor(s) during the construction of PROJ ECT. Prior to any communication with DEVEL OPER under this section , DISTRICT and CITY personn el shall meet and confer and agree to all communications conveyed to DEVELOPER. If DISTRICT and CITY should disagree as to the - 17 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 31
Menifee Mayor and City Council
April 2, 2025
Page
278 of 1198
PS/245716
content of any particular communication , DISTRICT persom1el agree to communicate CITY comments to DEV ELOPER in addition to DISTRICT comm ents.
3. DEVELOPER shall complete construction of PROJECT within eighteen (18) consecutive months after receipt of Notice to Proceed from DISTRICT and CITY. It is expressly understood that since time is of the essence in this Agreement, failure of DEVELOPER to perform the work within the agreed upon time shall constitute authority for DISTRICT to perform the remaining work and require DEVELOPER's surety to pay to CITY the penal sum of any and all bonds. In which case , CITY shall subsequently reimburse DISTRICT for DISTRICT costs incurred.
4. If DEV ELOPER fails to commence construction of PROJECT within nine (9) months after the Notice to Proceed is issued , then DISTRICT and CITY reserve the right to review the existing site conditions as they exist at the time DEVELOPER provides written notification to DISTRICT and CITY of the start of construction as set forth in Section 1.8. In the event of a change in the existing site conditions that (i) materially affects PROJECT function , or (ii) DISTRICT's ability to operate and maintain DISTRICT FACILITIES , or (iii) CITY's ability to operate and maintain CITY FACILITIES, DISTRICT or CITY may require DEVELOPER to modify IMPROVEMENT PLANS as deemed necessary by DISTRICT or CITY. Under no circumstances shall either DISTRICT or CITY be allowed to modify the IMPROVEMENT PLANS without the consent of the other.
5. DISTRICT and CITY shall endeavor to issue DEV ELOPER a Notice to Proceed within twenty (20) days of receipt of DEVELOP ER's complete written notice , as set forth in Section I.8., and submittal of all the required items as set forth in this Agreement , includin g but not limit ed to Sections 1.3., 1.4., 1.7., I.10. , I.12. , I.13. , 1.17. and 1.18; however , - 18 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 32
Menifee Mayor and City Council
April 2, 2025
Page
279 of 1198
PS/24 5716
DISTRICT's and CITY's construction inspection staff is limited and may take up to 60 days for the issuance of a Notice to Proceed as determin ed by the DISTRICT and CITY .
In the event DEVELOP ER wishes to expedite issuanc e of the Notice(s) to Proceed , DEVEL OPER may elect to furnish an independent qualified construction inspector at DEVELOPER's sole cost and expense. DEVELOPER shall furnish appropriate documentation of the individual's credential s a nd experience to DISTRI CT and CITY for review and, if appropriate, approval, as determined by DISTRICT and CITY in their reasonable discretion.
DISTRICT and CITY shall review the individual's qualifications and experience and upon approval thereof , said individual, hereinafter called "DEPUTY INSP ECTO R" , shall be authorized to act on DISTRICT's and CITY's behalf on all PROJECT construction and quality control matters. If DEVELOPER's initial construction inspection deposit furnished pursuant to Section 1.3. excee ds Ten Thousand Dollars ($10,000), DISTRICT shall refund to DEVELOPER up to eighty percent (80%) of DEVELOP ER's initial inspection deposit within forty-five (45) days of DISTRICT's approval of DEPUTY INSP ECTOR ; however , a minimum balance of Ten Thousand Dollars ($10,000) shall be retained on account.
6. PROJECT construction work shall be on a five (5) day, fo1iy (40) hour work week with no work on Saturdays, Sundays or DISTRICT or CITY designated legal holidays , unless otherwise approved in writing by DISTRICT and CITY. If DEVELOPER feels it is neces sary to work more than the normal forty ( 40) hour work week or on holidays, DEV ELOPER shall make a written request for permission to DISTRICT and CITY to work the additional hours . The request shall be submitted to DISTRI CT and CITY at least seventy-two (72) hours prior to the requested additional work hour s and state the reasons for the overtime and the specific time frames required. The decision of granting perm ission for overtime work shall be made by DISTRICT and CITY, whose respect ive decisions can be given in their sole - 19 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 33
Menifee Mayor and City Council
April 2, 2025
Page
280 of 1198
PS/2457 16
discretion and shall be final. If permission is grante d by DISTRICT and CITY, DEVELOPER will be charged the cost incurr ed at the overtime rates for additional inspection time required in connection with the overtim e work in accordance with Ordinan ce Nos. 671 and 749 , includin g any amendments thereto , of the County of River side, as well as CITY's applicable fee schedule and/or other related ordinance or regulation. Notwithstanding the foregoing , should DISTRICT agree to provide inspection and management services to CITY pursuant to a request by CITY under Section II(l 1) and Section III(3) , above , CITY can also agree to not requir e its consent under this section.
7. INDEMNIF ICATION OBLIGATIONS :
1. DEVEL OPER INDEMNIFICATION OF DISTRICT AND THE
COUNT Y OF RIVERSIDE. DEVELOPER shall indemnify and hold harml ess DISTRICT and the County of Riverside , (includin g their Agencies, Districts , Special Districts and Departments , their respective directors , officers , Board of Supervisors, elected and appointed officials , e mployees, agents and representative s) (individually and collectively hereinafter referred to as "DISTRICT INDEMNIT EES ") from any liability whatsoever, claim, danrnge, proceeding or action, present or future, based upon , arising out of or in any way relating to DEVELOP ER's (includin g its officers, employees, contractors , subcontractor s and agents) actual or alleged acts or omis sions related to this Agree ment, performance under this Agree ment, or failure to comply with the requirements of this Agreement , includin g but not limited to: (a) property dama ge; (b) bodil y injury or death; (c) liability or damage pursuant to Atiicle I, - 20 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 34
Menifee Mayor and City Council
April 2, 2025
Page
281 of 1198
PS/2457 16
Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution or any other law, ordinance or regulation caused by the diversion of waters from the natural drainage patterns or the discharge of drainage within or from PROJ ECT; or (d) any other element of any kind or nature w hatsoever arising from the performance of DEVEL OPER, its officers, employees , contractors, subcontractors, agents or representatives from this Agreement.
DEVEL OPER shall defend, at its sole expense, includin g all costs and fees (including but not limited to attorney fees , cost of investigation , defense and settlements or awards), the DISTRICT INDEMNITEES in any claim, proceeding or action for which indemnification is requir ed.
With respect to any action or claim subject to indemnifi cation herein by DEVELOPER, DEVELOPER shall, at its sole cost, have the right to use counsel of their own choice and shall have the right to adjust, settle, compromise any such claim , proceeding or action without the prior consent of DISTRICT and the County of Riverside; provid ed, however, that any such adjustment , settlement or compromise in no manner whatsoever limits or circumscribes DEVELOPER's
indemnification obligations to the DISTRI CT INDEMNITEES as set forth herein.
DEVEL OPER's indemnification obligations hereunder shall be satisfied when DEVELOPER has provided to DISTRICT and the County of Riverside the appropri ate form of dismissal (or similar - 21 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 35
Menifee Mayor and City Council
April 2, 2025
Page
282 of 1198
PS/24 57 16
document) relieving DISTRICT and the County of Riverside from any liability for the claim , proceeding or action involved.
11. DEVELOPER INDEMNIFICATION OF CITY. DEVELOPER shall
indemnify and hold harmless CITY, including its governing bodies , agencies , districts, special districts and departments, their respective directors , officers , councilmembers , elected and appointed officials , employees , agents and representatives , (individually and collectively "CITY INDEMNITEES") from any liability , claim , damage , proceeding or action , present or future, based upon, arising out of or in any way relating to this Agreement , or DEVELOPER's (including its officers, employees , subcontractors and agents) actual or alleged acts or omissions related to this Agreement , DEVELOPER's performance under this Agreement, or DEVELOPER's failure to comply with the requirements of this Agreement, including, but not limited to: (a) property damage; (b) bodily injury or death; (c) liability or dan1age pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution or any other law, ordinance or regulation caused by the diversion of waters from the natural drainage patterns or the discharge of drainage within or from PROJ ECT; or ( d) any other element of any kind or nature whatsoever.
DEVELOPER shall defend , at its sole expense , including all costs and fees (including but not limited to attorney fees, cost of investigation , defense and settlement s or awards), CITY INDEMNIT EES with legal - 22 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 36
Menifee Mayor and City Council
April 2, 2025
Page
283 of 1198
P8/2<J 57 l 6
counsel reasonably satisfactory to CITY in any claim proceedin g or action for which indemnification is required. If DEVELOPER fails to meet its indemnification obligation , CITY shall have the right , but not the obligation , to do so with counsel of their own choosing , with no right of approval by DEVELOPER and, if it does , DEVELOPER shall promptly pay CITY's full cost thereof , with payments made at least on a monthly basis.
DEVELOPER's indemnification obligations as to CITY
INDEMNIT EES shall be satisfied when DEVELOPER has provided to CITY a form of dismissal regarding any liability for the claim , proceeding or action involved , and CITY determines that the form of dismissal is adequate in their sole and absolute discretion.
Notwithstanding the foregoing, DEVELOPER shall enter into no settlement agreement or final resolution of any pending claim covered under this subsection, without CITY's prior written approval. 111. Should DISTRICT and CITY fail to agree with the implementation of this section, or if a pending claim pertains to only one of the two parties , DEVELOPER shall be required to comply with this section as to DISTRICT and CITY individually.
1v. The specified insurance limits required in this Agreement shall in no way limit or circumscribe DEVELOPER's obligations to indemnify and hold harmles s the DISTRICT INDEMNITE ES and CITY
IND EMNITE ES from third party claims.
- 23 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 37
Menifee Mayor and City Council
April 2, 2025
Page
284 of 1198
PS/24 5716
v. In the event there is conflict between this section and California Civil Code Section 2782 , this section shall be interpreted to comply with California Civil Code Section 2782. Such interpretation shall not relieve DEVELOP ER from indemnifying the DISTRICT
INDEMNITEES and CITY INDEMNITEES to the fullest extent
allowed by law.
8. DEVELOPER for itself , its successors and assigns hereby releases DISTRICT , the County of Riverside and CITY (including their agencies , districts , special districts and departments, their respective directors , officer, Board of Supervisors , elected and appointed officials , emp loyees , agents and repr esentatives) from any and all claims , demands , actions , or suits of any kind arising out of any liability , known or unknown , present or future , including but not limited to any claim or liability , based or asserted , pursuant to Article I, Section 19 of the California Constitution , the Fifth Amendment of the United States Constitution , or any other law or ordinance which seeks to impose any other liability or damage , whatsoever , for damage caused by the discharge of drainage within or from PROJECT . Nothing contained herein shall constitute a release by DEVELOPER of DISTRICT , or the County of Riverside , or their officers , agents and employees from any and all claims , demands , actions or suits of any kind arising out of any liability , known or unknown , present or future , for the negligent maintenance of DISTRICT FACILITIES , after the acceptance of ownership , operation and maintenance of DISTRICT FACILITIES by DISTRICT.
9. Any waiver by DISTRI CT or by CITY of any breach of any one or more of the terms of this Agreement shall not be con strued to be a w aiver of any sub sequent or other breach of the same or of any othe r term hereof. Failur e on the part of DISTRICT or CITY to require exa ct, full and compl ete comp liance w ith any terms of this Agreement shall not be - 24 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 38
Menifee Mayor and City Council
April 2, 2025
Page
285 of 1198
PS/245716
construed as, in any manner, changing the terms hereof , or estopping DISTRICT or CITY from enforcement hereof.
I 0. This Agreement is to be construed in accordance with the laws of the State of California. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable , the remaining provisions shall remain in full force and effect without being impaired or invalidated in any way.
11. Any and all notices sent or required to be sent to the parties of this Agreement will be mailed by first class mail, postage prepaid, to the following addresses:
To DISTRICT: RIVERSIDE COUNTY FLOOD CONTROL AND WATER
CONSERVATION DISTRICT
To CITY:
1995 Market Street
Riverside , CA 92501
Attn: Contract Services Section
CITY OF MENIFEE
29844 Haun Road
Menifee , CA 92586
Attn: Daniel Padilla, City Engineer
Land Development Section
To DEVELOPER: RCFC INVESTMENTS, LLC
26071 Merit Circle, Suite 101
Laguna Beach, CA 92653
Attn: Gordon Y oude
12. Any action at law or in equity brought by any of the parties hereto for the purpose of enforcing a right or rights provided for by the Agreement , shall be tried in a court of competent jurisdiction in the County of Riverside, State of California , and the parties hereto waive all provisions of law providing for a change of venue in such proceedings to any other county.
13. This Agreement is the result of negotiations between the parties hereto , and the advice and assistanc e of their respective counsel , as such, the authorship of this - 25 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 39
Menifee Mayor and City Council
April 2, 2025
Page
286 of 1198
PS/245716
Agreement shall have no import or significance. Any uncertainty or ambiguity in this Agreement shall not be construed against DISTRICT because DISTRICT prepared this Agreement in its final form. Likewise, any uncertainty or ambiguity in this Agreement shall not be construed against CITY because CITY participated in the preparation of this Agreement.
14. The rights , obligations , and releases (including the indemnification obligations) of DEVELOPER shall inure to and be binding upon all heirs , successors and assignees.
15. In the event DEVELOPER sells Tract No. 31456, DEVELOPER shall notify DISTRICT and CITY of any such transfer or assigmnent in writing no later than 30 days from the date of the sale. DEVELOPER expressly understands and agrees that it shall remain liable with respect to any and all of the obligations and duties contained in this Agreement until DISTRICT , CITY, DEVELOPER and the new owner(s) of Tract No. 31456 fully execute an assignment and assumption agreement that transfers all DEVELOPER's rights, duties or obligations hereunder to the new owner(s) of Tract No. 31456.
16. The individual(s) executing this Agreement on behalf of DEVELOPER certify that they have the authority within their respective company(ies) to enter into and execute this Agreement , and have been authorized to do so by all boards of directors , legal counsel, and/or any other board , committee or other entity within their respective company(ies) which have the authority to authorize or deny entering into this Agreement.
17. This Agreement is intended by the parties hereto as a final expression of their understanding with respect to the subject matter hereof and as a complete and exclusive statement of the terms and conditions thereof and supersedes any and all prior and contemporaneous agreements and understandin gs, oral or written, in connection therewith. This Agreement may be changed or modified only upon the written consent of the parties hereto. - 26 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 40
Menifee Mayor and City Council
April 2, 2025
Page
287 of 1198
P8/2457 16
18. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrum ent.
- 27 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 41
Menifee Mayor and City Council
April 2, 2025
Page
288 of 1198
NO
PS/245716
IN WITNESS WHEREOF , the parties hereto have executed this Agreement on RECOMMENDED FOR APPROVAL:
APPROVED AS TO FORM:
COUNTY COUNSEL
Bye~~
Deputy County Counsel
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
By ,K ~J. ~
KAREN SPIEGEL , Chair
Riverside County Flood Control and Water
Conservation District Board of Supervisors
ATTEST :
KECIA HARPER
Clerk of the Board
(SEAL)
Cooperative Agreement with City of Menifee and RCFC Investments, LLC Menifee Valley - Bella View Way Storm Drain , Stage 1
Menifee Valley - Haleys Flight Drive Storm Drain, Stage 1 Project Nos. 4-0-00408 and 4-0-00409
Tract No. 31456
09/12/22
AMR:j ss
- 28 -
8 2022
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 42
Menifee Mayor and City Council
April 2, 2025
Page
289 of 1198
RECOMMENDED FOR APPROVAL:
By ~ff!ILLA
City Engineer
APPROVED AS TO FORM:
CITY OF MENIFEE
By AR~ A
City Manager · ·, ·
ATTEST:
(SEAL)
Cooperative Agreement with City of Menifee and RCFC Investments, LLC Menifee Valley - Bella View Way Storm Drain, Stage 1
Menifee Valley - Haleys Flight Drive Storm Drain, Stage 1 Project Nos. 4-0-00408 and 4-0-00409
Tract No. 31456
09/12/22
AMR:jss
- 29 -
PB/245716
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 43
Menifee Mayor and City Council
April 2, 2025
Page
290 of 1198
PS/2457 16
RCFC INVESTMENTS, LLC,
a California limited liability company
SEE ATTACHED
JURAT
By
GORDON D. YOUDE
Manager
(ATTACH NOTARY WITH CAPACITY STATEMENT)
Cooperative Agreement with City of Menifee and RCFC Investments, LLC Menifee Valley - Bella View Way Storm Drain , Stage I
Menifee Valley - Haleys Flight Drive Storm Drain, Stage I Project Nos. 4-0-00408 and 4-0-00409
Tract No. 31456
09/ 12/2022
AMR:jss
- 30 -
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 44
Menifee Mayor and City Council
April 2, 2025
Page
291 of 1198
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of _O_ra_n_q_e ___ _
Subscribed and sworn to (or affirmed) before me on this 2$ day of 5eptevnber , 2011.._, by Gordoh Oevin·,-s Youdr
proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.
C JOSHl;A AVENI DO ESCALANiE
Notary Public · California z
Oranie County ~
Commission :/ 2389768 -
y Comm. Expires Jan 6, 2026
(Seal) Signature ____ /ff;=---------
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 45
Menifee Mayor and City Council
April 2, 2025
Page
292 of 1198
EXHIBIT A
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of Riverside, State of California, described as follows:
TENTATIVE TRACT NO. 31456, BEING A SUBDIVISION OF THE FOLLOWING:
PARCEL A:
PARCEL A OF LOT LINE ADJUSTMENT NO. LLA 13-001 RECORDED MAY 16, 2013 AS INSTRUMENT NO. 2013-0233601 OF OFFICIAL RECORDS AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEING A PORTION OF THE NORTH HALF OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, S.B.M., IN THE CITY OF MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION, SAID POINT ALSO BEING THE POINT OF BEGINNING;
THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID SECTION NORTH 89°06'50" EAST 922.38 FEET;
THENCE LEAVING SAID NORTHERLY LINE, SOUTH 29°31'37" EAST 753.55 FEET; THENCE SOUTH 00°26'49" WEST 292.86 FEET;
THENCE SOUTH 50°07'01" EAST 908.53 FEET;
THENCE SOUTH, 89°32'45" EAST 600.00 FEET TO A POINT ON THE WESTERLY LINE OF PARCEL 1, AS SHOWN BY PARCEL MAP ON TILE IN BOOK 215, PAGES 97 TO 99 INCLUSIVE OF PARCEL MAPS, COUNTY OF RIVERSIDE RECORDS, SAID POINT LYING 230.00 FEET SOUTH OF
THE SOUTHERLY RIGHT-OF-WAY OF VERONICA LANE, DEDICATED TO PUBLIC USE BY INSTRUMENT NUMBER 2004-0512897, RECORDED JULY 1, 2004, COUNTY OF RIVERSIDE, OFFICIAL RECORDS;
THENCE SOUTHERLY ALONG THE WESTERLY LINE OF SAID PARCEL 1, SOUTH 00°20'03" WEST 1102.08 FEET TO THE CENTER OF SAID SECTION;
THENCE WESTERLY ALONG THE CENTER LINE OF SAID SECTION, SOUTH 89°53'53" WEST 2607.83 FEET TO THE WEST QUARTER CORNER OF SAID SECTION; THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID SECTION LINE, NORTH 00°33'41" EAST 2628.41 FEET TO THE POINT OF BEGINNING;
EXCEPTING THAT PORTION DESCRIBED AS FOLLOWS:
WEST ½. OF SOUTH ½. OF NORTH TWO-FIFTHS OF SOUTH ½. OF SOUTHWEST ¼ OF SOUTH ¼ OF EAST½. OF WEST½. OF NORTHWEST¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3
WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 46
Menifee Mayor and City Council
April 2, 2025
Page
293 of 1198
LAND, AND
THE EAST ½ OF THE NORTH ½ OF THE SOUTH TWO-FIFTHS OF THE SOUTH ½ OF THE NORTHEAST ¼ OF THE SOUTH ½ OF THE EAST ½ OF THE WEST ½ OF NORTHWEST ¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN,
ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, AND
THE EAST ½ OF THE WEST ½ OF THE SOUTH ½ OF THE NORTH TWO FIFTHS OF THE SOUTH ½ OF THE SOUTHWEST ¼ OF THE EAST ½ OF THE NORTHWEST ¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE
OFFICIAL PLAT OF SAID LAND, AND
THE WEST ½ OF THE SOUTH ONE-FIFTH OF THE SOUTH ½ OF THE SOUTHEAST ¼ OF THE SOUTH½ OF THE WEST½ OF THE NORTHWEST¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICAL PLAT
OF SAID LAND, AND
THE EAST½ OF THE SOUTH½ OF THE NORTH TWO FIFTHS OF THE NORTH½ OF THE SOUTHWEST ¼ OF THE SOUTH ½ OF THE EAST ½ OF THE WEST ½ OF THE NORTHWEST ¼, SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN,
ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, AND
A THE EAST½ OF THE SOUTH ONE-THIRD OF THE NORTH THREE-FIFTHS OF THE NORTH½ OF THE SOUTHEAST ¼ OF THE NORTH ½ OF THE WEST ½ OF THE NORTHWEST ¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASS AND MERIDIAN,
ACCORDING
TO THE OFFICIAL PLAT OF SAID LAND.
PARCEL Al:
WEST ½ OF SOUTH ½ OF NORTH TWO-FIFTHS ·oF SOUTH ½ OF SOUTHWEST ¼ OF SOUTH ¼ OF EAST½ OF WEST½ OF NORTHWEST¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3
WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND.
PARCEL A2:
THE EAST ½ OF THE NORTH ½ OF THE SOUTH TWO-FIFTHS OF THE SOUTH ½ OF THE NORTHEAST ¼ OF THE SOUTH ½ OF THE EAST ½ OF THE WEST ½ OF NORTHWEST ¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND.
PARCEL A3:
THE EAST ½ OF THE WEST ½ OF THE SOUTH ½ OF THE NORTH TWO FIFTHS OF THE SOUTH ½ OF THE SOUTHWEST ¼ OF THE EAST ½ OF THE NORTHWEST ¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 \NEST, SAf'J BERf'JARDINO BASE AND MERIDIAN.
PARCEL A4:
THE SOUTH ONE-FIFTH OF THE WEST ½ OF THE SOUTHWEST ¼ OF THE SOUTHEAST ¼ OF THE SOUTHWEST¼ OF THE NORTHWEST¼ OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 47
Menifee Mayor and City Council
April 2, 2025
Page
294 of 1198
WEST, SBBM.
PARCEL AS:
THE EAST ½ OF THE SOUTH ½ OF THE NORTH TWO FIFTHS OF THE NORTH ½ OF THE SOUTHWEST ¼ OF THE SOUTH ½ OF THE EAST ½ OF THE WEST ½ OF THE NORTHWEST ¼, SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND.
PARCEL B:
PARCEL B OF LOT LINE ADJUSTMENT NO. LLA 13-001 RECORDED MAY 16, 2013 AS INSTRUMENT NO. 2013-0233601 OF OFFICIAL RECORDS AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEING A PORTION OF THE NORTH HALF OF SECTION 29, TOWNSHIP 5 SOUTH, RANGE 3 WEST, S.B.M., IN THE CITY OF MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION, SAID POINT ALSO BEING THE POINT OF BEGINNING;
THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID SECTION, NORTH 89°06'50" EAST 922.38 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG THE NORTHERLY LINE OF SAID SECTION, NORTH 89°06'50" EAST 1675.54 FEET TO THE NORTH QUARTER CORNER OF SAID SECTION; THENCE SOUTHERLY SOUTH 00°20'003"WEST 1561.79 FEET TO A POINT ON THE WESTERLY LINE OF PARCEL 1, AS SHOWN BY PARCEL MAP ON FILE IN BOOK 215, PAGES 97 TO 99 INCLUSIVE OF PARCEL MAPS, COUNTY OF RIVERSIDE RECORDS, SAID POINT LYING 230.00
FEET SOUTH OF THE SOUTHERLY RIGHT-OF-WAY OF VERONICA LANE, DEDICATED TO PUBLIC USE BY INSTRUMENT NUMBER 2004-0512897, RECORDED JULY 1, 2004, COUNTY OF RIVERSIDE, OFFICIAL RECORDS;
THENCE NORTH 89°32'45" WEST 600.00 FEET
THENCE NORTH 50°07'01" WEST 908.53 FEET;
THENCE 00°26'49" EAST 292.86 FEET:
THENCE NORTH 29°31'37" WEST 753.55 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL C:
PARCEL 2 AND LETTERED LOT "A" OF PARCEL MAP 31672, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 215, PAGES 97 THROUGH 99, INCLUSIVE OF PARCEL MAPS, INSTRUMENT NO. 2006-0080518 AND RECORDED FEBRUARY 1, 2006 IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT 52 PERCENT OF THE OIL AND MINERAL RIGHTS, IN, ON AND UNDER SAID LAND
WITHOUT ANY RIGHT TO INGRESS AND EGRESS OR TO ENTER UPON THE SURFACE OF SAID
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 48
Menifee Mayor and City Council
April 2, 2025
Page
295 of 1198
LAND FOR THE PURPOSES OF TAKING OR MINING ANY OF SUCH RESERVED OIL OR MINERALS AS RESERVED IN THE DEED FROM GEORGE D. NEWPORT AND DOROTHEA K. NEWPORT, HUSBAND AND WIFE, RECORDED NOVEMBER 29, 1957 IN BOOK 2185, PAGE 189 OF OFFICIAL RECORDS.
APN: 339-020-002-9 and 339-020-003-0 and 339-020-004-1 and 339-020-005-2 and 339-020- 006-3 and 339-020-007-4 and 339-020-008-5 and 339-030-002-0
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 49
Menifee Mayor and City Council
April 2, 2025
Page
296 of 1198
Page I of I
:s iii (]J
EXHIBIT "B"
LEGEND:
LI NE A
LATERAL A-3
ENCHANTED STAR DRIVE
COOPERATIVE AGREEMENT
Menifee Valley - Bella View Way Storm Drain , Stage 1
Menifee Valley - Haleys Flight Drive Storm Drain, Stage 1 Project Nos. 4-0-00408 and 4-0-00409
Tract Map No. 31456
........•. -·- ···- _/
BONANZA TRAIL DR. ·········-···-·-···-··-············-···, Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 50
Menifee Mayor and City Council
April 2, 2025
Page
297 of 1198
EXHIBIT B
,-==
COOPERATIVE AGREEMENT
Menifee Valley - Bella View Way Storm Drain, Stage 1
Menifee Valley - Haleys Flight Drive Storm Drain, Stage 1 Project Nos. 4-0-00408 and 4-0-00409
Tract Map No. 31456
LEGEND
• District Maintenance
• City Maintenance
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 51
Menifee Mayor and City Council
April 2, 2025
Page
298 of 1198
Exhibit C
DISTRICT's and CITY's Required Insura nce are as follows:
Without limiting or diminishing DEVELOPER's obligation to indemnify or hold DISTRICT or CITY harmless, DEVELOPER shall procure and maintain or cause to be maintained, at its sole cost and expense, the following insurance coverages during the term of this Agreement. As respects to the insurance section only , the DISTRICT herein refers to the Riverside County Flood Control and Water Conservation District , the County of Riverside , its Agencies, Districts , Special Districts , and Departments , their respective directors, officers , Board of Supervisors, employees , elected or appointed officials , agents or repre sentatives as Additional Insureds.
A. Workers' Compensation:
If DEVELOPER has employees as defined by the State of California, DEVELOPER shall maintain statutory Workers' Compensation Insurance (Coverage A) as prescribed by the laws of the State of California. Policy shall include Employers' Liability (Coverage B) including Occupational Disease with limits not less than $1,000,000 per person per accident. Policy shall be endorsed to waive subrogation in favor of the Riverside County Flood Control and Water Conservation District, the County of Riverside, and CITY.
B. Commercial General Liability:
Commercial General Liability insurance coverage, including but not limited to, premises liability , unmodified contractual liability, products and completed operations liability, personal and advertising injury and cross liability coverage , covering claims which may arise from or out of DEVELOPER's performance of its obligations hereunder. Additionally, Commercial General Liability insurance no less broad than ISO form CG 00 01. Policy shall name DISTRICT and CITY and its agencies, districts, special districts and departments, their respective directors, officers , Board of Supervisors , employees, elected or appointed officials, agents or representatives as additional insureds . Policy's limit of liability shall not be less than $5,000,000 per occurrence combined single limit.
COOPERATIVE AGREEMENT
Menifee Valley - Bella View Way Storm Drain, Stage I
Menifee Valley - Haleys Flight Driv e Storm Drain, Stage I Project Nos. 4-0-00408 and 4-0-00409
Tract Map No. 31456
Page I of5
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 52
Menifee Mayor and City Council
April 2, 2025
Page
299 of 1198
Exhibit C
If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit. DISTRICT and CITY must be an additional insured for liability arising out of ongoing and completed operations by or on behalf of DEVELOPER. DISTRICT and CITY shall continue to be an additional insured for completed operations for two years after completion of the work. If DEVELOPER maintains higher limits than the specified minimum limits, DISTRICT and CITY require and shall be entitled to coverage for the higher limits maintained by DEVELOPER.
C. Vehicle Liability:
If vehicles or mobile equipment are used in the performance of the obligations under this Agreement, then DEVELOPER shall maintain liability insurance for all owned, non-owned or hired vehicles so used in an amount not less than $1,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit. Policy shall name DISTRICT and CITY and its agencies, districts , special districts and departments , their respective directors, officers, Board of Supervisors, employees, elected or appointed officials, agents or representatives as additional insureds.
D. Professional Liability:
DEVELOPER shall cause any architect or engineer retained by DEVELOPER in connection with the performance of DEVELOPER's obligations under this Agreement to maintain Professional Liability Insurance providing coverage for the performance of their work included within this Agreement, with a limit of liability of not less than $2,000,000 per occurrence and $4,000,000 annual aggregate. DEVELOPER shall require that, if such Professional Liability Insurance is written on a claims made basis rather than an occurrence basis, such insurance shall continue through the term of this Agreement and that such architect or engineer shall purchase at such architect or engineer's sole expense
COOPERATIVE AGREEMENT
Menifee Valley - Bella View Way Storm Drain , Stage 1
Menifee Valley - Haleys Flight Driv e Storm Drain , Stage I Project Nos . 4-0-00408 and 4-0-00409
Tract Map No. 31456
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 53
Menifee Mayor and City Council
April 2, 2025
Page
300 of 1198
Exhibit C
either 1) an Extended Reporting Endorsement (also known as Tail Coverage) ; or 2) Prior Dates Coverage from a new insurer with a retroactive date back to the date of, or prior to the inception of this Agreement; or 3) demonstrate through Certificates of Insurance that such architect or engineer has maintained continuous coverage with the same or original insurer. Coverage provided under items: 1), 2) or 3) shall continue for the term specified in the insurance policy , which shall be reasonably acceptable to DISTRICT and CITY.
E. General Insurance Provisions - All Lines:
1. Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of California and have an A.M. BEST rating of not less than an A: VIII (A: 8) unless such requirements are waived, in writing, by the DISTRICT Risk Manager and CITY. If the DISTRICT's Risk Manager and CITY waive a requirement for a particular insurer such waiver is only valid for that specific insurer and only for one policy term.
11. DEVELOPER must declare its insurance self-insured retention for each coverage required herein. If any such self-insured retention exceeds $500,000 per occurrence each such retention shall have the prior written consent of the DISTRICT Risk Manager and CITY before the commencement of operations under this Agreement. Upon notification of self-insured retention deemed unacceptable to DISTRICT or CITY and at the election of CITY or the DISTRICT's Risk Manager, DEVELOPER 's carriers shall either: 1) reduce or eliminate such self-insured retention with respect to this Agreement with DISTRICT; or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses .
111. DEVELOPER shall cause their insurance carrier(s) or its contractor's insurance carrier(s) , to furnish DISTRICT and CITY with 1) a properly executed original certificate(s) of insurance and certified original copies of
COO PERA TJVE AGRE EMENT
Menifee Vall ey - Bella View Way Storm Drain , Stage I
Menifee Valley - Haleys Flight Driv e Storm Drain , Stage I Project Nos . 4-0-00408 and 4-0-00409
Tract Map No. 31456
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 54
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endorsements effecting coverage as required herein; and 2) if requested to do so orally or in writing by CITY or the DISTRICT Risk Manager, provide original certified copies of policies including all endorsements and all attachments thereto, showing such insurance is in full force and effect.
Further, said certificate(s) and policies of insurance shall contain the covenant of the insurance carrier(s) that a minimum of thirty (30) days written notice shall be given to DISTRICT and CITY prior to any material modification , cancellation , expiration or reduction in coverage of such insurance. If DEVELOPER insurance carrier(s) policies does not meet the minimum notice requirement found herein, DEVELOPER shall cause DEVELOPER's insurance carrier(s) to furnish a 30 day Notice of Cancellation Endorsement.
1v. In the event of a material modification, cancellation, expiration or reduction in coverage, this Agreement shall terminate forthwith, unless DISTRICT and CITY receive, prior to such effective date, another properly executed original certificate of insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto, evidencing coverages set forth herein and the insurance required herein is in full force and effect. An individual authorized .by the insurance carrier to do so on its behalf shall sign the original endorsements for each policy and the certificate of insurance.
v. It is understood and agreed by the parties hereto that DEVELOPER's insurance shall be construed as primary insurance, and DISTRICT's and CITY's insurance and/or deductibles and/or self-insured retentions or self insured programs shall not be construed as contributory . v1. If, during the term of this Agreement or any extension thereof , there is a material change in the scope of services or there is a material change in the equipment to be used in the performance of the scope of'work which will
COOP ERATIVE AGREE MENT
Menifee Valle y - Bella View Way Storm Drain , Stage I
Menifee Valley - Haleys Flight Drive Storm Drain , Stage I Project Nos. 4-0 -0040 8 and 4-0-00409
Tract Map No. 31456
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 55
Menifee Mayor and City Council
April 2, 2025
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add additional exposures (such as the use of aircraft, watercraft , cranes, etc.); or the term of this Agreement, including any extensions thereof , exceeds five (5) years, DISTRICT and CITY reserve the right to adjust the types of insurance required under this Agreement and the monetary limits of liability for the insurance coverages currently required herein, if, in CITY's or the DISTRICT Risk Manager's reasonable judgment , the amount or type of insurance carried by DEVELOPER has become inadequate. vn . DEVELOPER shall pass down the insurance obligations contained herein to all tiers of contractors and subcontractors working under this Agreement. v111. The insurance requirements contained in this Agreement may be met with a program(s) of self-insurance acceptable to DISTRICT and CITY. 1x. DEVELOPER agrees to notify DISTRICT and CITY of any claim by a third party or any incident or event that may give rise to a claim arising from the performance of this Agreement.
DEVELOPER hereby agrees to waive rights of subrogation which any insurer of DEVELOPER may acquire from DEVELOPER by virtue of the payment of any loss.
DEVELOPER agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation , but this provision applies regardless of whether or not the CITY or DISTRICT has received a waiver of subrogation endorsement from the insurer. However, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the County of Riverside , CITY, and the Riverside County Flood Control and Water Conservation District for all work performed by the DEVELOPER , its employees, agents, contractors and subcontractors .
The insurance required by this section must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work. If coverage is canceled or non-renewed , and not replaced with another claims-made policy form with a retroactive date prior to the contract effective, or start of work date, the DEVELOPER must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work.
COOP ERATI VE AGREE MENT
Menifee Valley - Bella View Way Storm Drain, Stage I
Menifee Valley - H aleys Flight Driv e Storm Drain , Stage I Project Nos. 4-0-00408 and 4-0-0 0409
Trac t Map No. 31456
Item Title: 10.13
Agreement
for
the
Assignment
and
Assumption
of
Cooperative
Agreement
for
the
Construction
of
Flood
Control
Facilities
Associated with Tract Map 31456, The Enclave, by KB Homes Cal Management Services, LLC Item Page Number: 56
Menifee Mayor and City Council
April 2, 2025
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EXHIBIT "D"
COOPERATIVE AGREEMENT
Menifee Valley - Bella View Way Storm Drain, Stage 1
Menifee Valley - Haleys Flight Drive Storm Drain, Stage 1 Project Nos. 4-0-00408 and 4-0-00409
Tract Map No. 31456
1/1
Item Title: 10.13
Agreement
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Assignment
and
Assumption
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Cooperative
Agreement
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the
Construction
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Flood
Control
Facilities
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CITY OF MENIFEE
SUBJECT: Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services MEETING DATE: April 2, 2025
TO: Mayor and City Council
PREPARED BY: Christine Booker, Budgets & Grants Analyst REVIEWED BY: Chris Karrer, Police Chief
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute Amendment No. 3 to Professional Services Agreement with Bio-Tox Laboratories for forensic toxicological testing services for the Police Department, increasing the contract in the amount of $30,000, for a revised total not-to-exceed $93,000 through June 30, 2025.
DISCUSSION
The Menifee Police Department contracted with Bio-Tox Laboratories to facilitate the forensic toxicological testing services needed whenever bodily fluid samples such as blood, saliva and urine are collected. The need for these services arises often in the line of duty for police officers such as during traffic stops, and in calls for service, or at specific targeted operations. In Fiscal Year (FY) 2024/2025, the Police Department was awarded multiple grants including the Office of Traffic Safety Grant, Cannabis Grant, and Alcohol Beverage Control OTS Grant that allow for operations including checkpoints and saturations. These additional events have led to an increased use of the contracted services resulting in the need for additional funds.
Pursuant to Menifee Municipal Code Chapter 3.12.090, any change order in an amount greater than $25,000 or any change order which, when considered with the aggregate amount of all other changes to a contract, exceeds ten percent of the original contract cost, shall be approved by the City Council. All other terms of the agreement shall remain the same. The previous amendments are expressed on the following page in Table 1.
Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 1
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April 2, 2025
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City of Menifee Staff Report
Bio-Tox Amendment 3
April 2, 2025
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TABLE 1: AGREEMENT AND AMENDMENT SUMMARY
PSA Activity Summary of Changes Item
Total
Contract
Total Term Ending
Original Agreement Forensic toxicology services $24,000 $24,000 June 30, 2024 Amendment No. 1
Increase funds and contract
term for one additional fiscal
year
$14,000 $38,000 June 30, 2025
Amendment No. 2 Increase contract total $25,000 $63,000 June 30, 2025 Amendment No. 3 Increase contract total $30,000 $93,000 June 30, 2025
STRATEGIC PLAN OBJECTIVE
Safe and Vibrant Community
FISCAL IMPACT
The fiscal impact of Amendment No. 3 is $30,000. Funding for the proposed amendment is available within the adopted FY 2024/2025 budget for the Menifee Police Department in the General Fund under professional services (1100-MPD-652800). No additional budget appropriation action(s) is required.
ATTACHMENTS
1. Amendment No. 3
2. Original Agreement
3. Amendment No. 1
4. Amendment No. 2
Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 2
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April 2, 2025
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AMENDMENT NO. 3 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES AMENDMENT NO. 3 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING
SERVICES
This is Amendment No. 3 (“Amendment No. 3”) to that certain Professional Services Agreement (“Agreement”) made on October 19, 2023, between the City of Menifee (“City”) and Bio-Tox Laboratories (“Consultant”) for MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES, as amended by that certain Amendment No. 1 to the Agreement entered into on June 19, 2024 (“Amendment No. 1”), as amended by that certain Amendment No. 2 to the Agreement entered into on November 6, 2024 (“Amendment No. 2”), which this Amendment No. 3 is made and entered into on ______________, 2025 to increase the compensation amount as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 3 shall have the meanings ascribed to them in the Agreement.
2.SECTION 2, “Compensation” is amended to increase the maximum compensation by ThirtyThousand Dollars and Zero Cents ($30,000.00), and is amended to read as follows:
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed Ninety-Three Thousand Dollars and Zero Cents ($93,000.00) 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.
3. The initial paragraph of the original Exhibit A, “Scope of Services”, to the Agreement is amended to read as follows:
SCOPE OF SERVICES
Consultant shall provide MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES in the amount not to exceed Ninety- Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 3
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AMENDMENT NO. 3 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES Three Thousand Dollars and Zero Cents ($93,000.00) as further detailed in the following page(s).
4. All other terms and conditions of the Agreement remain in full force and effect.
5. This Amendment No. 3 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
CITY OF MENIFEE Bio-Tox Laboratories
_______________________________ _______________________________ Armando G. Villa, City Manager Tracey Stangarone, President Attest: ________________________________
Sue Somers, Assistant Secretary
_______________________________
Stephanie Roseen, City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 4
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2671/031858-0001
7630421.2 a05/18/23
CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING
SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this ______ day of __________, 2023 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and BIO-TOX LABORATORIES, 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 July 1, 2023 and shall end on June 30, 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 pr ovided 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 a nd 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 Co nsultant 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 dis cretion, 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.
DocuSign Envelope ID: C2C51E8B-DFA1-44DE-8013-43D218A10479 DocuSign Envelope ID: B4288A77-FBAD-4508-88EA-44A9D6C2076C 19th Oct.
Item Title: 10.14
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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 TWENTY FOUR THOUSAND DOLLARS AND ZERO CENTS ($24,000.00) notwithstanding any contrary indications that may be con tained 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 Agreem ent. 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.
DocuSign Envelope ID: C2C51E8B-DFA1-44DE-8013-43D218A10479 DocuSign Envelope ID: B4288A77-FBAD-4508-88EA-44A9D6C2076C Item Title: 10.14
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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 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 co mpleted 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 o therwise 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 b e in the sole discretion of City. In no event shall City be DocuSign Envelope ID: C2C51E8B-DFA1-44DE-8013-43D218A10479 DocuSign Envelope ID: B4288A77-FBAD-4508-88EA-44A9D6C2076C Item Title: 10.14
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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 o r 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 DocuSign Envelope ID: C2C51E8B-DFA1-44DE-8013-43D218A10479 DocuSign Envelope ID: B4288A77-FBAD-4508-88EA-44A9D6C2076C Item Title: 10.14
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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 Comme rcial 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 DOLLAR S ($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 DocuSign Envelope ID: C2C51E8B-DFA1-44DE-8013-43D218A10479 DocuSign Envelope ID: B4288A77-FBAD-4508-88EA-44A9D6C2076C Item Title: 10.14
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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 t o 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 insur ed 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:
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES. The name and address for Additional Insured endorsements, Ce rtificates 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 insura nce 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 offic ers, 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 investigat ions, 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 endorsem ents 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 requirem ents, 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 h ave 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) a nd 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 sub contractors (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 profe ssional 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 bu t 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 S ervices und er 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 beco me 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 Servic es 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 DocuSign Envelope ID: C2C51E8B-DFA1-44DE-8013-43D218A10479 DocuSign Envelope ID: B4288A77-FBAD-4508-88EA-44A9D6C2076C Item Title: 10.14
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of Ca lifornia, 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 sim ilar law. It is agreed by the P arties 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 r epresents 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 upo n 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 sub contractors 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 br eaches 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, m aps, 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 un der this Agreement (“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City i s 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 Secti on 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 he ld 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 Tracey Stangarone, Business 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 coordina tion of all portions of the Services under this Agreement.
10.8 City Contract Administration . This Agreement shall be administered by a City employee, Christine Booker , Budget & Grant Analyst (“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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BIO-TOX LABORATORIES
Attn: Tracey Stangarone, Business Manager
1965 Chicago Ave #C
Riverside, CA 92507
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Christine Booker, Budget & Grant Analyst
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 pr ofessional 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 P arties are cumulative and the exercise by either P arty 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 w ritten 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 th is 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 A greement 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 includin g, 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 thir d-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 pe rsonally 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 P arties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Stephanie Roseen, Acting City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Tracey Stangarone, President
Sue Somers, Assistant 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 on-call, as needed Services shall provide Forensic Toxicological Testing Services for the Menifee Police Department in the amount not to exceed TWENTY FOUR THOUSAND DOLLARS AND ZERO CENTS ($24,000.00) as further detailed in the following page(s).
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EXHIBIT A.
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AMENDMENT NO. 1 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES
AMENDMENT NO. 1 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES
This is Amendment No. 1 (“Amendment 1”) to that certain Professional Services Agreement (“Agreement”) made on October 19, 2023 between the City of Menifee (“City”) and Bio-Tox Laboratories (“Consultant”) for MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES, which this Amendment No. 1 is made and entered into on ______________, 2024 to extend the term of services, increase the compensation amount, and augment the scope of services as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 1 shall have the meanings ascribed to them in the Agreement.
2. Section 1.1, “Term of Services” is amended to read as follows:
1.1 Term of Services. The term of this Agreement shall begin on the July 1, 2023 and shall end on June 30, 2025 unless the term of the 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 the City's right to terminate the Agreement, as provided for in Section 8.
3. SECTION 2 , “Compensation” is amended to increase the maximum compensation by Fourteen Thousand Dollars and Zero Cents ($14,000.00), and is amended to read as follows:
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed Thirty Eight Thousand Dollars and Zero Cents ($38,000.00) 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. E xcept as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
4. Exhibit A, “Scope of Services” is supplemented to include the supplement attached as Exhibit A hereto. The supplement to the “Scope of Services” is not intended to replace the original Exhibit A to the Agreement, but instead to augment and increase the sco pe of work listed in the original Exhibit A to the Agreement. The initial paragraph of the original Exhibit A, “Scope of Services”, to the Agreement is amended to read as follows:
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AMENDMENT NO. 1 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES
SCOPE OF SERVICES
Consultant shall provide MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES in the amount not to exceed Thirty Eight Thousand and Zero Cents ($38,000.00) as further detailed in the following page(s).
5. All other terms and conditions of the Agreement remain in full force and effect.
6. This Amendment No. 1 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
CITY OF MENIFEE Bio-Tox Laboratories
_______________________________ _______________________________ Armando G. Villa, City Manager Tracey Stangarone, President
Attest: ________________________________
Sue Somers, Assistant Secretary
_______________________________
Stephanie Roseen, Acting City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
DocuSign Envelope ID: 104FCA68-ADBF-4640-B502-E888F9617BAE Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 23
Menifee Mayor and City Council
April 2, 2025
Page
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EXHIBIT “A”
EXHIBIT “A”
SUPPLEMENT TO SCOPE OF SERVICES
DocuSign Envelope ID: 104FCA68-ADBF-4640-B502-E888F9617BAE Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 24
Menifee Mayor and City Council
April 2, 2025
Page
328 of 1198
EXHIBIT “A”
DocuSign Envelope ID: 104FCA68-ADBF-4640-B502-E888F9617BAE Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 25
Menifee Mayor and City Council
April 2, 2025
Page
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AMENDMENT NO. 2 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES
AMENDMENT NO. 2 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES
This is Amendment No. 2 (“Amendment No. 2”) to that certain Professional Services Agreement (“Agreement”) made on October 19, 2023, between the City of Menifee (“City”) and Bio-Tox Laboratories (“Consultant”) for MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES, as amended by that certain Amendment No. 1 to the Agreement entered into on June 19, 2024 (“Amendment No. 1”), which this Amendment No. 2 is made and entered into on ______________, 2024 to increase the compensation amoun t as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 2 shall have the meanings ascribed to them in the Agreement.
2. SECTION 2 , “Compensation” is amended to increase the maximum compensation by Twenty-Five Thousand Dollars and Zero Cents ($25,000.00), and is amended to read as follows:
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed Sixty-Three Thousand Dollars and Zero Cents ($63,000.00) 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. Ex cept as specifically authorized in advance by City, Consultant shall not bill City for duplicate services performed by more than one person.
3. The initial paragraph of the original Exhibit A, “Scope of Services”, to the Agreement is amended to read as follows:
SCOPE OF SERVICES
Consultant shall provide MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES in the amount not to exceed Sixty-Three Thousand Dollars and Zero Cents ($63,000.00) as further detailed in the following page(s).
4. All other terms and conditions of the Agreement remain in full force and effect.
5. This Amendment No. 2 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
Docusign Envelope ID: C3114D5E-8819-44AC-84DA-561F8C2C0A06 November 6
Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 26
Menifee Mayor and City Council
April 2, 2025
Page
330 of 1198
AMENDMENT NO. 2 TO
PROFESSIONAL SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT FORENSIC TOXICOLOGICAL TESTING SERVICES
CITY OF MENIFEE Bio-Tox Laboratories
_______________________________ _______________________________ Armando G. Villa, City Manager Tracey Stangarone, President
Attest: ________________________________
Sue Somers, Assistant Secretary
_______________________________
Stephanie Roseen, Acting City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
Docusign Envelope ID: C3114D5E-8819-44AC-84DA-561F8C2C0A06 Item Title: 10.14
Agreement Amendment with Bio-Tox Laboratories for the Police Department Forensic Toxicological Testing Services Item Page Number: 27
Menifee Mayor and City Council
April 2, 2025
Page
331 of 1198
CITY OF MENIFEE
SUBJECT: Agreement Amendment with Southstar Engineering & Consulting, Inc., for Construction Management Services for the Holland Road/I-215 Overcrossing Project
MEETING DATE: April 2, 2025
TO: Mayor and City Council
PREPARED BY: Carlos Geronimo, Engineering Manager
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 Southstar Engineering & Consulting, Inc., increasing their compensation by $699,759.06 for a total agreement amount not-to-exceed $5,328,401.80 and extending the term of services to June 30, 2025, for the Holland Road / I-215 Overcrossing Project, Capital Improvement Program Project No. CIP 13-03.
DISCUSSION
The Holland Road / I-215 Overcrossing, Capital Improvement Program (CIP) Project No. 13-03 (“Project”), constructed a new four-lane bridge over Interstate 215 (I-215) from Haun Road to Hanover Lane providing a connection between the City’s east and west sides. Construction efforts included installation of mechanically stabilized earth retaining walls on the east side, improvements to drainage, irrigation, landscaping, and the installation of traffic signals on Holland Road at Haun Road and Hanover Lane.
On November 3, 2021, the City Council approved a Professional Services Agreement (PSA) with Southstar Engineering and Consulting Inc. (“Southstar”) to provide construction management and inspection services for the Project. Since the approval of the original PSA, two prior amendments have been approved by City Council to increase total compensation and extend the terms.
Southstar’s services are critical to ensure proper technical oversight for delivery of a high-quality Project and to properly carry out the Project through completion of the construction phase and closeout.
The PSA, as previously amended by Amendment No. 1 and Amendment No. 2, was set to terminate on December 31, 2024. However, both parties have continued to operate under the Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 1
Menifee Mayor and City Council
April 2, 2025
Page
332 of 1198
City of Menifee Staff Report
CIP 13-03 Southstar Amendment 3
April 2, 2025
2 6
0 4
terms of the PSA as if it remained in full force and effect. Amendment No. 3 would extend the term through June 30, 2025 and increase Southstar’s PSA by $699,759.06, increasing the total not-to-exceed amount of the agreement to $5,328,401.80. Southstar’s amendment history for the Project is summarized in Table 1 on the following page.
TABLE 1 – SOUTHSTAR AGREEMENT HISTORY
PSA Activity Approval Date Summary of Changes Value
Original Contract November 3, 2021 Construction Management (CM) services $3,248,237.43
Amendment No. 1 November 15, 2023 Additional CM Services due to unforeseen conditions $1,152,405.31
Amendment No. 2 September 4.2024
Additional CM Services due
resolution of disputed time
delays
$228,000.00
Amendment No. 3 Pending Additional CM Services due
to unanticipated delays $699,759.06
TOTAL $5,328,401.80
In October 2024, the bridge was substantially completed and opened to traffic, a few items remained to be completed which included paving of Willowood Lane, construction of the traffic signal at Holland Road/Hannover Lane intersection, Irrigation, and Landscaping. At the time it was anticipated that all work would be completed by January 2025. To complete all the remaining work, the project needs power and water connections, which have been significantly delayed due to approval processes from utility agencies which are outside of the City’s control.
Amendment No. 3 is necessary to continue Construction Management, Inspection, and Quality Assurance services for this project. The project’s completion timeline has been revised to July 2025 due to unanticipated delays to obtain utility connection permits from EMWD and SCE. The City is working diligently with the utility companies to obtain necessary approvals and complete the project.
Pursuant to Menifee Municipal Code §3.12.090, amendments or change orders in the amount greater than 10% of the original agreement amount, or that exceed the City Manager’s signing authority, shall be approved by the City Council.
STRATEGIC PLAN OBJECTIVE
Connectivity and Mobility
FISCAL IMPACT
The fiscal impact of the proposed amendment to Southstar’s PSA for construction management services is $699,759.06, for a total not-to-exceed agreement amount of $5,328,401.80. Funding for the proposed increase is available in the current Fiscal Year 2024/2025 Project transportation budget within the General Fund (1100-PWD-CIPS-760000), as summarized in Table 2 on the following page.
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 2
Menifee Mayor and City Council
April 2, 2025
Page
333 of 1198
City of Menifee Staff Report
CIP 13-03 Southstar Amendment 3
April 2, 2025
2 6
0 4
TABLE 2 – EXISTING PROJECT BUDGET
Fund Project Account String Available Budget Amount Requested General
Fund
CIP13-03.1100.CMG.CAE $931,748.77 $699,759.06
Total $931,748.77 $699,759.06
No additional budget appropriation action(s) is required.
ATTACHMENTS
1. Project Location Map
2. Amendment No. 3
3. Original PSA
4. Amendment No. 1
5. Amendment No. 2
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 3
Menifee Mayor and City Council
April 2, 2025
Page
334 of 1198
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Path: E:\Standard_Maps\Engineering_PW\Holland_Overpass_Location_Map\Holland_Overpass_Location_Map.aprx Date: 10/18/2021 Holland Rd & I-215 Overpass / Interchange (CIP 13-03)
Project Location Map
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 4
Menifee Mayor and City Council
April 2, 2025
Page
335 of 1198
AMENDMENT NO. 3 TO
PROFESSIONAL SERVICES AGREEMENT
CIP 13-03 HOLLAND ROAD OVERPASS PROJECT
(CONSTRUCTION MANAGEMENT SERVICES)
AMENDMENT NO. 3 TO
PROFESSIONAL SERVICES AGREEMENT
CIP 13-03 HOLLAND ROAD OVERPASS PROJECT
(CONSTRUCTION MANAGEMENT SERVICES)
This is Amendment No.3 (“Amendment No.3”) to that certain Professional Services Agreement (“Agreement”) made on November 3, 2021 between the City of Menifee (“City”) and SOUTHSTAR ENGINEERING & CONSULTING, INC. (“Consultant”) for CIP 13-03
HOLLAND ROAD OVERPASS PROJECT (CONSTRUCTION MANAGEMENT
SERVICES) as amended by that certain Amendment No. 1 to the Agreement entered into on November 15, 2023 (“Amendment No. 1”) and that certain Amendment No. 2 entered into on September 4, 2024, which this Amendment No. 3 is made and entered into on_________________,2025 to extend the term of the Agreement, increase the compensation amount, and augment the scope of services as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 3 shall have the meanings ascribed to them in the Agreement.
2. The Parties acknowledge that the Agreement (as amended by Amendment No. 1 and Amendment No. 2) was scheduled to terminate on December 31, 2024. However, the Parties have continued to operate as though the Agreement were still in full force and effect. The Parties now desire to amend the Agreement to extend the Agreement to June 30, 2025. Therefore, Section 1.1 of the Agreement is revised to read in its entirety as follows:
1.1 Term of Services. The term of this Agreement shall begin on the November 3, 2021, and shall end on June 30, 2025, unless the term of the Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Contractor to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8.
3. The Parties further agree that the terms of the Agreement shall apply as though the Agreement were in full force and effect between November 3, 2021, and the effective date of this Amendment No. 3.
4.SECTION 2, “Compensation” is amended to increase the maximum compensation by Six Hundred Ninety Nine Thousand Seven Hundred Fifty Nine Dollars and Six Cents ($699,759.06), and is amended to read as follows:
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed Five Million Three Hundred Twenty Eight Thousand Four Hundred One Dollars and Eighty Cents ($5,328,401.80) 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 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 5
Menifee Mayor and City Council
April 2, 2025
Page
336 of 1198
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.
5. Exhibit A, “Scope of Services” is supplemented to include the supplement attached as Exhibit A hereto. The supplement to the “Scope of Services” is not intended to replace the original Exhibit A to the Agreement, but instead to augment and increase the scope of work listed in the original Exhibit A to the Agreement. The initial paragraph of the original Exhibit A, “Scope of Services”, to the Agreement is amended to read as follows:
SCOPE OF SERVICES
Consultant shall provide CIP 13-03 HOLLAD ROAD OVERPASS PROJECT (CONSTRUCTION MANAGEMENT SERVICES), in the amount not to exceed Five Million Three Hundred Twenty Eight Thousand Four Hundred One Dollars and Eighty Cents ($5,328,401.80) as further detailed in the following page(s).
6. All other terms and conditions of the Agreement remain in full force and effect.
7. This Amendment No. 3 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
CITY OF MENIFEESOUTHSTAR ENGINEERING &
CONSULTING, INC.
_______________________________ _______________________________ Armando G. Villa, City Manager Amr Abuelhassan, Executive Vice President/CFO
Attest: ________________________________
Yvette Kirrin, President
_______________________________
Stephanie Roseen, City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 6
Menifee Mayor and City Council
April 2, 2025
Page
337 of 1198
EXHIBIT A
EXHIBIT A
SUPPLEMENT TO SCOPE OF SERVICES
[Attached on the following pages]
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 7
Menifee Mayor and City Council
April 2, 2025
Page
338 of 1198
EXHIBIT A
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 8
Menifee Mayor and City Council
April 2, 2025
Page
339 of 1198
2671/031858-0001
7630376.2 a09/23/21
CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
CIP 13-03: HOLLAND ROAD OVERPASS PROJECT
(CONSTRUCTION MANAGEMENT SERVICES)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and effective this _ ______ day of _____________, 2021 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and SOUTHSTAR ENGINEERING & CONSULTING, INC, a California 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 ter ms of this Agreement and Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on Novemeber 3, 2021 and shall end on June 30 , 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 t hat 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 Agreemen t 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 reasonabl y necessary to satisfy Consultant’s obligations hereunder.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 November3rd
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 9
Menifee Mayor and City Council
April 2, 2025
Page
340 of 1198
2671/031858-0001
7630376.2 a09/23/21 -2-
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 THREE MILLION TWO
HUNDRED FORTY EIGHT THOUSAND TWO HUNDRED THIRTY SEVEN DOLLARS AND FORTY THREE CENTS ($3,248,237.43) notwithstanding any contrary indications that may be contained in Consultant’s pr oposal, 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 Ser vices, 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;
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 10
Menifee Mayor and City Council
April 2, 2025
Page
341 of 1198
2671/031858-0001
7630376.2 a09/23/21 -3-
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 DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 11
Menifee Mayor and City Council
April 2, 2025
Page
342 of 1198
2671/031858-0001
7630376.2 a09/23/21 -4-
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 insuran ce 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 DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
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Engineering
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Inc.,
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Management
Services
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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 fo rm 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 i ncluded 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 prof essional 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 DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
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Engineering
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Inc.,
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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 Insur ance must include the following reference: CIP 13-03: HOLLAND ROAD OVERPASS PROJECT (CONSTRUCTION MANAGEMENT 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; prim ary 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 pursu ant 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 pri mary 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.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
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Engineering
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Inc.,
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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 subj ect 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 s top 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.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
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Engineering
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Inc.,
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Services
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Holland Road/I-215 Overcrossing Project
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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 Indemn ification 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 fro m 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 personne l 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 a ny 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 compensati on, 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.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
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Engineering
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Inc.,
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Management
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Holland Road/I-215 Overcrossing Project
Item Page Number: 16
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April 2, 2025
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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 Agreem ent 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 defi ned 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. Co nsultant 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.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
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Engineering
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Inc.,
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Management
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Holland Road/I-215 Overcrossing Project
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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 t o 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 b y 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 obli gations 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; DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
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Inc.,
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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 Pe rformance. 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 writte n 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 limite d 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, fr om 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.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
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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 separat e 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 Agreem ent, 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 A greement 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 Jason Bennecke (“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.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
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Southstar
Engineering
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Inc.,
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Management
Services
for
the
Holland Road/I-215 Overcrossing Project
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April 2, 2025
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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:
SOUTHSTAR ENGINEERING & CONSULTING, INC
Attn: Jason Bennecke
1945 Chicago Avenue, Suite C-2
Riverside, CA 92507
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 repo rt/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 DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
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Southstar
Engineering
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Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 21
Menifee Mayor and City Council
April 2, 2025
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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]
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 22
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 -15-
IN WITNESS WHEREOF, the Parties hereto have executed and entered i nto 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
Amr Abuelhassan, Executive Vice
President/CFO
Yvette Kirrin, President
[Corporation must have two signatures]
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 23
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include Construction Management Services for CIP 13-03: Holland Road Overpass Project in amount not to exceed THREE MILLION TWO HUNDRED FORTY EIGHT
THOUSAND TWO HUNDRED THIRTY SEVEN DOLLARS AND FORTY THREE CENTS ($3,248,237.43) as further detailed in the following page(s).
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 24
Menifee Mayor and City Council
April 2, 2025
Page
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement Amendment with Southstar Engineering & Consulting, Inc., for Construction Management Services for the Holland Road/I-215 Overcrossing Project Item Page Number: 25
Menifee Mayor and City Council
April 2, 2025
Page
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement Amendment with Southstar Engineering & Consulting, Inc., for Construction Management Services for the Holland Road/I-215 Overcrossing Project Item Page Number: 26
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 27
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 28
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 29
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 30
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 31
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 32
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 33
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 34
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 35
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 36
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 37
Menifee Mayor and City Council
April 2, 2025
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2671/031858-0001
7630376.2 a09/23/21 EXHIBIT A.
DocuSign Envelope ID: E7777F55-9830-40A6-A644-509424D1C821 DocuSign Envelope ID: FD9298FF-3696-4C49-86C2-C65FBACFA9C1 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 38
Menifee Mayor and City Council
April 2, 2025
Page
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AMENDMENT NO. 1 TO
PROFESSIONAL SERVICES AGREEMENT
CIP 13-03 HOLLAND ROAD OVERPASS PROJECT
(CONSTRUCTION MANAGEMENT SERVICES)
This is Amendment No. (“Amendment 1”) to that certain Professional Services Agreement (“Agreement”) made on November 3, 2021 between the City of Menifee (“City”) and SOUTHSTAR ENGINEERING & CONSULTING, INC. (“Consultant”) for CIP 13 -03
HOLLAND ROAD OVERPASS PROJECT ( CONSTRUCTION MANAGEMENT SERVICES) this Amendment No. 1 is made and entered into on ______________, 2023 to extend the term of the Agreement, increase the compensation amount, and augment the scope of services as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 6 shall have the meanings ascribed to them in the Agreement.
Section 1.1, “Term of Services” is amended to read as follows:
1.1 Term of Services. The term of this Agreement shall begin on the November 3, 2021 and shall end on December 31, 2024 unless the term of the Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Contractor to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8.
2. S ECTION 2 , “Compensation” is amended to increase the maximum compensation by One Million One Hundred Fifty Two Thousand Four Hundred Five Dollars and Thirty One Cents ($1,152,405.31), and is amended to read as follows:
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed Four Million Four Hundred Thousand Six Hundred Forty Two Dollars and Seventy Four Cents ($4,400,642.74) 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.
3. Exhibit A, “Scope of Services” is supplemented to include the supplement attached as Exhibit A hereto. The supplement to the “Scope of Services” is not intended to replace the original Exhibit A to the Agreement, but instead to augment and increase the scope of work listed in the original Exhibit A to the Agreement. The initial paragraph of the original Exhibit A, “Scope of Services”, to the Agreement is amended to read as follows:
DocuSign Envelope ID: 80164A45-E8B8-4403-8628-950ADF7D3168 November 15,
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 39
Menifee Mayor and City Council
April 2, 2025
Page
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SCOPE OF SERVICES
Consultant shall provide CIP 13 -03 HOLLAD ROAD OVERPASS PROJECT (CONSTRUCTION MANAGEMENT SERVICES), in the amount not to exceed Four Million Four Hundred Thousand Six Hundred Forty Two Dollars and Seventy Four Cents ($4,400,642.74) as further detailed in the following page(s).
4. All other terms and conditions of the Agreement remain in full force and effect.
5. This Amendment No. 1 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
CITY OF MENIFEE SOUTHSTAR ENGINEERING &
CONSULTING, INC.
_______________________________ _______________________________ Rebekah Kramer, Acting City Manager Amr Abuelhassan, Executive Vice President/CFO
Attest: ________________________________
Yvette Kirrin, President
_______________________________
Sarah Manwaring, City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
DocuSign Envelope ID: 80164A45-E8B8-4403-8628-950ADF7D3168 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 40
Menifee Mayor and City Council
April 2, 2025
Page
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EXHIBIT A
EXHIBIT A
SUPPLEMENT TO SCOPE OF SERVICES
[Attached on the following pages]
DocuSign Envelope ID: 80164A45-E8B8-4403-8628-950ADF7D3168 Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 41
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April 2, 2025
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EXHIBIT A
EXHIBIT A
SUPPLEMENT TO SCOPE OF SERVICES
[Attached on the following pages]
DocuSign Envelope ID: 80164A45-E8B8-4403-8628-950ADF7D3168 Item Title: 10.15
Agreement Amendment with Southstar Engineering & Consulting, Inc., for Construction Management Services for the Holland Road/I-215 Overcrossing Project Item Page Number: 42
Menifee Mayor and City Council
April 2, 2025
Page
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AMENDMENT NO. 2 TO
PROFESSIONAL SERVICES AGREEMENT
CIP 13-03 HOLLAND ROAD OVERPASS PROJECT
(CONSTRUCTION MANAGEMENT SERVICES)
This is Amendment No. (“Amendment 1”) to that certain Professional Services Agreement (“Agreement”) made on November 3, 2021 between the City of Menifee (“City”) and SOUTHSTAR ENGINEERING & CONSULTING, INC. (“Consultant”) for CIP 13 -03
HOLLAND ROAD OVERPASS PROJECT ( CONSTRUCTION MANAGEMENT SERVICES) as amended by that certain Amendment No. 1 to the Agreement entered into on November 15, 2023 (“Amendment No. 1”) which this Amendment No. 2 is made and entered into on ______________, 2024 to increase the compensation amount, and augment the scope of services as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 2 shall have the meanings ascribed to them in the Agreement.
2. SECTION 2 , “Compensation” is amended to increase the maximum compensation by Two Hundred Twenty Eight Thousand Dollars and Zero Cents ($228,000.00), and is amended to read as follows:
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed Four Million Six Hundred Twenty Eight Thousand Six Hundred Forty Two Dollars and Seventy Four Cents ($4,628,642.74) 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.
3. Exhibit A, “Scope of Services” is supplemented to include the supplement attached as Exhibit A hereto. The supplement to the “Scope of Services” is not intended to replace the original Exhibit A to the Agreement, but instead to augment and increase the scope of work listed in the original Exhibit A to the Agreement. The initial paragraph of the original Exhibit A, “Scope of Services”, to the Agreement is amended to read as follows:
SCOPE OF SERVICES
Consultant shall provide
CIP 13 -03 HOLLAD ROAD OVERPASS PROJECT
(CONSTRUCTION MANAGEMENT SERVICES), in the amount not to exceed Four Million Six Hundred Twenty Eight Thousand Six Hundred Forty Two Dollars and Seventy Four Cents ($4,628,642.74) as further detailed in the following page(s).
Docusign Envelope ID: 58053CB3-0AF1-4A74-B5ED-211BA1383FCF September 4
Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 43
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April 2, 2025
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4. All other terms and conditions of the Agreement remain in full force and effect.
5. This Amendment No. 2 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
CITY OF MENIFEE SOUTHSTAR ENGINEERING &
CONSULTING, INC.
_______________________________ _______________________________ Armando G. Villa, City Manager Amr Abuelhassan, Executive Vice President/CFO
Attest: ________________________________
Yvette Kirrin, President
_______________________________
Stephanie Roseen, Acting City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
Docusign Envelope ID: 58053CB3-0AF1-4A74-B5ED-211BA1383FCF Item Title: 10.15
Agreement
Amendment
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Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 44
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April 2, 2025
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EXHIBIT A
EXHIBIT A
SUPPLEMENT TO SCOPE OF SERVICES
[Attached on the following pages]
Docusign Envelope ID: 58053CB3-0AF1-4A74-B5ED-211BA1383FCF Item Title: 10.15
Agreement
Amendment
with
Southstar
Engineering
&
Consulting,
Inc.,
for
Construction
Management
Services
for
the
Holland Road/I-215 Overcrossing Project
Item Page Number: 45
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April 2, 2025
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EXHIBIT A
EXHIBIT A
SUPPLEMENT TO SCOPE OF SERVICES
[Attached on the following pages]
Docusign Envelope ID: 58053CB3-0AF1-4A74-B5ED-211BA1383FCF Item Title: 10.15
Agreement Amendment with Southstar Engineering & Consulting, Inc., for Construction Management Services for the Holland Road/I-215 Overcrossing Project Item Page Number: 46
Menifee Mayor and City Council
April 2, 2025
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CITY OF MENIFEE
SUBJECT: Agreement Amendment with Dennis Janda, Inc. for On-call Land Surveying and Mapping Review Services
MEETING DATE: April 2, 2025
TO: Mayor and City Council
PREPARED BY: Kristen Jensen, Financial Analyst
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. 2 to the Master Agreement with Dennis Janda, Inc. for land surveying and mapping review services, increasing the compensation by $130,000, for a three-year total agreement amount not-to- exceed $500,000.
DISCUSSION
On June 21, 2023, the City Council approved various Master Agreements for professional on-call services with firms previously established on an approved on-call shortlist for Engineering. Dennis Janda, Inc. (DJI) is one of two shortlist firms initially designated to provide land surveying and mapping review services for Engineering. While staff have requested quotes for specific project work from both firms, DJI is often the only response received, and is consistently the most cost- effective option. Staff is currently reviewing options for the inclusion of additional firms on the shortlist for these services, given the volume of services needed to meet current development demands.
A Master Agreement was initially established with DJI for a three-year contract term from July 1, 2023, through June 30, 2026, and for a total agreement not-to-exceed amount of $230,000.
Amendment No.1 to the agreement was approved on June 19, 2024, to support the volume of development activities requiring technical survey mapping review and final survey monument inspection services. DJI has continued to provide timely and cost-effective services. Given the limited responsiveness of other firms, staff have relied heavily on DJI for performance technical survey reviews for subdivision mapping approval and for monument inspection services at project close-outs. This has resulted in a need to increase the not-to-exceed compensation amount of the DJI Master Agreement.
Item Title: 10.16
Agreement Amendment with Dennis Janda, Inc. for On-call Land Surveying and Mapping Review Services Item Page Number: 1
Menifee Mayor and City Council
April 2, 2025
Page
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City of Menifee Staff Report
PW PSA Amendment, Dennis Janda, Inc.
April 2, 2025
2 6
3 1
The proposed Amendment No. 2 would increase the Master Agreement by $130,000 to a total contract not-to-exceed limit of $500,000. The contract not-to-exceed amount represents compensation authorized for services provide for the full three-year term which began July 1, 2023, and expires June 30, 2026. All other terms would remain unchanged, as outlined in Table No. 1 below.
TABLE 1 – DJI AGREEMENT HISTORY
Date approved Amount Contract Term
Original PSA 7/20/2023 $230,000 6/30/2026
Amendment No. 1 6/19/2024 $140,000 6/30/2026
Amendment No. 2 PENDING $130,000 6/30/2026
TOTAL $500,000
Pursuant to Menifee Municipal Code §3.12.090, any change orders in the amount greater than 10% of the contract amount or that exceeds $25,000 in value, and any time extension of a performance deadline that exceeds 60-days, shall be approved by the City Council.
STRATEGIC PLAN OBJECTIVE
Safe and Vibrant Community
FISCAL IMPACT
The fiscal impact of the proposed amendment is not-to-exceed $130,000 through the contract term of fiscal year (FY) 2025/2026, bringing the total agreement to a not-to-exceed amount of $500,000. Funding for a portion of the proposed amendment is available within the FY 2024/2025 budget, under professional services reimbursable for Public Works Engineering division within the General Fund (1100-PWD-ENGR-652825). Funding in FY 2025/2026 would be budgeted accordingly.
It is important to note that land surveying and mapping review services are recoverable and would be offset by developer fees and deposits collected for the services. Purchase orders for these services would only be issued following confirmation of budget availability and only for amounts within the approved not-to-exceed agreement compensation amounts.
ATTACHMENTS
1. Amendment No. 2
2. Original Agreement
3. Amendment No. 1
Item Title: 10.16
Agreement Amendment with Dennis Janda, Inc. for On-call Land Surveying and Mapping Review Services Item Page Number: 2
Menifee Mayor and City Council
April 2, 2025
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AMENDMENT NO. 2 TO
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
AMENDMENT NO. 2 TO
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
This is Amendment No. 2 (“Amendment No. 2”) to that certain Professional Services Agreement (“Agreement”) made on _June 21, 2023__ between the City of Menifee (“City”) and DENNIS JANDA, INC. (“Consultant”) for PROFESSIONAL ON CALL SERVICES (LAND SURVEYING & MAPPING REVIEW), as amended by that certain Amendment No. 1 to the Agreement entered into on June 19, 2024 (“Amendment No. 1”), which this Amendment No. 2 is made and entered into on ______________, 2025 to increase the compensation amount as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 2 shall have the meanings ascribed to them in the Agreement.
2. Section 3.1, “Not to Exceed Compensation,” is amended to increase the maximum not to exceed compensation by One Hundred Thirty Thousand Dollars and Zero Cents ($130,000.00), and is amended to read as follows:
3.1 Not to Exceed Compensation. Consultant shall be compensated for the Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein. Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule, attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”).
The compensation set forth in the Purchase Order represents total compensation payable to Consultant without limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in performance of the Purchase Order. In no event shall the total, cumulative compensation paid to Consultant pursuant to this Agreement, including any and all Purchase Orders, exceed Five Hundred Thousand Dollars and Zero Cents ($500,000.00).
3. Initial paragraph of the original Exhibit A, “Form of Purchase Order”, to the Agreement is amended to read as follows:
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth herein are guaranteed for any particular Services. The fields of each Purchase Order will vary based on the Services required. In no event shall the total, cumulative compensation paid to Consultant pursuant to this Agreement, including any and all Purchase Orders, exceed Five Hundred Thousand Dollars and Zero Cents ($500,000.00).
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AMENDMENT NO. 2 TO
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
4. All other terms and conditions of the Agreement remain in full force and effect.
5. This Amendment No. 2 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
CITY OF MENIFEE DENNIS JANDA, INC.
_______________________________ _______________________________ Armando G. Villa, City Manager Dennis Janda, President
Attest: ________________________________
Tricia Janda, Vice President/Owner
_______________________________
Stephanie Roseen, City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
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CITY OF MENIFEE
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
THIS MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES (“Agreement”) is made and effective this ____ day of _______, 2023 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and 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. GENERAL PROVISIONS.
1.1 Purpose. The purpose of this Agreement is to authorize Consultant to provide on- call services to City through purchase orders issued by the City Manager or designees (each a “Purchase Order”) for privately funded and City projects which are exempt from bidding requirements for public contracting, subject to the terms and conditions herein (the “Services”).
1.2 No Guaranteed Work. The Parties acknowledge that this Agreement serves as a master services agreement to establish Consultant as an approved consultant which may perform Services for the City pursuant to Purchase Order(s) issued in the discretion of the City Manager.
This Agreement does not guarantee that Consultant will be issued any work from City, or any particular amount of work, including for any Services. By entering into this Agreement Consultant is obtaining the ability to receive Purchase Orders from the City Manager up to the compensation amount set forth in Section 3.1, and the City is obtaining the ability to issue Purchase Orders without a requirement for subsequent City Council approval.
1.3 Term. This Agreement shall become effective on July 1, 2023 and shall continue until June 30, 2026, unless otherwise terminated or extended by the Parties pursuant to the terms of this Agreement.
1.4 Termination. The City may terminate this Agreement at any time with or without cause by providing written notice to Consultant. The City may terminate this Agreement for any reason, including but not limited to the lack of budget allocation for the Services.
1.5 Contract Administrator. Kristen Jensen (“Contract Administrator”) is the City’s primary contact representative for the purposes of this Agreement. Consultant shall contact the Contract Administrator for all communications related to this Agreement. City may change the Contract Administrator upon written notification to Consultant. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or designee.
1.6 Consultant Representative . Dennis Janda is Consultant’s primary contact representative for the purposes of this Agreement. City shall contact the Consultant Representative for all communications related to this Agreement. Consultant may change the Consultant Representative upon written notification to City. Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement.
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1.7 Notices. Any written notice to Consultant shall be sent to:
DENNIS JANDA, INC.
Attn: Dennis Janda
12888 Francine Terrance
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: Kristen Jensen, PW Financial Analyst
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
SECTION 2. SERVICES.
2.1 Purchase Orders . Consultant agrees to furnish Services pursuant to Purchase Order(s) issued by the City Manager in the form attached hereto as Exhibit “A” which is attached hereto and incorporated herein by this reference. In no event shall compensation for Services exceed the “not to exceed” compensation amount set forth in the Purchase Order.
2.2 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 s atisfaction of the Contract Administrator.
2.3 Assignment of Personnel . Consultant shall assign only competent personnel to perform the Services. 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.
2.4 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.
2.5 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 a Purchase Order.
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2.6 Warranty. By executing this Agreement, Consultant warrants that Consultant has thoroughly investigated and considered the Services, has considered how they should be performed, and fully understands the facilities, difficulties, and restrict ions applicable to performance of the Services.
2.7 Facilities and Equipment. Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the Services. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long- distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 3. COMPENSATION.
3.1 Not to Exceed Compensation. Consultant shall be compensated for the Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein. Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule, attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”). The compensation set forth in the Purchase Order represents total compensation payable to Consultant without limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in per formance of the Purchase Order. In no event shall the total, cumulative compensation paid to Consultant pursuant to this Agreement, including any and all Purchase Orders, exceed Two Hundred Thirty Thousand Dollars and Zero Cents ($230,000.00).
3.2 Invoicing. Upon completion of a Purchase Order, or monthly for Purchase Orders involving Services performed over periods of longer than one (1) month, Consultant shall submit invoices to City based on the Services performed and any reimbursable expenses approved by City in writing. Invoices shall comply with the City’s “Invoicing Requirements” attached as Exhibit “C” hereto and incorporated herein by this reference, and shall contain the following information:
a. Serial identifications of progress bills; i.e., Pro gress 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 Purchase Order amount, the amount of prior billings, the total due this period, the balance available under the Pur chase Order, and the percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person performing the Services, the hours spent by each person, a brief description of the Services, and each reimbursable expense;
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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; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
h. Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
3.3 Payment. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
3.4 Payment Holds . City may withhold payment of any invoice for Services not satisfactorily performed until such Services are performed to City’s satisfaction at no extra cost to City. City may hold payments reasonably in dispute under this Agreement until resolution of the dispute.
3.5 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
3.6 Payment Upon Termination . In the event City or Consultant terminates this Agreement, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for preapproved reimbursable expenses as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date. City may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
SECTION 4. INDEMNIFICATION.
4.1 Indemnification for Professional Liability . Where the law establishes a professional standard of care for performance of this Agreement, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of it s 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) charge s, 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 ret ained by City) a nd 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 DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
4.2 Indemnification for Other than Professional Liability . Other than in the performance of professional services and to the full extent p ermitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City) , and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
4.3 Limitation of Indemnification for Design Professionals . Notwithstanding any provision of this Section 4 to the contrary, design professionals, as that term is defined in Civil Code Section 2782.8, are required to defend and indemnify City only to the extent permitted by Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code. This Subsection 4.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
4.4 Limitation of Indemnification . The provisions of this Section 4 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 4 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity.
4.5 Legal Requirements Related to Indemnification . If any applicable law woul d render any of the requirements of this Section 4 void or unenforceable, the requirements hereunder shall be construed to the greatest scope and applicability permitted by applicable law.
SECTION 5. INSURANCE.
5.1 Insurance Required. As a condition of entering into this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance specified below.
Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter -insured suits between City and other insureds.
a. Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s L iability 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 DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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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 di scretion 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. b. Commercial General and Automobile Liability Insurance. i) General requirements . Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the 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 g eneral 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. ii) Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
iii) Additional requirements . Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an
accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting
provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
c. Professional Liability Insurance.
i) General requirements . Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the 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.
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ii) Claims-made limitations . The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the 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. d. A copy of the claim reporting requirements must be
submitted to City prior to the commencement of the Services under this Agreement.
5.2 Acceptability of Insurers . All insurance required by this Section is to be placed with insurers with a Bests’ rating of no less than A:VII and admitted in California.
5.3 Continuation of Insurance . Consultant shall maintain the insurance policies required by this Section throughout the term of this Agreement.
5.4 Additional Insured. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant. 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 ow ned, 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 i nsured 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.
5.5 Subcontractors’ Insurance . Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract pursuant to this Agreement until DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
5.6 Deductibles and Self -insured Retentions . Cons ultant 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, Cons ultant 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.
5.7 Verification of Coverage. Prior to execution of this Agreement, Consultant shall furnish City with 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 name and address for endorsements and other insurance related matters is: City of Menifee, 29844 Haun Road, Menifee, CA 92586.
5.8 Notice of Reduction in or Cancellation of Coverage . Consultant shall pr ovide written notice to City within ten (10) working days if: (1) any of the required insura nce policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased.
5.9 Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected. The Contractor Administrator may,but is not required to approve in writing the submission of certificates of insurance in lieu of policy copies, in which case the Certificate of Insurance must include the following reference: City of Menifee:
Master Agreement for Professional On Call Services.
5.10 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
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SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services and assignment of personnel pursuant to Section 2.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services. The personnel performing the Services on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in any manner represent that it is or any of its officers, employees, or agents are in any manner officers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided Purchase Orders, City shall not pay salaries, wages, or other compensation to Consultant for performing Services . City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services. 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 Agree ment shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform under this Agreement unless such person is properly docum ented and legally entitled to be employed within the United States. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
7.2 Prevailing Wages. The Parties have determined that prevailing wage laws do not apply to this Agreement because the Services do not include c onstruction, alteration, demolition, installation, or repair work or are otherwise exempt under California’s prevailing wage laws (Lab.
Code, § 1720 et seq.). Notwithstanding the foregoing, it is agreed by the Parties that, in connection with performance of this Agreement , including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, and/or any other similar law. Section 4, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing 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 wa ges and hire apprentices); (ii) the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Consultant or any party performing under DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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this Agreement to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
7.3 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants 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, and perform the Services. Consultant represents, warrants , and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.4 Conflicts of Interest, Political Reform Act. Consultant represents, warrants , and covenants that Consultant presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement. Consultant further agrees that while this Agreement is in effect, Consultant shall not acquire or otherwise obt ain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Consultant’s obligations and responsibilities under this Agreement. Consultant acknowledges that pursuant to the provisions of the Politic al Reform Act (Government Code Section 87100 et seq.), City may determine the Consultant to be a “consultant” as that term is defined by 2 California Code of Regulations Section 18700.3. In the event City makes such a determination, Consultant agrees to c omplete and file a “Statement of Economic Interest” with the City Clerk to disclose such financial interests as required by City. In such event, Consultant further agrees to require any other person doing work under this Agreement to complete and file a “Statement of Economic Interest” to disclose such other person’s financial interests as required by City.
7.5 Amendments. The Parties may amend this Agreement and/or any Purchase Order only by a writing signed by all the Parties. The City Manager shall have the authority to execute amendments to this Agreement and any Purchase Order which extend the time for performance or modify the Services to be provided. Extensions of the time for performance of Services does not entitle Consultant to additional compensation to the compensation initially provided in the applicable Purchase Order.
7.6 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. 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 DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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than to the subcontractors noted in Consultant’s proposal, without prior written approval of the Contract Administrator. In the event that key personne l leave Consultant’s employ, Consultant shall notify City immediately.
7.7 Options upon Breach by Consultant . If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following:
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; and/or d. Charge Consultant the difference between the cost to complete the Services described in the relevant Purchase Order that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 3 if Consultant had complete d the Services.
SECTION 8. KEEPING AND STATUS OF RECORDS.
8.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares 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.
8.2 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 othe r 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 DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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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.
8.3 Consultant’s Books and Records . Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges or expenditures and disbursements charged to City for Services under this Agreement, if any for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
8.4 Inspection and Audit of Records . Any reco rds or documents that Section 8.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attorney s’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing P arty in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought for that purpose.
9.2 Applicable Law, Venue. The laws of the State of California shall govern this Agreement. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
9.3 Severability. If any provision of this Agreement is he ld invalid, the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect.
9.4 Section Headings and Subheadings . The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
9.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreem ent. No delay or omission in the DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waive r of any other default concerning the same or any other provision of this Agreement.
9.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
9.7 Rights and R emedies. The rights and remedies of the P arties 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 d efault or any other default by the other Party.
9.8 Integration. This Agreement, including the Exhibits attached hereto, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agre ements, 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 c onstrued for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. In the event of a conflict between this Agreement and any of the Exhibits, this Agreement shall control.
9.9 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
9.10 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisi ons of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any ot her agreement to which said Party is bound.
9.11 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrim ination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
9.12 No Third Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
9.13 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
9.14 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
9.15 No Benefit to Arise to City Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or sub -agreement, or the proceeds thereof, for any Services performed hereunder.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the P arties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Stephanie Roseen, Acting City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Dennis Janda, President
Tricia Janda, Vice President/Owner
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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EXHIBIT A.
EXHIBIT A
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth herein are guaranteed for any particular Services. The fields of each Purchase Order will vary based on the Services required. In no event shall the total, cumulative compensation paid to Consultant pursuant to this Agreement, including any and all Purchase Orders, exceed Two Hundred Thirty Thousand Dollars and Zero CentsZero Dollars and Zero Cents ($230,000.00).
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19246424.4 a07/18/23 EXHIBIT B.
EXHIBIT B
RATE SCHEDULE
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19246424.4 a07/18/23 EXHIBIT C
EXHIBIT C
INVOICING REQUIREMENTS
As a government agency, the City of Menifee is responsible for monitoring all executed contract expenditures to ensure all expenses are within the approved contract budget, as well as monitor all work completed to ensure the scope of work requirements are being met on the approved contract timeline. At any time, project developers may request to view the invoices for their project and ask questions of City staff for items billed. To assist City staff and project developers, several items will be required to be submitted with each invoice in order to clearly and concisely standardize the information presented on all invoices provided by contracted consultants.
If multiple projects are being invoiced through a single billing submission, details of fiscal information for all projects are to be summarized in a table and included as part of the invoice. This table will have all projects listed with project name, project number or tract map number, purchase order number, the amount due on the current invoice for each project, the amount that was previously charged to each project purchase order, and the total amount billed to each project purchase order, as in the example below:
In addition, a full work detail will be included in each invoice. This detail will identify the name and title of the person who conducted the work, the task number/sub-number that was worked on, specific duties completed, date of work, number of hours, cost per hour, and total amount due, as in the example below:
These details will be required on all future invoices submitted.
PROJECT NAME CIP or TRACT
NO.
IP / IS No. PURCHASE
ORDER NO.
PURCHASE
ORDER VALUE
CURRENT
AMOUNT DUE
PREVIOUS
AMOUNT
BILLED
TOTAL BILLED
TO DATE
Sumac Ridge PM37668 IS22-019 04123 $ 50,000.00 $ 5,700.00 $ 10,000.00 $ 15,700.00 Underwood
Park
TM29835-2 IS21-032 04043 $ 35,000.00 $ 7,850.00 $ - $ 7,850.00 Talavera TM29777 IP15-084 03999 $ 17,500.00 $ 2,500.00 $ 15,000.00 $ 17,500.00 TOTAL AMOUNT DUE FOR THIS INVOICE: $ 16,050.00
DocuSign Envelope ID: E4AEC4AF-E84B-4013-95AE-DD95405490E1 DocuSign Envelope ID: A159FC54-6C26-4710-9152-C84CF089D612 Item Title: 10.16
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AMENDMENT NO. 1 TO
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
AMENDMENT NO. 1 TO
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
This is Amendment No. 1 (“Amendment No. 1”) to that certain Professional Services Agreement (“Agreement”) made on _June 21, 2023__ between the City of Menifee (“City”) and DENNIS JANDA, INC. (“Consultant”) for PROFESSIONAL ON CALL SERVICES (LAND SURVEYING & MAPPING REVIEW) which this Amendment No. 1 is made and entered into on ______________, 2024 to increase the compensation amount as indicated below:
1. Capitalized terms used but not defined in this Amendment No. 1 shall have the meanings ascribed to them in the Agreement.
2. SECTION 3.1, “ Not to Exceed Compensation” is amended to increase the maximum not to exceed compensation by One Hundred Forty Thousand Dollars and Zero Cents ($140,000.00), and is amended to read as follows:
3.1 Not to Exceed Compensation. Consultant shall be compensated for the Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein. Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule, attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”).
The compensation set forth in the Purchase Order represents total compensation payable to Consultant without limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in performance of the Purchase Order. In no event shall the total, cumulative compe nsation paid to Consultant pursuant to this Agreement, including any and all Purchase Orders, exceed Three Hundred Seventy Thousand Dollars and Zero Cents ($370,000.00).
3. The initial paragraph of the original Exhibit A, to the Agreement is amended to read as follows:
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth herein are guaranteed for any particular Services. The fields of each DocuSign Envelope ID: 932F2205-7497-4CFE-AEE3-30C67CA3C5C6 June 19
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AMENDMENT NO. 1 TO
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
Purchase Order will vary based on the Services required. In no event shall the total, cumulative compensation paid to Consultant pursuant to this Agreement, including any and all Purchase Orders, exceed Three Hundred Seventy Thousand Dollars and Zero Cents ($370,000.00).
4. All other terms and conditions of the Agreement remain in full force and effect.
5. This Amendment No. 1 may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. (Signatures on Following Page)
DocuSign Envelope ID: 932F2205-7497-4CFE-AEE3-30C67CA3C5C6 Item Title: 10.16
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AMENDMENT NO. 1 TO
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES
(LAND SURVEYING & MAPPING REVIEW)
CITY OF MENIFEE DENNIS JANDA, INC.
_______________________________ _______________________________ Armando G. Villa, City Manager Dennis Janda, President
Attest: ________________________________
Tricia Janda, Vice President/Owner
_______________________________
Stephanie Roseen, Acting City Clerk
Approved as to Form:
_______________________________
Jeffrey T. Melching, City Attorney
DocuSign Envelope ID: 932F2205-7497-4CFE-AEE3-30C67CA3C5C6 Erike Young
Item Title: 10.16
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CITY OF MENIFEE
SUBJECT: Agreement Amendment with Parsons for the Menifee Road Widening – Garbani Road to Scott Road Project
MEETING DATE: April 2, 2025
TO: Mayor and City Council
PREPARED BY: Carlos E. Geronimo, Engineering Manager
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. 1 to the Professional Services Agreement with Parsons for the Menifee Road Widening – Garbani Road to Scott Road Project, Capital Improvement Program (CIP) Project No. CIP 23-12, increasing the compensation amount by $309,065, for a total not-to-exceed amount of $1,283,375.
DISCUSSION
The Menifee Road Widening Project, Capital Improvement Program (CIP) No. 23-12 proposes widening the segment of Menifee Road between Garbani Road and Scott Road from an existing two-lane road to a four-lane corridor. The Project would also relocate existing overhead utilities, modify existing storm drain culverts impacted by the widening of the road, and install sidewalk and pedestrian ramps.
On July 19, 2023, the City Council approved a Professional Services Agreement (PSA) with Parsons (“Consultant”) to provide architectural and civil design services and plans, specifications, and estimates (PS&E) for the Project.
While staff makes every effort to anticipate all work-related items based on available existing information to produce a comprehensive scope of work encompassing all tasks required for the preparation of construction documents, it is only through the actual design process that project issues are discovered, and all impacts identified. During the environmental and design process, it became evident that the project would have more impacts to adjacent properties, unknown during the preliminary engineering phase. The expanded scope of work included in Amendment No. 1 would require additional Consultant efforts and result in an increase of $309,065 to the PSA, bringing the total not-to-exceed amount to $1,283,375, as summarized in Table 1 on the following page.
Item Title: 10.17
Agreement Amendment with Parsons for the Menifee Road Widening – Garbani Road to Scott Road Project Item Page Number: 1
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April 2, 2025
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City of Menifee Staff Report
CIP 23-12 Parsons Amend No. 1
April 2, 2025
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0 7
TABLE 1 – AGREEMENT ACTIVITY SUMMARY
PSA Activity Approval Date Summary of Changes Amount
Original Agreement July 19, 2023 Environmental and civil design services $974,310
Amendment No. 1 Pending Additional ROW support and
environmental analysis $309,065
TOTAL $1,283,375
A more detailed summary of the expanded scope of work included in Amendment No. 1 includes the following:
•Additional right-of-way (ROW) engineering/acquisition support: The Project originally anticipated acquisition of six parcels. However, the current design and ROW impacts include the need to add Drainage Easements and Temporary Construction Easements due to grading outside of the existing right-of-way that would now impact a total of 21 parcels. The need for these easements was unknown during planning development due to the absence of topographical survey and drainage studies that only become available during the design process.
•Additional environmental analysis: Revisions to the environmental document are required for the preparation of a Community Impact Assessment Memorandum to address the replacement of existing unauthorized residential driveways encroaching on the City’s ROW which were previously constructed in restricted zones along Menifee Road.
Pursuant to the Menifee Municipal Code §3.12.090, amendments or change orders in the amount greater than 10% of the Agreement amount or that exceed the City Manager’s signing authority shall be approved by the City Council.
STRATEGIC PLAN OBJECTIVE
Connectivity and Mobility
FISCAL IMPACT
The fiscal impact of the proposed amendment to the Consultant’s PSA for environmental and civil design services is $309,065, for a total not-to-exceed PSA value of $1,283,375. Funding for the proposed amendment is available in the current Fiscal Year 2024/2025 budget within the Transportation Uniform Mitigation Fee (TUMF) Fund (2310-PWD-CIPS-760000), as summarized in Table 2 below.
TABLE 2 – EXISTING PROJECT BUDGET
Fund Project String No. Available Budget Anticipated Cost TUMF CIP23-12.2310.DES.CAE $1,194,690 $309,065
TOTAL $1,194,690 $309,065
Item Title: 10.17
Agreement Amendment with Parsons for the Menifee Road Widening – Garbani Road to Scott Road Project Item Page Number: 2
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City of Menifee Staff Report
CIP 23-12 Parsons Amend No. 1
April 2, 2025