2024/01/08 Golden State Communications, Inc. Equipment and Software Services Agreement Menifee Police Department Airtime for Two Way Radios for the Special Enforcement (SET) Team2905/031858-0001
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CITY OF MENIFEE
EQUIPMENT AND SOFTWARE SERVICES AGREEMENT
MENIFEE POLICE DEPARTMENT: AIRTIME FOR TWO WAY RADIOS FOR THE
SPECIAL ENFORCEMENT (SET) TEAM
THIS EQUIPMENT AND SOFTWARE SERVICES AGREEMENT (“Agreement”) is
made and effective this ______ day of __________, 2023 (“Effective Date”) by and between the
CITY OF MENIFEE, a California municipal corporation, (“City”) and GOLDEN STATE
COMMUNICATIONS, INC, a California S-Corporation (“Consultant”). City and Consultant
may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.”
SECTION 1. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated
herein by this reference (the “Services”). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event of a conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on December 4,
2023 and shall end on December 3, 2025 (“Initial Term”). Upon termination of the Initial Term,
this Agreement shall automatically renew for one (1) additional one (1) year term (“First Renewal
Term”). Upon termination of the First Renewal Term, if it occurs, this Agreement shall
automatically renew for one (1) additional one (1) year term (“Second Renewal Term”). None of
the renewal terms provided hereunder shall occur if the term of this Agreement is otherwise
terminated or extended as provided for in Section 8. The word “term” shall refer to the Initial
Term and any renewal term which actually occurs. The time provided to Consultant to complete
the Services required by this Agreement shall not affect City’s right to terminate this Agreement.
1.2 Standard of Performance. Consultant represents and warrants that
Consultant is a provider of first class work and services and Consultant is experienced in
performing the Services contemplated herein and, in light of such status and experience,
Consultant shall perform the Services required pursuant to this Agreement in the manner and
according to the standards observed by a competent practitioner of the profession in which
Consultant is engaged in the geographical area in which Consultant practices its profession and to
the sole satisfaction of the Contract Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent
personnel to perform the Services pursuant to Agreement. In the event that City, in its sole
discretion, at any time during the term of this Agreement, desires the reassignment of any such
persons, Consultant shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant’s obligations
hereunder.
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1.5 Authorization to Perform Services. Consultant is not authorized to perform
any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt
of authorization from the Contract Administrator.
1.6 Warranty. By executing this Agreement, Consultant warrants that
Consultant (i) has thoroughly investigated and considered the Services, (ii) has carefully
considered how the Services should be performed, and (iii) fully understands the facilities,
difficulties, and restrictions attending performance of the Services.
1.7 Covid-19 Safety. If Consultant enters City property or meets in person with
City employees during the performance of the Services, Consultant shall comply with all
applicable emergency orders, directives, protocols, and best practices related to the COVID-19
pandemic, including, but not limited to: (A) wearing facial coverings, (B) maintaining adequate
physical distancing when possible, (C) regular hand washing, and (D) regular hand sanitizing.
1.8 Cyber Security Incident and Data Breach Notification. In the event of a
cyber security incident or a data breach (each an "incident"), as such cyber security incident or
data breaches are defined by applicable law, which may detrimentally impact City’s information
technology network, Consultant will report said incident by the fastest means available and also in
writing, within forty-eight (48) hours after Consultant reasonably believes that there has been a
such incident has occurred. The notification shall identify the nature of the incident; (b) the data
accessed, used, or disclosed; (c) the persons who accessed, used, disclosed, or received the data;
(d) Provider’s approach to quarantine or mitigate the incident; and (e) what corrective action
Consultant will take or has taken to prevent future incidents. Consultant will provide daily, or
more frequently where requested by City, regarding findings and actions performed by Consultant
until the cyber security incident has been effectively resolved to your satisfaction. Consultant will
quarantine the incident to ensure secure access to data, and repair the Services as needed to recover
from the incident. Consultant shall conduct an investigation of the incident and share the report
of the investigation with City. After any significant incident determined in City’s reasonable
discretion to be catastrophic and material, Consultant will at its expense have an independent,
industry-recognized, City-approved third party perform an information security audit. The audit
results shall be shared with City within seven (7) days of Provider’s receipt of such results. Upon
Consultant receiving the results of the audit, Consultant will provide City with written evidence of
planned remediation within thirty (30) days and promptly modify its security measures in order to
meet its obligations under this Agreement. Section 5, Indemnification shall specifically apply to
Claims (defined below) arising from cyber security incidents or data breaches which impact City’s
information systems network through Provider’s network, system, or Services.
1.9 SOC Compliance. Where Consultant is required by law to attain and
maintain System & Organizational Controls (“SOC”)1 and SOC 2 compliance, or its equivalent,
for the Services, Consultant shall maintain such compliance for the duration of the Agreement,
and shall provide a copy of Provider’s SOC 1 Type 2 and SOC 2 Type 2 compliance reports to
City within thirty (30) days of execution of the Agreement.
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SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed Twelve Thousand Four
Hundred Eighty Six Dollars and Thirteen Cents ($12,486.13) notwithstanding any contrary
indications that may be contained in Consultant’s proposal, for the Services to be performed and
reimbursable costs incurred under this Agreement. In the event of a conflict between this
Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail.
City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in
the manner set forth herein. The payments specified below shall be the only payments from City
to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all
invoices to City in the manner specified herein. Except as specifically authorized in advance by
City, Consultant shall not bill City for duplicate services performed by more than one person. In
no event shall the compensation paid during the term of this Agreement exceed the following
amounts:
a. Initial Term ($35/month or $105/quarterly per radio for 7 radios for the initial term of two
years = $5,880 plus the onetime cost of $726.13): Six Thousand Six Hundred Six Dollars and
Thirteen Cents ($6,606.13)
b. First Renewal Term ($35/month or $105/quarterly per radio for 7 radios for 12 months):
Two Thousand Nine Hundred Forty Dollars and Zero Cents ($2,940.00)
c. Second Renewal Term ($35/month or $105/quarterly per radio for 7 radios for 12 months):
Two Thousand Nine Hundred Forty Dollars and Zero Cents ($2,940.00)
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for
the first invoice, etc.;
b. The beginning and ending dates of the billing period;
c. A “Task Summary” containing the original contract amount, the
amount of prior billings, the total due this period, the balance available under this Agreement, and
the percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable
time entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each reimbursable
expense;
e. The total number of hours of work performed under this Agreement
by Consultant and each employee, agent, and subcontractor of Consultant performing the Services
hereunder necessary to complete the Services described in Exhibit A;
f. Receipts for expenses to be reimbursed;
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g. The Consultant Representative’s signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments, based on invoices
received, for the Services satisfactorily performed, and for authorized reimbursable costs incurred.
City shall have thirty (30) days from the receipt of an invoice that complies with all of the
requirements above to pay Consultant.
2.3 Retention of Funds, Final Payment. Consultant hereby authorizes City to
retain and deduct from any amount payable to Consultant not exceeding five percent (5%) of the
total compensation. The retained funds shall be paid to Consultant within sixty (60) days after
final acceptance of the Services by the City and after Consultant has furnished City with full release
of all undisputed payments under this Agreement. In the event there are any claims specifically
excluded by Consultant from the operation of the release, City may retain proceeds of up to one
hundred fifty percent (150%) of the amount in dispute. The failure of City to exercise such right
to deduct or to withhold shall not, however, affect the obligations of Consultant to insure,
indemnify, and protect City as provided in this Agreement. City shall pay the last five
percent (5%) of the total amount due pursuant to this Agreement within sixty (60) days after
completion of the Services and submittal to City of a final invoice, if all of the Services required
have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or
cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly
basis shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within the
maximum amount of this Agreement.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant terminates
this Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs
and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
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expenses as of the date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Consultant’s use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
required to furnish any facility or equipment that may involve incurring any direct expense,
including but not limited to computer, long-distance telephone or other communication charges,
vehicles, and reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance listed below and provide certificates of insurance,
indicating that Consultant has obtained or currently maintains insurance that meets the
requirements of this Section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this Section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant’s compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereof to City. Verification of the required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other insureds. Consultant agrees that the requirement to
provide insurance shall not be construed as limiting in any way the extent to which Consultant
may be held responsible for the payment of damages to any persons or property resulting from
Consultant activities or the activities of any person or persons for which Consultant is otherwise
responsible nor shall it limit Consultant’s indemnification liabilities as provided in Section 5.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense,
maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any
and all persons employed directly or indirectly by Consultant pursuant to the provisions of the
California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability
Insurance shall be provided with limits of not less than ONE MILLION
DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease
per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the
alternative, Consultant may rely on a self-insurance program to meet those requirements, but only
if the program of self-insurance complies fully with the provisions of the California Labor Code.
Determination of whether a self-insurance program meets the standards of the California Labor
Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is
provided, or Consultant, if a program of self-insurance is provided, shall waive all rights of
subrogation against City and its officers, officials, employees, and authorized volunteers for loss
arising from the Services performed under this Agreement.
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4.2 Commercial General and Automobile Liability 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 ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use of hired, owned, and non-owned automobiles.
b. Minimum Scope of Coverage. Commercial general coverage shall
be at least as broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile
Liability form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional Requirements. Each of the following shall be included
in the insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
(ii) Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents, and
volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Consultant, at its own cost and expense,
shall maintain for the period covered by this Agreement professional liability insurance for
licensed professionals performing the Services pursuant to this Agreement in an amount not less
than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and
omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the
deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND
DOLLARS ($25,000), it must be approved in writing by City.
b. Claims-Made Limitations. The following provisions shall apply if
the professional liability coverage is written on a claims-made form:
(i) The retroactive date of the policy must be shown and must be no
later than the commencement of the Services.
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(ii) 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.
(iii) If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective Date of this
Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years
after the expiration or termination of this Agreement or the completion of the Services. Such
continuation coverage may be provided by one of the following: (1) renewal of the existing policy;
(2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date
no later than the commencement of the Services under this Agreement. City shall have the right
to exercise, at Consultant’s sole cost and expense, any extended reporting provisions of the policy,
if Consultant cancels or does not renew the coverage.
(iv) 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. 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.
b. Verification of Coverage. Prior to beginning the Services under this
Agreement, Consultant shall furnish City with certificates of insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The certificate of insurance must include the following reference:
MENIFEE POLICE DEPARTMENT: AIRTIME FOR TWO WAY RADIOS FOR THE
SPECIAL ENFORCEMENT (SET) TEAM. The name and address for additional insured
endorsements, certificates of insurance and notice of cancellation is: City of Menifee, 29844 Haun
Road, Menifee, CA 92586. City must be endorsed as an additional insured for liability arising out
of ongoing and completed operations by or on behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant
shall provide written notice to City within ten (10) working days if: (1) any of the required
insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the
deductible or self insured retention is increased. In the event any of said policies of insurance are
cancelled, Consultant shall, prior to the cancellation date, submit new evidence of insurance in
conformance with this Section 4 to the Contract Administrator.
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 of the Services performed by or on behalf of
Consultant, including the insured’s general supervision of Consultant; products and completed
operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and
automobiles owned, leased, or used by Consultant in the course of providing the Services pursuant
to this Agreement. The coverage shall contain no special limitations on the scope of protection
afforded to City or its officers, employees, agents, or authorized volunteers. The insurance
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provided to City as an additional insured must apply on a primary and non-contributory basis with
respect to any insurance or self-insurance program maintained by City. Additional insured status
shall continue for one (1) year after the expiration or termination of this Agreement or completion
of the Services.
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.
e. Deductibles and Self-Insured Retentions. Consultant shall obtain
the written approval of City for the self-insured retentions and deductibles before beginning any
of the Services.
During the term of this Agreement, only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses
and related investigations, claim administration, and defense expenses that is satisfactory in all
respects to each of them.
f. Subcontractors. Consultant shall include all subcontractors as
insureds under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
g. Variation. The Contract Administrator may, but is not required to,
approve in writing a variation in the foregoing insurance requirements, upon a determination that
the coverage, scope, limits, and forms of such insurance are either not commercially available, or
that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have
if Consultant fails to provide or maintain any insurance policies or policy endorsements to the
extent and within the time herein required, City may, at its sole option, exercise any of th e
following remedies, which are alternatives to other remedies City may have and are not the
exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold
any payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
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SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents from and against
any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City, the legal costs of counsel retained by City) and any judgment (collectively,
“Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error,
or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of professional
services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and
all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
5.3 Limitation of Indemnification for Design Professionals. Notwithstanding
any provision of this Section 5 to the contrary, design professionals, as that term is defined in Civil
Code Section 2782.8, are required to defend and indemnify City only to the extent permitted by
Civil Code Section 2782.8. The term “design professional” as defined in Section 2782.8, is limited
to licensed architects, licensed landscape architects, registered professional engineers, professional
land surveyors, and the business entities that offer such services in accordance with the applicable
provisions of the California Business and Professions Code. This Subsection 5.3 shall only apply
to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section
2782.8.
5.4 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. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Consultant shall be an independent
contractor and shall not be an employee of City. City shall have the right to control Consultant
only insofar as the results of the Services rendered pursuant to this Agreement and assignment of
personnel pursuant to Subsection 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
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times be under Consultant’s exclusive direction and control. Consultant shall not at any time or in
any manner represent that it is or any of its officers, employees, or agents are 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 not
limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as
an employee of City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this
Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall
comply with all applicable local, state, and federal laws and regulations applicable to the
performance of the work hereunder. Consultant shall not hire or employ any person to perform
work within City or allow any person to perform the Services required under this Agreement unless
such person is properly documented and legally entitled to be employed within the United States.
Consultant acknowledges and agrees that it shall be independently responsible for reviewing the
applicable laws and regulations and effectuating compliance with such laws. Consultant shall
require the same of all subcontractors.
7.3 Prevailing Wages. Consultant acknowledges and agrees that it shall be
independently responsible for reviewing the applicable prevailing wage laws and regulations and
effectuating compliance with such laws where they apply to the Services, including, but not limited
to the prevailing wage and related requirements set forth in this Subsection 7.3. Consultant shall
bear all risks of payment or non-payment of prevailing wages under California law and/or the
implementation of Labor Code Section 1781, as the same may be amended from time to time,
and/or any other similar law.
a. Public Work. Consultant hereby expressly acknowledges and
agrees that City has never previously affirmatively represented to Consultant, its employees or
agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720
of the Labor Code. It is agreed by the Parties that, in connection with the development,
construction (as defined by applicable law) and operation of the Services, including, without
limitation, any public work (as defined by applicable law), if any, Consultant shall bear all risks
of payment or non-payment of state and/or federal prevailing wages and/or the implementation of
Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time
to time, and/or any other provision of law. To the extent applicable, City will enforce all penalties
required by law for Consultant’s failure to pay prevailing wages.
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b. Labor Code of California. The Consultant’s attention is directed to
Division 2, Part 7, Chapter 1 of the Labor Code of the State of California and especially to Article
2 (Wages); and Article 3 (Working Hours), thereof.
(i) In accordance with Sections 1773 and 1773.2 of the Labor Code,
City has found and determined the general prevailing rates of wages in the locality in which the
public work is to be performed are those determined by the Director of Industrial Relations and
available at https://www.dir.ca.gov/OPRL/2022-1/PWD/Southern.html. Copies of the prevailing
rates of wages are maintained with City’s principal office and are available to any interested party
on request. Consultant shall post a copy of the prevailing rate of per diem wages at each job site.
(ii) Consultant is aware of and will comply with the provisions of Labor
Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof
in accordance with said Section. Pursuant to Labor Code Section 1771.4, Consultant must submit
certified payroll records to the Labor Commissioner using the Department of Industrial Relations’
electronic certified payroll reporting (eCPR) system.
(iii) Pursuant to Labor Code Section 1810, it is stipulated hereby that
eight (8) hours labor constitutes a legal day’s work hereunder.
(iv) Pursuant to Labor Code Section 1815, work performed by
employees of contractors in excess of eight (8) hours per day, and 40 hours during any one week,
shall be permitted upon public work upon compensation for all hours worked in excess of eight
(8) hours per day at not less than 1 ½ times the basic rate of pay.
(v) Pursuant to Labor Code Section 1813, it is stipulated hereby that
Consultant shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed
in the execution of this Agreement by Consultant or by any subcontractor hereunder for each
calendar day during which such worker is required or permitted to work more than eight (8) hours
in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the
provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the Labor
Code.
(vi) Consultant is aware of and will comply with the provisions of Labor
Code Sections 1777.5 and 1777.6 with respect to the employment of apprentices. Pursuant to
Section 1777.5 it is hereby stipulated that Consultant will be responsible for obtaining compliance
therewith on the part of any and all sub-consultants or subcontractors employed by Consultant in
connection with this Agreement.
(vii) Pursuant to Labor Code Section 1775, it is hereby stipulated that
Consultant shall, as a penalty to City, forfeit not more than two-hundred dollars ($200) for each
calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined
by the Director of Industrial Relations for the work or craft in which the worker is employed for
the Services by Consultant or any sub-consultant or subcontractor.
c. Bidding Eligibility. Pursuant to Labor Code Section 1771.1, no
contractor or subcontractor (or consultant or subconsultant) may be listed on a bid proposal for a
public works project unless registered with the Department of Industrial Relations.
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d. DIR Monitoring. Pursuant to Labor Code Section 1771.4,
Consultant is hereby notified that this project is subject to compliance monitoring and enforcement
by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5,
Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance
by Consultant or any party performing the Services of any applicable local, state, and/or federal
law, including, without limitation, any applicable federal and/or state labor laws (including,
without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the
implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time
to time, or any other similar law; and/or (iii) failure by Consultant or any party performing the
Services to provide any required disclosure or identification as required by Labor Code Section
1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees and Assessments. Consultant represents,
warrants, and covenants 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, and perform the Services. Consultant represents,
warrants, and covenants 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, and perform the Services. In addition to the foregoing, Consultant and any
subcontractors shall obtain and maintain during the term of this Agreement valid business licenses
from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes,
plus applicable penalties and interest, which may be imposed by law and arise from or are
necessary for Consultant’s performance of the Services, and shall indemnify, defend and hold
harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes,
penalties or interest levied, assessed, or imposed against City hereunder.
7.5 Conflicts of Interest, Political Reform Act. Consultant represents, warrants,
and covenants that Consultant presently has no interest, direct or indirect, which would interfere
with or impair in any manner or degree the performance of Consultant’s obligations and
responsibilities under this Agreement. Consultant further agrees that while this Agreement is in
effect, Consultant shall not acquire or otherwise obtain any interest, direct or indirect, that would
interfere with or impair in any manner or degree the performance of Consultant’s obligations and
responsibilities under this Agreement. Consultant acknowledges that pursuant to the provisions
of the Political Reform Act (Government Code Section 87100 et seq.), City may determine the
Consultant to be a “consultant” as that term is defined by 2 California Code of Regulations Section
18700.3. In the event City makes such a determination, Consultant agrees to complete and file a
“Statement of Economic Interest” with the City Clerk to disclose such financial interests as
required by City. In such event, Consultant further agrees to require any other person doing work
under this Agreement to complete and file a “Statement of Economic Interest” to disclose such
other person’s financial interests as required by City.
7.6 Annual Appropriation of Funding. In accord with Article 16 Section 18 of
the California Constitution, payment of compensation under this Agreement is contingent upon
annual appropriation of funds by City for that purpose. Consultant acknowledges and agrees that
to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is
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expressly conditioned on City’s annual appropriation of funds for such Services for each year. If
no funds are appropriated then this Agreement shall be terminated. City pledges and agrees to
process such appropriation requests annually and in good faith. Nothing in this Subsection shall
be construed to limit the right of either Party to terminate this Agreement as provided herein.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause
upon written notification to Consultant.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon
30 days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall
be entitled to compensation for the Services performed up to the date of termination; City,
however, may condition payment of such compensation upon Consultant delivering to City any or
all documents, photographs, computer software, video and audio tapes, and other materials
provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end
date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall
require a written amendment to this Agreement, as provided for herein. Consultant understands
and agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this Agreement.
Similarly, unless authorized by the Contract Administrator, City shall have no obligation to
reimburse Consultant for any otherwise reimbursable expenses incurred during the extension
period.
8.5 Amendments. The Parties may amend this Agreement only by a writing
signed by all the Parties.
8.6 Assignment and Subcontracting. City and Consultant recognize and agree
that this Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant’s unique personal competence, experience, and specialized personal
knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and
is the professional reputation and competence of Consultant. Consultant may not assign this
Agreement or any interest therein without the prior written approval of the Contract Administrator.
Consultant shall not subcontract any portion of the performance contemplated and provided for
herein, other than to the subcontractors noted in Consultant’s proposal, without prior written
approval of the Contract Administrator. In the event that key personnel leave Consultant’s employ,
Consultant shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of
this Agreement and all provisions of this Agreement allocating liability between City and
Consultant shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materially breaches any
of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all of
the following:
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a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design
documents, and any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the
Services described in Exhibit A that is unfinished at the time of breach and the amount that City
would have paid Consultant pursuant to Section 2 if Consultant had completed the Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data,
maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications,
records, files, or any other documents or materials, in electronic or any other form that Consultant
prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder
shall be the property of City. Consultant hereby agrees to deliver those documents to City upon
the expiration or termination of this Agreement. It is understood and agreed that the documents
and other materials, including but not limited to those described above, prepared pursuant to this
Agreement are prepared specifically for City and are not necessarily suitable for any future or other
use. Any use of such documents for other projects by City shall be without liability to Consultant.
City and Consultant agree that, until final approval by City, all data, plans, specifications, reports,
and other documents are confidential and will not be released to third parties without prior written
consent of both Parties unless required by law.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive
and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights,
designs, rights of reproduction, and other intellectual property embodied in plans, specifications,
studies, drawings, estimates, test data, survey results, models, renderings, and other documents or
works of authorship fixed in any tangible medium of expression, including but not limited to,
physical drawings, digital renderings, or data stored digitally, magnetically, or in any other
medium, which are prepared or caused to be prepared by Consultant under this Agreement
(“Documents and Data”). Consultant shall require all subcontractors to agree in writing that City
is granted a non-exclusive and perpetual license for any Documents and Data the subcontractor
prepares under this Agreement. Consultant represents and warrants that Consultant has the legal
right to license any and all Documents and Data. Consultant makes no such representation and
warranty in regard to Documents and Data which were prepared by design professionals other than
Consultant or provided to Consultant by the City. City shall not be limited in any way in its use
of the Documents and Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at City’s sole risk.
9.3 Consultant’s Books and Records. Consultant shall maintain any and all
ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for the Services or expenditures and disbursements charged to
City under this Agreement for a minimum of three (3) years, or for any longer period required by
law, from the date of final payment to Consultant under this Agreement. All such records shall be
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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
Subsection 9.3 of this Agreement requires Consultant to maintain shall be made available for
inspection, audit, and/or copying at any time during regular business hours, upon oral or written
request of City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this
Agreement shall be subject to the examination and audit of the State Auditor, at the request of City
or as part of any audit of City, for a period of three (3) years after final payment under this
Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action,
including an action for declaratory relief, to enforce or interpret the provision of this Agreement,
the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in
addition to any other relief to which that Party may be entitled; provided, however, that the
attorneys’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City
for legal services multiplied by the reasonable number of hours spent by the prevailing Party in
the conduct of the litigation. The court may set such fees in the same action or in a separate action
brought for that purpose.
10.2 Applicable Law, Venue. The laws of the State of California shall govern
this Agreement. In the event that either Party brings any action against the other under this
Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside
County.
10.3 Severability. If any provision of this Agreement is held invalid, the
remainder of this Agreement shall not be affected thereby and all other parts of this Agreement
shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of
any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term,
condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement
shall not constitute a waiver of any other provision or a waiver of any subsequent breach or
violation of any provision of this Agreement. Acceptance by City of any work or services by
Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or
omission in the exercise of any right or remedy by a non-defaulting Party on any default shall
impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default
must be in writing and shall not be a waiver of any other default concerning the same or any other
provision of this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of and shall apply to and bind the successors and assigns of the Parties.
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10.7 Consultant Representative. All matters under this Agreement shall be
handled for Consultant by Matthew Igel (“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, Christine Booker, Police Budget & Grant Analyst (“Contract Administrator”).
All correspondence shall be directed to or through the Contract Administrator or his designee. The
Contract Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
GOLDEN STATE COMMUNICATIONS, INC
Attn: Matthew Igel
978 Rincon Circle
San Jose, CA 95131
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Christine Booker, Police Budget & Grant Analyst
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page of a technical report, first page of design specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and
Signature of Registered Professional with report/design responsibility,” as in the following
example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
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10.11 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
10.12 Integration. This Agreement, including the scope of services attached
hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement
between City and Consultant and supersedes all prior negotiations, representations, or agreements,
either written or oral. The terms of this Agreement shall be construed in accordance with the
meaning of the language used and shall not be construed for or against either Party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one agreement.
10.14 Execution of Contract. The persons executing this Agreement on behalf of
each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing,
(ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by
so executing this Agreement, such Party is formally bound to the provisions of this Agreement,
and (iv) that entering into this Agreement does not violate any provision of any other agreement
to which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, its heirs,
executors, assigns, and all persons claiming under or through them, that in the performance of this
Agreement there shall be no discrimination against or segregation of, any person or group of
persons on account of any impermissible classification including, but not limited to, race, color,
creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Party Beneficiaries. There are no intended third-party
beneficiaries under this Agreement and no such other third parties shall have any rights or
obligations hereunder.
10.17 Nonliability of City Officers and Employees. No officer, official,
employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or
any successor in interest, in the event of any default or breach by City or for any amount which
may become due to Consultant or to its successor, or for breach of any obligation of the terms of
this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue
influence or pressure is used against or in concert with any officer or employee of City in
connection with the award, terms or implementation of this Agreement, including any method of
coercion, confidential financial arrangement, or financial inducement. No officer or employee of
City shall receive compensation, directly or indirectly, from Consultant, or from any officer,
employee, or agent of Consultant, in connection with the award of this Agreement or any work to
be conducted as a result of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee
of City, or their designees or agents, and no public official who exercises authority over or has
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responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub -agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFEE
Rebekah Kramer, Acting City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Gary Carroll, President
Martha Morrison, Controller
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
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EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include MENIFEE POLICE DEPARTMENT: AIRTIME FOR TWO WAY
RADIOS FOR THE SPECIAL ENFORCEMENT (SET) TEAM services in the amount not to
exceed Twelve Thousand Four Hundred Eighty Six Dollars and Thirteen Cents ($12,486.13)
as further detailed in the following page(s). In no event shall the compensation paid during the term
of this Agreement exceed the following amounts:
a. Initial Term ($35/month or $105/quarterly per radio for 7 radios for the initial term of two
years = $5,880 plus the onetime cost of $726.13): Six Thousand Six Hundred Six Dollars and
Thirteen Cents ($6,606.13)
b. First Renewal Term ($35/month or $105/quarterly per radio for 7 radios for 12 months):
Two Thousand Nine Hundred Forty Dollars and Zero Cents ($2,940.00)
c. Second Renewal Term ($35/month or $105/quarterly per radio for 7 radios for 12 months):
Two Thousand Nine Hundred Forty Dollars and Zero Cents ($2,940.00)
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19338889.2 a00/00/00 EXHIBIT A.
Quote 1 – Purchase Quote
This is the one-time cost to purchase 7 x TLK100 radios, earpieces, car chargers, etc.
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19338889.2 a00/00/00 EXHIBIT A.
Quote 2 – Airtime Quote
This is for the ongoing service (aka airtime) fees. These are based on $35/month or $105/quarterly
per radio for 7 radios.
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