2018/03/14 PMW Associates Team Building Work ShopCITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this l4'h day of March, 2018 ("Effective Date") by and between the CITY OF MENIFEE, a
Califomia municipal corporation, ("City") and PMW ASSOCIATES, a 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 lorth in this Agreement, Consultant shalI 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 prevail.
1.1 'l'erm ofServices. The term of this A greement shall begin on March I 4, 201 8 and
shall end on April 15, 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 afl'ect City's right to terminate this Agreement, as provided tbr in
Section 8.
1.2 Standard of l)erformance. Consultant represents and warrants that Consultant is a
provider ol flrst class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perfbrm the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner ol the prol'ession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction olthe
Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assi gn only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, aI any
time during the term of this Agreement, desires the reassignment ofany such persons, Consultant
shall, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
I .4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
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SECTIoN 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed TWELVE THOUSAND NINE
HUNDRED DOLLARS ($12,900.00) notwithstanding any contrary indications that may be
contained in Consultant's proposal, lor the Services to be performed and reimbursable costs
incurred under this Agreement. In the event of a conflict between this Agreement and Exhibit A,
regarding the amount of compensation, this Agreement shall prevail. City shall pay Consultant
lbr the Services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified below shall be the only payments from City to Consultant for the Services
rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specified herein. Except as specifically authorized in advance by City, Consultant shall not bill
City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a. Serial identifications ofprogress bills; i.e., Progress Bill No. I tbr the first
invoice, etc.;
b. The beginning and ending dates ofthe billing period;
c. A "Task Summary" containing the original contract amount, the amount of
prior bi[[ings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City's option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consullant and each employee, agent, and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A;
Receipts for expenses to be reimbursed;
The Consultant Representative's signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29714 Haun Road
Meniflee, CA 92586
2.2 Monthly Pavment. Ci ty shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurrcd. City
f.
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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 remainder ofthe 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 ofthe 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 lor 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 ol'compensation provided above either for a task or lbr the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to lhe submission of such an invoice.
2.5 Hourly Fees. Fees lbr the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the lee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the maximum
amount of this Agreement.
2.7 Pavment ofTaxes. Consultant is solely responsible for the payment of ernployment
taxes incurred under this Agreemenl 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 satislactorily completed and for reimbursable
expenses as of the date of written notice of termination. Consultant shall maintain adequale logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SBCTION -1. FACILITTES AND EQtiIPMENT.
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 incuning any direct expense, including but not
limited lo computer, long-distance telephone or other communication charges, vehicles, and
reproduction facilities.
SECTION 4. TNSURANCE REQUTRnMENTS.
Belbre beginning any work under this Agreement. Consultant, at its own cost and expense,
shall procure the types and amounts ol 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 l{Lorkcrsl eqnlpensation. Consultant shall. at its sole cost and ex pense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe California
Labor Code. Statutory Workers' Compensation Insurance and Employer's Liabitity 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 ($1,000,000.00) disease per policy. In the altemative, Consultant may rely on a self-
insurance program to meet those requirenrents, but only if the program of self-insurance complies
fully with the provisions ofthe Calilornia Labor Code. Determination ofwhether a selfl-insurance
program meets the standards ofthe Calitbrnia Labor Code shall be solely in the discretion ofthe
Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of sell'-
insurance is provided, shall waive all rights ofsubrogation against City and its officers. oft'icials,
employees. and authorized volunteers for loss arising from the Services perlormed under this
Agreement.
4.2 Commercial General and Automobile Liabilit Insurance.
a- General requirements. Consultant , at its own cost and expense. shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($ I ,000,000.00) per occurrence, combined
single limit coverage, fbr 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 Liabitity Insurance lorm or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use ofhired, owned, and non-owned automobiles.
b. Minimum scopc of coverage Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Offlce Automobile Liability
form CA 0001 Code 2,8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional reouirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
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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 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 ProfessionalLiabilitvlnsurance.
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 perlorming 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 lbllowin g provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroaclive date of the policy must be shown and must be no
later than the comnrencement ofthe Services.
b. lnsurance 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 Eff'ective
Date ofthis Agreement, Consultant musl provide extended reporting coverage lbr
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: ( I ) renewal of lhe existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement ofthe Services under this Agreement. City shall have the
right to exercise, at Consultant's sole cost and expense, any extended reporting
provisions ofthe policy, ilConsultant 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 Rcquiremcnts.
a. Acceptabili ty 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.
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b. Verification of coverase. Prior to beginning the Services under this
Agreement, Consultant shall lumish 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 Ce(ificate of Insurance must include the following reference:
- Community Development Department Services. The name and address for
Additional Insured endorsements, Certillcates oflnsurance and Notice of Cancellation is: Cityof
Menifee, 29714 Haun Road, Menit'ee, CA 92586. City must be endorsed as an additional insured
for liability arising out ofongoing and completed operations by or on behalf of Consultant.
Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten (10) working days ii (l) any ofthe required insurance
policies is terminated; (2) the Iimits olany ofthe required polices are reduced; or (3) the deductible
or self insured retention is increased.
d. Additional insured: primary insurance. City and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out ol the Services performed by or on behalf of Consultant,
including the insured's general supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant: and automobiles
owned, leased, or used by Consultant in the course of providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope olprotection aflorded
to City or its otficers, 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 sell-insurance program maintained by City. AdditionaI insured status shall continue
fbr one ( I ) year atler the expiration or termination ofthis Agreement or completion ofthe Services.
Deductibles and Self-insured Retentions. Consultant shall obtain thec.
written approval of City for the self-insured retentions and deductibles before beginning any ofthe
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 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 fumish separate certificates and certified endorsements for each
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A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
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 ofsuch 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 olher 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 lrom 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 Agrecment.C
SECTION 5. INDEMNIFICATION.
5.1 Indernnil rcation for Profbssional Liabilitv. Where the law establishes a
professional standard of care lor 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 ofany 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 pa( 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 ofprofessional
services under this Agreement.
5.2 Inden.rniiication for Other than Prol'essional Liability. Other than in the
perfbrmance of professional services and to the full extent permitted by law, Consultant shall
indemnify, protect, def'end (with counsel selected by City), and hold harmless City, and any and
all of its officers, employees, officials. volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of. or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
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5.3 Limitation of Indemnification. The provisions ol this Section 5 do not apply to
claims occuring as a result of City's sole or active negligence. The provisions of this Section 5
shall not release City from liability arising liom gross negligence or willful acts or omissions of
City or any and all of its officers, otficials. employees, and agents acting in an olficial capacity.
SI'CTION 6. STATIIS OF C0NSI.]LTANT.
6.1 Independent Contractor. Atall timesduri ng the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation. benefit, or any incident of employment by
City, including but nol limited to eligibility 1o 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 benetits.
SECTION 7. LEGAL REQUIREMENTS.
7 .1 Governins Law. The laws ol the State ol Calilornia shall govern this Agreement.
I .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 ol
the work hereunder. Consultant is aware of the requirements of Califomia Labor Code
Sections 1720, et seq., and 1770. et seg., as well as California Code of Regulations, Title 8,
Sections 1600, et seq., ("Prevailing Wage Laws"), which require the payment ofprevailing wage
rates and the performance of olher requirements on "Public works" and "Maintenance" projects.
If the Services are being performed as part of an applicable "Public works" or "Maintenance"
project, as defined by the Prevailing Wage Laws, and if the total compensation is ONE
I'IIOUSAND DOLLARS ($ I ,000) or more, Consultant agrees to fully comply with such
Prevailing Wage Laws including, but not limited to, requirements related to the maintenance of
payroll records and the employment of apprentices. Consultant will maintain and will require all
subcontractor to maintain valid and current California Department ollndustrial Relations ("DIR")
Public Works Contractor registration during the term of this Agreement. Consultant shall notify
the City in writing immediately, and in no case more than twenty-four (24) hours, after receiving
any information that Consultant's or any of its subcontractor's DIR registration status has been
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suspended, revoked, expired, or otherwise changed. It is understood that it is the responsibility of
Contractor to determine the correct salary scale. Any and all work subject to prevailing wages, as
determined by the Director of Industrial Relations olthe State of California, will be the minimum
paid to all laborers, including Consultant's employee and subcontractors. It is understood that it
is the responsibility ofConsultant to determine the correct scale. The State Prevailing Wage Rates
may be obtained from the California Department of Industrial Relalions ('DIR') pursuant to
Califbmia Public Utilities Code, Sections 465,466,and467 by calling 415-7 03-47 74. Appropriate
records demonstrating compliance with such requirement shall be maintained in a safe and secure
location at all times, and readity 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 attomeys' 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 ofany 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 l78l 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 perfbrming
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 ofthe Services, including, without limitation, any and
all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-
payment ol prevailing wages under Califomia 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
appticable laws and regulations and effectuating compliance with such laws. Consultant shall
require the same of all subcontractors. Consultant shall not hire or employ any person to perlorm
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.
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 ol
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 notitication to Consultant.
8.2 Term ination bv Consultant. Consultant ma
written notice to City
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y cancel this Agreement upon 30 days'
8.3 Consequences of Termination. In the event of terminati on, Consultant shall be
entitled to compensation for the Services performed up to the date oltermination; 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 l.l. 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 shatl have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5
all the Parties
Amendments. '[ he Partics ma y amend this Agreement only by a writing signed by
8.6 Assignment and Subcontracting. Ci ty and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination
ol 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 ol Consultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval ofthe Contract Administrator. Consultant
shall not subcontract any portion ofthe pertbrmance 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 obli gations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consuttant. If Consultant materiall 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;
c. Retain a different consultant to complete the Services described in
Exhibit A; and/or
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b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
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.
9.1 Records Created as Part of Consultant's Performance. AII reports. data" maps,
models, charts, studies, surveys. photographs, memoranda, plans, studies, specifications, records,
fi[es, 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 fbr other projects by City shall be without liability to Consultant. City and
Consultant agree that, until final approval by City, atl data, plans, specifications, reports, and other
documents are confidential and will nol be released to third parties without prior written consent
olboth Pa(ies unless required by law.
9.3 Consultant's Books and Records. Consultant shall maintain any and all ledgers,
books olaccount, 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 offinal 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.
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SECTION 9. KEEPING AND STATUS OF RECORDS.
9.2 Licensins of Intellectual Propertv. This Agreemenl 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 thal 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 ofthe 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.
9.4 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 Calilbmia Government Code Section 8546.7, if the amount of public firnds 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, fbr a period ofthree (3) years after final payment under this Agreement.
-ll-
SECTIONlO. MISCELLANEOUSPROVISIONS.
10.1 Attorneys' Fees. If either Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision ofthis Agreement, the prevailing
Pafty shall be entitled to reasonable attorneys' fees and expenses including costs, in addition to
any other relief to which that Party may be entitled; provided, however, that the attomeys' fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
litigation. The coutt may set such fees in the same action or in a separate action brought lbr that
purpose.
10.2 Applicable Law: Venue. The intemal laws of the State of Calilomia shall govern
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severabilit),. If any provision of this Agreement is held invalid, the remainder ol
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevefiheless be in full force and effect.
10.4 Section Headinss and Subheadin The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 No Imolied Waiver of Breach. The waiver of any breach of a specific provision of
this Agreement does not constitute a waiver of any 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 ofthe Parties.
10.7 Consultant ve . All matters under this Agreement shall be handled for
Consultant by Marilyn Whisenand ("Consultant's Representative"). The Consultant's
Representative shall have full authority to represent and act on behalf ofConsultant for all purposes
under this Agreement. I'he 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 o1'all portions of the Serviccs
under this Agreement.
10.8 Ci Contract dministration. This A greement shall be administered by a City
employee, Gina Gonzalez, Economic Development Manager ("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 behall of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
-12-680/031858-0001
9164159 la02/07/18
PMW Associates
Marilyn Whisenand
232 W. Avenieda Gaviota
pmw@pmwassociates.com
(949) 498-7085
Any written notice to City shatl be sent to the Contract Administrator at:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: Lisa Gordon
with a copy to:
City Clerk
City of Menifee
29714 Haun Road
Menifee, CA 92586
10.10 Professional Seal.Where applicable in the determination of the Contract
Administrator, the first page ola technical report, first page ofdesign specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the reporUdesign 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. I I Riehts and Remedies. Ex cept with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies ofthe 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 differenl times, ofany other rights or remedies lor the same default
or any other default by the other Party.
10.12 Inteqration. This Agreement, including the scope ofservices 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 fbr or against either Party by reason of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. 1'his Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
-13-680/0:1t858-000t
9164159.1a02/07r18
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) thal entering into this Agreement does not violate any provision of any other Agreement to
which said Party 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 perfbrmance of this Agreement
there shall be no discrimination against or segregation of, any person or group ol persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Partv Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no suclr other third parties shall have any rights or obligations hereunder.
I 0. 17 Nonliabilitv of City Olficers and Employees. No officer, oflicial, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event ofany delault 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 of this Agreement.
10. I 8 No Undue Influence. Consultant declares and warrants tlral no undue inlluence or
pressure is used against or in concert with any officer or employee of Cily in connection with the
award, terms or implementation of this Agreement, including any method of coercion, confldential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or lrom any officer, employee, or agent of
Consultant, in connection with the award olthis Agreement or any work to be conducted as a result
of this Agreement.
I0.19 No Benefil to Arise to City Employees. No member, officer, or employee of City,
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during hisiher tenure or for one ('l) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, fbr the Services 1o be performed under this Agreement.
ISignaturcs on Following Pagcl
680/01t85E-0001
9164159 1 a02/07/18 - l4-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as ofthe Effective Date.
CITY OF MENIFEE CONSULTANT
Armando Villa, City Manager
Attest:
PMW Associates
Paul Whisenand, PMW AssociatesSarah Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Aftomey
680/03 I 858-{n0 r
9164159.1a02/21i14 - l5-
ih rtoA tuL*-)
J
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Eflective Date.
CITY OF ME,NI CONSULTANT
Armando V Manager Marilyn Whisenand, PMW Associates
Attest:
Manwaring,ty Clerk Paul Whisenand, PMW Associates
A to Form:
ching, City
680/031858-000r
9164159 la02/07/18 -15-
L,4-t)
EXHIBIT A
SCOPE OF SERVICES
March 14,2018 1200 to 1400
Step One: PMW Associates will facilitate a two-hour Team Building Workshop
with the City Manager and staff to review the results of the LIFO and FIRO B
"awareness scales" previously administered by PMW Associates. The group of
attendees should include all Directors and Managers. During this meeting, time
will be provided for the City Manager and PMW Associates to describe plans for
the Strategic Planning Workshop to be held with the City Council.
March 14, 2018 1300 to 1700
Step Two: PMW Associates will hold 4S-minute, individual interviews with the
City Manager and each of the City Council members.
March 15, 2018 0800 to 1200
Step Three: Following the interviews, PMW Associates will facilitate a Strategic
Planning Workshop with the City Council resulting in a Strategic Plan for FY
2018-19.
March 15,20181300 to 1500
Step Four: Following the City Council Strategic Planning Session. PMW
Associates will provide feedback to the City Manager and his staff and facilitate
the crafting of an implementation plan based on City Council priorities.
By April 15,20'18
Step Five: PMW Associates will provide a written repo( summarizing the results
of the project, to include recommendations for implementation of the Strategic
Plan.
a
a
a
680/0t I858-0001
9164159.1a02/07/18
EXHIBIT A
PAGE I of2
Total Fee
$1,400
Fee
$11,500
ATTACHMENT B
(Payment for Services)
Following are the fees for services:
Tota! Not to Exceed $12,900
Not to Exceed Expenses
Total Estimated Expenses
680/031E58-0001
9l64l59.lfaa02/07/18