2018/04/09 Fairbank, Maslin, Maullin, Metz and AssociatesPROFESSIONAL SE,RVICES AGRI]EMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this 91r'of April,20l8 ("Effective Date") by and between the CITY OF MENIFEE, a Calilbrnia
municipal corporation, ("city") and FAIRBANKS, MASLIN, MAULLIN, METZ &
ASSOCIATES, a California Corporation ("Consultant"). City and Consultant may sometimes
herein be referred to individually as a "Party" and collectively as the "Parties."
SECTION I. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope ofservices, 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 ofa conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevai[.
l.l Term of Services. The term of this Agreemenl shall begin on April 9, 2018 and
shall end on June 30, 2018 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.
I .2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider offirst class work and services and Consultant is experienced in perlorming 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 ofthe
Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assi gn or.rly 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
shalt, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
L4 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.
I .5 Authorizatior, to Perfbrm S ervlces . Consultant is not authorized to pcrform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
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CITY OF MENIF[,E
SECTTON 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed TWENTY-FOUR THOUSAND
DOLLARS ($24,000) 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 ofa conflict between this Agreement and Exhibit A, regarding the amount
ofcompensation, this Agreement shall prevail. City shall pay Consultant lor 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 lo
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 fbr duplicate
services performed by more than one person.
2.1 Invoices. Consultant shatl 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 Bilt No. I for the first
invoice, etc.;
b. The beginning and ending dates of the billing period;
c. A "Task Summary" containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of corrpletion;
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 briel 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. TheConsultantRepresentative'ssignature.
lnvoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29714 Haun Road
Menifee, CA 92586
2.2 Monthly Pavment. Ci ty shall make monthly payrnents, based on invoices received,
for the Serwices satistactorily performed, and lbr authorized reimbursable costs incurred. City
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shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe 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 ofa final invoice, if all of the Services required have been satisfactorily perfbrmed.
2.4 Total Pavment. 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 Exhibil A.
2.6 Reimbursable E . Reimbursable expenses are included withir-r the maximumxnenses
amount of this Agreement
2.7 Pavment of Taxes. Consultant is solel y responsible for the paymenl of employment
taxes incurred under this Agreement and any federal or state taxes'
2.8 l)ayrnent upon'l'crminat ion. In the event that Ci ty or Consultant terminates thls
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 ofthe 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 cosl and expense, provide all
facitities 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
timited 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
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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 thereofto City. Verification ofthe 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 fbr 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($1,000,000.00) per
accident, ONE MILLION DOLLARS ($ I ,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1,000,000.00) disease per policy. In the altemative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-insurance complies
fully with the provisions of the Califomia Labor Code. Determination of whether a self-insurance
program meets the standards of the California Labor Code shall be solely in the discretion ofthe
Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive alt rights of subrogation against City and its offlcers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commercial General and Automo bile Lia bilitv Insurance.
eneral requirements. Consultanl , at its own cost and expense, shall
maintain commercial general and automobile Iiability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($ 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 lorm with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be perfbrmed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shatt 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 ofhired, owned, and non-owned automobiles.
b. Minimum scope of coverage. Commercial general coverage shall beat least
as broad as Insurance Services Office Commercial General Liability occulrence tbrm CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Oftlce Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c.Additi onal reouirements. Each of the tbllowin
insurance coverage or added as a certilled endorsement to the policy
a.G
-4-
g shall be included in the
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a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any failure ofConsultant to comply with reporting provisions ofthe
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
+.t Professional Liabilitv 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 followin g provisions shall apply if the
professional liability coverage is written on a claims-made f orm
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. [f 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 ofthe Services. Such continuation coverage may be provided by
one of the following: (l) renewal ofthe existing poticy; (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 ofthe policy, if Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a Acc nsurers. A insurance re quired by this Section is to be
placed with insurers with a Bests' rating of no less than A:VII and admitted in California
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d. Additional insured:nrimarv insurance. Cit y 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 peribrmed by or on behalf of Consultant,
inctuding 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 conlinue
for one ( I ) year after the expiration or termination ofthis Agreement or completion ofthe Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
bles and Seliinsured en . Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any olthe
Services.
During the term ol 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 oflosses
and related investigations, claim administralion, 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 fumish separate certificates and certified endorsements lbr each
b. Verification of coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certiflcates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies ofall
policies, including complete certified copies of all endorsements. All copies of policies and
cefiified 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:
Communitv Survev. The name and address for Additional Insured endorsements, Certificates of
Insurance and Notice of Cancellation is: Cityof M enifee,29714 Haun Road, Menif'ee, CA92586.
City must be endorsed as an additional insured for liability arising out olongoing and completed
operations by or on behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten (10) working days ifl (l) any ofthe required insurance
policies is terminated; (2) the limits ofany ofthe required polices are reduced; or (3) the deductible
or self insured retention is increased.
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subcontractor. All coverages for subcontractors shall be subject to all ofthe 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 ibllowing
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 ofthe 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
Terminate this Agreement.C
SECTION 5. INDEMNIFICATION.
5.1 rnniflc tion for Professional L ilir Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indernnify, 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, liabitities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties ofany kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant lails 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
individuat that Consultant shall bear the tegal liability thereofl in the performance ofprofessional
services under this Agreement.
5.2 mnification for Other than nal Liabili Othcr 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 tegally liable, including but not limited to officers. agents, employees or
subcontractors of Consultant.
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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 durin g 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 alt times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any ol its officers,
employees, or agents is in any manner officers, olficials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benetrt, 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 ol City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SE,CTION 7. LEGAL REQUIREME,NTS.
7 .l Govemins Law. The laws ol the State ol California shall govern this Agreement.
7 .2 Compliance with Applicable Laws. Consultant and an y 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 oflndustrial Relations ofthe State
ol 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 liom the California Department of
Industrial Relations C'DIR") pursuant to Califomia Public Utilities Code, Sections 465,466, and
467 by calling 415-703-4774. Appropriate records demonstrating compliance with such
requirement shall be rnaintained 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
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reasonable attorneys' fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising fiom or related to (i) the noncompliance by Consultant or any
party performing the Services ofany applicable local, state, and/or fbderal Iaw, including, without
limitation, any applicable federal andior state labor laws (including, without limitation, the
requirement to pay state prevailing wages and hire apprentices); (ii) the implementation ofSection
1781 of the Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) ihilure 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. lt is agreed by the Parties that, in connection with
performance olthe Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks ofpayment or non-payment olprevailing wages
under Califbrnia law and/or the implementation of Labor Code Section i781, 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
etfectuating compliance with such laws. Consultant shall require the same ofall subcontractors.
7.3 Licenses and Permits. Consultanl represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals ol 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. ln addition to the lbregoing, 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 notifi cation to Consultant.
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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 fbr 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 Agreemenl. Similarly, unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
tbr any otherwise reimbursable expenses incurred during the extension period.
Amendments The Parties may amend this Agreement only by a writing signed by
8.6 Assisnment and Subcontractinq. Cit y 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
prot'essional 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 ofthe 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.
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 Ontions upon Bre ach bv Consultant. If Consultant n-rateriall y 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 pwsuant 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 RECOIIDS.
9.1 Records Created as Part of Consultant's Performance Al[ 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
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8.5
all the Parties.
documents are confidential and will not be released to third parties without prior written consenl
ofboth Parties unless required by law.
9.2 Licensine 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 Iicense 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 ofaccount, 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 lbr a minimum of three (3) years, or for any longer period required by law, frorn
the date offinal payment to Consultant under this Agreemenl. 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 ofpublic tunds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit ofthe State Auditor, at the request of City or as part ofany
audit of City, for a period ofthree (3) years after linal payment under this Agreement.
SECTION IO,MISCELLANEOUS PROVISIONS.
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10.1 Attomeys' Fees. If either Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision ofthis Agreement, the prevailing
Party shall be entitled to reasonable attorneys' iees and expenses including costs. in addition to
any other relief to which thal 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 ol hours spent by the prevailing Party in the conduct ofthe
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Lawl Venue. The inlernal laws of the State of Calilbrnia shall govern
the interpretation and enforcement of this Agreement. ln the event that either Party brings any
action against the other under this Agreement, the Pades agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severabilitv. Ifany 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 Subheadinss. The section headi ngs and subheadings
contained in this Agreement are included for convenience only and shall not limit or olherwise
affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. The waiver of any breach ofa specific provision of
this Agreement does not constitute a waiver ofany other breach ofthat term or any other term of
this Agreement.
10.6 Successors and Assigns. The provisions ofthis Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Representatiyg. All matters under this Agreernent shall be handled for
Consultant by Kevin Engstrom ("Consultant's Representative"). The Consultant's Representative
shall have full authority to represent and act on behalf of Consultant for all purposes under this
Agreement. The Consultant's Representative shall supervise and direct the Services, using his
best skill and attention, and shall be responsible for all means, methods, techniques, sequences.
and procedures and for the satisfactory coordination of all portions of the Services under this
Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Gina Gonzalez ("Contract Administrator"). All correspondence shall be directed to or
through the Contract Administrator or his designee. The Contract Administrator shall have the
power to act on behalf of City for atl purposes under this Agreement. Unless otherwise provided
in this Agreement, Consultant shall not accept direction or orders iiom any person other than the
Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to
FM3
12100 Wilshire Boulevard, Suite 350
Los Angeles, CA 90025
Attn: John Fairbanks, Principal
Any written notice to City shall be sent to the Contract Administrator at:
City of Menif-ee
29714 Haun Road
Menifee. CA 92586
Attn: Gina Gonzalez
2671/031E5E-0001
7610421.2 a0.1/09/18 -12-
with a copy to:
City Clerk
City of Menifee
2971 4 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page ofa technical report, first page ofdesign specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed prolessional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and
Signature of Registered Prof'essional with report/design responsibility," as in the lollowing
example.
Seal and Signature ofRegistered Prof'essional with
report/design responsibility-
l0.ll 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, ofany other rights or remedies for the same default
or any other default by the other Party.
10.12 Integration. This Agreement, including the scope ol services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotialions, 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 ofthe authorship of
this Agreement or any other rule ofconstruction 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 logether shall constitute one agreement.
10. l4 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 lormally 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 Partv is bound.
10.I 5 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance ofthis 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.
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10.16 No Third Partv Beneficiarr es. With the exc eption 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. I 7 Nonliabilitv of Cit), Officers and Emplovees. No officer, ot'ficial, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event ofany default or breach by City or for any amount which may become due to
Consultant or to its successor, or for breach ofany obligation ofthe terms ofthis Agreement.
10. I 8 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 linancial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any ofticer, employee, or agent of
Consultant, in connection with the award ofthis Agreement or any work to be conducted as a result
of this Agreement.
10. l9 No Benefit to Arise to City Emplovees. No member , officer, or employee ol 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.
ISignatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as ofthe ve Date
CIl'Y CONSULTANT
Armando G. Vi ity Manager John Fairbanks, Principal
Attest:
Man Clerk David Metz, President
Approved Form:
1--1
Jeffrey el City A
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L
4/)v
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFEE CONSULTANT
Armando G. Villa, City Manager
Attest:
John Fairbank, Principal
Sarah Manwaring, City Clerk
Approvcd as to liornr:
Jelfrey T. Melching, City Attorney
David Metz. President
76)0421.2 aO4/12/18 -t5-
SJ I
t/
EXIIIBIT A
SCOPE OF SERVICES
Fairbank, Maslin, Maullin,Melz & Associates (FM3) is pleased to submit this proposed scope of
work for a survey assessing voter perceptions of Menifee's budget and services.
Questionnaire
Sample
Margin of
Sampling Error
Deliverables
Cost
Approx. 15-minute phone questionnaire
up to 300 registered voters
15.7 percent in 95 out of 100 cases for a sample of 300 interviews
Following the completion of the survey, FM3 will provide a webinar
presentation of the survey results to City staff prior to finalizing work
product, and a final work product summary of survey results in user-friendly
PowerPoint and memo
FM3 will also be available for ongoing consultation and any further analysis
of the resea rch.
521,500, with an additional 52,500 to include Spa n ish-language translation
(for total of S24,000)
This price is comprehensive, and includes all costs for questionnaire design,
sampte acquisition, survey hosting, telephone interviewing, data entry and
a na lysis, and reporting.
EXHIBIl'A
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