AGR-7055 - J S HELD LLC - EXPERT WITNESS SERVICES REGARDING CHRISTINE HAYNES VS CITY OF ORANGEA R-?o 5
PROFESSIONAL SERVICES AGREEMENT
Expert Witness Services]
THIS PROFESSIONAL SERVICES G`REE-MENT (the "Agreement") is made at
Orange, California, on this day of Oc.obe , 2020 (the "Effective Date") by and
between the CITY OF ORANGE, a municipal corporation ("City"), and J.S. HELD LLC, a
Delaware limited liability company("Contractor"),who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to the reasonable satisfaction of City the services set forth in Exhibit"A,"
which is attached hereto and incorporated herein by reference. As a material inducement to City
to enter into this Agreetrient,Contractor represents and warrants that it has thoroughly investigated
ancl considered the scope of services and fully understands the difficulties and restrictions in
performing the work. The services which are the subject of this Agreement are not in the usual
course of City's business and City relies on Contractor's representation that it is independently
engaged in the business of providing such services and is experienced in performing the work.
Contractor shall perform all services in a manner reasonably satisfactory to City and in a manner
in conformance with the standards of quality normally observed by an entity providing such
services to a municipal agency. All services provided shall conform to all federal, state and local
laws, rules and regulations and to the best professional standards and practices. The terms and
conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A"
to the contrary.
Wayne W. Winthers ("City's Project Manager") shall be the person to whom Contractor
will report for the performance of services hereunder. It is understood that Contractor's
performance hereunder shall be under the supervision of City's Project Manager (or his/her
designee), that Contractor shall coordinate its services hereunder with City's Project Manager to
the extent required by City's Project Manager, and that all performances required hereunder by
Contractor shall be performed to the satisfaction of City's Project Manager and the City Manager.
2. Comnensation and Fees.
a. Contractor's total compensation for all services performed under this
Agreement, shall not exceed THIRTY THOUSAND DOLLARS and 00/100($30,000.00)without
the prior written authorization of City.
b. The above compensation shall include all costs, including, but not limited
to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental,
subsistence and all related expenses.
3. Pavment.
a. As scheduled services are completed, Contractor shall submit to City an
invoice for the services completed, authorized expenses and authorized extra work actually
performed or incurred.
b. All such invoices shall state the basis for the amount invoiced, including
services completed,the number of hours spent and any extra work performed.
c. City will pay Contractor the amount invoiced within thirty (30) days after
the approval of the invoice.
d. Payment shall constitute payment in full for all services, authorized costs
and authorized extra work covered by that invoice.
4. Chan e Orders. No payment for extra services caused by a change in the scope
or complexity of work, or for any other reason, shall be made unless and until such extra services
and a price therefor have been previously authorized in writing and approved by City as an
amendment to this Agreement. City's Project Manager is authorized to approve a reduction in the
services to be performed and compensation therefor. All amendments shall set forth the changes
of work,extension of time,and/or adjustment of the compensation to be paid by City to Contractor
and shall be signed by the City's Project Manager, City Manager or City Council, as applicable.
5. Licenses. Contractor represents that it and any subcontractors it may engage,
possess any and all licenses which are required under state or federal law to perform the work
contemplated by this Agreement and that Contractor and its subcontractors shall maintain all
appropriate licenses, including a City of Orange business license, at its cost, during the
performance of this Agreement.
6. Independent Contractor. At all times during the term of this Agreement,
Contractor shall be an independent contractor and not an employee of City. City shall have the
right to control Contractor only insofar as the result of Contractor's services rendered pursuant to
this Agreement. City shall not have the right to control the means by which Contractor
accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and
expense, furnish all facilities, materials and equipment which may be required for furnishing
services pursuant to this Agreement. Contractor shall be solely responsible for, and shall
indemnify, defend and save City harmless from all matters relating to the payment of its
subcontractors, agents and employees, including compliance with social security withholding and
all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.
Contractor,acknowledges that it and any subcontractors, agents or employees employed by
Contractor shall not,under any circumstances,be considered employees of City,and that they shall
not be entitled to any of the benefits or rights afforded employees of City,including,but not limited
to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or
health, life, dental, long-term disability or workers' compensation insurance benefits.
7. Contractor Not Agent. Except as City may specify in writing, Contractor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
8. Designated Persons. Only those qualified persons authorized by City's Project
Manager, or as designated in E ibit"A," shall perform work provided for under this Agreement.
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It is understood by the parties that clerical and other nonprofessional work may be performed by
persons other than those designated.
9. Reserved.
10. Time of Completion. Except as otherwise specified in Exhibit "A," Contractor
shall commence the work provided for in this Agreement in accordance with the time period set
forth in E ibit "A" hereto or as otherwise agreed to by and between the representatives of the
parties.
11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall
do all things necessary and incidental to the prosecution of Contractor's work.
12. Reserved.
13. Reserved.
14. Products of Contractor. The documents, studies, evaluations, assessments,
reports, plans, citations, materials, manuals,technical data, logs, files, designs and other products
produced or provided by Contractor for this Agreement shall become the property of City upon
receipt. Contractor shall deliver all such products to City prior to payment for same. City may
use, reuse or otherwise utilize such products without restriction.
15. Equal Emplovment Opportunitv. During the performance of this Agreement,
Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for
employment because of race, color, religion, sex,national origin, mental or physical disability, or
any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, eolor, religion,
sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include,but not be limited to the following: employment,upgrading, demotion
or transfer,recruitment or recruitment advertising,layoff or termination,rates of pay or other forms
of compensation and selection for training, including apprenticeship. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees
placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, national origin, mental or physical
disability, or any other basis prohibited by applicable law.
c. Contractor shall cause the foregoing paragraphs(a)and(b)to be inserted in
all subcontracts for any work covered by this Agreement, provided that the foregoing provisions
shall not apply to subcontracts for standard commercial supplies or raw materials.
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16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a consultant to influence any decision of City
in which Contractor knows or has reason to know that Contractor, its officers, partners, or
employees have a financial interest as defined in Section 87103 of the Government Code.
17. Indemnitv.
a. To the fullest extent permitted by law, Contractor agrees to indemnify,
defend and hold City, its City Council and each member thereof, and the officers,officials, agents
and employees of City(collectively the"Indemnitees") entirely harmless from all liability arising
out of:
1) Any and all claims under workers' compensation acts and other
employee benefit acts with respect to Contractor's employees or Contractor's subcontractor's
employees arising out of Contractor's work under this Agreement, including any and all claims
under any law pertaining to Contractor or its employees' status as an independent contractor and
any and all claims under Labor Code section 1720 related to the payment of prevailing wages for
public works projects; and
2) Any claim, loss, injury to or death of persons or damage to property
caused by any act, neglect, default, or omission other than a professional act or omission of
Contractor, or person, firm or corporation employed by Contractor, either directly or by
independent contract, including all damages due to loss or theft sustained by any person, firm or
corporation including the Indemnitees, or any of them, arising out of, or in any way connected
with the work or services which are the subject of this Agreement, including injury or damage
either on or off City's property; but not for any loss, injury, death or damage caused by the active
negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall
indemnify any and all claims,actions, suits or other proceedings that may be brought or instituted
against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay
or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any
action, suit or other proceedings as a result of coverage under this subparagraph.
b. Except for the Indemnitees, the indemnifications provided in this
Agreement shall not be construed to extend any third party indemnification rights of any kind to
any person or entity which is not a signatory to this Agreement.
c. The indemnities set forth in this section shall survive any closing,
rescission,or termination of this Agreement, and shall continue to be binding and in full force and
effect in perpetuity with respect to Contractor and its successors.
18. Insurance.
a. Contractor shall carry workers' compensation insurance as required by law
for the protection of its employees during the progress of the work. Contractor understands that it
is an independent contractor and not entitled to any workers' compensation benefits under any
City program.
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b. Contractor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all the
insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover
bodily injury, death and property damage and be written on an occurrence basis.
c. Contractor shall maintain during the life of this Agreement, the following
minimum amount of automotive liability insurance: the greater of(1) a combined single limit of
One Million Dollars ($1,000,000); or (2) all the insurance coverage and/or limits carried by or
available to Contractor. Said insurance shall cover bodily injury, death and property damage for
all owned, non-owned and hired vehicles and be written on an occurrence basis.
d. Any insurance proceeds in excess of or broader than the minimum required
coverage and/or minimum required limits which are applicable to a given loss shall be available
to City. No representation is made that the minimum insurance requirements of this Agreement
are sufficient to cover the obligations of Contractor under this Agreement.
e. Each policy of general liability and automotive liability shall provide that
City, its officers, officials, agents, and employees are declared to be additional insureds under the
terms of the policy, but only with respect to the work performed by Contractor under this
Agreement. A policy endorsement to that effect shall be provided to City along with the certificate
of insurance. In lieu of an endorsement,City will accept a copy of the policy(ies)which evidences
that City is an additional insured as a contracting party. The minimum coverage required by
Subsection 18.b and c, above, shall apply to City as an additional insured.
f.Contractor shall maintain during the life of this Agreement professional
liability insurance covering errors and omissions arising out of the performance of this Agreement
with a minimum limit of One Million Dollars ($1,000,000) per claim. Contractor agrees to keep
such policy in force and effect for at least five (5) years from the date of completion of this
Agreement.
g. The insurance policies maintained by Contractor shall be primary insurance
and no insurance held or owned by City shall be called upon to cover any loss under the policy.
Contractor will determine its own needs in procurement of insurance to cover liabilities other than
as stated above.
h. Before Contractor performs any work or prepares or delivers any materials,
Contractor shall furnish certificates of insurance and endorsements, as required by City,
evidencing the aforementioned minimum insurance coverages on forms acceptable to City,which
shall provide that the insurance in force will not be canceled or allowed to lapse without at least
ten(10) days' prior written notice to City.
i.Except for professional liability insurance coverage that may be required by
this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to
conduct the pertinent line of insurance business in California and having a rating of Grade A or
better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of
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professional liability insurance coverage, such coverage shall be issued by companies either
licensed or admitted to conduct business in California so long as such insurer possesses the
aforementioned Best rating.
j Contractor shall immediately notify City if any required insurance lapses or
is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Contractor for such
costs and any and all damages resulting therefrom, by way of set-off from any sums owed
Contractor.
k. Contractor agrees that in the event of loss due to any of the perils for which
it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.
Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor
or City with respect to the services of Contractor herein,a waiver of any right to subrogation which
any such insurer may acquire against City by virtue of the payment of any loss under such
insurance.
1.Contractor shall include all subcontractors, if any, as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor to City for
review and approval. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
19. Termination. City may for any reason terminate this Agreement by giving
Contractor not less than five (5) days' written notice of intent to terminate. Upon receipt of such
notice, Contractor shall immediately cease work, unless the notice from City provides otherwise.
Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily
provided and all allowable reimbursements incurred to the date of termination in compliance with
this Agreement, unless termination by City shall be for cause, in which event City may withhold
any disputed compensation. City shall not be liable for any claim of lost profits.
20. Maintenance and Inspection of Records. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and
complete books, documents, papers, accounting records, and other information (collectively, the
records")pertaining to the costs of and completion of services performed under this Agreement.
City and its authorized representatives shall have access to and the right to audit and reproduce
any of Contractor's records regarding the services provided under this Agreement. Contractor shall
maintain all such records for a period of at least three (3)years after termination or completion of
this Agreement. Contractor agrees to make available all such records for inspection or audit at its
offices during normal business hours and upon three(3)days' notice from City,and copies thereof
shall be furnished if requested.
21. Comnliance with all Laws/Immigration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
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b. If the work provided for in this Agreement constitutes a"public works," as
that term is defined in Section 1720 of the California Labor Code,for which prevailing wages must
be paid, to the extent Contractor's employees will perform any work that falls within any of the
classifications for which the Department of Labor Relations of the State of California promulgates
prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it,
shall pay not less than the specified prevailing rates of wages to all such workers. The general
prevailing wage determinations for crafts can be located on the website of the Department of
Industrial Relations (www.dir.ca.ov/DLSR). Additionally,to perform work under this Contract,
Contractor must meet all State registration requirements and criteria, including project compliance
monitoring.
c. Contractor represents and warrants that Contractor:
1) Has complied and shall at all times during the term of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
2) . Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,
without limitation, the completion and maintenance of the Form I-9 for each of Contractor's
employees; and
4) Has responded, and shall at all times during the term of this
Agreement respond, in a timely fashion to any government inspection requests relating to
immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the
Department of Homeland Security, the Department of Labor, or the Social Security
Administration.
d. Contractor shall require all subcontractors or subconsultants to make the
same representations and warranties as set forth in Subsection 21.c.
e. Contractor shall, upon request of City, provide a list of all employees
working under this Agreement and shall provide,to the reasonable satisfaction of City,verification
that all such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by Contractor. Once such request has been made, Contractor may not
change employees working under this Agreement without written notice to City, accompanied by
the verification required herein for such employees.
f Contractor shall require all subcontractors or sub-consultants to make the
same verification as set forth in Subsection 21.e.
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g. If Contractor or subcontractor knowingly employs an employee providing
work under this Agreement who is not authorized to work in the United States, and/or fails to
follow federal laws to determine the status of such employee,that shall constitute a material breach
of this Agreement and may be cause for immediate termination of this Agreement by City.
h. Contractor agrees to indemnify and hold City, its officers, officials, agents
and employees harmless for, of and from any loss, including but not limited to fines,penalties and
corrective measures City may sustain by reason of Contractor's failure to comply with said laws,
rules and regulations in connection with the performance of this Agreement.
22. Governins Law and Venue. This Agreement shall be construed in accordance
with and governed by the laws of the State of California and Contractor agrees to submit to the
jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in
Orange County, California.
23. InteEration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing and signed by both parties: Any work performed
which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
24. Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail,
postage prepaid, to each party at the address listed below. Either party may change the notice
address by notifying the other party in writing. Notices shall be deemed received upon receipt of
same or within three (3)days of deposit in the U.S. Mail,whichever is earlier. Notices sent by e-
mail shall be deemed received on the date of the e-mail transmission.
CONTRACTOR" CITY"
J.S. Held LLC City of Orange
445 S. Figueroa Street, Suite 3700 300 E. Chapman Avenue
Los Angeles, CA 90071 Orange, CA 92866-1591
Attn.: David J. Weiner Attn.: Wayne W. Winthers
Telephone: (213) 817-6600 Telephone: (714)744-5580
E-Mail: dweiner@jsheld.com E-Mail: wwinthers@cityoforange.org
25. Counternarts. This Agreement may be executed in one or more counterparts,each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
Signatures on next page]
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IN V4'ITPdESS of this Agreement,the parties have antered into this Agreement as of the
year and day first above written,
CONTRACTOR" CITY"
J.S.HEI ela are litnit CITY OF O1 ANGE,a municipal corporation
Iia ' PanY
B y:
r nt me:t , City Manager
Title:
By: APPROVED AS TO FORM:
Printed Name:
Title:
A. atz,City
11TQTE: City reguires the following signature(s)on behalf of the Contractor:
1}the Chairman of the Board,the President or a Vice-Pres d nt,AND{2)the
Secretary, the Chief Financ tal Officer,thc Tr asurer, an As iatant Secretary
or an Assista t Treasurer. If only one corporate officer exists or one corporate
officer Lolds mare than one corporate affice,please so indicate.OR
The corporate officer samed in a corparate resoiution as authorized to enter
into thi Agreement. A copy of the corporate resoluEion, certified by the
Secretary c[ose in time to the execution of tbe Agreement,must be provided to
City.
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EXHIBIT "A"
SCOPE OF SERVICES
Beneath this sheet.]
JS H ELD
August 19, 2020
City of Orange
Ryan E. Lumm, Esq.
300 East Chapman Avenue
City of Orange,California 92866
RE: CLIENT RETENTION AGREEMENT
Christine Haynes v.City of Orange
VWM File Number 0024791
Dear Mr. Lumm:
We are pleased to confirm that City of Orange(the"RETAINING PARTY")has retained J.S. Held LLC("JSH")
to provide expert services on the above-referenced matter on an hourly rate-plus-expenses basis, unless
otherwise specified. JSH's retention on this case is solely with RETAINING PARTY and,as such,all fees and'
expenses incurred by JSH will be the responsibility of RETAINING PARTY. If RETAINING PARTY believes a
person other than addressee is to be the retaining party,JSH must be notified immediately and provided
with full contact information of such party and their related financial responsibility on the following page
of this Agreement. JSH reserves the right to withhold or terminate any ongoing services until the above-
requested Client information is satisfactorily submitted.
JSH's services are offered in accordance with our current Terms and Conditions agreement. Our charges
will be billed accordingto our current Schedule of Rates and Charges,with professional fees at our current
commercial rates. JSH produces and generates periodic,electronic billing. All time logged during the case
discussion, review of materials(electronic and hard-copy),and or file analysis, is subject to billing at JSH's
hourly rate. To ensure that you are apprised of the technical efforts expended on your project, periodic
invoices will be provided. Payment of each invoice is due within thirty(30)days after receipt.
A non-refundable retention fee of$1,000 is requested and should accompany the completed and signed
agreement. To guarantee JSH's retention, a duly executed Agreement and the requested retainer must
be received by 1SH within thirty(30) days of the date of this Agreement. The Client retainer fee reserves
the services of JSH and is non-refundable. If the executed agreement and retention fee is not received
by JSH within thirty(30)days of the date of this letter and agreement,JSH reserves the right to be retained
by another party in this litigation. All retainer amounts are credited as billing is generated. The retainer
will be held and applied to JSH's final invoice.
Client agrees to remit full payment for our services in connection with the terms and conditions of this
Agreement. In accordance with the terms and conditions of this Agreement, COMPANY expects Client to
insure full payment of all amounts due. Payment memos must reference litigant names, their
corresponding firms for whom payment is made,and JSH's file and invoice numbers.
All financially responsible parties must have a signed agreement on file. If compensation is to be provided
by multiple offices in portions, applicable firm names,their percentages owing, and any relevant carrier
information must be submitted to JSH.
445 S. Figueroa Street Suite 3700 Los Angeles, CA 90071 213-817-6600 Find your expert at jsheld.com
Construction Environmental,Health&Safety Equipment Forensic Accounting Forensic Architecture&Engineering Water&Fire Restoration
JSIHELD
Page 2-Client Retention Agreement
Re: Christine Haynes v. City of Orange (0024791)
Please indicate your acceptance and understanding of the contenfs of this letter by signing and returning
the enclosed copy. Copies of our current Terms and Conditions and Schedule of Rates and Charges are
enclosed and made a part hereof by reference. If you have any questions regarding any of the above
terms, please do not hesitate to contact me.
Thank you again for your interest in J.S. Held LLC. We look forward to working with you.
Sincerely,
J.S. HELD tLC
2 t
David J. Weiner
Executive Vice President
I,the RETAINING PARTY,agree to the terms and conditions of this Client Retention Agreement.
Firm Name (Retaining Party):
Retaining Party Address:
if different from above recipient)
Phone number of retaining party:
E-Mail of Retaining Party:
Firm File Reference Number:
Party(s) Represented:
Date of Loss:
Signature of Retaining Party or
Authorized Agent on Behalf of
Retaining Party:
Printed Name of Person Signing:
Title of Person Signing:
Date:
445 5. Figueroa Street Suite 3700 Los Angeles, CA 90071 213-817-6600 Find your expert atjsheld.com
Construction Environmental,Health&Safety Equipment Forensic Accounting Forensic Architecture&Engineering Water&Fire Restoration
JSIHELD
RATE SCHEDULE FOR J.S. HELD LLC
INVOICES
Invoices from J.S. Held LLC include all labor charges,other direct costs,and costs associated with services
provided. Charges include only those services directly attributable to the completion of the work.
Payment is required in US dollars within thirty(30)days after receipt or interest charges may be applied.
PROFESSIONAL FEES
Labor charges are all inclusive and illustrated below:
Hourly Fee: Data Entry 150.00
Hourly Fee: General Forensic Analysis 440.00
Hourly Fee: Deposition 8 Court Proceedings 440.00
Professional fee rates may be modified at the discretion of J.S. Held LLC with written notice to the Client.
Premium rates may be applied when the Client requests work be accomplished in such a way that
additional costs are incurred by J.S. Held LLC. Time spent in travel will be charged in accordance with
hourly rates.
OTHER DIRECT COSTS
Air travel is charged at the most effective fare basis for the individual project. Local mileage is charged in
accordance with IRS guidelines. Lodging and meals are charged to the project when travel is required.
Other project expenses which are charged directly may include (but are not necessarily limited to)
communications charges, materials, outside laboratory tests, outside computer charges, reproduction,
mailing and shipping charges,and special insurance. Technical equipment, used either in-house or in the
field, is charged at an hourly rate. Rates may be adjusted for equipment dedicated to a project for an
extended period of time.
445 S. Figueroa Street Suite 3700 Los Angeles,CA 90071 213-817-6600 Find your expert atjsheld.com
Construction Environmental,Health&Safety Equipment Forensic Accounting Forensic Architecture&Engineering Water&Fire Restoration
i! JSIHELD
J.S. HELD LLC TERMS AND CONDITIONS
1. SERVICES. These Terms and Conditions apply to the consultation and/or investigative professional
services of J.S. Held LLC("COMPANY") as requested by CLIENT and agreed to by COMPANY.
2. STANDARD OF CARE. COMPANY shall perform its services with that level of care and skill ordinarily
exercised by other members ofthe forensic accounting and forensic economic professions. Because our Services are
limited in nature and scope,they cannot be relied upon to discover all documents and other information or provide
all analyses which may be of importance in this matter. No other warranty, express or implied is made or is included
or intended to be included in this Agreement or in any report, opinion or other information provided by COMPANY,
and the same are expressly DISCLAIMED. The data, interpretations and recommendations of COMPANY are based
solely on the information available to COMPANY.COMPANY will not be responsible for interpretation by others of the
information,opinions or recommendations developed by COMPANY. CLIENT will not hold us responsible for any loss
or liability that may result from the non-discovery of any matters that might influence this matter. No other warranty,
express or implied is made or is included or intended to be included in this Agreement or in any report, opinion or
other information provided by COMPANY, and the same are expressly DISCLAIMED.
3. LIMIT OF PROFESSIONAL LIABILITY. CLIENT EXPRESSLY AGREES TO LIMIT THE LIABILITY OF
COMPANY TO CLIEIVT WHICH ARISES DIRECTLY OR INDIRECTLY FROM COMPANY'S ACTS, ERRORS OR OMISSIONS,
SUCH THATTHE TOTAL AGGREGATE LIABILITY OF COMPANY SHALL NOT EXCEED$5,000.00 OR COMPANY'S TOTAL FEE
FOR THE SERVICES RENDERED UNDER THIS AGREEMENT, WHICHEVER IS GREATER. NEITHER COMPANY NOR THE
CLIENT WILL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS OR REVENUE, LOSS OF USE OR OTHER OPPORTUNITY,
LOSS OF GOODWILL OR OTHER CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES.
4. INDEMNIFICATION. CLIENT shall indemnify, defend and hold harmless COMPANY, its subsidiaries
and subcontractors, and their respective personnel from all Claims,except to the extent resulting from the bad faith,
gross negligence or intentional misconduct of COMPANY or its subcontractors.
5. PAYMENTTERMS and INVOICES.COMPAfVY will submit monthly invoices to CLIENT and a final
bill upon completion of Services. CLIENT shall notify COMPANY within ten(10)days of receipt of invoice of any dispute
with the invoice. Payment of undisputed invoice amounts is due upon receipt of the invoice. COMPANY does not
work on a contingency fee basis, nor is COMPANY's right to receive payment dependent on the outcome of any
litigation for which COMPANY has been retained. Without withhold or offset,an invoice is past due within thirty(30)
days from the date of the invoice. CLIENT may be subject to a minimum finance charge of 2% per month on past due
accounts. The parties agree that this finance charge is a reasonable estimate of the damage the COMPANY will incur
if amounts are not paid on time. Said interest penalties shall be compounded monthly. If payment remains past due
forty-five (45) days from the date of the invoice, COMPANY shall have the right to suspend all work under this
Agreement, without prejudice. CLIENT will pay all reasonable demobilization and other suspension costs. All open
balance amounts must be cleared before JSH will appear for any legal proceedings—as JSH reserves the right to
discontinue services and remain unavailable for meetings, depositions, arbitration or court proceedings while
balances are unpaid. CLIENT agrees to pay attorneys' fees, legal costs, and all other collection costs incurred by
COMPANY in pursuit of past due payments.
To the extent COMPANY requires payment of a retainer fee,the amount of the fee shall be stated in the Engagement
Letter. The agreed upon retainer fee will be applied to the final invoice. A charge of 50%of the retainer amount will
be incurred on any matter that is cancelled without a minimum of$500 invoiced for professional services perFormed.
Should COMPANY be retained for longer than six months as of the date of the contract without professional services
performed, CLIENT shall be charged 100%of the retainer amount to COMPANY.
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6. TERMINATION OF SERVICES. This Agreement shall be terminated upon completion of the
professional services rendered by COMPANY in accordance with the agreed upon scope of work and upon final
payment by CLIENT to COMPANY. All COMPANY fees and charges incurred up to the date of the termination and to
complete necessary work to close files may be charged at the discretion of COMPANY and shall be paid by the CLIENT.
COMPANY will provide a summary of fees and costs to the CLIENT within seven (7) business days of termination.
7. GOVERNING LAW,VENUE AND JURISDICTION. These terms,the Engagement Letter,including
attachments, and all matters relating to this agreement shall be governed by, and construed in accordance with,the
laws of the State of California (without giving effect to the choice of law principles thereof).
8. CLIENT LITIGATION. If COMPANY is requested to produce documents, witnesses or general
assistance pursuant to a litigation, arbitration or mediation in support of CLIENT, and to which COMPANY is not an
adverse party,CLIENT shall reimburse COMPANY for all direct expenses and time in accordance with the COMPANY's
current rate schedule.
9. DATA and INFORMATION. COMPANY shall be entitled to rely upon the reports, data, studies,
plans,specifications,documents and other information provided by CLIENT or others in performing the Services,and
COMPANY assumes no responsibility or liability for the accuracy or completeness of such. CLIENT waives any claim
against COMPANY and agrees to defend,indemnify,and hold COMPANY harmless from any claim or liability for injury
or loss allegedly arising from errors,omissions, inaccuracies or incomplete information in reports,data,studies,plans,
specifications, documents or other information provided to COMPANY by CLIENT or others. COMPANY will not be
responsible for any interpretations or recommendations generated or made by others,which are based, in whole or
in part, on COMPANY'S data, interpretations or recommendations.
We understand that any work perFormed pursuant to this consulting engagement or, if at some future date we are
requested to offer expert testimony,as well as information disclosed to us,will be subject to the rules of discovery as
appropriate for either consulting or expert witnesses. All workpapers or other documents used by us during this
engagement will be maintained in segregated files. It is not our practice to retain superseded workpapers, notes, or
data files that have been updated as we perform our engagement.
10. CONFIDENTIALITY. To the extent that,in connection with this agreement,CLIENT or COMPANY(the .
Receiving Party") comes into possession of any proprietary or confidential information of the other(the "Disclosing
Party"),the receiving party shall use reasonable efforts to keep confidential all data and information which is marked
confidential and furnished to the Receiving Party by the Disclosing Party under this Agreement. The Receiving Party's
confidentiality obligations shall not apply if such data or information is within the public domain, previously known to
the Receiving Party,obtained from third parties without violating any confidentiality agreement, or is required to be
produced by the Receiving Party pursuant to any law,subpoena,demand of accounting oversight body,or court order
or required by the Receiving Party in the defense of any claim. In the event of such disclosure,the Receiving Party
shall furnish only that portion of the Confidential Information which is legally required to be disclosed and shall
exercise reasonable efforts to ensure that confidential treatment will be accorded the Confidential Information.
11. NON-SOLICITATION. During the term of this agreement and for a period of one (1) year thereafter,
CLIENT and its Affiliates shall not,without the prior written consent of the COMPANY,directly or indirectly,knowingly
solicit for employment or hire any individual who is then or at any time during the proceeding twelve(12)months was
an employee or independent contractor of the COMPANY. This restriction shall not apply to public solicitations of
employment not specifically directed to any individual that an individual may respond to.
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12. CHALLEIVGES OR MOTIONS TO EXCLUDE or STRIKE EXPERT TESTIMONY(also known as Daubert/Frye
Motions). To the extent COMPANY is called to testify, under oath, via affidavit or live testimony and COMPANY
expert(s)testimony,theory(ies)and/or methodology(ies) is challenged by another party, COMPANY reserves its right
to defend itself. Should such a challenge or motion to exclude be asserted,CLIENTshall notify COMPANY immediately
and no later than 48 hours after CLIENT'S receipt or notice of such a challenge/motion. CLIENT'S failure to timely
notify COMPANY will result in increased legal fees or charges in order for COMPANY to adequately defend and/or
respond to any such motion or challenge. CLIENT agrees to work cooperatively with COMPANY'S personal/corporate
counsel and shall provide copies of all moving papers to COMPANY as soon as practicable so as to allow COMPANY
sufficient time to properly defend and respond. ,
13. OWNERSHIP OF INSTRUMENTS OF SERVICE.The Service provided by COMPANY is intended for
one-time use only. All documents prepared by COMPANY are considered its professional work product and shall
remain the property of COMPANY.
14. ASSIGNS.Neither CLIENT nor COMPANY may delegate, assign, sublet, or transfer the duties,
interests or responsibilities set forth herein without the written consent of the other party, which consent shall not
be unreasonable withheld. Nothing under these Terms and Conditions and corresponding Engagement Letter and
Rate Schedule shall be construed to give any rights or benefits to any person or entity other than the CLIENT and
COMPANY,and all duties and responsibilities undertaken pursuant to this agreement will be for the sole and exclusive
benefit of the CLIENT and COMPANY and not for the benefit of any other person or entity.
15. SEVERABILITY. If any term of the Terms and Conditions is deemed unenforceable, such term
shall not affect the other terms, but such unenforceable term shall be deemed modified to the extent necessary to
render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth therein.
16. MISCELLANEOUS.
a. These Standard Terms and Conditions and any documents referenced herein constitute the entire
Agreement" between COMPANY and CLIENT. This Agreement supersedes all other agreements,
oral or written. No cancellation, modification, amendment, deletion, addition, waiver or other
change in this Agreement shall have effect unless specificallq set forth in writing signed by all parties.
Titles in this Agreement are for convenience only
b. Signatures to this Agreement may be signed by the CLIENT or the CLIENT's authorized
representative. Signatures may be submitted by email and/or facsimile, and the signature so
received shall have the same legal force as an original signature.
c. In the event this Agreement is not fully executed by both parties and COMPANY has commenced
work at CLIENT'S authorization,CLIENT's authorization of work shall constitute consent to the terms
of this Agreement and shall have the same binding effect as if signed by the parties.
d. All sections of this Agreement that may reasonably be interpreted or construed to survive
termination of this Agreement, will survive termination, including, without limitation, Limit of
Professional Liability, Payment Terms, Indemnification, Termination of Services, Disputes and
Controlling Law, Data and Information, Evidence,Ownership of Instruments of Service.
e. We have undertaken a reasonable review of our records to determine our professional relationships
with the persons or entities you identified. We are not aware of any conflicts of interest or
relationships that would, in our sole discretion, preclude us from performing the above work for
CLIENT or your client. We are not restricted from working on other engagements, including
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unrelated engagements, involving the parties in this matter; however, all confidential information
gained in this matter will be kept confidential.
f. Each of the parties has had an opportunity to negotiate the terms and conditions expressed
herein;therefore,this Agreement will not be construed more strictly against either party as the
drafter.
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