2013/10/02 JOHN DE JULIO PAINTINGPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT for Professional Services (“Agreement”) is made this 2nd day of October, 2013 by and between the CITY OF MENIFEE (“City”) and JOHN DE JULIO PAINTING (“Consultant”) (together
sometimes referred to the “Parties”).
SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work, (Exhibit A) and incorporated
here. Consultant will perform subsequent Task Orders as requested by the Contract Administrator, in accordance with the Scope of Work. In the event of a conflict in or inconsistency
between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
Term of Services. The term of this Agreement shall begin on the October 2, 2013 and shall end on June 30, 2014 unless the term of the 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 the City's right to terminate the Agreement, as provided
for in Section 8.
Standard of Performance. Consultant shall perform all 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.
Assignment of Personnel. Consultant shall assign only competent personnel to perform 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.
Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations hereunder.
Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization
from the Contract Administrator.
COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed twenty five thousand dollars ($75,000.00) notwithstanding any contrary indications that may be contained in Consultant's
proposal, for 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 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 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.
Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date.
Invoices shall contain the following information:
Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
The beginning and ending dates of the billing period;
A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder necessary to complete
the work described in Exhibit A;
Receipts for expenses to be reimbursed;
The Consultant’s signature.
Monthly Payment. City shall make monthly payments, based on invoices received, for 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.
Final Payment. City shall pay the last ten percent (10%) of the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal to City
of a final invoice, if all services required have been satisfactorily performed.
Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering 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 entire Agreement, unless the
Agreement is modified in writing prior to the submission of such an invoice.
Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of the contract.
Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs
and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order
to verify costs incurred to that date.
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 the 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.
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 the 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 the 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 the City and other Insureds.
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. The 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, 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 Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or
the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and authorized volunteers
for loss arising from work performed under this Agreement.
Commercial General
Automobile Liability Insurance.
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 work contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00)
general aggregate, TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile Liability form or other
form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work 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 activities contemplated under this Agreement, including the use of hired, owned and non-owned automobiles.
Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 or GL 0002 (most
recent editions) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage
shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9. No endorsement shall be attached limiting the coverage.
Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
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.
Professional Liability Insurance.
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
work 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 not exceed $150,000 per claim.
Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
The retroactive date of the policy must be shown and must be no later than the commencement of the work.
Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement or the work, so long as commercially available at
reasonable rates.
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 date of this Agreement, Consultant must provide
extended reporting coverage for a minimum of five (5) years after completion of the Agreement or the work. 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 work under this Agreement.
The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the
coverage.
A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement.
All Policies Requirements.
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.
Verification of coverage. Prior to beginning any work 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: Landscape Inspection
and Plan Check. 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.
The City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of the Consultant.
Notice of Reduction in or Cancellation of Coverage. A certified endorsement shall be attached to all insurance obtained pursuant to this Agreement stating that coverage shall not be
suspended, voided, canceled or materially changed by either party, or reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified, mail, return
receipt requested, has been given to the City. In the event that any coverage required by this section is reduced, limited, cancelled, or materially affected in any other manner, Consultant
shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than ten (10) working days after Consultant is notified of the change in coverage.
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 activities 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 the Consultant in the course of providing 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
the 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 the City. Additional insured status shall continue for (1) year after delivery of product(s).
A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and
that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage.
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 or
work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written authorization of 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.
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.
Variation. Contract Administrator may 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 the City's interests are otherwise fully protected.
Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option, 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:
Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
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
Terminate this Agreement.
INDEMNIFICATION.
Design Professional agrees to indemnify, defend and hold harmless, the City, its officers, officials, employees and volunteers from any and all claims, demands, costs or liability that
actually or allegedly arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Design Professional and its agents in the performance of services
under this contract, but this indemnity does not apply to liability for damages for bodily injury, property damage or other loss, arising from the sole negligence, active negligence
or willful misconduct by the City, its officers, official employees, and volunteers.
As respects all acts or omissions which do not arise directly out of the performance of professional services, including but not limited to those acts or omissions normally covered by
general and automobile liability insurance, Consultant agrees to indemnity, defend and hold harmless the City, its officers officials, employees and volunteers for an against any claim,
demands, losses, liability of any kind or nature arising out of or in connection with the Consultant's performance or failure to perform under the terms of this contract, excepting
those which arise out of the active negligence, sole negligence or willful misconduct of the city.
STATUS OF CONSULTANT.
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 Consultant's 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 services rendered pursuant to this Agreement. 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.
LEGAL REQUIREMENTS.
Governing Law. The laws of the State of California shall govern this agreement.
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 the City of Menifee or allow any person to perform work required under this Agreement unless such
person is properly documented and legally entitled to be employed within the United States. Consultant shall obtain a City of Menifee business license. Consultant shall require the
same of all subcontractors.
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, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term or 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.
TERMINATION AND MODIFICATION.
Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective 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 the City in connection with this Agreement.
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.
Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
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 the proposal, without prior written approval of
the Contract Administrator. In the event that key personnel leave Consultant’s employ, Consultant shall notify City immediately.
Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the
termination of this Agreement.
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:
Immediately terminate the Agreement;
Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
Charge Consultant the difference between the cost to complete the work 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 work.
KEEPING AND STATUS OF RECORDS.
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 the City. Consultant hereby agrees to deliver those documents to the City upon termination of the 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 the City and are not necessarily suitable
for any future or other use. 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.
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 services or expenditures and disbursements charged to the 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 the Consultant to this Agreement.
Inspection and Audit of Records. Any records or documents that Section 9.2 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, the 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), the 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 the City, for a period of three (3) years after final payment under the Agreement.
MISCELLANEOUS PROVISIONS.
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. The court may set such fees
in the same action or in a separate action brought for that purpose.
Venue. 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.
Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged
shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
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.
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.
Consultant Representative. All matters under this Agreement shall be handled for Consultant by John De Julio.
City Contract Administration. This Agreement shall be administered by a City Employee, Jonathan G. Smith ("Contract Administrator"). All correspondence shall be directed to or through
the Contract Administrator or his or her designee.
Notices. Any written notice to Consultant shall be sent to:
John De Julio Painting
13249 Wagon Creek Way
Eastvale, CA 92880
Any written notice to City shall be sent to the Contract Administrator with a copy to:
City Clerk
City of Menifee
29714 Haun Road
Menifee, CA 92586
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.
Integration. This Agreement, including the scope of work 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.
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.
The Parties have executed this Agreement as of the Effective Date.
CITY OF MENIFEE CONSULTANT
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__________________________________ _______________________________
Scott A. Mann, Mayor John De Julio, President
John De Julio Painting
Kathy Bennett, City Clerk
______________________________
Approved as to Form:
_______________________________
Julie Hayward Biggs, City Attorney
EXHIBIT A
SCOPE OF WORK
See attached proposal dated April 9, 2013