Professional Service Industries/Materials Testing Misc 02PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into by
and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Professional
Services, Inc.(" Consultant"). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to Professional Materials Testing Services. Project No.
2001-09. as specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated
herein by this reference (the "services" or "work"). Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance with the standards
prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance
with all ordinances, resolutions, statutes, rules, regulations and laws of the City of La Quinta and any
Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be
required by law for the performance of the services required by this Agreement. 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 the performance of the
services required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it has
thoroughly investigated and considered the work to be performed, (b) it has investigated the site of
the work and fully acquainted itself with the conditions there existing, (c) it has carefully considered
how the work should be performed, and (d) it fully understands the facilities, difficulties and
restrictions attending performance of the work under this Agreement. Should Consultant discover
any latent or unknown conditions materially differing from those inherent in the work or as
represented by City, it shall immediately inform City of such fact and shall not proceed except at
Consultant's risk until written instructions are received from the Contract Officer (as defined in
Section 4.2 hereof).
1.5 rare of Work. Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work performed by Consultant, and the
equipment, materials, papers and other components thereof to prevent losses or damages, and shall
be responsible for all such damages, to persons or property, until acceptance of the work by City,
except such losses or damages as may be caused by City's own negligence. The performance of
services by Consultant shall not relieve Consultant from any obligation to correct any incomplete,
inaccurate or defective work at no further cost to City, when such inaccuracies are due to the
negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this Agreement,
Consultant shall perform services in addition to those specified in the Scope of Services when
directed to do so by the Contract Officer, provided that Consultant shall not be required to perform
any additional services without compensation. Any addition in compensation not exceeding five
percent (5%) of the Contract Sum may be approved by the Contract Officer. Any greater increase
must be approved by the City Council.
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1 .7 Special Requirements. Additional terms and conditions of this Agreement, if any, which
are made a part hereof are set forth in Exhibit "D" (the "Special Requirements"). In the event of a
conflict between the provisions of the Special Requirements and any other provisions of this
Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall
be compensated in accordance with Exhibit "B" (the "Schedule of Compensation") in a total amount
not to exceed Two Thousand, Six Hundred and Twenty Six Dollars ($2,626.00) (the "Contract
Sum"), except as provided in Section 1.6. The method of compensation set forth in the Schedule
of Compensation may include a lump sum payment upon completion, payment in accordance with
the percentage of completion of the services, payment for time and materials based upon
Consultant's rate schedule, but not exceeding the Contract Sum, or such other methods as may be
specified in the Schedule of Compensation. Compensation may include reimbursement for actual and
necessary expenditures for reproduction costs, transportation expense, telephone expense, and
similar costs and expenses when and if specified in the Schedule of Compensation.
2.2 Method of Payment. Any month in which Consultant wishes to receive payment,
Consultant shall submit to City no later than the tenth (10th) working day of such month, in the form
approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice.
Such invoice shall (1) describe in detail the services provided, including time and materials, and (2)
specify each staff member who has provided services and the number of hours assigned to each
such staff member. Such invoice shall contain a certification by a principal member of Consultant
specifying that the payment requested is for work performed in accordance with the terms of this
Agreement. City will pay Consultant for all expenses stated thereon which are approved by City
pursuant to this Agreement no later than the last working day of the month.
M
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "C" (the "Schedule of
Performance"). Extensions to the time period specified in the Schedule of Performance may be
approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of Performance for performance
of the services rendered pursuant to this Agreement shall be extended because of any delays due
to unforeseeable causes beyond the control and without the fault or negligence of Consultant,
including, but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods,
epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency
other than City, and unusually severe weather, if Consultant shall within ten (10) days of the
commencement of such delay notify the Contract Officer in writing of the causes of the delay. The
Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing
the services for the period of the forced delay when and if in his or her judgement such delay is
justified, and the Contract Officer's determination shall be final and conclusive upon the parties to
this Agreement.
3.4 Term. Unless earlier terminated in accordance with Sections 7.7 or 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services,
except as otherwise provided in the Schedule of Performance.
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4.1 Representative of Consultant. The following principals of Consultant are hereby
designated as being the principals and representatives of Consultant authorized to act in its behalf
with respect to the work specified herein and make all decisions in connection therewith:
a.
b.
It is expressly understood that the experience, knowledge, capability, and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore,
the foregoing principals shall be responsible during the term of this Agreement for directing all
activities of Consultant and devoting sufficient time to personally supervise the services hereunder.
The foregoing principals may not be changed by Consultant and no other personnel may be
assigned to perform the service required hereunder without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be John M. Freeland, Senior Engineer or such
other person as may be designated by the City Manager of City. It shall be Consultant's
responsibility to assure that the Contract Officer is kept informed of the progress of the performance
of the services and Consultant shall refer any decisions which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the
approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability
and reputation of Consultant, its principals and employees were a substantial inducement for City
to enter into this Agreement. Except as set forth in this Agreement, Consultant shall not contract
with any other entity to perform in whole or in part the services required hereunder without the
express written approval of City. In addition, neither this Agreement nor any interest herein may be
assigned or transferred, voluntarily or by operation of law, without the prior written approval of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control
over the manner, mode or means by which Consultant, its agents or employees, perform the services
required herein, except as otherwise set forth. Consultant shall perform all services required herein
as an independent contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role. Consultant shall not at any
time or in any manner represent that it or any of its agents or employees are agents or employees
of City.
4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports,
statistics, records or other data or information pertinent to services to be performed hereunder which
are reasonably available to Consultant only from or through action by City.
5.0 INSURANCE, INDEMNIFICATION AND BONDS.
5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently
with its execution of this Agreement, personal and public liability and property damage insurance
against all claims for injuries against persons or damages to property resulting from Consultant's acts
or omissions rising out of or related to Consultant's performance under this Agreement. The
insurance policy shall contain a severability of interest clause providing that the coverage shall be
primary for losses arising out of Consultant's performance hereunder and neither City nor its insurers
shall be required to contribute to any such loss. A certificate evidencing the foregoing and naming
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City and its officers and employees as additional insured shall be delivered to and approved by City
prior to commencement of the services hereunder.
The amount of insurance required hereunder shall be determined by the Contract Sum in accordance
with the following table:
Contract Sum
Less than $50,000
Personal Injury/Property Damage Coverage
$100,000 per individual; $300,000 per occurrence
$50,000 - $300,000
$250,000 per individual; $500,000 per occurrence
Over $300,000
$500,000 per individual; $1,000,000 per occurrence
Consultant shall carry automobile liability insurance of $1,000,000 per accident against all
claims for injuries against persons or damages to property arising out of the use of any automobile
by Consultant, its officers, any person directly or indirectly employed by Consultant, any
subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly or
indirectly out of or related to Consultant's performance under this Agreement. The term
"automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed for
travel on public roads. The automobile insurance policy shall contain a severability of interest clause
providing that coverage shall be primary for losses arising out of Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to such loss. A certificate evidencing
the foregoing and naming City and its officers and employees as additional insured shall be delivered
to and approved by City prior to commencement of the services hereunder.
Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's
Compensation laws.
Consultant shall procure professional errors and omissions liability insurance in an amount acceptable
to City.
All insurance required by this Section shall be kept in effect during the term of this Agreement and
shall not be cancelable without thirty (30) days written notice to City of proposed cancellation. The
procuring of such insurance or the delivery of policies or certificates evidencing the same shall not
be construed as a limitation of Consultant's obligation to indemnify City, its officers, employees,
contractors, subcontractors, or agents.
5.2 Indemnification. Consultant shall defend, indemnify and hold harmless City, its officers,
employees, representatives and agents, from and against those actions, suits, proceedings, claims,
demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death
of person(s), for damage to property (including property owned by City) and for errors and omissions
committed by Consultant, its officers, employees and agents, which arise out of Consultant's
negligent performance under this Agreement, except to the extent of such loss as may be caused
by City's own negligence or that of its officers or employees.
5.3 Remedies. In addition to any other remedies 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:
a. Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under this Agreement.
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b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies City
may have. The above remedies are not the exclusive remedies for Consultant's failure to maintain
or secure appropriate policies or endorsements. Nothing herein contained shall be construed as
limiting in any way the extent to which Consultant may be held responsible for payments of damages
to persons or property resulting from Consultant's or its subcontractors' performance of work under
this Agreement.
6.0 RECORDS ANu Htrull i a.
6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning Consultant's performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Consultant shall keep such books and records as shall be necessary to perform
the services required by this Agreement and enable the Contract Officer to evaluate the cost and the
performance of such services. Books and records pertaining to costs shall be kept and prepared in
accordance with generally accepted accounting principals. The Contract Officer shall have full and
free access to such books and records at all reasonable times, including the right to inspect, copy,
audit, and make records and transcripts from such records.
6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are prepared by
Consultant, its employees, subcontractors and agents in the performance of this Agreement, shall
be the property of City and shall be delivered to City upon termination of this Agreement or upon the
earlier request of the Contract Officer, and Consultant shall have no claim for further employment
or additional compensation as a result of the exercise by City of its full rights of ownership of the
documents and materials hereunder. Consultant shall cause all subcontractors to assign to City any
documents or materials prepared by them, and in the event Consultant fails to secure such
assignment, Consultant shall indemnify City for all damages suffered thereby.
In the event City or any person, firm or corporation authorized by City reuses said documents
and materials without written verification or adaptation by Consultant for the specific purpose
intended and causes to be made or makes any changes or alterations in said documents and
materials, City hereby releases, discharges, and exonerates Consultant from liability resulting from
said change. The provisions of this clause shall survive the completion of this Contract and shall
thereafter remain in full force and effect.
6.4 Release of Documents. The drawings, specifications, reports, records, documents and
other materials prepared by Consultant in the performance of services under this Agreement shall not
be released publicly without the prior written approval of the Contract Officer or as required by law.
Consultant shall not disclose to any other entity or person any information regarding the activities
of City, except as required by law or as authorized by City.
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7.0 ENFORCEMENT OF AGREEMENT.
7.1 California Law. This Agreement shall be construed and interpreted both as to validity and
to performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Riverside, State of California, or any other
appropriate court in such county, and Consultant covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall
notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party
shall continue performing its obligations hereunder so long as the injuring party commences to cure
such default within ten (10) days of service of such notice and completes the cure of such default
within forty-five (45) days after service of the notice, or such longer period as may be permitted by
the Contract Officer; provided that if the default is an immediate danger to the health, safety and
general welfare, City may take such immediate action as City deems warranted. Compliance with
the provisions of this section shall be a condition precedent to termination of this Agreement for
cause and to any legal action, and such compliance shall not be a waiver of any party's right to take
legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's
right to terminate this Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. City may withhold from any monies payable to Consultant sufficient
funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were
suffered by City due to the default of Consultant in the performance of the services required by this
Agreement.
7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non defaulting
party on any default shall impair such right or remedy or be construed as a waiver. City's consent
or approval of any act by Consultant requiring City's consent or approval shall not be deemed to
waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any
waiver by either party of any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. 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.
7.6 I-Pgal Action. In addition to any other rights or remedies, either party may take legal
action, at law or at equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain injunctive relief, or to obtain any
other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior To Expiration Of Term. This section shall govern any termination of this
Agreement, except as specifically provided in the following Section 7.8 for termination for cause.
City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty
(30) days' written notice to Consultant. Upon receipt of any notice of termination, Consultant shall
immediately cease all services hereunder except such as may be specifically approved by the
Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to
receipt of the notice of termination and for any services authorized by the Contract Officer thereafter
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in accordance with the Schedule of Compensation or such as may be approved by the Contract
Officer, except as provided in Section 7.3.
7.8 Termination For Default of Consultant. If termination is due to the failure of Consultant
to fulfill its obligations under this Agreement, City may, after compliance with the provisions of
Section 7.2, take over work and prosecute the same to completion by contract or otherwise, and
Consultant shall be liable to the extent that the total cost for completion of the services required
hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts
to mitigate such damages), and City may withhold any payments to Consultant for the purpose of
setoff or partial payment of the amounts owed City as previously stated in Section 7.3.
7.9 Attorneys' Fees. If either party commences an action against the other party arising out
of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs of suit from the losing party.
8.1 Non -liability -of City Officers and Employees. No officer or employee of City shall be
personally liable to Consultant, or any successor in interest, in the event or 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.
8.2 Conflict of Interest. No officer or employee of City shall have any personal interest, direct
or indirect, in this Agreement nor shall any such officer or employee participate in any decision
relating to the Agreement which affects his or her personal interest or the interest of any corporation,
partnership or association in which she or he is, directly or indirectly, interested, in violation of any
State statute or regulation. Consultant warrants that it has not paid or given and will not pay or give
any third party any money or general consideration for obtaining this Agreement.
8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its heirs,
executors, assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin or ancestry in the performance of -this Agreement.
Consultant shall take affirmative action to insure that applicants are employed and that employees
are treated during employment without regard to their race, color, creed, religion, sex, marital status,
national origin or ancestry.
• ►� �► • 2:0•►
9.1 Notice. Any notice, demand, request, consent, approval, communication either party
desires or is required to give the other party or any other person shall be in writing and either served
personally or sent by prepaid, first-class mail to the address set forth below. Either party may change
its address by notifying the other party of the change of address in writing. Notice shall be deemed
communicated forty-eight (48) hours from the time of mailing if mailed as provided in this section.
To City:
CITY OF LA QUINTA
Attention: John M. Freeland
78-495 Calle Tampico
P.O. Box 1504
La Quinta, California 92253
To Consultant:
Professional Service Industries, Inc.
Attention: Paul R. Hoersting
42-240 Green Way, Suite C.
Palm Desert, California 92211
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9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and
all previous understanding, negotiations and agreements are integrated into and superseded by this
Agreement.
9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the
parties by an instrument in writing signed by both parties.
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a
valid judgement or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder.
9.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant
that they are duly authorized to execute this Agreement on behalf of said parties and that by so
executing this Agreement the parties hereto are formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA a California municipal corporation
Thomas P. Genovese, City Manager
Date /-.---oa--
ATTEST:
APPROVED AS TO FORM:
M. Gt664 Jenson, City ttorney
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CONSULTANT: Professional Service Industries
By: �(
Name:
Title: �Q,AjCA ®1.� °`� C��cZ
Date: VL - u % - a 2,
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Exhibit A
Scope of Services
Provide a qualified technician as necessary to conduct density tests on sub -grade, slope fill and
trench backfill placement as required. Tests will be performed with a nuclear densometer in
accordance with ASTM D2922 or sand cone in accordance with ASTM D1556. Maximum
density curves (ASTM D1557) will be performed on various material types as they are
encountered.
Provide an ACI-certified technician as necessary to prepare sets of concrete cylinders as needed
and perform slump tests for the curb, and other minor concrete.
• Perform compression strength tests on concrete cylinders in accordance with ASTM C39.
• Perform extraction/gradation, and compaction tests in accordance with ASTM D2172/C136 on
the asphaltic concrete placed.
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Exhibit B
Schedule of Compensation
Payment shall be in full at the rates listed in the Schedule of Billing Rates attached herewith for the
actual hours submitted in conformance with Section 2.2 of the Agreement. Total compensation for
all work under this contract shall not exceed Two Thousand, Six Hundred and Twenty Six Dollars
($2,626.00) except as specified in Section 1.6 - Additional Services of the Agreement.
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Exhibit C
Schedule of Performance
Consultant shall complete all services within ninety (90) days of the date of this Agreement.
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Exhibit D
Special Requirements
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CITY OF LA QUINTA
COST PROPOSAL SHEET
REQUEST FOR PROPOSALS TO PROVIDE PROFESSIONAL
MATERIALS TESTING
FOR
Capital Improvement Project No. 2001-09
Miscellaneous Improvements Project
Pursuant to the Request for Proposals, the undersigned hereby proposes and agrees that on award by
the City under this Bid, and in accordance with the provisions therein stated, to execute a Contract,
to provide and to furnish any certificates of insurance and all labor, materials, transportation, and
services for Material Testing Services for Capital Improvements Project No. 2001-09,
Miscellaneous Improvements Project, in accordance with the Plans and Specifications therefore
adopted and on file with the City within the time hereinafter set forth and at the prices named in this
Bid.
Unit prices in each and every case shall represent a true unit price used in preparing the bid schedule
totals (Bid Form). Unit prices listed herein shall include labor, materials, equipment, transportation,
and appurtenant work as is necessary to have the item complete and in place meeting the full intent
of the plans, specifications, and the applicable ASTM Testing Method. Hourly rates shall be based
on time of arrival and departure from the job site. The purpose of the unit pricing is for bid
evaluation and changes in the work during construction.
Prevailing Wage — Does not apply.
The following is a summary of costs to provide the services outlined in the Request for Proposals
for Professional Materials Testing and will be used as the basis for negotiating a Professional
Services Agreement:
BID BREAKDOWN
STREET IMPROVEMENTS
Unit
Qty.
Amount
TOTAL
1
Subgrade/Aggregate Base Compaction
HRs
18
$ 31.00
$ 558.00
2
Miscellaneous Compaction
HRs
6
$ 31.00
$ 186.00
3
Roadway Asphalt Sampling/Compaction
HRs
6
$ 31.00
$ 186.00
CONCRETE FIELD CASTING
4
Cross Gutter/Misc. Concrete
HRs
8
$ 31.00
$ 248.00
LABORATORY TESTING
5
Asphalt Extraction/Gradation
EA
2
$ 111.00
$ 222.00
6
Asphalt Marshall or Hveem Density
EA
2
$ 66.00
$ 132.00
7
Moisture Density Relationship (Soil)
EA
2
$ 111.00
$ 222.00
8
Concrete Compression Tests
EA
8
$ 14.00
$ 112.00
ADMINISTRATION & REPORTS
9
Staff Engineer/Manager
HRs
10
$ 45.00
$ 450.00
10
Clerical Support
HRs
10
$ 31.00
$ 310.00
Total Amount of Bid Items 1 - 10
$ 2,626.00
Attached herein is a detailed man-hour and fee breakdown for the tasks and sub -tasks defined in our
proposal, including all sub -consultant activities.
T November 25, 2002
Prime Consult Paul oersting Date Signed
Professional Sery Irtdu , Inc.
42-240 Green Way, ite C
Palm Desert, California 92211
760-341-5790