1 7
7 2
The City and EMWD have coordinated efforts and collectively agreed that EMWD will complete a full resurfacing of Ridgemoor Road, between Murrieta Road and approximately 500-feet west of Indus Street. By partnering on capital improvement project efforts, impacts to traffic would be minimized and both agencies would realize cost savings related to project mobilization.
To authorize EMWD to proceed with the resurfacing efforts, the City must execute the proposed Interagency Reimbursement Agreement (Agreement). EMWD has developed plans and determined, in coordination with City staff, that the City costs represent approximately 41% of the total costs for the resurfacing portion of the Project. EMWD would bear responsibility for the remaining 59% of total project costs. The Agreement establishes the City’s reimbursement to EMWD in an estimated amount of $202,000, with final costs to be determined upon completion of the Project.
Of note, the location identified as EMWD’s portion of resurfacing (Ridgemoor Road, between Murrieta Road and approximately 500-feet west of Indus Street) is not the entire scope of the City’s FY 2023/2024 Local Roads AC Resurfacing Program. There are additional locations identified as part of this Project and the City would be responsible and has budgeted for the work in those locations. The work in those remaining locations will be performed under a separate project administered by the City.
City Council action is required for approval of the proposed Agreement as the total amount of the agreement exceeds the City Manager’s signing authority.
STRATEGIC PLAN OBJECTIVE
Connectivity and Mobility
FISCAL IMPACT
Approval of the proposed Agreement would obligate the City to reimburse EMWD for the resurfacing improvements made on Ridgemoor Road, between Murrieta Road and approximately 500-feet west of Indus Street in the estimated amount of $202,000. Funding to support the reimbursement of these improvements has been budgeted in FY 2023/2024, as summarized in Table 1 below.
Table 1 – Existing Project Funding
Fund Project Available Budget Estimated
Reimbursement Cost
Measure A FY 23/24 Local Roads
AC Resurfacing Program $730,000 $202,000
ATTACHMENTS
1. Project Location Map
2. Interagency Reimbursement Agreement - EMWD
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 2
Menifee Mayor and City Council
September 6, 2023
Page
214 of 763
2000 ft
N
➤➤
N
EXHIBIT A
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 3
Menifee Mayor and City Council
September 6, 2023
Page
215 of 763
CITY OF MENIFEE ROAD REPAIR AND IMPROVEMENT
INTERAGENCY REIMBURSEMENT AGREEMENT
This Interagency Reimbursement Agreement (“Agreement”) is made and entered into this day of , 2023,
by and between EASTERN MUNICIPAL WATER DISTRICT, a public agency organized and existing under and by virtue of the Municipal Water District Law of 1911 (hereinafter referred to as “District”), and the CITY OF MENIFEE, a municipal corporation in the State of California (hereinafter referred to as “City”). District and City are sometimes individually referred to herein as “Party” and may be collectively referred to herein as “Parties”.
RECITALS
WHEREAS, the District is a public agency organized and existing under and by virtue of the Municipal Water District Law of 1911; and
WHEREAS, the City is a municipal corporation operating under the laws of the State of California; and
WHEREAS, District owns, operates, and maintains water, wastewater and recycled water facilities and infrastructure within or in proximity to City’s limits in accordance with EMWD Resolution 3224 (Trench Repair), Exhibit E, attached hereto; and WHEREAS, City owns, operates, and maintains roads, streets, and other similar facilities within or in proximity to District’s service area; and
WHEREAS, District is currently in construction of a Capital Improvement Project (CIP) (hereinafter, the “Project”) as generally depicted on Exhibit A, attached hereto and incorporated herein; and
WHEREAS, District’s responsibilities for road remediation associated with constructionof the aforementioned Project are pursuant to the District’s Plans and Specifications and the City of Menifee Standard Plans 812, 813, Exhibit B, attached hereto and incorporated herein; and WHEREAS, however, in conjunction with District construction, and due to the existing pavement conditions within the Project area, City desires for District to include comprehensive road repair and paving improvements above and beyond those specified in Exhibit B, with contribution from the City, under District’s contract(s) for construction of the Project; and WHEREAS, the purpose of this Agreement is to set forth the terms, conditions, and mutual understandings whereby District agrees to include specific additional road repair and paving improvements under District’s contract(s) for construction of the Project; and whereby City agrees to reimburse District for the additional costs to be incurred by District that are over and above the District’s road remediation obligation resulting from its construction of the Project, and to assume and continue all liability and responsibility for the ongoing ownership, maintenance and repair thereof.
1 Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 4
Menifee Mayor and City Council
September 6, 2023
Page
216 of 763
NOW, THEREFORE, in consideration of the promises and covenants herein contained, the Parties agree as follows:
AGREEMENT
1. 2.
Incorporation of Recitals. The Recitals set forth above are incorporated into and are a part of this Interagency Agreement.
Agreement. District hereby agrees to contract for road repair and paving improvements requested by City as part of or separate to the District’s contract(s) for the construction of the Project within the City’s limits. District shall contract for such road repair and paving improvements utilizing its own means and methods. City hereby agrees to reimburse District forty-one percent (41%) of the pavement bid schedule (B-1) with the exception of raising District facilities to grade which shall be 100% District responsibility, plus up to an additional 10% contingency for unforeseen pavement related change orders in an amount estimated at two hundred and two thousand dollars ($202,000) as indicated in Exhibit D for the additional costs incurred by District associated with such road repair and paving improvements that are over and above the District’s road remediation obligation resulting from its construction of the Project. The actual reimbursement amount paid to District by the City for its share of the work shall be determined at completion of the work.
3. Effective Date; Term and Termination. This Agreement shall be effective on the date of full execution of this Agreement by both parties (“Effective Date”). The term of this Agreement shall commence on the Effective Date and remain in effect until completion of the Project.
This Agreement may be terminated by District at any time prior to initiating construction of City desired road repair and paving improvements that are above and beyond those required in accordance with Exhibit B. City may terminate this Agreement at any time, with or without cause, by providing at least twenty days written notice to District of such termination. In such event, City shall compensate District for all costs incurred by District through the effective date of such termination for, only, that portion of road repair and paving improvements beyond those required in accordance with Exhibit B. In such event, District shall provide City a detailed accounting of any such costs incurred for review and approval, which such review, approval and payment to District shall not be unreasonably withheld.
4. Plans and Specifications. District has included the City requested paving repairs and associated paving improvements as a separate bid schedule to District’s contract(s) for construction of the Project. City hereby acknowledges and agrees that it is responsible to review and provide written approval of all such plans and specifications prior to construction, and in doing so agrees that such plans and specifications are suitable and acceptable for City’s needs and intended purpose.
The Specific Project additional work for the City’s participation in cost sharing with the District are detailed in Exhibit C.
5. Construction and Inspection. City shall also be responsible to inspect, at City’s expense, all paving repair and associated paving improvements for compliance with approved plans and specifications. It is specifically understood that City’s inspection personnel shall have the authority to enforce City approved plans and specifications, which authority shall include the ability to require that any and all unacceptable materials, workmanship and/or installation be repaired, replaced or corrected by District’s contractor. The District shall be solely 2 Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 5
Menifee Mayor and City Council
September 6, 2023
Page
217 of 763
responsible for inspection and acceptance, at the District’s expense, all non-paving work as part of the Project. The District shall assume and continue all liability and responsibility for the ongoing ownership, maintenance and repair of the Project improvements, excluding paving repairs, except where required by District Resolution 3224, as adopted October 16, 1996.
6. 7.
8. Insurance. Throughout the period of construction, District shall require its selected contractor(s) to provide policies of Workers’ Compensation and General Liability Insurance in an amount and type deemed suitable by District, and naming City as an additional insured on District’s general liability insurance policy relating to the Project and coverage shall be primary and non-contributory. Upon request by City, District shall provide evidence of such insurance.
Prevailing Wage. District acknowledges that any work that qualifies as a “public work” within the meaning of California Labor Code section 1720 shall cause City, and its sub- consultants, to comply with the provisions of the California Labor Code section 1775 et seq. District hereby warrants its compliance with all applicable provisions of the aforementioned Code for purposes of the road repair and paving improvements contemplated herein.
Invoicing and Payment. District shall maintain a detailed accounting of Project costs and expenses, and shall invoice City for City’s agreed participation amounts as described in sections 2 and 3 above and in related Exhibits. District shall invoice City upon completion and acceptance of the additional paving work for the Project shown in Exhibit A, as determined by District with City’s acceptance of paving improvements following inspections described in section 5. City shall remit payment for the agreed amount to District within sixty (60) calendar days following the date of such invoice.
9. Warranty. District shall ensure that the aforementioned, City approved, plans and specifications for award to District’s contractor include District’s standard, one-year warranty, which shall be effective from the date of District’s final acceptance. Thereafter, City hereby acknowledges and agrees that District does not warrant, and in no way guarantees the paving repairs and associated paving improvements that are over and above District’s road remediation obligation resulting from District’s construction of the Projects performed pursuant to this Agreement. City shall, itself, be solely responsible for owning, operating and maintaining the paving repairs and associated paving improvements installed hereunder.
10. Hold Harmless and Indemnification. District, its respective agents, officers and employees shall not be liable for any claims, liabilities, penalties, fines, theft, or any damage to property, whether real or personal, nor for any personal injuries or death caused by, or resulting from, or claimed to have been caused by or resulting from, in any way, District’s provision of the road repair and paving improvements that are over and above the District’s road remediation obligation resulting from its construction of the Projects as contemplated herein. City hereby agrees to defend, indemnify and hold District harmless, including its respective agents, officers and employees against any of the foregoing liabilities, claims and/or any cost or expense that is incurred by District on account of any of the foregoing liabilities. Such obligation to defend, indemnify and hold District harmless shall survive completion of the road repair and paving improvements performed hereunder.
City, its respective agents, officers and employees shall not be liable for any claims, liabilities, penalties, fines, theft, or any damage to property, whether real or personal, nor for any personal injuries or death caused by, or resulting from, or claimed to have been caused by or resulting from, in any way, work performed for District’s road remediation 3 Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 6
Menifee Mayor and City Council
September 6, 2023
Page
218 of 763
obligation resulting from its construction of the Projects as contemplated herein. District hereby agrees to defend, indemnify and hold City harmless, including its respective agents, officers and employees against any of the foregoing liabilities, claims and/or any cost or expense that is incurred by City on account of any of the foregoing liabilities. Such obligation to defend, indemnify and hold City harmless shall survive completion of the road repair and paving improvements performed hereunder.
11. Disputes. In the event that any dispute between the Parties arises under this Agreement, the Parties shall first attempt to resolve such dispute at the management level. If the dispute is not resolved at this level within a mutually acceptable period of time (not to exceed 45 calendar days from the date written notice of such dispute is delivered by any Party), the Parties shall attempt to resolve the dispute at the senior management level. If this process and the involvement of senior management does not result in resolution of the dispute within 60 days from the date of referral to upper management, then the dispute shall be referred to and finally resolved through legal proceedings. The use of the foregoing procedure is a condition precedent to the commencement of any legal proceedings hereunder.
12. Entire Agreement. This Agreement is intended by the Parties as a complete and exclusive statement of the terms of their agreement and supersedes all prior agreements, written or oral, as to this subject matter. This Agreement may be amended only in writing signedby both parties. No waiver of any term or condition of this Agreement shall be a continuing waiver thereof.
13. 14.
Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California, County of Riverside. Any action brought by either Party with respect to this Agreement shall be brought in a court of competent jurisdiction within said County.
Notices. Any notice required by this Interagency Agreement to be given or delivered to any Party shall be deemed to have been received when personally delivered or mailed in the United States mail addressed as follows:
District
City
Eastern Municipal Water District
Post Office Box 8300
Perris, Ca. 92572-8300
Attn: General Manager
City of Menifee
29844 Haun Road
Menifee, CA. 92586
Attn: City Manager
15. Preparation of This Agreement. This Agreement shall not be construed against the party preparing it, but shall be construed as if both parties prepared it.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date last executed. 4 Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 7
Menifee Mayor and City Council
September 6, 2023
Page
219 of 763
CITY OF MENIFEE EASTERN MUNICIPAL WATER DISTRICT
By: By:
Armando G. Villa, City Manager Joe Mouawad, P.E., General Manager Dated: Dated:
Attest:
5 Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 8
Menifee Mayor and City Council
September 6, 2023
Page
220 of 763
EXHIBIT A
PROJECT
LOCATIONJuno Street
Ridgemoor Road
R RI ID DG GE EM MO OO OR R
E EL LE EM ME EN NT TA AR RY Y
S SC CH HO OO OL L
Honeyrun Road
2000 ft
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 9
Menifee Mayor and City Council
September 6, 2023
Page
221 of 763
EXHIBIT B
D2-PG 64-10 ASPHALT FINISH COURSE
C2-PG 64-10 PERMANENT ASPHALT COLD MILL 10' MIN.
(SEE NOTE 6)
MATCH EXIST.
PAVEMENT +1"
(4" MINIMUM)
SAWCUT EXISTING PAVEMENT
AND APPLY HEAVY ASPHALTIC
TACK COAT ON SAWCUT FACE.0.15'
PAVEMENT
ZONE 95% RELATIVE
COMPACTION+1"
MATCH EXIST. AGGREGATE
BASE (4" MINIMUM)
TOP 3'
95% RELATIVE
COMPACTION
TRENCH
ZONE
TRENCH BACKFILL MATERIAL
(FROM LIST BELOW OR AS
RECOMMENDED BY SOILS ENGINEER)
- CRUSHED AGGREGATE BASE
- CRUSHED MISCELLANEOUS BASE
(CERTIFIED)
- 1 SACK SLURRY
- NATIVE MATERIAL (WITH A SAND
EQUIVALENT OF 30 OR GREATER)
90% RELATIVE
COMPACTION
12" MINIMUM
PIPE
BEDDING
ZONE
6"
W = O.D + 24" MIN
O.D. + 36" MAX
SEE SHEET 3 OF 3 FOR NOTES
TRENCH PERPENDICULAR TO CURB
8/6/2014
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 10
Menifee Mayor and City Council
September 6, 2023
Page
222 of 763
EXHIBIT B
SAWCUT EXISTING PAVEMENT
AND APPLY PG 64-10 TACK
COAT ON SAWCUT FACE.FULL LANE WIDTH
(SEE NOTE 6)C2-PG 64-10 PERMANENT ASPHALT D2-PG 64-10 ASPHALT FINISH COURS MATCH EXIST.
PAVEMENT +1"
(4" MINIMUM) 0.15' SEE DETAIL "A"
PAVEMENT
ZONE 95% RELATIVE
COMPACTIONEXIST. PAVEMENT +1"
MATCH EXIST. AGGREGATE
BASE (4" MINIMUM)
TOP 3'
95% RELATIVE
COMPACTION
TRENCH
ZONE
3/8" LIP
TRENCH BACKFILL MATERIAL
(FROM LIST BELOW OR AS
RECOMMENDED BY SOILS ENGINEER)
- CRUSHED AGGREGATE BASE
- CRUSHED MISCELLANEOUS BASE
(CERTIFIED)
- 1 SACK SLURRY
- NATIVE MATERIAL (WITH A SAND
EQUIVALENT OF 30 OR GREATER)
DETAIL "A"
90% RELATIVE
COMPACTION
12" MINIMUM
PIPE
BEDDING
ZONE
6"
W = O.D + 24" MIN
O.D. + 36" MAX
SEE SHEET 3 OF 3 FOR NOTES
TRENCH PARALLEL TO CURB
8/6/2014
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 11
Menifee Mayor and City Council
September 6, 2023
Page
223 of 763
EXHIBIT B
SEE NOTE A, B, C
12"
TYP
SEE NOTE A, B
POTHOLE REPAIR
A. POTHOLE BACKFILL MAY BE COMPLETED USING DEEP LIFT (FULL SECTION) AC FOR POTHOLES THAT ARE 2' x 2' IN AREA OR LESS.
B. THE MATERIAL USED FOR BACKFILLING POTHOLES THAT ARE LARGER THAN 2' x 2' SHALL BE 95% COMPACTED CRUSHED AGGREGATE BASE (CAB) OR CMB AS APPROVED. &ꢀꢁꢁꢁ327+2/(6ꢁ6+$//ꢁ%(ꢁ&$33('ꢁ86,1*ꢁ&ꢂꢃ3*ꢁꢄꢅꢃꢆꢇꢁ3(50$1(17ꢁ$63+$/7ꢁ:+,&+ꢁ,6ꢁꢆ´ꢁ7+,&.(5ꢁ7+$1ꢁ7+( (;,67,1*ꢁ$63+$/7ꢀꢁꢁ,1ꢁ$'',7,21ꢈꢁ$//ꢁ327+2/(6ꢁ6+$//ꢁ%(ꢁ&2/'ꢁ0,//('ꢁꢆꢂ´ꢁ%(<21'ꢁ$//ꢁ('*(6ꢁ72ꢁ$ DEPTH OF 0.1' AND CAPPED USING C2-PG 64-10 PERMANENT ASPHALT.
CITY OF MENIFEE REQUIREMENTS
FOR TRENCHES OR OTHER EXCAVATIONS WITHIN
PUBLIC RIGHTS-OF-WAY OR EASEMENTS
NOTES
1. ALL TRENCH EXCAVATIONS SHALL BE COMPLETED BY FIRST SAW-CUTTING THE PAVEMENT BEFORE EXCAVATION. ALL SAW CUT LINES SHALL BE CLEAN AND FREE OF ROUGH EDGES. ADDITIONAL SAW-CUTTING WILL BE REQUIRED BY THE PUBLIC WORKS INSPECTOR IF THE EDGES OF THE TRENCH ARE DAMAGED DURING EXCAVATION OR BACKFILLING OPERATIONS.
2. ALL COMPACTION OF TRENCH BACKFILL MATERIAL SHALL BE ACCOMPLISHED BY MECHANICAL METHODS. JETTING, PONDING OR FLOODING IN LIEU OF MECHANICAL METHODS SHALL NOT BE ALLOWED.
3. ALL TRENCHES SHALL BE BACKFILLED AND A MINIMUM OF 3" OF TEMPORARY ASPHALT PAVEMENT INSTALLED AT THE END OF EACH WORKDAY. THE PUBLIC WORKS INSPECTOR MAY AUTHORIZE STEEL PLATE BRIDGING IN ACCORDANCE WITH STANDARD #813 IN LIEU OF TEMPORARY ASPHALT PAVEMENT.
4. ALL TRAFFIC STRIPING OR MARKINGS REMOVED OR DAMAGED DURING CONSTRUCTION SHALL BE REPLACED USING THERMOPLASTIC COATINGS OR AS DIRECTED BY THE PUBLIC WORKS INSPECTOR. PARTIALLY REMOVED STRIPING SHALL BE REPLACED IN WHOLE.
5. PERMANENT PAVEMENT REPAIR SHALL BE ACCOMPLISHED WITHIN 14 DAYS OF TEMPORARY REPAIR BY REMOVAL OF ALL
TEMPORARY AC PAVEMENT, INSTALLATION OF PERMANENT ASPHALT PAVEMENT AS NOTED ON THIS STANDARD, AND COLD MILLING WITH FINISH PAVEMENT.
6. COLD MILLING OF 0.15' SHALL BE REQUIRED FOR ALL TRENCHES. THE PUBLIC WORKS INSPECTOR WILL REQUIRE ADDITIONAL COLD MILLING IF FIELD CONDITIONS SO WARRANT.
7. ADDITIONAL COLD MILLING SHALL BE REQUIRED FOR TRENCHES THAT ARE 2' TO 4' FROM THE CURB & GUTTER.
8. REMOVE AND REPLACE ASPHALT PAVEMENT FULL DEPTH FOR TRENCHES THAT ARE 2' OR LESS FROM CURB & GUTTER.
9. TACK COAT OF PG 64-10 PAVING ASPHALT SHALL BE UNIFORMLY APPLIED TO EXISTING ASPHALT SURFACES PRECEDING PLACEMENT OF NEW ASPHALT CONCRETE. THE SURFACE SHALL BE FREE OF WATER, FOREIGN MATERIAL, OR DUST WHEN THE TACK COAT IS APPLIED.
10. FOR WATER AND SEWER PIPE BEDDING REQUIREMENTS REFER TO EASTERN WATER MUNICIPAL WATER DISTRICT (EMWD) STANDARDS.
11. TESTING: COMPACTION REPORTS SHALL BE SUBMITTED TO THE CITY ENGINEER.
12. PROHIBITION OF PAVEMENT CUTTING: ASPHALT CONCRETE PAVEMENT LESS THAN THREE (3) YEARS OLD SHALL NOT BE CUT EXCEPT FOR EMERGENCY REPAIRS OR AS SPECIFICALLY APPROVED IN WRITING BY THE CITY ENGINEER. SPECIAL REQUIREMENTS WILL BE IMPOSED FOR REPAVING.
8/6/2014
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 12
Menifee Mayor and City Council
September 6, 2023
Page
224 of 763
EXHIBIT B
8/15/2014
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 13
Menifee Mayor and City Council
September 6, 2023
Page
225 of 763
EXHIBIT B
REPAIR PAVEMENT SECTION IN
ACCORDANCE WITH PERMIT
REQUIREMENTS AND CITY STANDARDS MILLING DEPTH TO MATCH PLATE THICKNESS (MINIMUM). PACK
JOINT WITH TEMPORARY ACSKID RESISTANT
STEEL PLATES12" MIN.
TRENCH
TYPICAL TRENCH PLATE DETAIL
N.T.S.
NOTES
1. A MINIMUM 12" LAP OF STEEL PLATE SHALL BE PROVIDED ON EACH SIDE OF TRENCH TO ASSURE NO SLIPPING OF PLATE OR COLLAPSING OF TRENCH WALL. WHERE 12" LAP CANNOT BE MET, ENGINEERING DESIGN IS REQUIRED AND SHALL BE APPROVED BY THE PUBLIC WORKS DIRECTOR. THE TRENCH SHALL BE ADEQUATELY SHORED IF NECESSARY TO SUPPORT THE BRIDGING AND TRAFFIC. FOR SPANS GREATER THAN FOUR FEET A SHORING PLAN AND
A TRAFFIC CONTROL PLAN, ENGINEERED BY A REGISTERED CIVIL ENGINEER, SHALL BE SUBMITTED FOR REVIEW AND APPROVAL AT LEAST TWO WEEKS PRIOR TO START OF CONSTRUCTION WORK.
2. STEEL PLATE MUST FIT SNUG WITHIN THE RECESSED AREA AND INSTALLED TO OPERATE WITH MINIMUM NOISE.
3. THE PAVEMENT SHALL BE COLD PLANED TO A DEPTH EQUAL TO THE THICKNESS OF THE PLATE, AND TO A WIDTH AND LENGTH EQUAL TO THE DIMENSIONS OF THE PLATE.
4. THIS STANDARD SHALL BE IMPLEMENTED ON ALL PROJECTS WITHIN VEHICULAR TRAVEL WAY UNLESS OTHERWISE APPROVED BY THE PUBLIC WORKS DIRECTOR.
5. MULTIPLE PLATES MUST BE PINNED OR TACK WELDED AS NEEDED TO SECURE PLATES, 6" MINIMUM.
6. ALL PLATES MUST MEET REQUIRED TRAFFIC LOADS, AND BE SKID-RESISTANT, THE CONTRACTOR SHALL BE RESPONSIBLE FOR THE APPROPRIATE SELECTION AND MAINTENANCE OF THE STEEL PLATES.
7. STEEL PLATES MUST BE REMOVED AND PERMANENT PAVEMENT SHALL BE PLACED WITHIN FOURTEEN (14) CALENDAR DAYS OR AS APPROVED BY THE PUBLIC WORKS DIRECTOR.
8. THE CONTRACTOR WILL BE REQUIRED TO PUT "STEEL PLATES AHEAD" WARNING SIGNS IN PLACE. 2/5/2014
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 14
Menifee Mayor and City Council
September 6, 2023
Page
226 of 763
EXHIBIT C 1 2
LEGEND:
Proposed 12" Water Main
Proposed 18" Water Main
Proposed Gate Valve
Proposed Air/Vac Valve
Proposed Blowoff
D
C
B
A
Proposed Fire Hydrant
Proposed Water Service
Existing Water Main
Resurfacing Limits
(District Responsibility
Approx. 104,800 sf,
59% of Total Area)
Resurfacing Limits
(City Responsibility
Approx. 73,700 sf,
41% of Total Area)
Ridgemoor Road: Proposed Resurfacing Limits
GRAPHIC SCALE
SCALE 1" = 40'
SHEET 1
Ridgemoor Road: Proposed Resurfacing Limits
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 15
Menifee Mayor and City Council
September 6, 2023
Page
227 of 763
EXHIBIT C 1 2
LEGEND:
Proposed 12" Water Main
Proposed 18" Water Main
Proposed Gate Valve
Proposed Air/Vac Valve
Proposed Blowoff
D
C
B
A
Proposed Fire Hydrant
Proposed Water Service
Existing Water Main
Resurfacing Limits
(District Responsibility)
Resurfacing Limits
(City Responsibility)
Ridgemoor Road: Proposed Resurfacing Limits
GRAPHIC SCALE
SCALE 1" = 40'
SHEET 2
Ridgemoor Road: Proposed Resurfacing Limits
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 16
Menifee Mayor and City Council
September 6, 2023
Page
228 of 763
EXHIBIT C 1 2
LEGEND:
Proposed 12" Water Main
Proposed 18" Water Main
Proposed Gate Valve
Proposed Air/Vac Valve
Proposed Blowoff
D
C
B
A
Proposed Fire Hydrant
Proposed Water Service
Existing Water Main
Resurfacing Limits
(District Responsibility)
Resurfacing Limits
(City Responsibility)
Ridgemoor Road: Proposed Resurfacing Limits
GRAPHIC SCALE
SCALE 1" = 40'
SHEET 3
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 17
Menifee Mayor and City Council
September 6, 2023
Page
229 of 763
EXHIBIT C
PLANS PREPARED BY: REVISIONS APPROVED BY: EASTERN MUNICIPAL WATER DISTRICTVERIFY SCALES EASTERN MUNICIPAL WATER DISTRICT3737 BIRCH STREET, SUITE 250NEWPORT BEACH, CA 92660T 949.428.1500
RIVERSIDE COUNTY, CALIFORNIA
RIDGEMOOR ROAD PAVING PLANS
UNDER THE SUPERVISION OF:
LISETTE BICE R.C.E. No. 83157
APPROVALS SCALE: AS SHOWNDATE
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 18
Menifee Mayor and City Council
September 6, 2023
Page
230 of 763
EXHIBIT C
INDUS STREET
RIDGEMOOR ROAD
PHOENIX WAY
RIDGEMOOR ROAD
QUAIL BLUFFROAD
PLAN
PLANS PREPARED BY: REVISIONS APPROVED BY: EASTERN MUNICIPAL WATER DISTRICTVERIFY SCALES EASTERN MUNICIPAL WATER DISTRICT3737 BIRCH STREET, SUITE 250NEWPORT BEACH, CA 92660T 949.428.1500
RIVERSIDE COUNTY, CALIFORNIA
RIDGEMOOR ROAD PAVING PLANS
UNDER THE SUPERVISION OF:
LISETTE BICE R.C.E. No. 83157
APPROVALS SCALE: AS SHOWNDATE
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 19
Menifee Mayor and City Council
September 6, 2023
Page
231 of 763
EXHIBIT C
VALLEYBOULEVARD PORTSMOUTH DRIVEMILKY WAY
V5739746
RIDGEMOOR ROAD
SEQUOIASPRINGS ROAD
V5300395
RIDGEMOOR ROAD
ARDMORE ROAD DEERCREEK CIRCLE
PLAN
PLANS PREPARED BY: REVISIONS APPROVED BY: EASTERN MUNICIPAL WATER DISTRICTVERIFY SCALES EASTERN MUNICIPAL WATER DISTRICT3737 BIRCH STREET, SUITE 250NEWPORT BEACH, CA 92660T 949.428.1500
RIVERSIDE COUNTY, CALIFORNIA
RIDGEMOOR ROAD PAVING PLANS
UNDER THE SUPERVISION OF:
LISETTE BICE R.C.E. No. 83157
APPROVALS SCALE: AS SHOWNDATE
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 20
Menifee Mayor and City Council
September 6, 2023
Page
232 of 763
EXHIBIT C
RIDGEMOOR ROAD
PRIVATEDRIVE
MURRIETA ROAD
PLAN
PLANS PREPARED BY: REVISIONS APPROVED BY: EASTERN MUNICIPAL WATER DISTRICTVERIFY SCALES EASTERN MUNICIPAL WATER DISTRICT3737 BIRCH STREET, SUITE 250NEWPORT BEACH, CA 92660T 949.428.1500
RIVERSIDE COUNTY, CALIFORNIA
RIDGEMOOR ROAD PAVING PLANS
UNDER THE SUPERVISION OF:
LISETTE BICE R.C.E. No. 83157
APPROVALS SCALE: AS SHOWNDATE
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 21
Menifee Mayor and City Council
September 6, 2023
Page
233 of 763
Bid Schedule B‐1
EXHIBIT DDescription Qty UnitLSLSLSLSEAEAEALSSFTONLS
Unit Cost$30,000$5,000$5,000$10,000$1,400$1,400$650$7,500$0.28$130$15,000$30$6 Item Cost$30,000$5,000
District %
59%
City%
41%
City ShareMobilization for PavingPublic Notificatons
1111
$12,300
$2,05059% 41%
Storm Water Management & BMP for PavingTraffic Control for Paving $5,000
59%
59%
41%
41%
0%
$2,050
$4,100
$0
$10,000$26,600$4,200$31,200$7,500$16,800$299,000$15,000$450 Adjust existing manhole to GradeAdjust existing SD manhole to gradeAdjust existing valve cover to gradeSurvey centerline ties & re‐establish monuments6' wide header grind 19348
100%59%
100%
59%
59%
59%
59%
59%
59%
41% $1,722
$00%
41%
41%
1 $3,075
$6,888
$122,590
$6,150
$185
60,0002,300115750260
AC Overlay
41%
41%
41%
41%
Re‐establish existing pavement stripingFurnish and install blue dots4" asphalt concrete
EASFTON
$4,500$31,200
$1,845
$12,792
$175,747
Crack seal and level course $120 59% 41%
Subtotal Construction CostContingency (10%)
$ 486,45048,64521,404556,499
$$$
$17,575
$7,733Escalation to Paving Construction = July 2024 (4%)Total Construction Cost $201,055Subtotal ‐ Bid Schedule B‐1 (rounded) $ 560,000 $202,000*City Responsibility is 41% except raising EMWD facilities to grade which is 0% City responsibility.
Item Title: 10.6
Agreement with Eastern Municipal Water District for Reimbursement Costs for Fiscal Year 2023/2024 Local Roads AC Resurfacing Program Item Page Number: 22
Menifee Mayor and City Council
September 6, 2023
Page
234 of 763
EXHIBIT E
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 23
Menifee Mayor and City Council
September 6, 2023
Page
235 of 763
EXHIBIT E
Item Title: 10.6
Agreement
with
Eastern
Municipal
Water
District
for
Reimbursement
Costs
for
Fiscal
Year
2023/2024
Local
Roads
AC
Resurfacing Program
Item Page Number: 24
Menifee Mayor and City Council
September 6, 2023
Page
236 of 763
CITY OF MENIFEE
SUBJECT: Bid Award and Agreement with American Asphalt South, Inc. for Crack Sealing Services for Fiscal Year 2023/2024 Slurry Seal Program Project, Pavement Management Program No.
24-01
MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Carlos Geronimo, Engineering Manager
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Award bid and authorize the City Manager to execute a Contractor Services Agreement with American Asphalt South, Inc. to perform Crack Seal services for the Fiscal Year 2023/2024 Slurry Seal Program Project, Pavement Management Program No. PMP 24-01, in an amount not-to-exceed $61,594.85.
DISCUSSION
The Fiscal Year (FY) 2023/2024 Slurry Seal Program Project (Project) consists of resurfacing existing roads by slurry seal and performing restriping where appropriate. The work would be performed in various areas of the neighborhood east of Murrieta Road, west of Grosse Point Drive, south of Allentown Drive, and north of McCall Boulevard, along La Piedra Road between Antelope Road and Menifee Road, and the neighborhood northeast of the intersection of Bradley Road and La Piedra Road, as depicted in the Project Location Map. The Project would be completed in two phases beginning with a crack seal of the entire project area, followed by slurry seal within all neighborhoods. Services for the slurry seal phase would be returned to a future City Council meeting for award and will be performed under a separate contract. The Project would ultimately crack seal just under four centerline miles of roadway, collectively, between identified neighborhoods.
Staff administered a competitive bid process and the Project was legally advertised in accordance with the California Public Contract Code. An electronic bid opening was held on August 15, 2023, and a total of five bids were received, as summarized in Table 1 on the following page.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 1
Menifee Mayor and City Council
September 6, 2023
Page
237 of 763
City of Menifee Staff Report
PMP 24-01 Crack Seal Award
September 6, 2023
1 7
7 5
Table 1- Bid Result Summary
Firm Name Total Bid Amount Lowest Responsible Bidder
Engineers Estimate $70,000.00
American Asphalt South, Inc. $61,594.85 X
GRSI $65,000.00
Carter Enterprises Group Inc dba
Pavement Rehab Company
$78,890.00
Roy Allan Slurry Seal, Inc. $84,780.00
Hardy & Harper, Inc. $105,000.00
Staff reviewed the apparent lowest bid and determined that American Asphalt South, Inc. met the requirements for recommendation as the lowest responsive and responsible bidder. The total cost for crack seal services proposed by American Asphalt South, Inc., is $61,594.85 and is below the Engineer’s Estimate of $70,000.00. Construction management and inspection services would be provided by City staff. Ancillary services such as labor compliance services are currently being procured and would increase the total anticipated construction costs for the crack sealing portion of the Project to $75,754. Existing Project budgets are available to support the total anticipated construction costs.
If approved by the City Council, the tentative Project’s schedule would be as follows:
Construction Start: October 2023
Construction End: November 2023
City Council Acceptance: December 2023
The timeline above assumes no delays due to weather or unforeseen conditions.
Environmental Impact
The work proposed under this Agreement has been determined to be Categorically Exempt under the California Environmental Quality Act (CEQA) and CEQA Guidelines, Section 15301. Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination. The Project is for resurfacing the existing pavement and updating of ramps that are non-compliant with the Americans With Disabilities Act. The Project is also exempt under the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. There is no possibility that the activity in question will have a significant effect on the environment because the proposed Project is occurring in an area that is already heavily disturbed and not environmentally sensitive.
STRATEGIC PLAN OBJECTIVE
Connectivity and Mobility
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 2
Menifee Mayor and City Council
September 6, 2023
Page
238 of 763
City of Menifee Staff Report
PMP 24-01 Crack Seal Award
September 6, 2023
1 7
7 5
FISCAL IMPACT
The total anticipated construction cost for the crack seal portion of the Project is estimated at $75,754. There is available funding for this Project in FY 2023/2024, as summarized in Table 2 below. No additional budget appropriation(s) would be required for this action.
Table 2- Project Funding
Fund Project Account
Number
Available
Budget
Anticipated
Cost
Quality of
Life
Pavement
Management
Program
105-4555-58011 $340,000 $75,754
ATTACHMENTS
1. Project Location Map
2. Contract Services Agreement
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 3
Menifee Mayor and City Council
September 6, 2023
Page
239 of 763
PROJECT LOCATION MAP
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 4
Menifee Mayor and City Council
September 6, 2023
Page
240 of 763
LOCATION 1
LOCATION 2
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 5
Menifee Mayor and City Council
September 6, 2023
Page
241 of 763
LOCATION 3
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 6
Menifee Mayor and City Council
September 6, 2023
Page
242 of 763
2905/031858-0001
19201719.4 a07/24/23
CITY OF MENIFEE
CONTRACT SERVICES AGREEMENT
PMP 24-01 FY23/24 SLURRY SEAL PROGRAM
(CRACK SEAL SERVICES)
THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this _________ day of ___________, 2023 by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and AMERICAN ASPHALT SOUTH, INC., a California Corporation (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties”.
City sought, by issuance of a Request for Proposals or Invitation for Bids, for the performance of the services defined and described particularly in this Agreement. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in this Agreement, was selected by City to perform those services. Pursuant to the City of Menifee’s Municipal Code, City has authority to enter into this Agreement and the City Manager has authority to execute this Agreement. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in this Agreement and desire that the terms of that performance be as particularly defined and described herein.
SECTION 1. SERVICES.
1.1 Scope of Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services described in the Scope of Services, attached hereto as Exhibit B, “Scope of Services” and incorporated herein by this reference (the “Services”).
Contractor will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. The Scope of Services incorporates Contractor’s scope of work or bid for the Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit B, this Agreement shall prevail.
1.2 Term of Services. The term of this Agreement shall begin on September 6, 2023.
Unless earlier terminated in accordance with Section 8 of this Agreement, this Agreement shall continue in full force and effect until final written approval and acceptance of the work performed under this Agreement by the Contract Administrator. The time provided to Contractor to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.3 Standard of Performance.
a. Quality of Work. As a material inducement to City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Contractor shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all Services described herein. Contractor covenants that it shall Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 7
Menifee Mayor and City Council
September 6, 2023
Page
243 of 763
2905/031858-0001
19201719.4 a07/24/23 -2-4
7 3
1 4
follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances, and to the sole satisfaction of the Contract Administrator.
b. Care of Work. Contractor shall adopt reasonable methods during the term of this Agreement to furnish continuous protection to the Services, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence. c. Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out the Services, Contractor shall at all times be in compliance with all applicable local, state, and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. d. Warranty. Contractor warrants all work under this Agreement (which for purposes of this Subsection 1.3 shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one (1) year (or the period of time specified elsewhere in this Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by City of any defect in the work or non-conformance of the work to this Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at Contractor’s sole cost and expense. Contractor shall act sooner as requested by City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by Contractor’s defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of this Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of City, regardless of whether or not such warranties and guarantees have been transferred Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 8
Menifee Mayor and City Council
September 6, 2023
Page
244 of 763
2905/031858-0001
19201719.4 a07/24/23 -3-4
7 3
1 4
or assigned to City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of City, City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse City for any expenses incurred hereunder upon demand.
e. Skilled and Trained Workforce. Contractor, for itself and its subcontractors at every tier, hereby provides an enforceable commitment to comply with California Public Contract Code section 2600 et seq., which requires use of a skilled and trained workforce to perform all work on the agreements that fall within an apprentice able occupation in the building and construction trades.
f. Inspection and Final Acceptance. The Services shall be performed to the satisfaction of City. City may inspect and accept or reject any of Contractor’s work under this Agreement, during performance and/or when completed. City shall reject or finally accept Contractor’s work within forty five (45) days after submitted to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud, and such gross mistakes as amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 4 and Section 5, pertaining to insurance and indemnification, respectively.
1.4 Assignment of Personnel. Contractor shall assign only competent personnel to perform the Services. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services.
Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the Services, prior to and during any such performance. 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, Contractor shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.5 Time. Time is of the essence in the performance of this Agreement. Contractor shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Contractor’s obligations hereunder. Contractor shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Scope of Services. When requested by Contractor, extensions to the time period(s) specified in the Scope of Services may be approved in writing by the Contract Administrator but not shall not exceed one hundred eighty (180) days cumulatively.
1.6 Force Majeure. The time period(s) specified in the Scope of Services for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 9
Menifee Mayor and City Council
September 6, 2023
Page
245 of 763
2905/031858-0001
19201719.4 a07/24/23 -4-4
7 3
1 4
embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor shall within ten (10) days of the commencement of such delay notify the Contract Administrator in writing of the causes of the delay. The Contract Administrator shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the sole judgment of the Contract Administrator such delay is justified. The Contract Administrator’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of this Agreement pursuant to this Section.
1.7 Suspension of Services. The City Engineer of City (“Engineer”) shall have the authority to suspend the Services, wholly or in part, for such period as the Engineer may deem necessary, due to unsuitable weather or to such other conditions as are considered unfavorable for the suitable prosecution of the Services, or for such time as the Engineer may deem necessary due to the failure on the part of Contractor to carry out orders given or to perform any provisions of the Services. Contractor shall immediately comply with the written order of the Engineer to suspend the Services wholly or in part and shall not resume the Services until ordered to do so in writing by the Engineer. Such suspension shall be without liability to Contractor on the part of City. In the event a suspension of work is ordered because of failure on the part of Contractor to carry out orders given or to perform any provisions of the Services, such suspension of the Services shall not relieve Contractor of responsibility to complete the Services within the time limit set forth herein and shall not be considered cause for extension of the time for completion and, further, such suspension of the Services shall not entitle Contractor to any additional compensation.
1.8 Familiarity with Work and Worksite. By executing this Agreement, Contractor warrants that Contractor (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. If the Services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of the Services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Contractor shall immediately inform City of such fact and shall not proceed until written instructions are received from the Contract Administrator.
1.9 Further Responsibilities of the Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless otherwise specified in this Agreement, neither Party shall be responsible for the service of the other.
1.10 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit A and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit A and any other provisions of this Agreement, the provisions of Exhibit A shall govern.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 10
Menifee Mayor and City Council
September 6, 2023
Page
246 of 763
2905/031858-0001
19201719.4 a07/24/23 -5-4
7 3
1 4
SECTION 2. COMPENSATION.
2.1 Contract Amount. City hereby agrees to pay Contractor a sum not to exceed Sixty One Thousand Five Hundred Ninety Four Dollars and Eighty Five Cents ($61,594.85) notwithstanding any contrary indications that may be contained in Contractor’s proposal or bid, for the Services to be performed and reimbursable costs incurred under this Agreement. This compensation may be administratively adjusted pursuant to Section 8.4 herein. In the event of a conflict between this Agreement and Exhibit B, regarding the amount of compensation, this Agreement shall prevail. City shall pay Contractor for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified in this Section 2 shall be the only payments from City to Contractor for the Services rendered pursuant to this Agreement. Contractor shall submit all invoices to City in the manner specified herein.
2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon Contractor’s rates as specified in the Scope of Services, provided that time estimates are provided for the performance of subtasks, or (iv) such other methods as may be specified in the Scope of Services. In no event shall compensation exceed the amount set forth in Subsection 2.1.
2.3 Invoices. Contractor 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. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub- contractor contracts. Subcontractor charges shall also be detailed by such categories. Invoices shall contain:
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 Contractor and each employee, agent, and subcontractor of Contractor performing the Services hereunder necessary to complete the Services described in Exhibit B; f. Receipts for expenses to be reimbursed;
g. The Principals’ signatures.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 11
Menifee Mayor and City Council
September 6, 2023
Page
247 of 763
2905/031858-0001
19201719.4 a07/24/23 -6-4
7 3
1 4
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.4 City Payment of Invoices. City shall independently review each invoice submitted by Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission. Pursuant to California Public Contract Code Section 20104.50, Contractor is notified that for public works Services, City’s failure to pay undisputed and properly submitted invoices within thirty (30) days shall be subject to interest at the legal rate set forth in Code of Civil Procedure Section 685.010. Any invoice for public works Services determined not to be a proper invoice suitable for payment shall be returned to the Contractor as soon as practicable, but not later than seven (7) days, after receipt. An invoice returned pursuant to the foregoing shall be accompanied by a writing stating the reasons why the invoice is not proper.
2.5 Retention of Funds, Final Payment.
a. Contractor hereby authorizes City, in the sole discretion of the Contract Administrator, to retain and deduct from any amount payable to Contractor not exceeding five percent (5%) of the total compensation. The retained funds shall be paid to Contractor within sixty (60) days after final acceptance of the Services by the City and after Contractor has furnished City with full release of all undisputed payments under this Agreement. In the event there are any claims specifically excluded by Contractor 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 Contractor to insure, indemnify, and protect City as provided in this Agreement. b. Notwithstanding Paragraph a, California Public Contract Code Section 22300 permits the substitution of securities for any retention monies withheld by City for public works Services. At the request and expense of Contractor, securities equivalent to the monies withheld shall be deposited with City, or with a state or federally chartered bank in California as the escrow agent, who shall then pay such monies to Contractor. City retains the sole discretion to approve the bank selected by Contractor to serve as escrow agent. Upon satisfactory completion of the Services, the securities shall be returned to Contractor. Securities eligible for investment shall include those listed in Government Code Section 16430. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. In the alternative, under California Public Contract Code Section 22300, Contractor may request City to make payment of earned retention monies directly to the escrow agent at the expense of Contractor. Also at Contractor’s expense, Contractor may direct investment of the payments into securities, and Contractor shall receive interest earned on such investment upon the same conditions as provided for securities deposited by Contractor. Upon satisfactory completion of the Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 12
Menifee Mayor and City Council
September 6, 2023
Page
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Services, Contractor shall receive from the escrow agent all securities, interest and payments received by escrow agent from City pursuant to the terms of California Public Contract Code Section 22300.
2.6 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Contractor 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 Contractor 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.
2.7 Hourly Fees. Fees for the Services performed by Contractor on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit B.
2.8 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement. Reimbursable expenses not listed in Exhibit B must be approved in advance by the Contract Administrator, in his or her sole discretion. Contractor shall not be entitled to any additional compensation for the attendance of meetings reasonably deemed necessary by City for the execution of the Services.
2.9 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.10 Payment upon Termination. In the event that City or Contractor terminates this Agreement pursuant to Section 8, City shall compensate Contractor for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses as of the date of written notice of termination. Contractor shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
2.11 No Waiver. Payment to Contractor for Services performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 3. FACILITIES AND EQUIPMENT.
3.1 Contractor Provides Facilities and Equipment. Except as otherwise provided, Contractor shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. In no event shall City be required to furnish any facility or equipment that may involve incurring any direct expense.
3.2 Utility Relocation. Where applicable, pursuant to California Government Code Section 4215, City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse Contractor for any costs incurred in locating, repairing damage not caused by Contractor, and removing or relocating such unidentified utility facilities.
Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 13
Menifee Mayor and City Council
September 6, 2023
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3.3 Trenches or Excavations. Pursuant to California Public Contract Code Sections 6705 and 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply.
a. Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) subsurface or latent physical conditions at the site different from those indicated by information about the site made available to bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement.
b. If the Services involve an estimated expenditure in excess of Twenty-Five Thousand Dollars ($25,000) for the excavation of any trench or trenches five (5) feet or more in depth, Contractor shall submit for acceptance by the City Engineer, in advance of excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
c. City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the work shall issue an order or amendment for additional services pursuant to Subsection 8.4 or 8.5 of this Agreement. d. If a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by this Agreement, but shall proceed with all work to be performed under this Agreement. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the Parties.
SECTION 4. INSURANCE AND BOND REQUIREMENTS.
Before beginning any work under this Agreement, Contractor, at its own cost and expense, shall procure the types and amounts of insurance listed below and provide certified copies of insurance policies and original endorsements, indicating that Contractor has obtained or currently maintains insurance that meets the requirements of this Section and which is satisfactory, in all respects, to City. Contractor shall also deliver the payment and performance bonds required by this Section 4 with City. Contractor shall maintain the insurance policies required by this Section throughout the term of this Agreement. The cost of such insurance shall be included in Contractor’s compensation. Contractor shall not allow any subcontractor, Contractor or other agent to commence work on any subcontract until Contractor has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City, and has delivered the required bonds to City. Verification of the required insurance shall be submitted and made part of this Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 14
Menifee Mayor and City Council
September 6, 2023
Page
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Agreement prior to execution. Contractor acknowledges the insurance policy must cover inter- insured suits between City and other insureds. Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages to any persons or property resulting from Contractor’s activities or the activities of any person or persons for which Contractor is otherwise responsible nor shall it limit Contractor’s indemnification liabilities as provided in Section 5. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Administrator in the Contract Administrator’s sole discretion. If this Agreement continues for more than three (3) years duration, or in the event the Contract Administrator determines that the Services to be performed under this Agreement creates an increased or decreased risk of loss to City, Contractor agrees that the minimum limits of the insurance policies and the performance bond required by Section 4 may be changed accordingly upon receipt of written notice from the Contract Administrator; provided that Contractor shall have the right to appeal a determination of increased coverage by the Contract Administrator to the City Council of City within ten (10) days of receipt of notice from the Contract Administrator.
4.1 Workers’ Compensation. Contractor 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 Contractor 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, Contractor 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 Contractor, 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. Pursuant to California Labor Code Section 1860, Contractor is required to secure the payment of compensation to Contractor’s employees. Pursuant to California Labor Code Section 1861, Contractor hereby submits to City the following:
I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
Contractor Initial: _______
4.2 Commercial General and Automobile Liability Insurance. a. General Requirements. Contractor, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 15
Menifee Mayor and City Council
September 6, 2023
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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, leased, 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 including “any auto” and endorsement CA 0025 or equivalent). 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) The policy must cover inter-insured suits and include a “Separation of Insureds” or “severability” clause which treats each insured separately. (iii) The insurance must be maintained for at least one (1) year following the completion of the Services or the expiration or termination of this Agreement. (iv) Any failure of Contractor 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. Contractor, at its own expense, shall maintain professional liability insurance appropriate to Contractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to the Services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of the Services or the expiration or termination of this Agreement. During this additional five (5)- year period, Contractor shall annually and upon request of City submit written evidence of this continuous coverage.
b. Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 16
Menifee Mayor and City Council
September 6, 2023
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(i) The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
(ii) 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, Contractor 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 Contractor’s sole cost and expense, any extended reporting provisions of the policy, if Contractor cancels or does not renew the coverage.
(iii) A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 Pollution Liability Insurance. Contractor, at its own expense, shall maintain pollution liability insurance written on a per occurrence for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per pollution incident and ONE MILLION DOLLARS ($1,000,000.00) in the general aggregate. The policy shall apply to any incidents at or from any location on which Contractor performs the Services under this Agreement. The insurance must be maintained for at least one (1) year following the completion of Contractor’s services or the expiration or termination of this Agreement.
4.5 All Policies Requirements.
a. Verification of Coverage. Prior to beginning the Services under this Agreement, Contractor 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: PMP 24-01 FY23/24 SLURRY SEAL PROGRAM (CRACK SEAL SERVICES). 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 Contractor. b. Notice of Reduction in or Cancellation of Coverage. Contractor 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, Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 to the Contract Administrator.
c. Additional Insured; Primary Insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 17
Menifee Mayor and City Council
September 6, 2023
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the following: liability arising out of the Services performed by or on behalf of Contractor, including the insured’s general supervision of Contractor; products and completed operations of Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles owned, leased, or used by Contractor in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City. Additional insured status shall 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. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against City, its officers, employees, agents, authorized volunteers, and their respective insurers.
d. Deductibles and Self-Insured Retentions. Contractor 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, Contractor 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 Contractor 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.
e. Subcontractors. Contractor 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.
f. 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.
4.6 Payment and Performance Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City a payment (labor and materials) bond and a performance bond, each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secure the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of this Agreement and shall be null and void only if Contractor promptly and faithfully performs all terms and conditions of this Agreement. Payment and performance bonds shall be secured from a surety company rated Grade “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 18
Menifee Mayor and City Council
September 6, 2023
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category Class VII or better, unless such requirements are waived by the Contract Administrator due to unique circumstances, and shall be authorized to write such bonds in the State of California. Contractor shall pay all bond premiums, costs, and incidentals. Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under this Agreement may be permitted at the request and expense of Contractor. Without limiting the foregoing, Contractor understands that Civil Code Section 9550 requires a payment bond for all public works contracts involving an expenditure of more than Twenty-Five Thousand Dollars ($25,000).
4.7 Remedies. In addition to any other remedies at law or equity City may have if Contractor fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Contractor’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 Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Contractor 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 costs and expenses incurred by City and reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Contractor 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 Contractor, its officers, agents, employees, or subcontractors (or any entity or individual that Contractor 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, Contractor 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 Contractor or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 19
Menifee Mayor and City Council
September 6, 2023
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subcontractors of Contractor. Contractor will promptly pay any judgment rendered against City, its officers, agents, or employees for any such Claims arising out of or in connection with the performance of or failure to perform such Services, operations or activities of Contractor hereunder.
5.3 Subcontractors. Contractor shall incorporate similar indemnity agreements with its subcontractors. Contractor shall be fully responsible to indemnify City, and failure of City to monitor compliance with these provisions shall not be a waiver hereof.
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.
In the event any applicable law contains a limitation on indemnification under this Agreement, such limitation shall supersede the provisions herein only to the extent required by said law.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. City shall have the right to control Contractor only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.4; however, otherwise City shall not have the right to control the means by which Contractor accomplishes the Services rendered pursuant to this Agreement.
The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor 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. Contractor 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 Contractor as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Contractor 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, Contractor 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. Contractor shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 20
Menifee Mayor and City Council
September 6, 2023
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7.2 Compliance with Applicable Laws. Contractor and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Contractor 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. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Contractor shall require the same of all subcontractors.
7.3 Prevailing Wages. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable prevailing wage laws and regulations and effectuating compliance with such laws, including, but not limited to the prevailing wage and related requirements set forth in this Subsection 7.3. Contractor shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of California Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
a. Public Work. Contractor hereby expressly acknowledges and agrees that City has never previously affirmatively represented to Contractor, its employees or agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the California 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, Contractor shall bear all risks of payment or non-payment of state and/or federal prevailing wages and/or the implementation of California 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 Contractor’s failure to pay prevailing wages. b. California Labor Code. The Contractor’s attention is directed to Division 2, Part 7, Chapter 1 of the California Labor Code and especially to Article 2 (Wages); and Article 3 (Working Hours), thereof.
(i) In accordance with Sections 1773 and 1773.2 of the California 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. Contractor shall post a copy of the prevailing rate of per diem wages at each job site.
(ii) Contractor is aware of and will comply with the provisions of California Labor Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof in accordance with said Section. Pursuant to California Labor Code Section 1771.4, Contractor must submit certified payroll records to the Labor Commissioner using the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 21
Menifee Mayor and City Council
September 6, 2023
Page
257 of 763
2905/031858-0001
19201719.4 a07/24/23 -16-4
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1 4
(iii) Pursuant to California Labor Code Section 1810, it is stipulated hereby that eight (8) hours labor constitutes a legal day’s work hereunder. (iv) Pursuant to California 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 California Labor Code Section 1813, it is stipulated hereby that Contractor shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement by Contractor 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 California Labor Code.
(vi) Contractor is aware of and will comply with the provisions of California 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 Contractor will be responsible for obtaining compliance therewith on the part of any and all sub-consultants or subcontractors employed by Contractor in connection with this Agreement.
(vii) Pursuant to California Labor Code Section 1775, it is hereby stipulated that Contractor 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 Contractor or any sub-consultant or subcontractor. c. Bidding Eligibility. Pursuant to California 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. Pursuant to California Public Contract Code Section 6109, Contractor may not perform any Services hereunder with a subcontractor who is ineligible to perform the Services pursuant to Section 1777.1 or 1777.7 of the California Labor Code.
d. DIR Monitoring. Pursuant to California Labor Code Section 1771.4, Contractor 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 Contractor 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 California 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 Contractor or any party performing the Services to Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 22
Menifee Mayor and City Council
September 6, 2023
Page
258 of 763
2905/031858-0001
19201719.4 a07/24/23 -17-4
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1 4
provide any required disclosure or identification as required by California 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. Contractor represents, warrants, and covenants to City that Contractor 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. Contractor represents, warrants, and covenants to City that Contractor 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, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Contractor 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 Contractor’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. Contractor represents, warrants, and covenants that Contractor presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Contractor’s obligations and responsibilities under this Agreement. Contractor further agrees that while this Agreement is in effect, Contractor 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 Contractor’s obligations and responsibilities under this Agreement.
7.6 Unfair Business Practices Claims. In entering into this Agreement, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contractor without further acknowledgment of the Parties.
7.7 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. Contractor acknowledges and agrees that to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is 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.
7.8 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to City the sum of FIVE HUNDRED DOLLARS ($500.00) as liquidated damages for each working Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 23
Menifee Mayor and City Council
September 6, 2023
Page
259 of 763
2905/031858-0001
19201719.4 a07/24/23 -18-4
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1 4
day of delay in the performance of any of the Services. City may withhold from any monies payable on account of the Services performed by Contractor any accrued liquidated damages.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may terminate this Agreement at any time and without cause upon thirty (30) days’ written notification to Contractor. City may also terminate this Agreement pursuant to Subsection 8.8.
8.2 Termination by Contractor. Contractor may terminate this Agreement upon sixty (60) days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Contractor shall be entitled to compensation for the Services satisfactorily performed up to the date of termination; City, however, may condition payment of such compensation upon Contractor delivering to City any or all materials provided to Contractor or prepared by or for Contractor or City in connection with this Agreement. Upon receipt of any notice of termination, Contractor shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Administrator.
8.4 Administrative Change Orders. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Administrator to Contractor, incorporating therein any adjustment in (i) the total compensation, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Contractor. Any increase in compensation of up to five percent (5%) of the total compensation or TWENTY-FIVE THOUSAND DOLLARS ($25,000), whichever is less; or in the time to perform of up to one hundred eighty (180) days may be approved in writing by the Contract Administrator. Contractor understands and agrees that, if City grants an extension in time without additional work, City shall have no obligation to provide Contractor 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 Contractor for any otherwise reimbursable expenses incurred during the extension period. All other extensions or modifications to this Agreement shall require a written amendment pursuant to Subsection 8.5.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. The Contract Administrator shall have the authority to execute amendments to this Agreement which do not materially change the terms hereof, in the Contract Administrator’s discretion, to the extent permitted by applicable federal, state, and local law. The Contract Administrator may refer any proposed amendment to the City Council for review and approval.
8.6 Assignment and Subcontracting. City and Contractor recognize and agree that this Agreement contemplates personal performance by Contractor and is based upon a determination of Contractor’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 24
Menifee Mayor and City Council
September 6, 2023
Page
260 of 763
2905/031858-0001
19201719.4 a07/24/23 -19-4
7 3
1 4
professional reputation and competence of Contractor. Contractor may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Contractor shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the Scope of Services, without prior written approval of the Contract Administrator. In the event of any unapproved assignment, including in connection with any bankruptcy proceeding, this Agreement shall be void. No approved assignment shall release Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
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 Contractor shall survive the expiration or termination of this Agreement.
8.8 Disputes, Default. In the event that Contractor is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Contractor for any of the Services performed after the date of default. Instead, City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, in the sole discretion of the Contract Administrator. During the period of time that Contractor is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement; c. Retain a different contractor to complete the Services; and/or d. Charge Contractor the difference between the cost to complete the Services that is unfinished at the time of breach and the amount that City would have paid Contractor pursuant to Section 2 if Contractor had completed the Services.
Any failure on the part of City to give notice of Contractor’s default shall not be deemed to result in a waiver of City’s legal rights or any rights arising out of any provision of this Agreement.
8.9 Claims by Contractor. Claims, as that term is defined in California Public Contract Code Section 9204, by Contractor and, where applicable, any subcontractor, in connection with a public works project shall by subject to the mediation procedure in California Public Contract Code Section 9204.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Documents and Data. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans, Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 25
Menifee Mayor and City Council
September 6, 2023
Page
261 of 763
2905/031858-0001
19201719.4 a07/24/23 -20-4
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1 4
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 (the “Documents and Materials”) prepared or caused to be prepared by Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Administrator or upon the expiration or termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such completed Documents and Materials for other projects and/or use of uncompleted documents without specific written authorization by Contractor will be at City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, revise, or assignment. Contractor may retain copies of such Documents and Materials for its own use.
Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any Documents and Materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.
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 the Documents and Materials.
Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for the Documents and Materials the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all of the Documents and Materials. Contractor makes no such representation and warranty in regard to the Documents and Materials which were prepared by design professionals other than Contractor or provided to Contractor by City. City shall not be limited in any way in its use of the Documents and Materials 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 Records. Contractor shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to payroll reports), studies, or other documents relating to the disbursements charged to City and the Services performed hereunder (the “Books and Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Administrator to evaluate the performance of such Services. Any and all such Books and Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Administrator shall have full and free access to such Books and Records at all times during normal business hours of City, including the right to inspect, copy, audit, and make records and transcripts from such Books and Records. Such Books and Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Books and Records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the Books and Records may be given to City, and access shall be provided by Contractor’s successor in interest. 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 Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 26
Menifee Mayor and City Council
September 6, 2023
Page
262 of 763
2905/031858-0001
19201719.4 a07/24/23 -21-4
7 3
1 4
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.
9.4 Reports. Contractor shall periodically prepare and submit to the Contract Administrator such reports concerning the performance of the Services required by this Agreement as the Contract Administrator shall require. Contractor hereby acknowledges that City is greatly concerned about the cost of the Services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Administrator of said fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
9.5 Confidentiality. City and Contractor 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. Contractor, its officers, employees, agents, or subcontractors, shall not, without prior written authorization from the Contract Administrator or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement. If Contractor, or any officer, employee, agent, or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any Claims caused by or incurred as a result of Contractor’s conduct. Contractor shall promptly notify City should Contractor, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing, or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. Response to a subpoena or court order shall not be considered a voluntary disclosure so long as Contractor gives City notice of such court order or subpoena as provided herein.
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.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 27
Menifee Mayor and City Council
September 6, 2023
Page
263 of 763
2905/031858-0001
19201719.4 a07/24/23 -22-4
7 3
1 4
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 Contractor 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.
10.7 Contractor Principals and Representatives. The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 28
Menifee Mayor and City Council
September 6, 2023
Page
264 of 763
2905/031858-0001
19201719.4 a07/24/23 -23-4
7 3
1 4
10.8 City Contract Administration. This Agreement shall be administered by a City employee, Carlos Geronimo, Engineering Manager (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. It shall be Contractor’s responsibility to assure that the Contract Administrator is kept informed of the progress of the performance of the Services and Contractor shall refer any decisions which must be made by City to the Contract Administrator. Unless otherwise provided by applicable law, 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, Contractor shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Contractor shall be sent to:
Attn: Allen Henderson
P.O. Box 310036
Fontana, CA 92331
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Carlos Geronimo, Engineering Manager
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
10.10 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.
10.11 Integration, Interpretation. This Agreement, including Exhibits A and B, represents the entire and integrated agreement between City and Contractor 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 Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 29
Menifee Mayor and City Council
September 6, 2023
Page
265 of 763
2905/031858-0001
19201719.4 a07/24/23 -24-4
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1 4
for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.12 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.
10.13 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.
10.14 Nondiscrimination. Contractor 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. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.15 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.
10.16 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
10.17 No Undue Influence. Contractor 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 Contractor, or from any officer, employee, or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.18 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 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]
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 30
Menifee Mayor and City Council
September 6, 2023
Page
266 of 763
2905/031858-0001
19201719.4 a07/24/23 -25-4
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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
Armando G. Villa, City Manager
Attest:
Sarah Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONTRACTOR
Jeff Petty, Vice President
Lyle Stone, Secretary
[Note: 2 officer’s signatures required if
Contractor is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 31
Menifee Mayor and City Council
September 6, 2023
Page
267 of 763
2905/031858-0001
19201719.4 a07/24/23
EXHIBIT A
EXHIBIT A
SPECIAL REQUIREMENTS
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 32
Menifee Mayor and City Council
September 6, 2023
Page
268 of 763
2905/031858-0001
19201719.4 a07/24/23
EXHIBIT B
EXHIBIT B
SCOPE OF SERVICES
Services shall include PMP 24-01 FY23/24 SLURRY SEAL PROGRAM (CRACK SEAL SERVICES) services, including labor, materials, services and equipment is the total amount of all lump sum items and of all unit price sums, determined by multiplying the unit price for each item times the actual quantity of each such item, in the amount not to exceed Sixty One Thousand Five Hundred Ninety Four Dollars and Eighty Five Cents ($61,594.85) as further detailed in the attached pages (if any). If the Services include Services pursuant to a request for proposals or bid, the Services shall include the work contemplated by the entire “Bid Package” or “Request for Proposals” for the Services, including all plans, addenda, documentation, and specifications attached thereto. A copy of the Bid Package and/or Request for Proposals, as applicable shall be retained with a copy of this Agreement. Contractor shall keep a copy of the same for at least three (3) years following termination of this Agreement.
The numerical reference for the Bid Package or Request for Proposals is: _Invitation # 62____.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 33
Menifee Mayor and City Council
September 6, 2023
Page
269 of 763
2905/031858-0001
19201719.4 a07/24/23 EXHIBIT A.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 34
Menifee Mayor and City Council
September 6, 2023
Page
270 of 763
2905/031858-0001
19201719.4 a07/24/23 EXHIBIT A.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 35
Menifee Mayor and City Council
September 6, 2023
Page
271 of 763
2905/031858-0001
19201719.4 a07/24/23 EXHIBIT A.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 36
Menifee Mayor and City Council
September 6, 2023
Page
272 of 763
2905/031858-0001
19201719.4 a07/24/23 EXHIBIT A.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 37
Menifee Mayor and City Council
September 6, 2023
Page
273 of 763
2905/031858-0001
19201719.4 a07/24/23 EXHIBIT A.
Item Title: 10.7
Bid
Award
and
Agreement
with
American
Asphalt
South,
Inc.
for
Crack
Sealing
Services
for
Fiscal
Year
2023/2024
Slurry
Seal Program Project, Pavement Management Program No. 24-01 Item Page Number: 38
Menifee Mayor and City Council
September 6, 2023
Page
274 of 763
CITY OF MENIFEE
SUBJECT: Central Park Amphitheater Construction Project, Capital Improvement Project Bid Rejection
MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Nancy Rodriguez, Management Analyst
REVIEWED BY: Jonathan Nicks, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Reject all responsive bids submitted for the Central Park Amphitheater Construction Project, Capital Improvement Project No. CIP 19-15.
DISCUSSION
On June 2, 2021, the City Council authorized a professional services agreement with TYLin International for the design, engineering, and architectural services of the Central Park Amphitheater Project. Taking into consideration the conceptual design previously approved by City Council, TYLin was able to complete the comprehensive final design allowing staff to proceed with the construction phase of the project.
On June 26, 2023, staff solicited bids for the construction of the Central Park Amphitheater through PlanetBids. The work would consist of the construction and installation of an amphitheater that would include an audio system as well as stage lighting. The structure would be built over the top of the existing Central Park stage with a separate rear 2,080 sq. ft. building available as a preparation room for performers and storage of equipment.
The construction bid was advertised for 46 days with a bid opening date of August 11, 2023. The city received a total of four bids with only three bids being considered responsive bids. The nonresponsive bid did not meet all City requirements for the solicitation having missing documents. All four bids are summarized in Table 1 on the following page.
Item Title: 10.8
Central Park Amphitheater Construction Project, Capital Improvement Project Bid Rejection Item Page Number: 1
Menifee Mayor and City Council
September 6, 2023
Page
275 of 763
City of Menifee Staff Report
CIP 19-15 Bid Rejection
September 6, 2023
1 7
7 3
Table 1 – Bid Results Summary
Bidders Total Bid
Optima RPM, Inc. (Non -Responsive) $5,098,247.98
Pub Construction, Inc. $6,981,003.50
Act 1 Construction, Inc. $6,992,914.60
Green Building Corporation $11,478,913.48
CIP No. 19-15 was funded at $3,973,729 with current expenditures of $543,657 leaving an available balance of $3,430,072. Given the higher-than-expected construction costs in the bid using the lowest responsive bid amount, an additional $3,550,932 would be required to move forward with the project.
Public Contract Code § 20166 allows a legislative body in its discretion to reject any bids and readvertise. In an effort to accommodate the project’s current available funding, the City must reject the submitted bids, and re-bid the project. After further review, staff concluded that there are specific bid items listed on the bid documents that could be adjusted and/or removed to lower the cost of the project. These items include sound and lighting features that would not be integral to the construction of the structure. By re-bidding the project, staff is hopeful that it will be able to obtain a cost closer to the project’s approved budget.
If the re-bidding process produces responsive bids closer to the project’s approved budget, staff will present a recommendation to City Council to award a construction contract. Below is a tentative schedule reflecting the proposed re-bid of the project:
Anticipated Construction Start Date: March 2024
Estimated Council Acceptance Date: October 18, 2023 Estimated Construction Completion Date: March 2025
*Assumes no delays due to weather or unforeseen conditions.
STRATEGIC PLAN OBJECTIVE
Safe and Vibrant Community
FISCAL IMPACT
There is no fiscal impact associated with the recommended action.
ATTACHMENTS
1. Notice of Intent to Reject All Bids
Item Title: 10.8
Central Park Amphitheater Construction Project, Capital Improvement Project Bid Rejection Item Page Number: 2
Menifee Mayor and City Council
September 6, 2023
Page
276 of 763
NOTICE OF INTENT TO CANCEL BID
Project Name: Central Park Amenities – Amphitheater Construction Project C
ity Project Number: CIP 19-15
Notice -Posting Date: August 16, 2023 Bid Opening Date: August 11, 2023 Project Manager: Bryce Howell Notice Posting Location: PlanetBids Vendor Portal A bid opening for the above mentioned project was held on August 11, 2023, at 10 AM on the City’s PlanetBids Vendor Portal.
Pe
r section 22, REJECTION OF BIDS, page 10, of the “Instructions to Bidders”; City staff, after further review of the bids received, recommends to reject all bids and to re -advertise the project due to the following:
In an effort to accommodate the project’s current available funding, it is recommended that the City reject the responsive, responsible submitted bids and re-bid the project.
Pu
rsuant to California Public Contract Code Section 20166 at the September 6, 2023, regular City Council meeting staff is requesting City Council formally reject all bids and authorize staff to issue a new bid for the project. New bid documents will be formally advertised and posted on PlanetBids.
For any additional questions please contact:
Jennifer Christoffersen, Purchasing & Contracts Specialist - [email protected] Item Title: 10.8
Central Park Amphitheater Construction Project, Capital Improvement Project Bid Rejection Item Page Number: 3
Menifee Mayor and City Council
September 6, 2023
Page
277 of 763
CITY OF MENIFEE
SUBJECT: Community Services Department, Landscape Architect Services On-Call Short List for Fiscal Years 2023-2028
MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Nancy Rodriguez, Management Analyst
REVIEWED BY: Jonathan Nicks, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve the Community Services Department On-Call Short List for Landscape Architect Services for Fiscal Years 2023-2028; and
2. Authorize the City Manager to approve future Master Agreements based on the approved On- Call Short List for Landscape Architects at the City’s discretion and contingent on availability of the corresponding budget.
DISCUSSION
The City of Menifee’s Community Services Department (CSD) oversees the ongoing development and maintenance of all City parks and rights-of-way. As part of the Capital Improvement Program, CSD will be continuing its focus on developing and upgrading various City maintained parks.
Some of these projects include the development of a new park in the Sun City area, the expansion of the dog park at E. L. Petersen Park, and the design and construction of a new park in the north parcel adjacent to Paloma Valley High School. These projects along with other CSD projects will require a Landscape Architect firm to be successful.
On May 16, 2023, staff issued Request for Qualification (RFQ) No. 2023-1 for Landscape Architect on-call services. The intent of the RFQ was to establish an on-call list of qualified firms available to supplement City projects. The services would include, but are not limited to, as needed landscaping, planting, and irrigation designs and plans for parks, rights-of-way, sports fields, playground areas, sitting areas, courts, demonstration gardens, dog parks, trailheads, picnic areas, shade structures, and general landscaping around new and existing City sites.
The City received 14 proposals from the following firms:
•Albert A. Webb Associates
Item Title: 10.9
Community Services Department, Landscape Architect Services On-Call Short List for Fiscal Years 2023-2028 Item Page Number: 1
Menifee Mayor and City Council
September 6, 2023
Page
278 of 763
City of Menifee Staff Report
On-Call Landscape Architect Short List
September 6, 2023
1 7
5 8
•Architerra Design Group
•BMLA
•Brightview Design Group
•Community Work Design Group
•David Evans and Associates
•David Volz Design Landscape Architect Inc.
•Hirsch & Associates Inc. Landscape Architects
•Kimley-Horn and Associates
•Langan
•MIG Inc.
•RHA Landscape Architects-Planners
•Schmidt Design Group
•Spurlock Landscape Architects
An evaluation committee consisting of City staff evaluated the submittals. The firms were evaluated based on the criteria set forth in RFQ 2023-1 which included the experience of the firm, work plan methodology/project approach, project team qualifications, references, and quality of responsiveness of the proposal. After the initial evaluation, interviews were conducted for the seven highest scoring firms.
The tabulated results from the evaluations and interviews are listed in Table 1 below:
Table 1 – RFQ Evaluation Summary
Firm Name
Evaluation
Score
Interview
Score
BMLA 91.00 86.67
MIG Inc. 86.33 90.00
RHA Landscape Architect-Planners 83.67 82.67
Albert A Webb Associates 89.67 72.33
Architerra Design Group 84.33 73.67
Brightview Design Group 76.33 -
Community Work Design Group 81.33 -
David Evans and Associates 85.33 78.67
David Volz Design Landscape Architects Inc. 80.00 -
Hirsch & Associates Inc. Landscape Architects 74.67 -
Kimley Horn & Associates 90.33 82.33
Langan 76.33 -
Schmidt Design Group 82.67 -
Spurlock Landscape Architects 72.33 -
Following the evaluation process, interviews, and reference checks, the top three scoring firms – BMLA, MIG Inc., and RHA Landscape Architect-Planners – are recommended for the City’s qualified short list to provide On-Call Landscape Architect services. Inclusion on the short list does Item Title: 10.9
Community Services Department, Landscape Architect Services On-Call Short List for Fiscal Years 2023-2028 Item Page Number: 2
Menifee Mayor and City Council
September 6, 2023
Page
279 of 763
City of Menifee Staff Report
On-Call Landscape Architect Short List
September 6, 2023
1 7
5 8
not guarantee award of future contract(s) and the City reserves the right to issue separate RFQ/RFPs as deemed necessary for specific services and/or projects.
The short list proposed is to be eligible for the period of Fiscal Years (FYs) 2023-2028.
STRATEGIC PLAN OBJECTIVE
Unique Identity
FISCAL IMPACT
There is no fiscal impact associated with the recommended action. Any projects utilizing the firms from the established On-Call Short List will utilize funds already budgeted in the approved CSD FYs 2023-2025 budget, specifically within Account No. 100-4663-52800. Funding needed for any additional project utilization in future years would be budgeted in those years.
ATTACHMENTS
1. On-Call Landscape Architect Services Short List
Item Title: 10.9
Community Services Department, Landscape Architect Services On-Call Short List for Fiscal Years 2023-2028 Item Page Number: 3
Menifee Mayor and City Council
September 6, 2023
Page
280 of 763
City of Menifee
Community Services Department
Parks and Landscape/CIP Division
Fiscal Year 2023/2024 thru 2027/2028 On Call List (Landscape Architect Services)
Landscape Architect Services
BMLA
MIG Inc.
RHA Landscape Architects Planner
Item Title: 10.9
Community Services Department, Landscape Architect Services On-Call Short List for Fiscal Years 2023-2028 Item Page Number: 4
Menifee Mayor and City Council
September 6, 2023
Page
281 of 763
CITY OF MENIFEE
SUBJECT: Riverside County Abandoned Vehicle Abatement Program Extension
MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: David Gutierrez, Police Captain
REVIEWED BY: Chris Karrer, Police Chief
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Adopt a resolution to extend the Abandoned Vehicle Abatement Program and service fees collected on behalf of the Riverside County Abandoned Vehicle Abatement Service Authority until May 31, 2034.
DISCUSSION
In August 2010, the City Council approved Ordinance No. 2010-80, which was necessary under the provisions of the California Vehicle Code, to provide procedures for the removal of abandoned vehicles. The service fees associated with the removal of abandoned vehicles are imposed by the Department of Motor Vehicles (DMV) through a charge added to the costs of registration of motor vehicles located in Riverside County.
The Riverside County Abandoned Vehicle Abatement Service Authority has been the recipient of service fees collected by the DMV. Those fees, in turn, are used to reimburse local governmental agencies for a portion of their costs incurred as a result of the abatement, removal and disposal as public nuisances of any abandoned, wrecked, dismantled, or inoperative vehicles.
Since the establishment of the Riverside County Abandoned Vehicle Abatement Service Authority in June 1994, it has disbursed $35,128,331 in service fee proceeds to member agencies and caused the abatement of approximately 189,776 vehicles throughout Riverside County.
The current Abandoned Vehicle Abatement Program is set to terminate in May of 2024. California Vehicle Code § 9250.7 allows for an extension of the service fees collected as part of the Abandoned Vehicle Abatement Program in increments of up to ten years. Approval of an extension requires affirmative votes by the County Board of Supervisors and a majority of the Item Title: 10.10
Riverside County Abandoned Vehicle Abatement Program Extension Item Page Number: 1
Menifee Mayor and City Council
September 6, 2023
Page
282 of 763
City of Menifee Staff Report
Riverside County Abandoned Vehicle Abatement Program Extension September 6, 2023
1 7
7 9
cities’ in the program area. Following that process, the attached proposed resolution complies with the request by the County of Riverside to extend the service fee through May 31, 2034.
STRATEGIC PLAN OBJECTIVE
Safe and Vibrant Community
FISCAL IMPACT
There is no fiscal impact associated with the recommended action. The extension would allow the City to continue to receive reimbursements for the costs of abatement by the California State Controller’s Office on a quarterly basis.
ATTACHMENTS
1. Resolution
Item Title: 10.10
Riverside County Abandoned Vehicle Abatement Program Extension Item Page Number: 2
Menifee Mayor and City Council
September 6, 2023
Page
283 of 763
RESOLUTION NO. 23-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MENIFEE,
CALIFORNIA, AUTHORIZING THE EXTENSION OF THE SERVICE FEE
COLLECTED ON BEHALF OF THE RIVERSIDE COUNTY ABANDONED
VEHICLE ABATEMENT SERVICE AUTHORITY THROUGH MAY 2034
WHEREAS, the Riverside County Abandoned Vehicle Abatement Service Authority was formed on or about June 1, 1994, pursuant to the provisions of California Vehicle Code §§ 9950.7 and 22710 enacted by the Legislature in 1990 which authorize the establishment of a service authority and imposition of a service fee on all registered motor vehicles located within a county; and
WHEREAS, beginning in June 1994 and continuing to the present, the Riverside County Abandoned Vehicle Abatement Service Authority has been the recipient of service fees collected on its behalf by the California Department of Motor Vehicles; and WHEREAS, the service fees received by the Riverside County Abandoned Vehicle Abatement Service Authority are used to reimburse local governmental agencies for a portion of their costs incurred as a result of the abatement, removal and disposal as public nuisances of any abandoned, wrecked, dismantled, or inoperative vehicles or parts thereof; and
WHEREAS, the Riverside County Abandoned Vehicle Abatement Service Authority apportions and distributes service fee proceeds to each member agency according to the formula set forth in California Vehicle Code §§ 22710; and WHEREAS, since the establishment of the Abandoned Vehicle Abatement program in June 1994, it has disbursed $35,128,331 in service fee proceeds to member agencies and caused the abetment of approximately 189,776 abandoned, wrecked, dismantled, or inoperative vehicles located in various cities and the unincorporated area of Riverside County; and
WHEREAS, the service fee collected as part of the Abandoned Vehicle Abatement Service Authority program is set to expire in May 2024; and WHEREAS, the Legislature amended California Vehicle Code § 9250.7 to allow for an extension of the service fee collected as part of the Abandoned Vehicle Abatement program in increments of up to 10 years each if the board of supervisors of the county, by a two-thirds vote, and a majority of the cities comprising a majority of the population of the incorporated areas within the county adopt resolutions providing for the extension of the service fee; and
WHEREAS, it is desirable to the City of Menifee to have the Abandoned Vehicle Abatement program continue beyond its current termination date of May 2024.
Item Title: 10.10
Riverside County Abandoned Vehicle Abatement Program Extension Item Page Number: 3
Menifee Mayor and City Council
September 6, 2023
Page
284 of 763
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Menifee, California approves the extension of the service fee collected on behalf of the Riverside County Abandoned Vehicle Abatement Service Authority until May 14, 2034.
PASSED, APPROVED and ADOPTED this 6th day of September 2023. __________________________________
Bill Zimmerman, Mayor
ATTEST: APPROVED AS TO FORM:
_____________________ __________________________________ Sarah Manwaring, Jeffrey T. Melching
City Clerk City Attorney
Item Title: 10.10
Riverside County Abandoned Vehicle Abatement Program Extension Item Page Number: 4
Menifee Mayor and City Council
September 6, 2023
Page
285 of 763
CITY OF MENIFEE
SUBJECT: Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and
Development Project Coordination
MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Molly Binnall, Management Analyst II
REVIEWED BY: Cheryl Kitzerow, Community Development Director APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute a Memorandum of Understanding between the City of Menifee and the County of Riverside.
DISCUSSION
As part of the City of Menifee’s General Plan Policy LU-1.6 and in anticipation of current and future development projects, including implementing projects within approved Specific Plans, the City of Menifee (“City”) and the County of Riverside Transportation and Land Management Agency (“TLMA”) have determined they share a common goal to address potential impacts of development projects, and have therefore agreed to enter into a Memorandum of Understanding (“MOU”).
The MOU will establish clear communication and project coordination protocols for both the City and TLMA. Both agencies understand the mutual interest and benefits of working cooperatively on the issues of planning and growth associated with land development in order to reduce unnecessary conflicts, plan for future infrastructure and development, address State goals for housing growth, and be as effective as possible in the implementation of their respective General Plans.
Each agency will be allowed the opportunity to review and provide comments on projects adjacent and in the vicinity of the other agency’s jurisdiction that could potentially cause impacts.
The City and TLMA recognize that by working together through thoughtful planning and clear communication, projects can be effectively coordinated and collectively improved to meet the needs of each agency prior to the approval of the entitlements. The City and TLMA also recognize Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 1
Menifee Mayor and City Council
September 6, 2023
Page
286 of 763
City of Menifee Staff Report
MOU with County of Riverside
September 6, 2023
1 3
0 3
and understand that individually, each agency has its own plans for growth, priorities, and approaches, however it is mutually beneficial to enter into this MOU to cooperate in a variety of key policy areas.
STRATEGIC PLAN OBJECTIVE
Connectivity and Mobility
FISCAL IMPACT
There is no fiscal impact for this item.
ATTACHMENTS
1. Memorandum of Understanding
Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 2
Menifee Mayor and City Council
September 6, 2023
Page
287 of 763
Memorandum of Understanding By and Between the
County of Riverside and
the City of Menifee
to Enhance Communication and Coordination of
Development Projects of Mutual Interest
This Memorandum of Understanding, hereinafter referred to as “MOU”, is entered into on this day______ of ________2023 (the “Effective Date”) by and between the and County of Riverside, a political subdivision of the State of California, hereinafter referred to as (“County”), and the City of Menifee, a Municipal Corporation hereinafter referred to as (“City”), together, “the Parties”, for the establishment of protocols to coordinate development projects located within the unincorporated portions of the County and within the City boundaries that may impact County/City infrastructure and land use compatibility.
Recitals
A. County is the local land use authority responsible for processing, reviewing and approving land use entitlement applications, including development projects within the unincorporated areas of Riverside County ("Unincorporated County Area"); B. County's Transportation and Land Management Agency (TLMA) is the County agency responsible for processing land use entitlements, for reviewing final maps and street improvement plans throughout the Unincorporated County Area; C. The City’s Community Development Department (CDD) and Public Works Department (PWD) are the City’s departments responsible for processing land use entitlements, reviewing final maps and street improvement plans within the City’s municipal boundaries; D. In anticipation of several development projects currently in the entitlement stage or planned for the future, including implementing projects within approved specific plan areas or otherwise requiring subsequent discretionary reviews (collectively, “Development Projects”), the Parties have determined that the City and the County have the shared goal to address the potential impacts of development projects, and that it is beneficial to establish clear communication and coordination protocols as described in this MOU; Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 3
Menifee Mayor and City Council
September 6, 2023
Page
288 of 763
2 4
7 3
2 1
E. The Parties declare that it is in their mutual interest to work cooperatively on issues of planning and growth associated with land development in order to reduce unnecessary conflicts, plan for future infrastructure and development in a coordinated approach, and to be as effective as possible in the implementation of their respective General Plans; F. As part of the County’s review and approval of development projects adjacent, and in the vicinity of the City that could potentially cause impacts to the City infrastructure, through its planning process, the County shall provide the City the opportunity to review development projects and provide comments to the County. Those comments will be taken into consideration by TLMA staff and forwarded to, along with staff comments, the appropriate County decision body in determining the design, location, and scope of each development project, as set more fully below;
G. As part of the City’s review and approval of development projects, adjacent, and in the vicinity of the Unincorporated County Area, through its planning process, the City shall provide the County the opportunity to review development projects that could potentially cause impacts to the County infrastructure and provide comments to the City. Those comments will be taken into consideration by City staff and forwarded to, along with staff comments, the appropriate City decision body in determining the design, location, and scope of each development project, as set more fully below;
H. The County and City recognize that by working together through thoughtful planning and clear communication, projects can be efficiently coordinated and collectively improved to meet the needs of each agency prior to the approval of development projects; and I. The Parties recognize and understand that individually each has its own plans for growth, priorities, and approaches; however, it is of mutual benefit to enter into this Agreement to acknowledge their cooperation in a variety of key policy areas.
NOW THEREFORE, in consideration of the mutual promises contained herein, the Parties find that establishment of this Agreement is an effective and beneficial means of setting a framework for regular coordination and consideration of comments regarding future planning, growth, and development issues in, and around the City of Menifee, and agree as follows:
Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 4
Menifee Mayor and City Council
September 6, 2023
Page
289 of 763
3 4
7 3
2 1
SECTION 1 - COUNTY AGREES:
1. To implement its policies regarding City-County coordination, as discussed in the adopted 2015 County General Plan (General Plan Policies LU — 1.3 through LU— 1.6) and reinforced by City General Plan Policy LU-1.6.
2. To consult with the City on development projects that are proposed adjacent to, and in the vicinity of the City that could potentially cause impacts to the City infrastructure.
3. The Planning Department within TLMA shall be the City’s point of contact for all development projects and will closely coordinate with the City’s CDD, PWD and the applicable project developers as described herein. Nothing herein shall restrict the City from directly engaging with development project representatives; however, the CDD and PWD shall provide copies of all comments to TLMA, to ensure clear communication and project updates.
4. Prior to entitlement of any development project, adjacent to, or in the vicinity of the City that could potentially cause impacts to the City infrastructure, TLMA will route project plans, scoping memoranda, and/or tentative maps associated with that development project to the CDD for review and comment. It is understood that both Parties have adopted standard requirements for development, and it is evident that at times standard requirements will require revisions and updates, to meet industry needs and changing regulatory requirements. TLMA and CDD shall work together to develop conditions of approval on development projects (“Conditions of Approval”) that accurately assess any fair share contribution to City-owned facilities, which contributions shall be paid by the developer directly to the City. TLMA and the CDD shall communicate regarding any revisions and updates to development project plans, tentative maps, and/or Conditions of Approval. Prior to releasing public hearing notice for a development project to each appropriate hearing body, TLMA will provide to the CDD each development projects’ Conditions of Approval and the staff recommendations so that there is an opportunity to discuss and consider alternate opportunities to address the CDD’s concerns.
5. The County anticipates future increased development densities in certain Unincorporated County Area to address the growing demand for housing, which causes the need for new and/or improved infrastructure that will be mutually beneficial to the County and the City. As the County reviews and considers development project applications that are within existing financing districts (e.g., road bridge and benefit districts, assessment districts, and community facilities districts), the County will continue to collect fees from such development projects. At least twice annually, PWD Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 5
Menifee Mayor and City Council
September 6, 2023
Page
290 of 763
4 4
7 3
2 1
and the TMLA will coordinate and collaborate to evaluate the priority, timing, and funding of projects with funds received through such financing districts. PWD and TMLA will further coordinate and collaborate to create a joint financing district(s) if and to the extent there are infrastructure improvements associated with development projects that are not currently within and subject to funding through an existing financing district.
6.As provided in Section 1 of this MOU, as part of the City’s land use entitlement process, TLMA shall, within thirty days of receipt from CDD, review and comment on Development Projects that are submitted to TLMA by CDD.
SECTION 2 - CITY AGREES:
1. To implement its policies regarding City-County coordination as discussed in the adopted 2013 City General Plan Policy LU-1.6. and reinforced by the County General Plan (General Plan Policies LU — 1.3 through LU— 1.6).
2. To consult with the County on development projects that are proposed within the City that are adjacent to, and in the vicinity of the Unincorporated County Area that could potentially cause impacts to the County infrastructure.
3. The CDD shall be the City’s point of contact for all development projects and will closely coordinate with the TLMA and the applicable project developers as described herein. Nothing herein shall restrict TLMA from directly engaging with development project representatives; however, TLMA shall provide copies of all comments to the CDD, to ensure clear communication and project updates.
4. Prior to entitlement of any development project in the vicinity of the Unincorporated County Area that could potentially cause impacts to the County infrastructure, CDD will route project plans, scoping memoranda, and/or tentative maps associated with that development project to the TLMA for review and comment. It is understood that both Parties have adopted standard requirements for development, and it is evident that at times standard requirements will require revisions and updates, to meet industry needs and changing regulatory requirements. TLMA and CDD shall work together to develop Conditions of Approval that accurately assess any fair share contribution to County-owned facilities, which contributions shall be paid by the developer directly to the County. The CDD and TLMA shall communicate any revisions and updates to development project plans, tentative maps, and/or Conditions of Approval. Prior to releasing public hearing notice Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 6
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for a development project to each appropriate hearing body, the CDD will provide to TLMA each development project’s Conditions of Approval and the staff recommendations so that there is an opportunity to discuss and consider alternate opportunities to address the TLMA’s concerns.
5. The City anticipates future increased development densities in areas of the City in the vicinity of the Unincorporated County Area to address the growing demand for housing, which causes the need for new and/or improved infrastructure that will be mutually beneficial to the City and the County. As the City reviews and considers development project applications that are within existing financing districts (e.g., road bridge and benefit districts, assessment districts, and community facilities districts), the City will continue to collect fees from such development projects. At least twice annually, PWD and the TMLA will coordinate and collaborate to evaluate the priority, timing, and funding of projects with funds received through such financing districts.
PWD and TMLA will further coordinate and collaborate to create a joint financing district(s) if and to the extent there are infrastructure improvements associated with development projects that are not currently within and subject to funding through an existing financing district.
6. As provided in Section 1 of this MOU, as part of the County's land use entitlement process, CDD shall, within thirty days of receipt from TLMA, review and comment on development projects that are submitted to CDD by TLMA.
SECTION 3 – IT IS FURTHER MUTUALLY AGREED AS FOLLOWS:
1. That the timing and sequence of submittals and reviews may be adjusted by mutual agreement of the Parties as necessary to facilitate development.
2. This MOU is subject to termination, by either party, with a written notice of 90 days given prior to the effective termination date.
3. This MOU is the result of negotiations between the Parties, and the advice and assistance of their respective counsel. Any uncertainty or ambiguity in this MOU shall not be construed against the County because the County prepared this MOU in its final form.
4. TLMA and CDD/PWD will meet regularly, no less than quarterly, or more frequently to coordinate the timely completion of development project reviews by either party.
5. All notices shall be given in writing and shall be addressed as provided below for the respective party:
Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 7
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“CITY”
CITY OF MENIFEE,
a municipal corporation
By:
Armando G. Villa
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Jeffrey T. Melching
City Attorney
TLMA: Riverside County - TLMA
4080 Lemon Street, 14th Floor
Riverside, CA 92501
Attn: Charissa Leach, TLMA Director
CDD: City of Menifee
29844 Haun Road, Menifee, CA 92586
Attn: Cheryl Kitzerow, Community Development Director
Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 8
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“COUNTY”
COUNTY OF RIVERSIDE,
a political subdivision of the State
By:
ATTEST:
Clerk of the Board
APPROVED AS TO FORM:
County Counsel
Item Title: 10.11
Memorandum of Understanding Between City of Menifee and County of Riverside to Enhance Communication and Development Project Coordination
Item Page Number: 9
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September 6, 2023
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CITY OF MENIFEE
SUBJECT: Agreement with Airforce 1 Plumbing, Heating & Air, Inc. for Facility HVAC Maintenance and Repair Services
MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Nancy Rodriguez, Management Analyst
REVIEWED BY: Jonathan Nicks, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute a Contract Services Agreement with Airforce 1 Plumbing, Heating & Air, Inc. for Fiscal Year 2023/2024 facility HVAC maintenance and repair services in an amount not-to-exceed $41,016; and
2. Authorize the City Manager to execute four, one-year extensions at the City’s discretion and contingent on availability of the corresponding budget; and
3. Authorize the City Manager to execute additional amendments as needed to include maintenance services for future city facilities currently under construction, at the City’s discretion and contingent on availability of the corresponding budget.
DISCUSSION
The City of Menifee’s Community Services Department, Facilities Division, oversees the maintenance of all City owned and leased facilities. Quarterly HVAC maintenance services are required at the 13 separate sites listed in Table 1.
Table 1 – City Facilities
Location Address
City Hall 29844 Haun Road
Community Services Headquarters – West Annex 29995 Evans Road Community Services Headquarters – North Annex 29995 Evans Road Kay Ceniceros Senior Center 29995 Evans Road
Lazy Creek Recreation Center, Building A 26480 Lazy Creek Road Lazy Creek Recreation Center, Building B 26480 Lazy Creek Road Public Works Maintenance and Operations Center 27860 Bradley Road Menifee Police Headquarters 29714 Haun Road
Item Title: 10.12
Agreement with Airforce 1 Plumbing, Heating & Air, Inc. for Facility HVAC Maintenance and Repair Services Item Page Number: 1
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Menifee Police Substation 28115 Bradley Road
Fire Station No. 5 28971 Goetz Road
Fire Station No. 7 28349 Bradley Road
Fire Station No. 68 26020 Wickerd Road
Fire Station No. 76 29950 Menifee Road
On May 2, 2023, staff issued Request for Proposal (RFP) No. 2023-19 for HVAC maintenance services and repairs. The work would consist of but is not limited to the inspection, periodic preventative maintenance, repairs, service calls, and other task services necessary to insure safe, well maintained HVAC systems. The services also include, but are not limited to the maintenance, delivery/pickup, supplies, and any labor associated with these services.
The City received three proposals from the following firms:
•Airforce 1 Plumbing, Heating & Air, Inc.
•FM Thomas Air Conditioning
•Pacific West Industries
A committee consisting of City staff evaluated the proposals. The firms were evaluated based on the criteria set forth in RFP No. 2023-19 which included experience/qualifications of the firm, referenced projects, cost proposal, and quality of responsiveness of the proposal.
Following the evaluation process and interviews and reference of the three candidates, City staff determined that Airforce 1 was the most qualified to conduct the requested services.
All the tabulated results from the evaluations are listed in Table 2 below:
Table 2 – RFP Evaluation Summary
Firm Name
Evaluation
Score
Interview
Score
Annual Maintenance
Cost Proposal ($)
Airforce 1 81.00 80.33 $21,016
FM Thomas Air Conditioning 86.00 75.00 $39,008
Pacific West Industries 82.67 56.00 $63,584
Based on the committee’s evaluation, Airforce 1 is recommended as the most qualified business to provide HVAC maintenance services to the City. Estimated costs are within the annual estimated budget.
Additional amendments may be required to include additional HVAC unit maintenance for the new City facilities currently under construction; the Cherry Hills Building and Fire Station No. 5. Both facilities are in the beginning stages of construction and are planned to be operating within the next two years. Staff is requesting City Manager authorization to amend the agreement as these new city facilities are completed, contingent on budget and city discretion. At that time staff will evaluate quotes received to ensure the current agreement remains the most cost-effective option.
Item Title: 10.12
Agreement with Airforce 1 Plumbing, Heating & Air, Inc. for Facility HVAC Maintenance and Repair Services Item Page Number: 2
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City of Menifee Staff Report
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STRATEGIC PLAN OBJECTIVE
Regular City Business
FISCAL IMPACT
The current fiscal impact for this item is $41,016 for Fiscal Year (FY) 2023/2024 which includes $21,016 for quarterly maintenance services and $20,000 for as-needed emergency services.
Funding is available within the current fiscal year’s budget as summarized in Table 3 below.
Table 3 – FY 2023/2024 Funding Availability
Fund / Department Account
Number
Available
Balance
Agreement
Amount
Facilities / Non-Departmental 116-4221-52050 $27,158 $6,512 Facilities / Community Services 116-4660-52050 $19,097 $5,032 Facilities / Public Works 116-4550-52050 $15,750 $1,184 Facilities / Police Department 116-4911-52050 $80,893 $5,328 Facilities / Cal Fire 116-4445-52050 $97,741 $2,960
Facilities / Various Various Facilities accounts as needed $20,000 TOTALS $240,639 $41,016
Future fiscal years would be funded in the corresponding fiscal year’s budget as outlined in Table 4 below. At the end of the first year, the contractor may apply a cost adjustment of the CPI not- to-exceed 5% on the quarterly maintenance costs. As-needed emergency services in the amount of $20,000 would remain the same for the duration of the agreement. If each of the four renewals are exercised, the total contract amount would be in an amount not-to-exceed $216,122.
Table 4 – Agreement Extension Amounts
Fiscal Year
Maintenance
Service Costs
(incl. 5% Annual
Markup)
As-needed
Emergency
Services
Total
Contract
Amount
2024/2025 $22,066 $20,000 $42,066
2025/2026 $23,169 $20,000 $43,169
2026/2027 $24,327 $20,000 $44,327
2027/2028 $25,544 $20,000 $45,544
ATTACHMENTS
1. Agreement - Airforce 1 Plumbing Heating & Air, Inc.
Item Title: 10.12
Agreement with Airforce 1 Plumbing, Heating & Air, Inc. for Facility HVAC Maintenance and Repair Services Item Page Number: 3
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2671/031858-0001
7630667.2 a05/31/18 -1-
CONTRACT SERVICES AGREEMENT FOR
CITY OF MENIFEE
HVAC MAINTENANCE AND REPAIR SERVICES
THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this _________ day of ___________, 2023 by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and AIRFORCE 1 PLUMBING HEATING & AIR, INC, a California S-Corporation (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties”.
R E C I T A L S
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.
B. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by City to perform those services.
C. Pursuant to the City of Menifee’s Municipal Code, City has authority to enter into this Contract Services Agreement and the City Manager has authority to execute this Agreement.
D. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONTRACTOR.
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide those services specified in the “Scope of Services” attached hereto as Exhibit B” and incorporated herein by this reference, which services may be referred to herein as the “Services.” As a material inducement to City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein.
Contractor shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all Services described herein. Contractor covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first- class firms performing similar work under similar circumstances.
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1.2 Contractor’s Proposal. The “Scope of Services” shall include Contractor’s scope of work or bid which is attached as incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law. Contractor and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Contractor shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages, as determined by the Director of Industrial Relations of the State of California, will be the minimum paid to all laborers, including Contractor’s employee and subcontractors. It is understood that it is the responsibility of Contractor to determine the correct scale. The State Prevailing Wage Rates may be obtained from the California Department of Industrial Relations (“DIR”) pursuant to California Public Utilities Code, Sections 465, 466, and 467 by calling 415- 703-4774. Appropriate records demonstrating compliance with such requirement shall be maintained in a safe and secure location at all times, and readily available at City’s request.
Contractor shall indemnify, defend, and hold City and its elected and appointed boards, members, officials, officers, agents, representatives, employees, and volunteers harmless from and against any liability, loss, damage, cost or expenses (including but not limited to reasonable attorneys’ fees, expert witness fees, court costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the noncompliance by Contractor or any party performing the Services of any applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Contractor or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the Parties that, in connection with performance of the Services, including, without limitation, any and all public works (as defined by applicable law), Contractor 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. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Contractor shall require the same of all subcontractors.
1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement. Contractor 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 for the performance of the Services required by this Agreement. Contractor 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 Contractor’s performance of the Services required by this Agreement, 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 Item Title: 10.12
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against City hereunder. In addition to the foregoing, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
1.5 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the Scope of Services to be performed, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement.
If the Services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of the Services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Contractor shall immediately inform City of such fact and shall not proceed until written instructions are received from the Contract Officer.
1.6 Care of Services. Contractor shall adopt reasonable methods during the life of this Agreement to furnish continuous protection to the Services, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Warranty. Contractor warrants all work under this Agreement (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one (1) year (or the period of time specified elsewhere in this Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by City of any defect in the work or non-conformance of the work to this Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at Contractor’s sole cost and expense. Contractor shall act sooner as requested by City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by Contractor’s defective work or which becomes damaged in the course of repairing or replacing defective work.
For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of this Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of City, regardless of whether or not such warranties and guarantees have been transferred or assigned to City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of City, City shall have the right to correct and replace any defective or non-conforming work and Item Title: 10.12
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any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse City for any expenses incurred hereunder upon demand. This provision may be waived in Exhibit A if the services hereunder do not include construction of any improvements or the supplying of equipment or materials.
1.8 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Sections 1600, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other 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 THOUSAND DOLLARS ($1,000) or more, Contractor 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. A copy of the general prevailing wage rate determination is on file in the Office of the City Clerk and is hereby incorporated in this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor’s principal place of business and at the project site.
The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced. In accordance with the provisions of Labor Code Sections 1810 et seq., eight (8) hours is the legal working day. Contractor must forfeit to City TWENTY FIVE DOLLARS ($25.00) per day for each worker who works in excess of the minimum working hours when Contractor does not pay overtime. Contractor shall defend (with counsel selected by City), indemnify, and hold City, its elected officials, officers, employees, and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
1.9 Further Responsibilities of Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible for the service of the other.
1.10 Additional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or TWENTY-FIVE THOUSAND DOLLARS ($25,000), whichever is less; or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council of City.
It is expressly understood by Contractor that the provisions of this Section shall not apply to work specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope Item Title: 10.12
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of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore.
1.11 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit A and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit A and any other provisions of this Agreement, the provisions of Exhibit A shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum. Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in the Scope of Services and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Two Hundred Sixteen Thousand One Hundred Twenty Two Dollars and Zero Cents ($216,122.00 (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon Contractor’s rates as specified in the “Schedule of Compensation” in the Scope of Services, and incorporated herein by this reference, provided that time estimates are provided for the performance of subtasks, but not exceeding the Contract Sum, or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses with advance written approval by the Contract Officer, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices. Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub- contractor contracts. Subcontractor charges shall also be detailed by such categories.
City shall independently review each invoice submitted by Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Contractor to be paid within forty-five (45) days of receipt of Contractor’s correct and undisputed Item Title: 10.12
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invoice. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.5 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. Contractor acknowledges and agrees that to the extent that the Services provided under this Agreement extend beyond one (1) fiscal year, payment for such Services is 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 Section shall be construed to limit the right of either Party to terminate this Agreement as provided herein.
2.6 Waiver. Payment to Contractor for Services performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
ARTICLE 3. PERFORMANCE SCHEDULE.
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. Contractor shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in Exhibit C (“Schedule of Performance”) and incorporated herein by this reference as Exhibit D. When requested by Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of this Agreement pursuant to this Section.
Item Title: 10.12
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3.4 Inspection and Final Acceptance. City may inspect and accept or reject any of Contractor’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Contractor’s work within forth five (45) days after submitted to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud, and such gross mistakes as amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Article 5, pertaining to indemnification and insurance, respectively.
3.5 Term of Services. The initial term of this Agreement shall be from August 16, 2023 and shall end on August 15, 2024 (“Initial Term”). Upon termination of the Initial Term, this Agreement shall automatically renew for one (1) additional one (1) year term (“First Renewal Term”), unless the term of this Agreement is otherwise terminated or extended as provided for in Article 7. 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”), unless the term of the Agreement is otherwise terminated or extended as provided for in Article 7. Upon termination of the Second Renewal Term, if it occurs, this Agreement shall automatically renew for one (1) additional one (1) year term (“Third Renewal Term”), unless the term of this Agreement is otherwise terminated or extended as provided for in Article 7. Upon termination of the Third Renewal Term, if it occurs, this Agreement shall automatically renew for one (1) additional one (1) year term (“Fourth Renewal Term”), unless the term of the Agreement is otherwise terminated or extended as provided for in Article 7. The Initial Term and any renewal term which actually occurs shall be referred to in this Agreement as the “term”. The time provided to the Contractor to complete the Services required by this Agreement shall not affect the City’s right to terminate this Agreement, as provided for in Article 7.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor. The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the Principals were a substantial inducement for City to enter into this Agreement.
Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the Item Title: 10.12
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exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services required under this Agreement. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such performance.
4.2 Status of Contractor. Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt, or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees, or agents of City. City shall not be liable for compensation or indemnification to Contractor 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, Contractor 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. Contractor expressly waives any claim Contractor may have to any such rights.
4.3 Contract Officer. The “Contract Officer” shall be such person as may be designated by the City Manager of City. It shall be Contractor’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services and Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents, or employees, perform the Services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision, or control of Contractor’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Contractor shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role.
Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability, and reputation of Contractor, its principals, and employees were a substantial inducement for City to enter into this Agreement. Therefore, Contractor shall not contract with Item Title: 10.12
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any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City.
Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
4.6 Utility Relocation. City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse Contractor for any costs incurred in locating, repairing damage not caused by Contractor, and removing or relocating such unidentified utility facilities. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
4.7 Trenches or Excavations. Pursuant to California Public Contract Code Section 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply.
(a) Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) subsurface or latent physical conditions at the site different from those indicated by information about the site made available to bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement.
(b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the work shall issue a change order per Section 1.10 of this Agreement.
(c) That, in the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by this Agreement, but shall proceed with all work to be performed under this Agreement. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting Parties.
4.8 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out the Services, Contractor shall at all times be in Item Title: 10.12
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compliance with all applicable local, state, and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
4.9 Covid-19 Safety. If Contractor or subcontractor(s) enters City property or meets in person with City employees during the performance of the Services, Contractor shall comply with all State, County, and local 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.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverage.
Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees, and agents of City:
(a) Comprehensive General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury, and property damage. Claims-made, modified, limited, or restricted occurrence forms are not acceptable without prior written consent from City. The policy of insurance shall be in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, TWO MILLION DOLLARS ($2,000,000.00) in the general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. The general aggregate limit shall apply separately to the Services to be performed under this Agreement.
The policy definition of “insured contract” shall include assumptions of liability arising out of both ongoing operations and products-completed operations hazard as set forth in “f” definition in form CG 0001, or equivalent.
The policy must cover inter-insured suits and include a “Separation of Insureds” or “severability” clause which treats each insured separately.
The insurance must be maintained for at least one (1) year following the completion of the Services or the expiration or termination of this Agreement. (b) Worker’s Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California, including Section 3700 of the California Labor Code, and which shall indemnify, insure, and provide legal Item Title: 10.12
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defense for both Contractor and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Contractor in the course of carrying out the Services contemplated in this Agreement. The worker’s compensation policy of insurance shall be in an amount 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. (c) Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than ONE MILLION DOLLARS ($1,000,000.00). Said policy shall include coverage for owned, non- owned, leased, and hired cars.
(d) Professional Liability. Professional liability insurance appropriate to Contractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to the Services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of the Services or the expiration or termination of this Agreement. During this additional five (5)-year period, Contractor shall annually and upon request of City submit written evidence of this continuous coverage. (e) Pollution Liability. A policy of pollution liability insurance written on a per occurrence for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per pollution incident and ONE MILLION DOLLARS ($1,000,000.00) in the general aggregate. The policy shall apply to any incidents at or from any location on which Contractor performs the Services under this Agreement.
The insurance must be maintained for at least one (1) year following the completion of Contractor’s services or the expiration or termination of this Agreement. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit A.
5.2 General Insurance Requirements. All of the above policies of insurance shall be primary insurance and shall name City, its elected and appointed officers, employees, agents, and authorized volunteers as additional insureds and any insurance maintained by City or its officers, employees, agents, or authorized volunteers shall apply in excess of, and not contribute with, Contractor’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against City, its officers, employees, agents, authorized volunteers, and their respective insurers.
Prior written consent from City is required if any of the said policies have a deductible or self-insured retention in excess of TWENTY-FIVE THOUSAND DOLLARS ($25,000).
Item Title: 10.12
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Contractor 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, Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer.
No Services under this Agreement shall commence until Contractor has provided City with original endorsements effecting coverage set forth in this Article 5. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsement is to be on forms provided by or approved by City. As an alternative to City-approved forms, Contractor may provide complete certified copies of all required insurance policies, including endorsements affecting the coverage. City reserves the right to inspect complete, certified copies of all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
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 Contractor, including the insured’s general supervision of Contractor; products and completed operations of Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles owned, leased, or used by Contractor 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. Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects City or its respective elected or appointed officers, officials, employees, and volunteers or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses, and claims. Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages to any persons or property resulting from Contractor’s activities or the activities of any person or persons for which Contractor is otherwise responsible nor shall it limit Contractor’s indemnification liabilities as provided in Section 5.3.
In the event Contractor subcontracts any portion of the Services in compliance with Section 4.5 of this Agreement, the contract between Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that Contractor is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to City.
5.3 Indemnification. To the full extent permitted by law, Contractor agrees to indemnify, defend, and hold harmless City, its officers, employees, agents, and volunteers (“Indemnified Parties”) from and against any and all actions, either judicial, administrative, arbitration, or regulatory, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities whether actual or threatened (“Claims or Liabilities”) that may be Item Title: 10.12
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asserted or claimed by any person, firm, or entity arising out of or in connection with the performance of the Services, operations, or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable (“Indemnors”), or arising from Contractor’s reckless or willful misconduct, or arising from Contractor’s or Indemnors’ negligent performance of or failure to perform any term, provision, covenant, or condition of this Agreement, and in connection therewith:
(a) Contractor shall defend (with counsel selected by City) any action or actions filed in connection with any of said Claims or Liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against City, its officers, agents, or employees for any such Claims or Liabilities arising out of or in connection with the performance of or failure to perform such Services, operations or activities of Contractor hereunder; and Contractor agrees to save and hold City, its officers, agents, and employees harmless therefrom;
(c) In the event City, its officers, agents, or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the performance of or failure to perform the Services, operation or activities of Contractor hereunder, Contractor agrees to pay to City, its officers, agents, or employees, any and all costs and expenses incurred by City, its officers, agents, or employees in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.
Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor shall be fully responsible to indemnify City, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Contractor in the performance of professional services hereunder.
The provisions of this Section do not apply to Claims or Liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness, or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Contractor and shall survive termination of this Agreement.
5.4 Payment and Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a payment (labor and materials) bond and a performance bond, each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secures the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of this Agreement and shall be null and void only if Contractor promptly and faithfully performs all terms and conditions of this Agreement. Payment and performance bonds shall be secured from a surety company rated Grade A or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Officer due to Item Title: 10.12
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unique circumstances, and shall be authorized to write such bonds in the State of California. Contractor shall pay all bond premiums, costs, and incidentals.
5.5 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Officer due to unique circumstances. If this Agreement continues for more than three (3) years duration, or in the event the Contract Officer determines that the Services to be performed under this Agreement creates an increased or decreased risk of loss to City, Contractor agrees that the minimum limits of the insurance policies and the performance bond required by Section 5.4 may be changed accordingly upon receipt of written notice from the Contract Officer; provided that Contractor shall have the right to appeal a determination of increased coverage by the Contract Officer to the City Council of City within ten (10) days of receipt of notice from the Contract Officer.
5.6 Substitution of Securities. Pursuant to Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under this Agreement may be permitted at the request and expense of Contractor.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION.
6.1 Records. Contractor shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to payroll reports), studies, or other documents relating to the disbursements charged to City and the Services performed hereunder (the “Books and Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Books and Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Books and Records at all times during normal business hours of City, including the right to inspect, copy, audit, and make records and transcripts from such Books and Records. Such Books and Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Books and Records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the Books and Records may be given to City, and access shall be provided by Contractor’s successor in interest. 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.
6.2 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that City is greatly concerned about the cost of the Services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein Item Title: 10.12
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or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans, 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 (the “Documents and Materials”) prepared or caused to be prepared by Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the expiration or termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such completed Documents and Materials for other projects and/or use of uncompleted documents without specific written authorization by Contractor will be at City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, revise, or assignment. Contractor may retain copies of such Documents and Materials for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein.
All subcontractors shall provide for assignment to City of any Documents and Materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.
6.4 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 the Documents and Materials.
Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for the Documents and Materials the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all of the Documents and Materials. Contractor makes no such representation and warranty in regard to the Documents and Materials which were prepared by design professionals other than Contractor or provided to Contractor by City. City shall not be limited in any way in its use of the Documents and Materials at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
6.5 Confidentiality and Release of Information.
(a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Contractor, its officers, employees, agents, or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Item Title: 10.12
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Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered voluntary so long as Contractor gives City notice of such court order or subpoena. (c) If Contractor, or any officer, employee, agent, or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs, and fees, including attorneys’ fees, caused by or incurred as a result of Contractor’s conduct. (d) Contractor shall promptly notify City should Contractor, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing, or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION.
7.1 California Law. This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
7.2 Disputes; Default. In the event that Contractor is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Contractor for any of the Services performed after the date of default. Instead, City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of City to give notice of Contractor’s default shall not be deemed to result in a waiver of City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds. Contractor hereby authorizes City to retain and deduct from any amount payable to Contractor not exceeding five percent (5%) of the Contract Sum (whether or not arising out of this Agreement) as security for performance of this Agreement. The retained Item Title: 10.12
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funds shall be paid to Contractor within sixty (60) days after final acceptance of the Services by the City Council of City and after Contractor has furnished City with full release of all undisputed payments under this Agreement. In the event there are any claims specifically excluded by Contractor 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 Contractor to insure, indemnify, and protect City as provided in this Agreement.
7.4 Waiver. 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 Contractor 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.
7.5 Rights and Remedies are Cumulative. 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.
7.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to City the sum of FIVE HUNDRED DOLLARS ($500.00) as liquidated damages for each working day of delay in the performance of any of the Services required hereunder, as specified in the Schedule of Performance. City may withhold from any monies payable on account of the Services performed by Contractor any accrued liquidated damages.
7.8 Termination Prior to Expiration of Term. This Section 7.8 shall govern any termination of this Agreement except as specifically provided in the following Section 7.9 for termination for cause. City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Contractor, except that where termination is due to the fault of Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, Contractor reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of City, the period of notice may be such shorter time as Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Except Item Title: 10.12
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where Contractor has initiated termination, Contractor shall be entitled to compensation for all Services rendered prior to the effective date of the notice of termination and for any Services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event Contractor has initiated termination, Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Contractor. If termination is due to the failure of Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the Services and prosecute the same to completion by contract or otherwise, and Contractor shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Contractor for the purpose of set-off or partial payment of the amounts owed City as previously stated.
7.10 Attorneys’ Fees. If either Party to this Agreement is required to initiate or defend or made a Party to any action or proceeding in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees; provided, however, that the attorneys’ fees awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. Attorneys’ fees shall include attorneys’ fees on any appeal, and in addition a Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. The court may set such fees in the same action or in a separate action brought for that purpose.
7.11 Suspension of Services. The City Engineer of City (“Engineer”) shall have the authority to suspend the Services, wholly or in part, for such period as the Engineer may deem necessary, due to unsuitable weather or to such other conditions as are considered unfavorable for the suitable prosecution of the Services, or for such time as the Engineer may deem necessary due to the failure on the part of Contractor to carry out orders given or to perform any provisions of the Services. Contractor shall immediately comply with the written order of the Engineer to suspend the Services wholly or in part and shall not resume the Services until ordered to do so in writing by the Engineer. Such suspension shall be without liability to Contractor on the part of City. In the event a suspension of work is ordered because of failure on the part of Contractor to carry out orders given or to perform any provisions of the Services, such suspension of the Services shall not relieve Contractor of responsibility to complete the Services within the time limit set forth herein and shall not be considered cause for extension of the time for completion and, further, such suspension of the Services shall not entitle Contractor to any additional compensation.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION Item Title: 10.12
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8.1 Non-liability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. Contractor covenants that neither it, nor any officer or principal of it, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of the Services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent, or subcontractor without the express written consent of the Contract Officer. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that 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 in the performance of this Agreement.
Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
8.4 Unauthorized Aliens. Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein.
Should Contractor so employ such unauthorized aliens for the performance of the Services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices. Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of City, to the City Manager and to the attention of the Contract Officer, CITY OF MENIFEE, 29844 Haun Road, Menifee, CA 92586 and in the case of Contractor, to the person at the address designated on the execution page of this Agreement. Either Party may change its address by Item Title: 10.12
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notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Unfair Business Practices Claims. In entering into this Agreement, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contractor without further acknowledgment of the Parties.
9.3 Interpretation. 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.
9.4 Article and Section Headings and Subheadings. The article and 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.
9.5 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.6 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete, and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the Parties, and none shall be used to interpret this Agreement.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Contractor and by the City Council of City. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.7 Severability. In the event that any one or more of the articles, phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable, such invalidity or unenforceability shall not affect any of the remaining articles, phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.8 No Third Party 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 such other third parties shall have any rights or obligations hereunder.
9.9 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 Item Title: 10.12
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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. This Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of the Parties. [SIGNATURES ON FOLLOWING PAGE]
Item Title: 10.12
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
AGENCY:
CITY OF MENIFEE
______________________________
Armando G. Villa, City Manager
CONTRACTOR:
AIRFORCE 1 PLUMBING HEATING & AIR,
INC_______
Charlie Dieringer, President
Linda Dieringer, Vice President
_____________________________________
Contractor’s City Business License
_____________________________________
State Contractor License No.
ATTEST:
Stephanie Roseen, Acting City Clerk
Address:
31566 RAILROAD CANYON ROAD,
#682_CANYON LAKE, CA 92587_
APPROVED AS TO FORM:
Jeffrey T. Melching, City Attorney
Two signatures are required if a corporation.
NOTE: APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED
BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR’S BUSINESS ENTITY.
Item Title: 10.12
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2671/031858-0001
7630667.2 a05/31/18 EXHIBIT A
EXHIBIT A
SPECIAL REQUIREMENTS
INTENTIONALLY LEFT BLANK.
Item Title: 10.12
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EXHIBIT B
SCOPE OF SERVICES
CITY OF MENIFEE
HVAC MAINTENANCE AND REPAIR SERVICES
Not-to-Exceed Two Hundred Sixteen Thousand One Hundred Twenty Two Dollars and Zero Cents ($216,122.00).
The Contract Sum for performing all Services described in the Scope of Services, including labor, materials, services, and equipment is the total amount of all lump sum items and of all unit price sums, determined by multiplying the unit price for each item times the actual quantity of each such item, as determined by the City. The Contract Sum is further divided by the term of the Agreement, as more specifically defined in Section 3.5 of the Agreement. The Services provided pursuant to this Agreement shall not exceed the following amounts, which together constitute the Contract Sum. The amounts set forth below include compensation based on Contractor’s proposal for the total cost of performing the Services, includes additional purchasing authorization for as-needed services, and includes the 5% annual markup percentage indicated in the Scope of Services or mutually agreed upon by the Parties:
•Initial Term: Forty-One Thousand Sixteen Dollars and Zero Cents ($41,016.00). •First Renewal Term: Forty-Two Thousand Sixty-Six Dollars and Zero Cents ($42,066.00) (Includes the 5% annual markup percentage)
•Second Renewal Term: Forty-Three Thousand One Hundred Sixty-Nine Dollars and Zero Cents ($43,169.00) (Includes the 5% annual markup percentage) •Third Renewal Term: Forty-Four Thousand Three Hundred Twenty-Seven Dollars and Zero Cents ($44,327.00) (Includes the 5% annual markup percentage) •Fourth Renewal Term: Forty-Five Thousand Five Hundred Forty-Four Dollars and Zero Cents ($45,544.00) (Includes the 5% annual markup percentage) Notwithstanding the foregoing, Contractor shall not be entitled to any compensation for work not actually performed.
The Scope of Services is further detailed on the following pages.
Item Title: 10.12
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HVAC Maintenance and Repair Services
Location Year 1 Year 2 Year 3 Year 4 Year 5
City Hall $6,512.00 $6,837.38 $7,179.00 $7,537.95 $7,914.85 CSD West annex $888.00 $932.37 $978.99 $1,027.94 $1,079.34 KC Center $1,776.00 $1,864.74 $1,957.98 $2,055.88 $2,158.67 CSD North Anex $592.00 $621.58 $652.66 $685.29 $719.56
Lazy Creek, Bldg A $592.00 $621.58 $652.66 $685.29 $719.56 Lazy Creek, Bldg B $1,184.00 $1,243.16 $1,305.32 $1,370.59 $1,439.12 PW MOC $1,184.00 $1,243.16 $1,305.32 $1,370.59 $1,439.12 PD Substation $296.00 $310.70 $326.16 $342.47 $359.59
PD Headquarters $5,032.00 $5,283.43 $5,547.61 $5,824.99 $6,116.24 Fire Station 5 $592.00 $621.58 $652.66 $685.29 $719.56
Fire Station 68 $888.00 $932.37 $978.99 $1,027.94 $1,079.34 Fire Station 7 $888.00 $932.37 $978.99 $1,027.94 $1,079.34 Fire Station 76 $592.00 $621.58 $652.66 $685.29 $719.56 Item Title: 10.12
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$21,016 $22,066 $23,169 $24,327 $25,544
Emergency Services (As Needed)
All Locations $20,000 $20,000 $20,000 $20,000 $20,000
Total $41,016 $42,066 $43,169 $44,327 $45,544
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7630667.2 a05/31/18 EXHIBIT C
EXHIBIT C
SCHEDULE OF PERFORMANCE
The services to be performed pursuant to this Agreement are to be completed on a timely basis, with an estimated completion date of no later than August 15, 2028.
Item Title: 10.12
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CITY OF MENIFEE
SUBJECT: Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Carlos Geronimo, Engineering Manager
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Accept the improvements for the Menifee Road Resurfacing Project, Capital Improvement Project No. CIP 22-06; and
2. Authorize the City Clerk to file a Notice of Completion with the Riverside County Recorder’s Office.
DISCUSSION
The Menifee Road Resurfacing Project, Capital Improvement Project (CIP) No. 22-06 (Project) consisted of resurfacing Menifee Road from Holland Road to Diamond Road (Fire Station 76 entrance) just north of Newport Road. The method of resurfacing consisted of header grind with an asphalt overlay, construction of a raised median from Newport Road north to Diamond Road, the addition of two miles of striped bicycle lanes, and the retrofit of 12 ramps to comply with Americans With Disabilities Act requirements.
On November 16, 2022, the City Council approved a total construction budget of $1,715,098 for the Project and authorized the City Manager to approve a construction contract with Hillcrest Contracting, Inc., in the amount of $1,690,663. On January 18, 2023, City Council approved a Professional Services Agreement with Ninyo & Moore to provide materials testing services for the Project. At that time, the total construction budget for the Project was increased to $1,875,520 through budget transfers from recently completed projects with savings totaling $160,422.
The estimated final construction costs for the Project totaled $1,751,114, which includes ancillary costs such as materials testing, labor compliance services, as well as two contract change orders in the amount of $41,609, with Hillcrest Contracting, Inc.
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 1
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City of Menifee Staff Report
CIP 22-06 NOC
September 6, 2023
1 7
5 0
The Project also required coordination with Eastern Municipal Water District (EMWD) for adjustment of utility items throughout the Project area. On January 18, 2023, the City and EMWD entered into a Utility Relocation Agreement establishing that EMWD would reimburse the City an estimated total of $51,119 for work performed to adjust identified utilities. During construction, there were fewer utility adjustments required than initially anticipated. Now that the Project is complete, the final reimbursement amount due from EMWD has been determined to be $46,019.
Staff has submitted for reimbursement in that amount from EMWD, which reduces the total construction costs for the Project to $1,705,095.
If approved, a Notice of Completion (NOC) would be filed with the Riverside County Clerk Recorder’s Office, which protects the City from future claims against the Project by providing proper noticing to each contractor, subcontractor, and material supplier, that the Project has been completed. The Project’s payment bond would be released upon project acceptance by the City and the performance bond would be released one year after the date of recording of the NOC.
The City has not received any stop notices that would prevent said releases.
STRATEGIC PLAN OBJECTIVE
Connectivity and Mobility
FISCAL IMPACT
There is no fiscal impact associated with the acceptance of the improvements related to the Project.
ATTACHMENTS
1. Project Location Map
2. Notice of Completion
3. Closeout Documents
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 2
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Path: E:\Project_Specific_Maps\Engineering_PublicWorks\Menifee_Road_Resurfacing_Holland_Newport\Menifee_Road_Resurfacing_Holland_Newport.aprx Date: 1/3/2022 Menifee Road Resurfacing from Holland to Newport (CIP 22-06) Project Location Map
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 3
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4 Recording Requested By:
CITY OF MENIFEE
After Recording Mail To:
CITY CLERK
CITY OF MENIFEE
29844 HAUN ROAD
MENIFEE, CA 92586
Record without fee subject to Govt. Code 6103
NOTICE OF COMPLETION
(Public Works – Civil Code Sec. 9204)
MENIFEE ROAD RESURFACING PROJECT – HOLLAND ROAD TO NEWPORT ROAD, CIP 22-06 Notice is hereby given that:
Work of improvements on the project herein described was accepted as complete on September 6, 2023. The project improvements consisted of resurfacing Menifee Road between Holland Road and Diamond Road (Fire Station No. 76 Entrance), just north of Newport Road. The method of resurfacing consisted of header grind with an asphalt overlay, construction of a raised median from Newport Road north to Diamond Road, the addition of two miles of striped bicycle lanes, and retrofit 12 ADA ramps. The project was completed in the city right-of-way in the City of Menifee, County of Riverside, State of California.
1. The full name of the Owner is: CITY OF MENIFEE
2. The full address of the Owner is: 29844 HAUN ROAD
MENIFEE, CA. 92586
3. The undersigned is a Corporate Officer of the Owner of the interest stated below in the property herein described:
PUBLIC STREETS IN
MENIFEE, CA 92586
4. The name of the contractor for such work of construction is:
HILLCREST CONTRACTING, INC.
1467 CIRCLE CITY DRIVE
CORONA, CA 92879
5. The property on which said work of improvement was completed is within the City of Menifee, County of Riverside, State of California.
STATE OF CALIFORNIA)
Ss
COUNTY OF RIVERSIDE)
I, Sarah Manwaring, hereby certify that I am the City Clerk of the City of Menifee, a municipal corporation, which is the owner of the properties described within this Notice of Completion, executed on behalf of the City; that I have read the notice and know the contents thereof and that the facts therein stated are true of my own knowledge under penalty of perjury under the laws of the state of California; that I make this verification on _________________, 20___ for and on behalf of the City.
_____________________________
Sarah Manwaring, City Clerk
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 4
Menifee Mayor and City Council
September 6, 2023
Page
340 of 763
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 5
Menifee Mayor and City Council
September 6, 2023
Page
341 of 763
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 6
Menifee Mayor and City Council
September 6, 2023
Page
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Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 7
Menifee Mayor and City Council
September 6, 2023
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Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 8
Menifee Mayor and City Council
September 6, 2023
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Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 9
Menifee Mayor and City Council
September 6, 2023
Page
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Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 10
Menifee Mayor and City Council
September 6, 2023
Page
346 of 763
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 11
Menifee Mayor and City Council
September 6, 2023
Page
347 of 763
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 12
Menifee Mayor and City Council
September 6, 2023
Page
348 of 763
Item Title: 10.13
Notice of Completion and Acceptance for the Menifee Road Resurfacing Project, Capital Improvement Project No. 22-06 Item Page Number: 13
Menifee Mayor and City Council
September 6, 2023
Page
349 of 763
CITY OF MENIFEE
SUBJECT: Agreements with Mind and Mill LLC, Dynamic Video Communications, LLC, and Sebaz Video Productions, Inc. for On-Call Videography Services
MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Rebekah Kramer, Assistant to the City Manager REVIEWED BY: Rochelle Clayton, Assistant City Manager
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute Professional Services Agreements with Mind and Mill, LLC, Dynamic Video Communications, LLC, and Sebaz Video Productions Inc. for On-Call Videography Services in an amount not-to-exceed $25,000 for Fiscal Year (FY) 2023/2024 and $25,000 for FY 2024/2025; and
2. Authorize the City Manager to approve three, one-year renewals in an amount not-to-exceed $25,000 annually.
DISCUSSION
On May 1, 2023, the City issued Request for Proposal (RFP) No. 2023-18 for On-Call Videography services to produce professional, high-quality video footage and edited videos that highlight community events and programs, internal trainings or engagements, and promotional information. The selected firms will serve as a back-up to City staff in the production of video content aired on all communication channels including Menifee TV on an as needed basis throughout the year.
RFP Process
A total of 13 proposals were received by the submittal deadline of May 30, 2023, from the following firms:
1. Blu Fable LLC
2. Colorblast Films
3. Dynamic Video Communications LLC
4. GOASTAFA Productions
5. Media3Sixty
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 1
Menifee Mayor and City Council
September 6, 2023
Page
350 of 763
City of Menifee Staff Report
On-Call Videography Services
September 6, 2023
1 7
6 2
6. Mind and Mill, LLC
7. Pegasus Studios
8. Searle Creative Group, LLC
9. Sebaz Video Productions, Inc.
10. The Creative Bar
11. Tripepi Smith and Associates Inc.
12. TV Pro Gear, Inc.
13. Video Approach
A comprehensive evaluation of the proposals received was completed by a review committee comprised of City staff. Proposals were reviewed and ranked based on the qualifications and experience of the firms and their project team, service delivery approach, and cost.
TABLE 1 – RFP Evaluation Summary
Firm Average Score
(100 possible point)
1. Dynamic Video Communications, LLC 82.0
2. Tripepi Smith and Associates, Inc. 81.67
3. Sebaz Video Productions, Inc. 81.67
4. Mind and Mill, LLC 81.0
5. TV Pro Gear, Inc. 80.0
6. Searle Creative Group, LLC 79.0
7. Pegasus Studios 77.0
8. Colorblast Films 77.00
9. GOASTAFA Productions 77.0
10. Video Approach 75.67
11. Media3Sixty 73.67
12. Blu Fable, LLC 73.67
13. The Creative Bar 66.67
The top five finalists participated in an interview. The average scores of the evaluation completed by the interview panel are summarized in Table 2 below.
TABLE 2 – RFP Interview Summary
Firm Average Score
(100 possible point)
1.Mind and Mill, LLC 90.33
2.Dynamic Video Communications, LLC 85.67
3.Sebaz Video Productions, Inc. 82.0
4.Tripepi Smith and Associates, Inc. 74.67
5.TV Pro Gear, Inc. 77.67
Following the proposal evaluation, interviews, and reference checks, City staff determined that Mind and Mill, LLC, Dynamic Video Communications, LLC, and Sebaz Video Productions, Inc. were best qualified to provide On-Call Videography services for the City. Each of these firms have a broad range of videography experience serving both public and private sector clients.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 2
Menifee Mayor and City Council
September 6, 2023
Page
351 of 763
City of Menifee Staff Report
On-Call Videography Services
September 6, 2023
1 7
6 2
The proposed Professional Services Agreement (PSA) terms are for a two-year period extending from September 6, 2023, through June 30, 2025, with three, one-year renewals. The agreement gives the City sole discretion to extend the agreement if it so chooses, and the recommended action for this agenda item includes authorization to the City Manager to grant up to three one- year renewals for each of the PSAs. The PSA renewal terms allow for an annual increase in the hourly rates charged by the service providers equal to the lesser of (i) 3% per year or (ii) the increase in the Consumer Price Index for Los Angeles, Riverside, and Anaheim for the prior 12- month period.
The On-Call Agreements would provide access to three qualified firms able to meet the City’s videography requirements on an as-needed basis. This would help to eliminate the potential for capacity constraints should any of the selected firms be unable to meet the City’s scheduling/support needs on a project. As projects arise, City staff would acquire estimates from the authorized videography firms based upon the required scope of work. Projects would be awarded from among the selected firms based upon the project cost considered in combination with the firm’s capabilities and ability to complete each project within the required timeframe.
STRATEGIC PLAN OBJECTIVE
Community Engagement and Social Infrastructure
FISCAL IMPACT
The estimated fiscal impact for as needed videography services is set not-to-exceed $25,000 annually in FYs 2023/2024 and 2024/2025 for a total of $50,000. The associated costs have been included as part of the adopted FY 2023/2024 and 2024/2025 budgets within the Communications Division Account No. 100-4121-52800 (Professional Services). Funding for the three additional one-year renewals would be established as part of the respective year’s operating budget. No additional budget appropriation action(s) are required.
ATTACHMENTS
1. PSA – Mind and Mill LLC
2. PSA – Dynamic Video Communications LLC
3. PSA – Sebaz Video Productions Inc.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 3
Menifee Mayor and City Council
September 6, 2023
Page
352 of 763
2905/031858-0001
19338889.2 a07/24/23
CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
ON CALL VIDEOGRAPHY & EDITING SERVICES
THIS PROFESSIONAL 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 MIND AND MILL, LLC, 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 September 6, 2023 and shall end on June 30, 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”). Upon termination of the Second Renewal Term, if it occurs, this Agreement shall automatically renew for one (1) additional one (1) year term (“Third 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 4
Menifee Mayor and City Council
September 6, 2023
Page
353 of 763
2905/031858-0001
19338889.2 a07/24/23 -2-
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.
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.
SECTION 2. COMPENSATION.
Consultant is one (1) of three (3) consultants performing the Services on behalf of the City (each a “Performing Consultant,”) and shall be compensated as provided herein for the Services performed by Consultant. Consultant hereby acknowledges that Consultant is one (1) of three (3) Performing Consultants and that no one (1) Performing Consultant is entitled to or guaranteed any particular quantity of work required for the Services. Notwithstanding any contrary indications that may be contained in Consultant’s proposal, City hereby agrees to pay Consultant as follows, provided that the sums listed herein shall be the maximum compensation available to all Performing Consultants combined, in the aggregate for the initial and first, second, and third renewal terms:
1. Initial Term: An aggregate sum not to exceed FIFTY THOUSAND DOLLARS AND ZERO CENTS ($50,000.00); and
2. First Renewal Term: For a maximum aggregate sum not to exceed TWENTY- FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00); and
3. Second Renewal Term: For a maximum aggregate sum not to exceed TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00); and
4. Third Renewal Term: For a maximum aggregate sum not to exceed TWENTY- FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00).
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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 5
Menifee Mayor and City Council
September 6, 2023
Page
354 of 763
2905/031858-0001
19338889.2 a07/24/23 -3-
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 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;
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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 6
Menifee Mayor and City Council
September 6, 2023
Page
355 of 763
2905/031858-0001
19338889.2 a07/24/23 -4-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 7
Menifee Mayor and City Council
September 6, 2023
Page
356 of 763
2905/031858-0001
19338889.2 a07/24/23 -5-
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.
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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 8
Menifee Mayor and City Council
September 6, 2023
Page
357 of 763
2905/031858-0001
19338889.2 a07/24/23 -6-
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.
(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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 9
Menifee Mayor and City Council
September 6, 2023
Page
358 of 763
2905/031858-0001
19338889.2 a07/24/23 -7-
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: ON CALL VIDEOGRAPHY & EDITING SERVICES. 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 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 10
Menifee Mayor and City Council
September 6, 2023
Page
359 of 763
2905/031858-0001
19338889.2 a07/24/23 -8-
f. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 11
Menifee Mayor and City Council
September 6, 2023
Page
360 of 763
2905/031858-0001
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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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 12
Menifee Mayor and City Council
September 6, 2023
Page
361 of 763
2905/031858-0001
19338889.2 a07/24/23 -10-
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. 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 13
Menifee Mayor and City Council
September 6, 2023
Page
362 of 763
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(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. 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, Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 14
Menifee Mayor and City Council
September 6, 2023
Page
363 of 763
2905/031858-0001
19338889.2 a07/24/23 -12-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 15
Menifee Mayor and City Council
September 6, 2023
Page
364 of 763
2905/031858-0001
19338889.2 a07/24/23 -13-
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:
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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 16
Menifee Mayor and City Council
September 6, 2023
Page
365 of 763
2905/031858-0001
19338889.2 a07/24/23 -14-
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 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 17
Menifee Mayor and City Council
September 6, 2023
Page
366 of 763
2905/031858-0001
19338889.2 a07/24/23 -15-
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.
10.7 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Joshua Mauldin (“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, Rebekah Kramer, Assistant to the City Manger (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 18
Menifee Mayor and City Council
September 6, 2023
Page
367 of 763
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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:
MIND AND MILL LLC
Attn: Joshua Mauldin
3615 MAIN STREET, SUITE 103
RIVERSIDE, CA 92501
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Rebekah Kramer, Assistant to the City Manger
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.12 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 19
Menifee Mayor and City Council
September 6, 2023
Page
368 of 763
2905/031858-0001
19338889.2 a07/24/23 -17-
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 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]
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 20
Menifee Mayor and City Council
September 6, 2023
Page
369 of 763
2905/031858-0001
19338889.2 a07/24/23 -18-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Joshua Mauldin, Partner
Timothy Jackson, Partner
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 21
Menifee Mayor and City Council
September 6, 2023
Page
370 of 763
2905/031858-0001
19338889.2 a07/24/23
EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include ON CALL VIDEOGRAPHY & EDITING SERVICES in the combined aggregate amount not to exceed TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00) for each year of the initial term to all Performing Consultants, as well as for the First, Second, and Third Renewal Terms. Services shall include On Call Videography & Editing Services Services in the combined amount to both Performing Consultants not to exceed the following amounts, as further detailed on the following pages:
Initial Term: An aggregate sum not to exceed Fifty Thousand Dollars and Zero Cents ($50,000.00)
First Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Second Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Third Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 22
Menifee Mayor and City Council
September 6, 2023
Page
371 of 763
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT A.
MIND AND MILL
EXHIBIT A
SCOPE OF SERVICES
As needed production of professional, high-quality video footage and edited videos that highlight community events and programs, internal trainings or engagements, and promotional information featuring City staff, Council, Commission, or Committee members, the community, business professionals, and others. The videographer will be responsible for:
•Fulfilling the desired goals of City staff for social media, event, website, and other video projects, including sharing suggestions to create high quality video productions to meet the expressed goals in a timely and cost-effective manner.
•Planning and setup (which may include arrangement of location and subjects, lighting, etc.) for scheduled video shoots or events at a specified location. •Post-production processing, which may include raw file conversion, and the ability to perform limited color correction and editing prior to delivery of final product. •Delivery of all videos to the requesting City entity within the timeframe defined in an agreed upon timeline.
•Provide rushed turnaround time on occasion.
•The videographer must provide their own camera, lenses, microphones, memory cards, lighting, tripods, and other related imaging and sound equipment. The equipment must be capable of producing high quality digital video and sound content. The Vendor must also have access to additional production needs as required by the specific project, including a teleprompter, to provide the services requested by the City.
FEE SCHEDULE 2023-2024:
Title Hourly Rate
Director (Pre-Production) $85
Director (Production) $128
Lighting Technician $65
Production Designer $75
Sound Operator $120
Camera Assistants $65
Editor $115
Animator $120
Copywriter $80
Audio $119
Drone Operator $150
General Videography $128
Content Transfer $68
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 23
Menifee Mayor and City Council
September 6, 2023
Page
372 of 763
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT A.
An estimate of the time and resources required to complete each project (following the hourly rate schedule shown above) will be provided based upon scope of work established by the City. The City agrees and acknowledges that the hourly rates stated above may be increased each Renewal Term in the amount of the lesser of 3% or the percentage change in the Consumer Price Index published for the area of Los Angeles, Riverside, and Anaheim (“CPI”) over the previous 12 months.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 24
Menifee Mayor and City Council
September 6, 2023
Page
373 of 763
2905/031858-0001
19338889.2 a07/24/23
CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
ON CALL VIDEOGRAPHY & EDITING SERVICES
THIS PROFESSIONAL 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 DYNAMIC VIDEO COMMUNICATIONS, LLC, a (“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 September 6, 2023 and shall end on June 30, 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”). Upon termination of the Second Renewal Term, if it occurs, this Agreement shall automatically renew for one (1) additional one (1) year term (“Third 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 25
Menifee Mayor and City Council
September 6, 2023
Page
374 of 763
2905/031858-0001
19338889.2 a07/24/23 -2-
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.
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.
SECTION 2. COMPENSATION.
Consultant is one (1) of three (3) consultants performing the Services on behalf of the City (each a “Performing Consultant,”) and shall be compensated as provided herein for the Services performed by Consultant. Consultant hereby acknowledges that Consultant is one (1) of three (3) Performing Consultants and that no one (1) Performing Consultant is entitled to or guaranteed any particular quantity of work required for the Services. Notwithstanding any contrary indications that may be contained in Consultant’s proposal, City hereby agrees to pay Consultant as follows, provided that the sums listed herein shall be the maximum compensation available to all Performing Consultants combined, in the aggregate for the initial and first, second, and third renewal terms:
1. Initial Term: An aggregate sum not to exceed FIFTY THOUSAND DOLLARS AND ZERO CENTS ($50,000.00); and
2. First Renewal Term: For a maximum aggregate sum not to exceed TWENTY- FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00); and
3. Second Renewal Term: For a maximum aggregate sum not to exceed TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00); and
4. Third Renewal Term: For a maximum aggregate sum not to exceed TWENTY- FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00).
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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 26
Menifee Mayor and City Council
September 6, 2023
Page
375 of 763
2905/031858-0001
19338889.2 a07/24/23 -3-
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 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;
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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 27
Menifee Mayor and City Council
September 6, 2023
Page
376 of 763
2905/031858-0001
19338889.2 a07/24/23 -4-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 28
Menifee Mayor and City Council
September 6, 2023
Page
377 of 763
2905/031858-0001
19338889.2 a07/24/23 -5-
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.
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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 29
Menifee Mayor and City Council
September 6, 2023
Page
378 of 763
2905/031858-0001
19338889.2 a07/24/23 -6-
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.
(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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 30
Menifee Mayor and City Council
September 6, 2023
Page
379 of 763
2905/031858-0001
19338889.2 a07/24/23 -7-
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: ON CALL VIDEOGRAPHY & EDITING SERVICES. 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 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 31
Menifee Mayor and City Council
September 6, 2023
Page
380 of 763
2905/031858-0001
19338889.2 a07/24/23 -8-
f. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 32
Menifee Mayor and City Council
September 6, 2023
Page
381 of 763
2905/031858-0001
19338889.2 a07/24/23 -9-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 33
Menifee Mayor and City Council
September 6, 2023
Page
382 of 763
2905/031858-0001
19338889.2 a07/24/23 -10-
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. 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 34
Menifee Mayor and City Council
September 6, 2023
Page
383 of 763
2905/031858-0001
19338889.2 a07/24/23 -11-
(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. 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, Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 35
Menifee Mayor and City Council
September 6, 2023
Page
384 of 763
2905/031858-0001
19338889.2 a07/24/23 -12-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 36
Menifee Mayor and City Council
September 6, 2023
Page
385 of 763
2905/031858-0001
19338889.2 a07/24/23 -13-
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:
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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 37
Menifee Mayor and City Council
September 6, 2023
Page
386 of 763
2905/031858-0001
19338889.2 a07/24/23 -14-
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 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 38
Menifee Mayor and City Council
September 6, 2023
Page
387 of 763
2905/031858-0001
19338889.2 a07/24/23 -15-
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.
10.7 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Edward Garcia, Producer (“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, Rebekah Kramer, Assistant to the City Manger (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 39
Menifee Mayor and City Council
September 6, 2023
Page
388 of 763
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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:
DYNAMIC VIDEO COMMUNICATIONS, LLC
Attn: Edward Garcia, Producer
30211 Avenida de las Banderas, Studio 200
Ranco Santa Margarita, CA 92688
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Rebekah Kramer, Assistant to the City Manger
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.12 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 40
Menifee Mayor and City Council
September 6, 2023
Page
389 of 763
2905/031858-0001
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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 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]
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 41
Menifee Mayor and City Council
September 6, 2023
Page
390 of 763
2905/031858-0001
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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
Armando Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 42
Menifee Mayor and City Council
September 6, 2023
Page
391 of 763
2905/031858-0001
19338889.2 a07/24/23
EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include ON CALL VIDEOGRAPHY & EDITING SERVICES in the combined aggregate amount not to exceed TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00) for each year of the initial term to all Performing Consultants, as well as for the First, Second, and Third Renewal Terms. Services shall include On Call Videography & Editing Services Services in the combined amount to both Performing Consultants not to exceed the following amounts, as further detailed on the following pages:
Initial Term: An aggregate sum not to exceed Fifty Thousand Dollars and Zero Cents ($50,000.00)
First Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Second Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Third Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 43
Menifee Mayor and City Council
September 6, 2023
Page
392 of 763
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT A.
DYNAMIC VIDEO COMMUNICATIONS
EXHIBIT A
SCOPE OF SERVICES
As needed production of professional, high-quality video footage and edited videos that highlight community events and programs, internal trainings or engagements, and promotional information featuring City staff, Council, Commission, or Committee members, the community, business professionals, and others. The videographer will be responsible for:
•Fulfilling the desired goals of City staff for social media, event, website, and other video projects, including sharing suggestions to create high quality video productions to meet the expressed goals in a timely and cost-effective manner.
•Planning and setup (which may include arrangement of location and subjects, lighting, etc.) for scheduled video shoots or events at a specified location. •Post-production processing, which may include raw file conversion, and the ability to perform limited color correction and editing prior to delivery of final product. •Delivery of all videos to the requesting City entity within the timeframe defined in an agreed upon timeline.
•Provide rushed turnaround time on occasion.
•The videographer must provide their own camera, lenses, microphones, memory cards, lighting, tripods, and other related imaging and sound equipment. The equipment must be capable of producing high quality digital video and sound content. The Vendor must also have access to additional production needs as required by the specific project, including a teleprompter, to provide the services requested by the City.
FEE SCHEDULE 2023-2024:
Title Hourly Rate
Producer/Director 125
Videographer w/Audio Video Equipment 210
Prompter and Operator 185
Gaffer/Second Camera Operator 125
Audio Engineering w/Gear 120
Premiere Editor 135
Grading 65
Mixing/Sound Design 65
Animation 85
Scripting/Writer 85
Project Manager/Coordinator 75
An estimate of the time and resources required to complete each project (following the hourly rate schedule shown above) will be provided based upon scope of work established by the City. The City agrees and acknowledges that the hourly rates stated above may be increased each Renewal Term in the amount of the lesser of 3% or the percentage change in the Consumer Price Index published for the area of Los Angeles, Riverside, and Anaheim (“CPI”) over the previous 12 months.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 44
Menifee Mayor and City Council
September 6, 2023
Page
393 of 763
2905/031858-0001
19338889.2 a07/24/23
CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
ON CALL VIDEOGRAPHY & EDITING SERVICES
THIS PROFESSIONAL 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 SEBAZ VIDEO PRODUCTIONS, a Individual/Sole Proprietor (“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 September 6, 2023 and shall end on June 30, 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”). Upon termination of the Second Renewal Term, if it occurs, this Agreement shall automatically renew for one (1) additional one (1) year term (“Third 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 45
Menifee Mayor and City Council
September 6, 2023
Page
394 of 763
2905/031858-0001
19338889.2 a07/24/23 -2-
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.
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.
SECTION 2. COMPENSATION.
Consultant is one (1) of three (3) consultants performing the Services on behalf of the City (each a “Performing Consultant,”) and shall be compensated as provided herein for the Services performed by Consultant. Consultant hereby acknowledges that Consultant is one (1) of three (3) Performing Consultants and that no one (1) Performing Consultant is entitled to or guaranteed any particular quantity of work required for the Services. Notwithstanding any contrary indications that may be contained in Consultant’s proposal, City hereby agrees to pay Consultant as follows, provided that the sums listed herein shall be the maximum compensation available to all Performing Consultants combined, in the aggregate for the initial and first, second, and third renewal terms:
1. Initial Term: An aggregate sum not to exceed FIFTY THOUSAND DOLLARS AND ZERO CENTS ($50,000.00); and
2. First Renewal Term: For a maximum aggregate sum not to exceed TWENTY- FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00); and
3. Second Renewal Term: For a maximum aggregate sum not to exceed TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00); and
4. Third Renewal Term: For a maximum aggregate sum not to exceed TWENTY- FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00).
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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 46
Menifee Mayor and City Council
September 6, 2023
Page
395 of 763
2905/031858-0001
19338889.2 a07/24/23 -3-
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 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;
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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 47
Menifee Mayor and City Council
September 6, 2023
Page
396 of 763
2905/031858-0001
19338889.2 a07/24/23 -4-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 48
Menifee Mayor and City Council
September 6, 2023
Page
397 of 763
2905/031858-0001
19338889.2 a07/24/23 -5-
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.
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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 49
Menifee Mayor and City Council
September 6, 2023
Page
398 of 763
2905/031858-0001
19338889.2 a07/24/23 -6-
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.
(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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 50
Menifee Mayor and City Council
September 6, 2023
Page
399 of 763
2905/031858-0001
19338889.2 a07/24/23 -7-
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: ON CALL VIDEOGRAPHY & EDITING SERVICES. 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 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 51
Menifee Mayor and City Council
September 6, 2023
Page
400 of 763
2905/031858-0001
19338889.2 a07/24/23 -8-
f. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 52
Menifee Mayor and City Council
September 6, 2023
Page
401 of 763
2905/031858-0001
19338889.2 a07/24/23 -9-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 53
Menifee Mayor and City Council
September 6, 2023
Page
402 of 763
2905/031858-0001
19338889.2 a07/24/23 -10-
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. 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 54
Menifee Mayor and City Council
September 6, 2023
Page
403 of 763
2905/031858-0001
19338889.2 a07/24/23 -11-
(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. 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, Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 55
Menifee Mayor and City Council
September 6, 2023
Page
404 of 763
2905/031858-0001
19338889.2 a07/24/23 -12-
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 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 56
Menifee Mayor and City Council
September 6, 2023
Page
405 of 763
2905/031858-0001
19338889.2 a07/24/23 -13-
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:
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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 57
Menifee Mayor and City Council
September 6, 2023
Page
406 of 763
2905/031858-0001
19338889.2 a07/24/23 -14-
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 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.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 58
Menifee Mayor and City Council
September 6, 2023
Page
407 of 763
2905/031858-0001
19338889.2 a07/24/23 -15-
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.
10.7 Consultant Representative. All matters under this Agreement shall be handled for Consultant by Sebastian Sidi (“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, Rebekah Kramer, Assistant to the City Manger (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. The Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 59
Menifee Mayor and City Council
September 6, 2023
Page
408 of 763
2905/031858-0001
19338889.2 a07/24/23 -16-
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:
SEBAZ VIDEO PRODUCTIONS
Attn: Sebastian Sidi
28829 Cloverdale Circle
Menifee, Ca 92584
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Rebekah Kramer, Assistant to the City Manger
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract Administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled “Seal and Signature of Registered Professional with report/design responsibility,” as in the following example.
__________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.12 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 Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 60
Menifee Mayor and City Council
September 6, 2023
Page
409 of 763
2905/031858-0001
19338889.2 a07/24/23 -17-
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 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]
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 61
Menifee Mayor and City Council
September 6, 2023
Page
410 of 763
2905/031858-0001
19338889.2 a07/24/23 -18-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando Villa, City Manager
Attest:
Sarah A. Manwaring, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Sebastian Sidi, Owner
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 62
Menifee Mayor and City Council
September 6, 2023
Page
411 of 763
2905/031858-0001
19338889.2 a07/24/23
EXHIBIT A.
EXHIBIT A
SCOPE OF SERVICES
Services shall include ON CALL VIDEOGRAPHY & EDITING SERVICES in the combined aggregate amount not to exceed TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00) for each year of the initial term to all Performing Consultants, as well as for the First, Second, and Third Renewal Terms. Services shall include On Call Videography & Editing Services Services in the combined amount to both Performing Consultants not to exceed the following amounts, as further detailed on the following pages:
Initial Term: An aggregate sum not to exceed Fifty Thousand Dollars and Zero Cents ($50,000.00)
First Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Second Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Third Renewal Term: For a maximum aggregate sum not to exceed Twenty-Five Thousand Dollars and Zero Cents ($25,000.00)
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 63
Menifee Mayor and City Council
September 6, 2023
Page
412 of 763
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT A.
SEBAZ VIDEO PRODUCTIONS
EXHIBIT A
SCOPE OF SERVICES
As needed production of professional, high-quality video footage and edited videos that highlight community events and programs, internal trainings or engagements, and promotional information featuring City staff, Council, Commission, or Committee members, the community, business professionals, and others. The videographer will be responsible for:
•Fulfilling the desired goals of City staff for social media, event, website, and other video projects, including sharing suggestions to create high quality video productions to meet the expressed goals in a timely and cost-effective manner.
•Planning and setup (which may include arrangement of location and subjects, lighting, etc.) for scheduled video shoots or events at a specified location. •Post-production processing, which may include raw file conversion, and the ability to perform limited color correction and editing prior to delivery of final product. •Delivery of all videos to the requesting City entity within the timeframe defined in an agreed upon timeline.
•Provide rushed turnaround time on occasion.
•The videographer must provide their own camera, lenses, microphones, memory cards, lighting, tripods, and other related imaging and sound equipment. The equipment must be capable of producing high quality digital video and sound content. The Vendor must also have access to additional production needs as required by the specific project, including a teleprompter, to provide the services requested by the City.
FEE SCHEDULE 2023-2024:
Title Rate
Filming (8 hour day) 165/hour
Filming (7 hours or less) 185/hour
Minimum Filming Fee (1st hour) 200/hour
Editing 150/ hour
Voice Over 75/minute
Captions 50/minute
Drone Filming Minimum Fee (1st hour) 300/hour
Drone Filming 150/hour
Script Writing 150/hour
Explainer Video Varies by
Scope
Rush Fee Comped
Edited, ready to use B-Roll 1.75/clip
Raw footage upload fee 100-200/based
upon file size
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 64
Menifee Mayor and City Council
September 6, 2023
Page
413 of 763
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT A.
An estimate of the time and resources required to complete each project (following the hourly rate schedule shown above) will be provided based upon scope of work established by the City. The City agrees and acknowledges that the hourly rates stated above may be increased each Renewal Term in the amount of the lesser of 3% or the percentage change in the Consumer Price Index published for the area of Los Angeles, Riverside, and Anaheim (“CPI”) over the previous 12 months.
Item Title: 10.14
Agreements
with
Mind
and
Mill
LLC,
Dynamic
Video
Communications,
LLC,
and
Sebaz
Video
Productions,
Inc.
for
On-
Call Videography Services
Item Page Number: 65
Menifee Mayor and City Council
September 6, 2023
Page
414 of 763
CITY OF MENIFEE
SUBJECT: Agreement Amendment with LEFTA Systems for Police Training Scheduling User Licenses and Scheduling Software MEETING DATE: September 6, 2023
TO: Mayor and City Council
PREPARED BY: Christine Booker, Budgets & Grants Analyst REVIEWED BY: Chris Karrer, Police Chief
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute Amendment No. 1 to the Software License Agreement with LEFTA Systems for police training scheduling software and user licenses in the amount of $7,381.51, for a revised total contract amount not-to-exceed $45,972.01.
DISCUSSION
The Menifee Police Department utilizes a software agreement to provide training scheduling services for all staff. The original agreement was for 80 licenses in a not-to-exceed amount of $38,590.50 and was processed in fiscal year 2019/2020 with a five-year term which is set to expire in February 2025. Subsequently, based on the increase in police department personnel during the past three fiscal years an additional 70 licenses are needed for a total of 150 licenses.
LEFTA Systems specializes in providing a wide range of training specific software that is utilized by several municipalities and police departments including Murrieta PD, Dallas-Fort Worth PD and Milford PD. These capabilities include tracking firearm qualifications, sworn and professional staff certifications, and Field Training Officers (FTO) progress. The system allows for the Sr. Personnel and Training Analyst to accurately track, coordinate, and organize all training efforts and ensure compliance with the various state and federal entities such as Peace Officer Standards and Training (POST), and Federal Emergency Management Agency (FEMA) for all police department staff.
In July 2020 upon the go-live for the PD there were 76 authorized positions. As of fiscal year 2023/2024, the PD is authorized for 124 positions, including part time staff and Code Enforcement is authorized for 8 positions. Upon the hiring of these additional staff, it was determined that additional user licenses were needed to meet the needs of the department.
Item Title: 10.15
Agreement Amendment with LEFTA Systems for Police Training Scheduling User Licenses and Scheduling Software Item Page Number: 1
Menifee Mayor and City Council
September 6, 2023
Page
415 of 763
City of Menifee Staff Report
LEFTA Amendment No.1
September 6, 2023