2016/02/04 Koff and Associates, Inc. Class and Comp Study CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
effective this 4th day of February 2016 ("Effective Date") by and between the CITY OF
MENIFEE, a California municipal corporation, ("City") and Koff and 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 February 4,
2016 and shall end on June 30, 2016 unless the term of this Agreement is otherwise
terminated or extended as provided for in Section 8. The time provided to Consultant to
complete the Services required by this Agreement shall not affect City's right to terminate
this Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that
Consultant is a provider of first class work and services and Consultant is experienced in
performing the Services contemplated herein and, in light of such status and experience,
Consultant shall perform the Services required pursuant to this Agreement in the manner
and according to the standards observed by a competent practitioner of the profession in
which Consultant is engaged in the geographical area in which Consultant practices its
profession and to the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent
personnel to perform the Services pursuant to Agreement. In the event that City, in its
sole discretion, at any time during the term of this Agreement, desires the reassignment
of any such persons, Consultant shall, immediately upon receiving notice from City of
such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's
obligations hereunder.
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1.5 Authorization to Perform Services. Consultant is not authorized to perform
any of the Services or incur any costs whatsoever under the terms of this Agreement until
receipt of authorization from the Contract Administrator.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed FIFTY-FIVE
THOUSAND FIVE HUNDRED SIXTY DOLLARS ($55,560.00) notwithstanding any
contrary indications that may be contained in Consultant's proposal, for the Services to
be performed and reimbursable costs incurred under this Agreement. In the event of a
conflict between this Agreement and Exhibit A, regarding the amount of compensation,
this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant
to this Agreement at the time and in the manner set forth herein. The payments specified
below shall be the only payments from City to Consultant for the Services rendered
pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specified herein. Except as specifically authorized in advance by City, Consultant shall
not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the
first invoice, etc.;
b. The beginning and ending dates of the billing period;
C. A "Task Summary" containing the original contract amount, the
amount of prior billings, the total due this period, the balance available under this
Agreement, and the percentage of completion;
d. At City's option, for each item in each task, a copy of the applicable
time entries or time sheets shall be submitted showing the name of the person
performing the Services, the hours spent by each person, a brief description of the
Services, and each reimbursable expense;
e. The total number of hours of work performed under this Agreement
by Consultant and each employee, agent, and subcontractor of Consultant
performing the Services hereunder necessary to complete the Services described
in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative's signature.
Invoices shall be submitted to:
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City of Menifee
Attn: Accounts Payable
29714 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices
received, for the Services satisfactorily performed, and for authorized reimbursable costs
incurred. City shall have thirty (30) days from the receipt of an invoice that complies with
all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total amount
due pursuant to this Agreement within sixty (60) days after completion of the Services
and submittal to City of a final invoice, if all of the Services required have been
satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or
cost whatsoever incurred by Consultant in rendering the Services pursuant to this
Agreement. City shall make no payment for any extra, further, or additional service
pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of
the maximum amount of compensation provided above either for a task or for the entirety
of the Services performed pursuant to this Agreement, unless this Agreement is modified
in writing prior to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly
basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the
maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates
this Agreement pursuant to Section 8, City shall compensate Consultant for all
outstanding costs and reimbursable expenses incurred for Services satisfactorily
completed and for reimbursable expenses as of the date of written notice of termination.
Consultant shall maintain adequate logs and timesheets in order to verify costs and
reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense,
provide all facilities and equipment necessary to perform the services required by this
Agreement. City shall make available to Consultant only physical facilities such as desks,
filing cabinets, and conference space, as may be reasonably necessary for Consultant's
use while consulting with City employees and reviewing records and the information in
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possession of City. The location, quantity, and time of furnishing those facilities shall be
in the sole discretion of City. In no event shall City be required to furnish any facility that
may involve incurring any direct expense, including but not limited to computer, long-
distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and
expense, shall procure the types and amounts of insurance checked below and provide
Certificates of Insurance, indicating that Consultant has obtained or currently maintains
insurance that meets the requirements of this section and which is satisfactory, in all
respects, to City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in
Consultant's compensation. Consultant shall not allow any subcontractor, consultant or
other agent to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City.
Verification of the required insurance shall be submitted and made part of this Agreement
prior to execution. Consultant acknowledges the insurance policy must cover inter-
insured suits between City and other Insureds.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense,
maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance
for any and all persons employed directly or indirectly by Consultant pursuant to the
provisions of the California Labor Code. Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION
DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00)
disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy.
In the alternative, Consultant may rely on a self-insurance program to meet those
requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets
the standards of the California Labor Code shall be solely in the discretion of the Contract
Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officers,
officials, employees, and authorized volunteers for loss arising from the Services
performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 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
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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.
4.2.2 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.
4.2.3 Additional requirements. Each of the following shall be included in
the insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident
basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions
of the policy shall not affect coverage provided to City and its officers,
employees, agents, and volunteers.
4.3 Professional Liability Insurance.
4.3.1 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.
4.3.2 Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be
no later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance
must be provided for at least five (5) years after the expiration or termination
of this Agreement or completion of the Services, so long as commercially
available at reasonable rates.
C. If coverage is canceled or not renewed and it is not replaced
with another claims-made policy form with a retroactive date that precedes
the Effective Date of this Agreement, Consultant must provide extended
reporting coverage for a minimum of five (5) years after the expiration or
termination of this Agreement or the completion of the Services. Such
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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.
4.4.1 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.
4.4.2 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: Classification and Compensation Study. 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 an
additional insured for liability arising out of ongoing and completed operations by or on
behalf of Consultant.
4.4.3 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.
4.4.4 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.
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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.
4.4.5 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.
4.4.6 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.
4.4.7 Variation. The Contract Administrator may, but is not required to,
approve in writing a variation in the foregoing insurance requirements, upon a
determination that the coverage, scope, limits, and forms of such insurance are either not
commercially available, or that City's interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have
if Consultant fails to provide or maintain any insurance policies or policy endorsements to
the extent and within the time herein required, City may, at its sole option, exercise any
of the following remedies, which are alternatives to other remedies City may have and
are not the exclusive remedy for Consultant's breach:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and
withhold any payment, until Consultant demonstrates compliance with the
requirements hereof; and/or
C. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent
permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by
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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 performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable, including
but not limited to officers, agents, employees or subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply
to claims occurring as a result of City's sole or active negligence. The provisions of this
Section 5 shall not release City from liability arising from gross negligence or willful acts
or omissions of City or any and all of its officers, officials, employees, and agents acting
in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement,
Consultant shall be an independent contractor and shall not be an employee of City. City
shall have the right to control Consultant only insofar as the results of the Services
rendered pursuant to this Agreement and assignment of personnel pursuant to
Subparagraph 1.3; however, otherwise City shall not have the right to control the means
by which Consultant accomplishes the Services rendered pursuant to this Agreement.
The personnel performing the Services under this Agreement on behalf of Consultant
shall at all times be under Consultant's exclusive direction and control. Consultant shall
not at any time or in any manner represent that it or any of its officers, employees, or
agents is in any manner officers, officials, employees, or agents of City. Consultant shall
not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing the Services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing the Services
hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law,
or ordinance to the contrary, Consultant and any of its employees, agents, and
subcontractors providing services under this Agreement shall not qualify for or become
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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 performing the Services of
any applicable local, state, and/or federal law, including, without limitation, any applicable
federal and/or state labor laws (including, without limitation, the requirement to pay state
prevailing wages and hire apprentices); (ii) the implementation of Section 1781 of the
Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) failure by Consultant or any party performing the Services to provide any
required disclosure or identification as required by Labor Code Section 1781, as the same
may be amended from time to time, or any other similar law. It is agreed by the Parties
that, in connection with performance of the Services, including, without limitation, any and
all public works (as defined by applicable law), Consultant shall bear all risks of payment
or non-payment of prevailing wages under California law and/or the implementation of
Labor Code Section 1781, as the same may be amended from time to time, and/or any
other similar law. Consultant acknowledges and agrees that it shall be independently
responsible for reviewing the applicable laws and regulations and effectuating compliance
with such laws. Consultant shall require the same of all subcontractors.
7.3 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all licenses, permits,
qualifications, and approvals of whatsoever nature that are legally required to practice
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their respective professions. Consultant represents and warrants to City that Consultant
and its employees, agents, and subcontractors shall, at their sole cost and expense, keep
in effect at all times during the term of this Agreement any licenses, permits, and
approvals that are legally required to practice their respective professions. In addition to
the foregoing, Consultant and any subcontractors shall obtain and maintain during the
term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause
upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon
30 days' written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall
be entitled to compensation for the Services performed up to the date of termination; City,
however, may condition payment of such compensation upon Consultant delivering to
City any or all documents, photographs, computer software, video and audio tapes, and
other materials provided to Consultant or prepared by or for Consultant or City in
connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end
date of this Agreement beyond that provided for in Subsection 1.1. Any such extension
shall require a written amendment to this Agreement, as provided for herein. Consultant
understands and agrees that, if City grants such an extension, City shall have no
obligation to provide Consultant with compensation beyond the maximum amount
provided for in this Agreement. Similarly, unless authorized by the Contract
Administrator, City shall have no obligation to reimburse Consultant for any otherwise
reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing
signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree
that this Agreement contemplates personal performance by Consultant and is based upon
a determination of Consultant's unique personal competence, experience, and
specialized personal knowledge. Moreover, a substantial inducement to City for entering
into this Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Consultant shall not subcontract any portion of
the performance contemplated and provided for herein, other than to the subcontractors
noted in Consultant's proposal, without prior written approval of the Contract
Administrator. In the event that key personnel leave Consultant's employ, Consultant
shall notify City immediately.
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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 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
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Agreement. Consultant represents and warrants that Consultant has the legal right to
license any and all Documents and Data. Consultant makes no such representation and
warranty in regard to Documents and Data which were prepared by design professionals
other than Consultant or provided to Consultant by the City. City shall not be limited in
any way in its use of the Documents and Data at any time, provided that any such use
not within the purposes intended by this Agreement shall be at City's sole risk.
9.3 Consultant's Books and Records. Consultant shall maintain any and all
ledgers, books of account, invoices, vouchers, canceled checks, and other records or
documents evidencing or relating to charges for the Services or expenditures and
disbursements charged to City under this Agreement for a minimum of three (3) years, or
for any longer period required by law, from the date of final payment to Consultant under
this Agreement. All such records shall be maintained in accordance with generally
accepted accounting principles and shall be clearly identified and readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that
Section 9.3 of this Agreement requires Consultant to maintain shall be made available for
inspection, audit, and/or copying at any time during regular business hours, upon oral or
written request of City. Under California Government Code Section 8546.7, if the amount
of public funds expended under this Agreement exceeds TEN THOUSAND
DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of
the State Auditor, at the request of City or as part of any audit of City, for a period of
three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If either Party to this Agreement brings any action,
including an action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees and
expenses including costs, in addition to any other relief to which that Party may be
entitled; provided, however, that the attorneys'fees awarded pursuant to this Section shall
not exceed the hourly rate paid by City for legal services multiplied by the reasonable
number of hours spent by the prevailing Party in the conduct of the litigation. The court
may set such fees in the same action or in a separate action brought for that purpose.
10.2 Applicable Law; Venue. The internal laws of the State of California shall
govern the interpretation and enforcement of this Agreement. In the event that either
Party brings any action against the other under this Agreement, the Parties agree that
trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the
remainder of this Agreement shall not be affected thereby and all other parts of this
Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only and shall not
limit or otherwise affect the terms of this Agreement.
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10.5 No Implied Waiver of Breach. The waiver of any breach of a specific
provision of this Agreement does not constitute a waiver of any other breach of that term
or any other term of this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representative. All matters under this Agreement shall be
handled for Consultant by Georg Krammer ("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, Bruce Foltz ("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:
Koff& Associates, Inc.
2835 Seventh Street,
Berkley, CA 94710
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: Bruce Foltz
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.
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Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties are
cumulative and the exercise by either Party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached
hereto and incorporated herein as Exhibit A, represents the entire and integrated
agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral. The terms of this Agreement shall
be construed in accordance with the meaning of the language used and shall not be
construed for or against either Party by reason of the authorship of this Agreement or any
other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of
each of the Parties hereto represent and warrant that (i) such Party is duly organized and
existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of
said Party, (iii) by so executing this Agreement, such Party is formally bound to the
provisions of this Agreement, and (iv) that entering into this Agreement does not violate
any provision of any other Agreement to which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs,
executors, assigns, and all persons claiming under or through them, that in the
performance of this Agreement there shall be no discrimination against or segregation of,
any person or group of persons on account of any impermissible classification including,
but not limited to, race, color, creed, religion, sex, marital status, sexual orientation,
national origin, or ancestry.
10.16 No Third Party Beneficiaries. With the exception of the specific provisions
set forth in this Agreement, there are no intended third-party beneficiaries under this
Agreement and no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of City shall be personally liable to Consultant, or any
successor in interest, in the event of any default or breach by City or for any amount which
may become due to Consultant or to its successor, or for breach of any obligation of the
terms of this Agreement.
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10.18 No Undue Influence. Consultant declares and warrants that no undue
influence or pressure is used against or in concert with any officer or employee of City in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No
officer or employee of City shall receive compensation, directly or indirectly, from
Consultant, or from any officer, employee, or agent of Consultant, in connection with the
award of this Agreement or any work to be conducted as a result of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of
City, or their designees or agents, and no public official who exercises authority over or
has responsibilities with respect to this Agreement during his/her tenure or for one (1)
year thereafter, shall have any interest, direct or indirect, in any agreement or sub-
agreement, or the proceeds thereof, for the Services to be performed under this
Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of
the Effective Date.
CITY OF PVIFEE CONSUL I
T
Scott A. Mann, Mayor S•KRA" cep
X
Attest: !
e�
• s1D r
Sar h Manwaring, City Clerk
[Note: 2 officer's signatures required if
Consultant is a corporation]
Appro� to Form:
JeAyiVmelching, Citogorney
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