2019/07/01 Keyser Marston Associates, Inc. (KMA) FY19/20 Real Estate & Economic Development ConsultingCITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY19/20 REAL ESTATE & ECONOMIC DEVELOPMENT CONSULTING
SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this — day of , 2019 ("Effective Date") by and between the CITY OF MENIFEE,
a California municipal c oration, (`.`City") and Keyser Marston Associates Inc. (KMA), 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 July 1, 2019 and
shall end on June 30, 2020 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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29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Final Payment. City shall pay the last five percent (5%) of the total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily 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.
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Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
C. Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims -made basis.
b. Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
4.3 Professional Liability Insurance.
a. General requirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions.
Any deductible or self -insured retention shall be shown on the Certificate. If the deductible or
self -insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims -made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims -made form:
a. The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
Agreement or completion of the Services, so long as commercially available at
reasonable rates.
C. If coverage is canceled or not renewed and it is not replaced with
another claims -made policy form with a retroactive date that precedes the Effective
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement
or the completion of the Services. Such continuation coverage may be provided by
one of the following: (1) renewal of the existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement of the Services under this Agreement. City shall have the
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.
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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
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
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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 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.
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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
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 Attome s' 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
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Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Gina Gonzalez, Economic Development Director
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and
Signature of Registered Professional with report/design responsibility," as in the following
example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the 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 lnte2ration. 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 CounteTarls. 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.
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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
Bill 21miTkI&
Mayor
Attest: A _
A. Manwaring. City Clerk
Approved as to Form:
Je ey Melching ity ttorney
CONSULTANT
Paul Marra, Managing Principal
[Note: 2 officer's signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in -lieu]
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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.
SCOPE OF SERVICES:
1. 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.
2. 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. KMA will also conduct peer reviews of project -specific fiscal impact analyses
submitted by developers and/or their consultants. Analyses of economic benefits will include
estimates of direct and indirect impacts of proposed developments through factors such as
employment, payroll, and output. KMA will evaluate projections of City tax revenues generated by
development proposals.
3. 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 (direct, 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.
4. 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.
5. 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.
EXHIBIT A
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KEYSER MARSTON ASSOCIATES, INC.
HOURLY FEE SCHEDULE_
2019 2020
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.
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