2018/03/13 Keyser Marston Associates, Inc. (KMA) FY19 Oncall analysis services CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this 13t"day of March,2018 ("Effective Date")by and between the CITY OF MENIFEE,a California
municipal corporation, ("City") and KEYSER MARSTON ASSOCIATES, 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 terms of this Agreement and Exhibit A, this
Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on March 13, 2018 and
shall end on March 12, 2019 unless the term of this Agreement is otherwise terminated or extended
as provided for in Section 8. The time provided to Consultant to complete the Services required by
this Agreement shall not affect City's right to terminate this Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider of first class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perform the Services
required pursuant to this Agreement in the manner and according to the standards observed by a
competent practitioner of the profession in which Consultant is engaged in the geographical area in
which Consultant practices its profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time
during the term of this Agreement, desires the reassignment of any such persons, Consultant shall,
immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the Services pursuant
to this Agreement as may be reasonably necessary to satisfy Consultant's obligations hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the
Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed TWENTY-FOUR THOUSAND
DOLLARS ($24,000.00) notwithstanding any contrary indications that may be contained in
Consultant's proposal, for the Services to be performed and reimbursable costs incurred under this
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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. I for the first
invoice, etc.;
b. The beginning and ending dates of the billing period;
C. A "Task Summary" containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City's option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative's signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29714 Haun Road
Menifee, CA 92586
2.2 Monthly P Ment. 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 Pam. 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.
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2.4 Total Pa moment.. 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 for the Services performed by Consultant on an hourly basis shall
not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses
as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets
in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Consultant's use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time of
furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to
furnish any facility that may involve incurring any direct expense, including but not 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
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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 Liabilitv Insurance.
a. General requirements. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this Agreement in an amount
not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION
DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00)
products/completed operations aggregate. If a Commercial General Liability Insurance or an
Automobile Liability Insurance form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the Services to be performed under this Agreement
or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage
shall include but shall not be limited to, protection against claims arising from bodily and personal
injury, including death resulting therefrom, and damage to property resulting from the Services
contemplated under this Agreement,including the use of hired, owned, and non-owned automobiles.
b. Minimum scope of coverage. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
C. Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
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4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall maintain
for the period covered by this Agreement professional liability insurance for licensed professionals
performing the Services pursuant to this Agreement in an amount not less than ONE MILLION
DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. Any deductible
or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention
exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
b. Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later
than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be
provided for at least three (3) 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 three (3) 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.
4.4 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this Section is to be placed
with insurers with a Bests' rating of no less than A:VII and admitted in California.
b. Verification of coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and certified
endorsements shall show the signature of a person authorized by that insurer to bind coverage on its
behalf. The Certificate of Insurance must include the following reference: On-Call Agreement. The
name and address for Additional Insured endorsements, Certificates of Insurance and Notice of
Cancellation is: City of Menifee, 29714 Haun Road, Menifee, CA 92586. City must be endorsed as
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an additional insured for liability arising out of ongoing and completed operations by or on behalf of
Consultant.
C. Notice of Reduction in or Cancellation of Coverage. Consultant shall provide
written notice to City within ten(10) working days if: (1) any of the required insurance policies is
terminated; (2)the limits of any of the required polices are reduced; or (3)the deductible or self
insured retention is increased.
d. Additional insured; primary insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of the
following: liability arising out of the Services performed by or on behalf of Consultant, including the
insured's general supervision of Consultant; products and completed operations of Consultant, as
applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or
used by Consultant in the course of providing the Services pursuant to this Agreement. The coverage
shall contain no special limitations on the scope of protection afforded to City or its officers,
employees, agents, or authorized volunteers. The insurance provided to City as an additional insured
must apply on a primary and non-contributory basis with respect to any insurance or self-insurance
program maintained by City. Additional insured status shall continue for one (1) year after the
expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and that
no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under
the coverage.
e. Deductibles and Self-insured Retentions. Consultant shall obtain the written
approval of City for the self-insured retentions and deductibles before beginning any of the Services.
During the term of this Agreement, only upon the prior express written authorization
of the Contract Administrator, Consultant may increase such deductibles or self-insured retentions
with respect to City, its officers,employees,agents, and volunteers. The Contract Administrator may
condition approval of an increase in deductible or self-insured retention levels with a requirement that
Consultant procure a bond guaranteeing payment of losses and related investigations, claim
administration, and defense expenses that is satisfactory in all respects to each of them.
f. Subcontractors. Consultant shall include all subcontractors as insureds under
its policies or shall furnish separate certificates and certified endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein.
g. Variation. The Contract Administrator may, but is not required to, approve in
writing a variation in the foregoing insurance requirements, upon a determination that the coverage,
scope, limits, and forms of such insurance are either not commercially available, or that City's
interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
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remedies, which are alternatives to other remedies City may have and are not the exclusive remedy
for Consultant's breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any payment
that becomes due to Consultant hereunder, or both stop work and withhold any payment,until
Consultant demonstrates compliance with the requirements hereof-, and/or
C. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional
standard of care for performance of the Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and
all of its officers, employees, officials, volunteers, and agents from and against any and all claims,
losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract,
under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any
kind(including reasonable consultant and expert fees and expenses of investigation,costs of whatever
kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel
retained by City) and any judgment (collectively, "Claims") to the extent same are caused in whole
or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents,
employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability
thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall 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 negligence
or willful misconduct in performance of this Agreement by Consultant or by any individual or entity
for which Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims
occurring as a result of City's sole or active negligence. The provisions of this Section 5 shall not
release City from liability arising from gross negligence or willful acts or omissions of City or any
and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right to
control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and
assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the
right to control the means by which Consultant accomplishes the Services rendered pursuant to this
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Agreement. The personnel performing the Services under this Agreement on behalf of Consultant
shall at all times be under Consultant's exclusive direction and control. Consultant shall not at any
time or in any manner represent that it or any of its officers, employees, or agents is in any manner
officers, officials,employees, or agents of City. Consultant shall not incur or have the power to incur
any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the
fees paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or other
compensation to Consultant for performing the Services hereunder for City. City shall not be liable
for compensation or indemnification to Consultant for injury or sickness arising out of performing
the Services hereunder. Notwithstanding any other City, state,or federal policy,rule,regulation,law,
or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors
providing services under this Agreement shall not qualify for or become entitled to any compensation,
benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the
California Public Employees Retirement System ("PERS") as an employee of City and entitlement
to any contribution to be paid by City for employer contributions and/or employee contributions for
PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance of the
work hereunder. Consultant shall not hire or employ any person to perform work within City or allow
any person to perform the Services required under this Agreement unless such person is properly
documented and legally entitled to be employed within the United States. Any and all work subject
to prevailing wages, as determined by the Director of Industrial Relations of the State 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 perfonning the Services of any applicable local, state,
and/or federal law, including, without limitation, any applicable federal and/or state labor laws
(including, without limitation, the requirement to pay state prevailing wages and hire apprentices);
(ii) the implementation of Section 1781 of the Labor Code, as the same may be amended from time
to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the
Services to provide any required disclosure or identification as required by Labor Code Section 1781,
as the same may be amended from time to time, or any other similar law. It is agreed by the Parties
that, in connection with performance of the Services, including,without limitation, any and all public
works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of
prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the
same may be amended from time to time, and/or any other similar law. Consultant acknowledges
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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.
SECTIONS. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon
written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days'
written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be entitled
to compensation for the Services performed up to the date of termination; City, however, may
condition payment of such compensation upon Consultant delivering to City any or all documents,
photographs, computer software, video and audio tapes, and other materials provided to Consultant
or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written
amendment to this Agreement,as provided for herein. Consultant understands and agrees that, if City
grants such an extension, City shall have no obligation to provide Consultant with compensation
beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the
Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise
reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all
the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination of
Consultant's unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence of Consultant. Consultant may not assign this Agreement or
any interest therein without the prior written approval of the Contract Administrator. Consultant shall
not subcontract any portion of the performance contemplated and provided for herein, other than to
the subcontractors noted in Consultant's proposal, without prior written approval of the Contract
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Administrator. In the event that key personnel leave Consultant's employ, Consultant shall notify
City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant shall
survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement;
C. Retain a different consultant to complete the Services described in Exhibit A;
and/or
d. Charge Consultant the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the time of breach and the amount that City would
have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports,data,maps,models,
charts, studies, surveys,photographs,memoranda,plans, studies, specifications,records,files, or any
other documents or materials, in electronic or any other form that Consultant prepares or obtains
pursuant to this Agreement and that relate to the matters covered hereunder, with the exception of
Consultant's proprietary computer models, shall be the property of City. Consultant hereby agrees
to deliver those documents to City upon the expiration or termination of this Agreement. It is
understood and agreed that the documents and other materials, including but not limited to those
described above, prepared pursuant to this Agreement are prepared specifically for City and are not
necessarily suitable for any future or other use. Any use of such documents for other projects by City
shall be without liability to Consultant. City and Consultant agree that, until final approval by City,
all data, plans, specifications, reports, and other documents are confidential and will not be released
to third parties without prior written consent of both Parties unless required by law.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderings, and other documents or works of
authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and Data").
Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and
perpetual license for any Documents and Data the subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any and all
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Documents and Data. Consultant makes no such representation and warranty in regard to Documents
and Data which were prepared by design professionals other than Consultant or provided to
Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at
any time, provided that any such use not within the purposes intended by this Agreement shall be at
City's sole risk.
9.3 Consultant's Books and Records. Consultant shall maintain any and all ledgers,books
of account, invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for the Services or expenditures and disbursements charged to City under this
Agreement for a minimum of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records shall be maintained in
accordance with generally accepted accounting principles and shall be clearly identified and readily
accessible.
9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or
copying at any time during regular business hours, upon oral or written request of City. Under
California Government Code Section 8546.7, if the amount of public ftmds expended under this
Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to
the examination and audit of the State Auditor, at the request of City or as part of any audit of City,
for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If either Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
Party shall be entitled to reasonable attorneys' fees and expenses including costs, in addition to any
other relief to which that Party may be entitled; provided, however, that the attorneys' fees awarded
pursuant to this Section shall not exceed the hourly rate paid by City for legal services multiplied by
the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. The
court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Applicable Law; Venue. The internal laws of the State of California shall govern the
interpretation and enforcement of this Agreement. In the event that either Party brings any action
against the other under this Agreement, the Parties agree that trial of such action shall be vested
exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of this
Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in
Lill 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.
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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 Paul Marra ("Consultant's Representative"). The Consultant's Representative shall
have full authority to represent and act on behalf of Consultant for all purposes under this Agreement.
The Consultant's Representative shall supervise and direct the Services, using his best skill and
attention, and shall be responsible for all means,methods,techniques, sequences, and procedures and
for the satisfactory coordination of all portions of the Services under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Gina Gonzalez ("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:
Keyser Marston Associates, Inc.
555 West Beech Street Suite 460
San Diego, CA 92101
Attn: Paul Marra
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: Gina Gonzalez
with a copy to:
City Clerk
City of Menifee
29714 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional responsible
for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of
Registered Professional with report/design responsibility," as in the following example.
Seal and Signature of Registered Professional with
report/design responsibility.
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10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared
to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the
exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by
it, at the same or different times, of any other rights or remedies for the same default or any other
default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations,representations,or agreements,either written or oral.
The terms of this Agreement shall be construed in accordance with the meaning of the language used
and shall not be construed for or against either Party by reason of the authorship of this Agreement
or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
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 N_ onliabili 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 Employ No member, officer, or employee of City, or
their designees or agents, and no public official who exercises authority over or has responsibilities
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with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any
interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for the
Services to be performed under this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement
as of the Effective Date.
CIT OF MEN EE CON ULTANT a*Gka_d
Armando d. t1la, City Manager t
AA'�_
S anwar' g, City Clerk
AP :oVeclps to Form: [Note: 2 officer's signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Mffrey T. elching, City A rney
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IN WITNESS WHEREOF,the Parties hereto have executed and entered into this Agreement
as of the Effective Date.
CITY OF MENIFEE CON. ULTANT
Armando G. Villa, City Manager Paul Marra, Managing Principal
Keyser Marston Associates, Inc.
Attest:
Sarah Manwaring, City Clerk
Approved as to Form: [Note: 2 officer's signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Jeffrey T. Melching, City Attorney
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CE€:T IMCA T E OF SECRETARY
I, the undersigned, do hereby certify that:
(1) 1 am the duly elected and acting Secretary of Keyser Marston Associates, Inc. a
California Corporation; and
(2) That Paul C. Marra, a Vice President of Keyser Marston Associates, Inc. is
authorized on behalf of the Corporation to sign the Professional Services Agreement dated
March 13, 2018 entered into between the City of Menifee and Keyser Marston Associates, Inc.;
and
(3) Further, all corporate officers of Keyser Marston Associates, Inc. are authorized
to enter into contracts and execute instruments in the name of the Corporation or on behalf of
the Corporation, pursuant to the Corporation's Bylaws, adopted September 14, 1990.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of
such corporation this 22nd day of March, 2018.
tX G�
Diane M. Chambers, Secretary
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify that:
(1) 1 am the duly elected and acting Secretary of Keyser Marston Associates, Inc. a
California Corporation; and
(2) That Paul C. Marra, a Vice President of Keyser Marston Associates, Inc. is
authorized on behalf of the Corporation to sign the Professional Services Agreement dated
March 13, 2018 entered into between the City of Menifee and Keyser Marston Associates, Inc.;
and
(3) Further, all corporate officers of Keyser Marston Associates, Inc. are authorized
to enter into contracts and execute instruments in the name of the Corporation or on behalf of
the Corporation, pursuant to the Corporation's Bylaws, adopted September 14, '1990.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of
such corporation this 22nd day of March, 2018.
" ,-I-ad
Diane M. Chambers, Secretary
EXHIBIT A
SCOPE OF SERVICES
Proposed Scope of Services
Real Estate and Economic Development Consulting
Services City of Menifee
KMA proposes to assist the City of Menifee (City) with the following scope of
real estate and economic development consulting services on an as-needed basis.
• Market Support and Valuation -KMA will assist the City with market demand analyses;
identification of appropriate development programs; and projection of absorption potential
and achievable rents and prices. KMA will also evaluate the development potential—both
commercial and residential—for specific sites or districts.
• Fiscal and Economic Impact- KMA will prepare assessments of fiscal and economic
benefits for proposed developments, including residential, commercial, and visitor-serving
uses. The KMA fiscal impact analyses will include General Fund revenue and expenditure
✓ projections as a result of new development. Analyses of economic benefits will include
estimates of direct and indirect impacts o f proposed developments through factors such as
employment,payroll, and output. KMA will evaluate projections of City tax revenues
generated by development proposals.
• Financial Feasibility Analysis-KMA will assist the City in reviewing the financial
feasibility of proposed developments. KMA tasks may include: comparison of competing
proposals; estimate of land value; and/or estimate of financing gap. KMA will prepare
✓ financial pro forma models of the developer proposals itemizing development costs (directs,
indirect, and financing),net operating income, and target return. KMA will conduct a
comparative review with industry standards, and identify any differences in
inputs/assumptions that might result in an alternative finding of financial feasibility or
financing gap.
• Transaction Structuring/Negotiations—KMA will assist the City in soliciting and
evaluating development proposals from qualified developers and property owners. KMA
tasks may include assistance in negotiating the terms of land sales, ground leases, and/or
public financial assistance. KMA will prepare reports and memoranda summarizing the
proposed transaction and economic justification for the business terms.
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• Other Services—KMA is prepared to assist the City with other as-needed economic
consulting services, including the identification and evaluation of other public
incentives for private development.
6. Government Code Section 53083 Economic Development Subsidy Reports—KMA will
prepare Section 53083 Economic Development Subsidy Reports for proposed transactions
between the City and private developers that include a financial subsidy.
7. Public Hearings and Presentations—KMA will participate as needed in public
meetings when public/private partnerships and economic development transactions
are considered.
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KEYSER MARSTON ASSOCIATES, INC.
HOURLY FEE SCHEDULE
2017 2018
A.JERRY KEYSER* $280.00
MANAGING PRINCIPALS` $280.00
SENIOR PRINCIPALS* $270.00
PRINCIPALS* $250.00
MANAGERS* $225.00
SENIOR ASSOCIATES $187.50
ASSOCIATES $167.50
SENIOR ANALYSTS $150.00
ANALYSTS $130.00
TECHNICAL STAFF $95.00
ADMINISTRATIVE STAFF $80.00
Directly related job expenses not included in the above rates are: auto
mileage,parking, air fares, hotels and motels,meals,car rentals,taxies,telephone calls,
delivery, electronic data processing, graphics and printing. Directly related job
expenses will be billed at 110% of cost.
Monthly billings for staff time and expenses incurred during the period will be
payable within thirty
(30) days of invoice date.
EXHIBIT A
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Rates for individuals in these categories will be increased by 50% for time
spent in court testimony.
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