2 4
7 4
TABLE 1 – BID RESULTS SUMMARY
Firm Name Total Bid Amount Lowest and
Responsible Bidder
Engineers Estimate $2,700,000.00
Hillcrest Contracting, Inc. $3,292,946.60 X
Environmental Construction, Inc. $3,418,879.00
Leonida Builders, Inc. $3,477,435.00
Asphalt, Fabric & Engineering, Inc. $3,504,696.50
ANEEN Construction, Inc $4,149,377.50
Staff reviewed the lowest bid received and determined that Hillcrest Contracting, Inc. (“Contractor”) met the requirements for recommendation as the lowest responsive and responsible bidder. The cost for construction services with Hillcrest Contracting, Inc. is $3,292,946.60. Construction Management and Inspection services would be provided by City staff and ancillary services, such as labor compliance and materials testing, were previously procured by City staff. The total estimated cost for the construction phase of the Project, which would include construction services, ancillary services as described above, as well as unforeseen costs that may arise during construction activities is $3,504,124.
If approved by the City Council, the tentative Project schedule would be as follows:
Construction Start: January 2025
Construction End: July 2025
City Council Acceptance: October 2025
The timeline above assumes no delays due to weather or unforeseen conditions.
Environmental Impact
A Notice of Determination (NOD) was filed with the County of Riverside on March 8, 2023, in compliance with Section 21152 of the California Public resources Code.
Project Location: The project site is located south of Newport Road and east of Town Center Drive in the City of Menifee, County of Riverside, California (APN: 360- 850-015).
Project Description: The Civic Center Parking Lot proposes the construction of a 2.5-acre parking lot to accommodate approximately 191 parking spaces. The project will also construct drainage improvements, lighting, landscaping, and bio-retention basins.
The City of Menifee, as the lead agency, approved the above-referenced project on March 2, 2022, and made the following determinations regarding the above-described project:
1. The proposed project will not have a significant effect on the environment. Impacts for the project area were previously addressed and mitigation measures adopted as part of the Town Center Specific Plan Environmental Impact Report.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 2
Menifee Mayor and City Council
December 4, 2024
Page
360 of 1648
City of Menifee Staff Report
CIP 22-24 Hillcrest Bid Award
December 4, 2024
2 4
7 4
2. Environmental Impact Report (EIR) No. 2010-152 (SCH#2009091022) was prepared for the Town Center Specific Plan development pursuant to the provisions of CEQA. No further environmental documentation is required because:
a. All potentially significant effects of the proposed project have been adequately analyzed in an earlier EIR (SCH2009091022) adopted by the City of Menifee pursuant to applicable legal standards;
b. All potentially significant effects of the proposed project have been avoided or mitigated pursuant to that earlier EIR except those for which a statement of overriding considerations was adopted;
c. The proposed project will not result in any new significant environmental effects not identified in the earlier EIR;
d. The proposed project will not substantially increase the severity of the environmental effects identified in the earlier EIR;
e. No considerably different mitigation measures have been identified; and f. No mitigation measures found infeasible have become feasible.
3. Mitigation measures were made a condition of the approval of the Final EIR (FEIR) and are applicable to this project.
4. A Mitigation Monitoring and Reporting Plan/Program was adopted for the FEIR and the project is subject to the Program.
5. A statement of Overriding Considerations was adopted for the Town Center Specific Plan project and applies to this application.
6. Findings were made pursuant to the provisions of CEQA.
The amount of the proposed Contract Services Agreement (“Contract”) exceeds the City Manager’s signing authority. Pursuant to Menifee Municipal Code §3.12.040, any contract amount that exceeds the City Manager’s signing authority shall be approved by the City Council.
STRATEGIC PLAN OBJECTIVE
Thriving Economy
FISCAL IMPACT
The fiscal impact of the proposed Contract with Hillcrest Contracting, Inc. is in the total amount not-to-exceed $3,292,946.60. Funding for the Contract is available in the Fiscal Year 2024/2025 Budget within the General Fund (1100-55-PWD-CIPS-760050) and the Measure DD Quality-of- Life Fund (1105-55-PWD-CIPS-760050), as summarized in Table 2 on the following page.
Ancillary costs are not part of this fiscal impact as they were previously procured.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 3
Menifee Mayor and City Council
December 4, 2024
Page
361 of 1648
City of Menifee Staff Report
CIP 22-24 Hillcrest Bid Award
December 4, 2024
2 4
7 4
TABLE 2 – EXISTING PROJECT BUDGET
Fund Account Number Available Budget Anticipated Cost
General Fund 1100 $1,732,781.00 $1,568,132.60
Quality of Life Measure 1105 $1,724,814.00 $1,724,814.00 TOTALS $3,457,595.00 $3,292,946.60
ATTACHMENTS
1. Project Location Map
2. Contract
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 4
Menifee Mayor and City Council
December 4, 2024
Page
362 of 1648
T o w
n
C
e
n
t
e
r
D
r
Menifee Center Dr
Civic Plaza Dr
City Hall Dr
215
N e w p o r t R d
Haun Rd
Antelope Rd
Project Site
0 0.02 0.04
Miles
Path: E:\Project_Specific_Maps\Engineering_PublicWorks\Civic_Center_Parking_Lot\Civic_Center_Parking_Lot.aprx Date: 1/27/2022 Civic Center Parking Lot (CIP 22-24)
Project Location Map
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 5
Menifee Mayor and City Council
December 4, 2024
Page
363 of 1648
2905/031858-0001
19201719.4 a09/06/24
CITY OF MENIFEE
CONTRACT SERVICES AGREEMENT
CIP 22-24 CIVIC CENTER PARKING LOT IMPROVEMENT PROJECT
THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this _________ day of ___________, 2024 by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and HILLCREST CONTRACTING, 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. The Services may be further set forth in the Special Provisions incorporated into Exhibit B, if any (the “Special Provisions”). In the event of a conflict in or inconsistency between the terms of this Agreement and the Special Provisions, the Special Provisions shall prevail.
1.2 Term of Services. The term of this Agreement shall begin on December 18, 2024.
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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 6
Menifee Mayor and City Council
December 4, 2024
Page
364 of 1648
2905/031858-0001
19201719.4 a09/06/24 -2-4
9 7
0 2
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, parts, and equipment furnished by the Contractor in the performance of the Services shall be new, high grade, and free from defects. Used or secondhand materials, parts, and equipment may be used only if so specified in the Special Provisions. 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 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. 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 7
Menifee Mayor and City Council
December 4, 2024
Page
365 of 1648
2905/031858-0001
19201719.4 a09/06/24 -3-4
9 7
0 2
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 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 apprenticeable 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 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.
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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 8
Menifee Mayor and City Council
December 4, 2024
Page
366 of 1648
2905/031858-0001
19201719.4 a09/06/24 -4-4
9 7
0 2
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 9
Menifee Mayor and City Council
December 4, 2024
Page
367 of 1648
2905/031858-0001
19201719.4 a09/06/24 -5-4
9 7
0 2
provisions of Exhibit A and any other provisions of this Agreement, the provisions of Exhibit A shall govern.
SECTION 2. COMPENSATION.
2.1 Contract Amount. City hereby agrees to pay Contractor a sum not to exceed
THREE MILLION TWO HUNDRED NINETY TWO THOUSAND NINE HUNDRED FORTY SIX DOLLARS AND SIXTY CENTS ($3,292,946.60) 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; Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 10
Menifee Mayor and City Council
December 4, 2024
Page
368 of 1648
2905/031858-0001
19201719.4 a09/06/24 -6-4
9 7
0 2
f. Receipts for expenses to be reimbursed;
g. The Principals’ signatures.
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.1. 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 11
Menifee Mayor and City Council
December 4, 2024
Page
369 of 1648
2905/031858-0001
19201719.4 a09/06/24 -7-4
9 7
0 2
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 12
Menifee Mayor and City Council
December 4, 2024
Page
370 of 1648
2905/031858-0001
19201719.4 a09/06/24 -8-4
9 7
0 2
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.
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 13
Menifee Mayor and City Council
December 4, 2024
Page
371 of 1648
2905/031858-0001
19201719.4 a09/06/24 -9-4
9 7
0 2
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 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. Notwithstanding the forgoing, any provision of the Special Provisions shall replace and take precedence over any subsection of this Section 4 relating to insurance.
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: _______
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 14
Menifee Mayor and City Council
December 4, 2024
Page
372 of 1648
2905/031858-0001
19201719.4 a09/06/24 -10-4
9 7
0 2
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 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)- Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 15
Menifee Mayor and City Council
December 4, 2024
Page
373 of 1648
2905/031858-0001
19201719.4 a09/06/24 -11-4
9 7
0 2
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:
(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: CIP 22- 24 CIVIC CENTER PARKING LOT IMPROVEMENT PROJECT. 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, Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 16
Menifee Mayor and City Council
December 4, 2024
Page
374 of 1648
2905/031858-0001
19201719.4 a09/06/24 -12-4
9 7
0 2
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 17
Menifee Mayor and City Council
December 4, 2024
Page
375 of 1648
2905/031858-0001
19201719.4 a09/06/24 -13-4
9 7
0 2
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 18
Menifee Mayor and City Council
December 4, 2024
Page
376 of 1648
2905/031858-0001
19201719.4 a09/06/24 -14-4
9 7
0 2
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 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.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 19
Menifee Mayor and City Council
December 4, 2024
Page
377 of 1648
2905/031858-0001
19201719.4 a09/06/24 -15-4
9 7
0 2
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. 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 20
Menifee Mayor and City Council
December 4, 2024
Page
378 of 1648
2905/031858-0001
19201719.4 a09/06/24 -16-4
9 7
0 2
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. (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, Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 21
Menifee Mayor and City Council
December 4, 2024
Page
379 of 1648
2905/031858-0001
19201719.4 a09/06/24 -17-4
9 7
0 2
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 22
Menifee Mayor and City Council
December 4, 2024
Page
380 of 1648
2905/031858-0001
19201719.4 a09/06/24 -18-4
9 7
0 2
City as liquidated damages the amount set forth in the Special Provisions, or if no amount is set forth therein, the sum of FIVE HUNDRED DOLLARS ($500.00), for each working 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 23
Menifee Mayor and City Council
December 4, 2024
Page
381 of 1648
2905/031858-0001
19201719.4 a09/06/24 -19-4
9 7
0 2
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 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.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 24
Menifee Mayor and City Council
December 4, 2024
Page
382 of 1648
2905/031858-0001
19201719.4 a09/06/24 -20-4
9 7
0 2
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, 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. Notwithstanding the forgoing, Contractor is also responsible for complying with the provisions Special Provisions related to Documents and Materials.
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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 25
Menifee Mayor and City Council
December 4, 2024
Page
383 of 1648
2905/031858-0001
19201719.4 a09/06/24 -21-4
9 7
0 2
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.
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. Any and all reports prepared pursuant to this Subsection are in addition to the reports required by the Special Provisions, if any.
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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 26
Menifee Mayor and City Council
December 4, 2024
Page
384 of 1648
2905/031858-0001
19201719.4 a09/06/24 -22-4
9 7
0 2
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 27
Menifee Mayor and City Council
December 4, 2024
Page
385 of 1648
2905/031858-0001
19201719.4 a09/06/24 -23-4
9 7
0 2
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.
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:
HILLCREST CONTRACTING, INC.
Attn: Rafael Gonzalez
1467 CIRCLE CITY DRIVE
Corona, CA 92879
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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 28
Menifee Mayor and City Council
December 4, 2024
Page
386 of 1648
2905/031858-0001
19201719.4 a09/06/24 -24-4
9 7
0 2
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 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 Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 29
Menifee Mayor and City Council
December 4, 2024
Page
387 of 1648
2905/031858-0001
19201719.4 a09/06/24 -25-4
9 7
0 2
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
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 30
Menifee Mayor and City Council
December 4, 2024
Page
388 of 1648
2905/031858-0001
19201719.4 a09/06/24 -26-4
9 7
0 2
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:
Stephanie Roseen, Acting City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONTRACTOR
Glenn J. Salsbury, President
Einer G. Lindholm, VP/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
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 31
Menifee Mayor and City Council
December 4, 2024
Page
389 of 1648
2905/031858-0001
19201719.4 a09/06/24
EXHIBIT A
EXHIBIT A
SPECIAL REQUIREMENTS
INTENTIONALLY OMITTED
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 32
Menifee Mayor and City Council
December 4, 2024
Page
390 of 1648
2905/031858-0001
19201719.4 a09/06/24
EXHIBIT B
EXHIBIT B
SCOPE OF SERVICES
Services shall include CIP 22-24 CIVIC CENTER PARKING LOT IMPROVEMENT PROJECT 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 THREE MILLION TWO
HUNDRED NINETY TWO THOUSAND NINE HUNDRED FORTY SIX DOLLARS AND SIXTY CENTS ($3,292,946.60) 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: _NIB 2025-01__.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 33
Menifee Mayor and City Council
December 4, 2024
Page
391 of 1648
2905/031858-0001
19201719.4 a09/06/24 EXHIBIT B.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 34
Menifee Mayor and City Council
December 4, 2024
Page
392 of 1648
2905/031858-0001
19201719.4 a09/06/24 EXHIBIT B.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 35
Menifee Mayor and City Council
December 4, 2024
Page
393 of 1648
2905/031858-0001
19201719.4 a09/06/24 EXHIBIT B.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 36
Menifee Mayor and City Council
December 4, 2024
Page
394 of 1648
2905/031858-0001
19201719.4 a09/06/24 EXHIBIT B.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 37
Menifee Mayor and City Council
December 4, 2024
Page
395 of 1648
2905/031858-0001
19201719.4 a09/06/24 EXHIBIT B.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 38
Menifee Mayor and City Council
December 4, 2024
Page
396 of 1648
2905/031858-0001
19201719.4 a09/06/24 EXHIBIT B.
Item Title: 10.7
Bid
Award
and
Agreement
with
Hillcrest
Contracting,
Inc.
for
Construction
Services
for
the
Civic
Center
Parking
Lot
Project
Item Page Number: 39
Menifee Mayor and City Council
December 4, 2024
Page
397 of 1648
CITY OF MENIFEE
SUBJECT: Community Services Department, Language Interpretation Services On-Call List
MEETING DATE: December 4, 2024
TO: Mayor and City Council
PREPARED BY: Nancy Rodriguez, Management Analyst II
REVIEWED BY: Rebekah Kramer, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve the Community Services Department on-call list for language interpretation services for Fiscal Years 2024/2025 through 2029/2030.
DISCUSSION
The City of Menifee’s Community Services Department (CSD) host approximately 30 events annually as well as provides support services for various other events and hosts meetings, workshops, and conferences. To be able to communicate with all City of Menifee residents and visitors, the CSD is in need of interpretation services for various languages. Additionally, other City departments would also be eligible to utilize these services as needed once an on-call list is established.
On August 20, 2024, staff issued Request for Qualification (RFQ) No. 2025-1 for language interpretation services. The intent of the RFQ was to establish an on-call list of qualified firms available for interpretation services for various City events including special city-wide events, meetings, workshops, and/or conferences. The services would include, but are not limited to, as needed interpretation services from English to various languages including but not limited to American Sign Language (ASL), Spanish, Mandarin, and Tagalog.
Item Title: 10.8
Community Services Department, Language Interpretation Services On-Call List Item Page Number: 1
Menifee Mayor and City Council
December 4, 2024
Page
398 of 1648
City of Menifee Staff Report
On-Call Interpretation Services List
December 4, 2024
2 4
4 2
The City received 13 proposals from the following firms:
•Alliance for African Assistance
•American Sign Language Interpreting
•Avantpage
•Focus Interpreting
•Fox Translation
•Global Interpreting Network
•Global Language
•Interpreters Unlimited
•Language Line
•Mando Translation
•Purple Communications
•Translinguist
•Transperfect
An evaluation committee consisting of City staff evaluated the submittals. As part of the City’s RFQ process, the firms were evaluated based on the criteria set forth in RFQ 2025-1 which included the experience of the firm, references, work plan methodology/project approach, project team qualifications, and cost proposal. After the initial evaluation, interviews were conducted for the four highest scoring firms.
All 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
Interpreters Unlimited 86.50 83.33
Alliance for African Assistance 88.25 83.00
Focus Interpreting 84.50 66.00
Global Language 80.75 63.00
Translinguist 76.00 -
Global Interpreting Network 74.25 -
Language Line 70.00 -
Fox Translation 69.25 -
Purple Communications 68.75 -
Avantpage 67.25 -
Transperfect 64.25 -
American Sign Language Interpreting 63.00 -
Mando Translation 27.25 -
Following the evaluation process, interviews, and reference checks, two firms have been recommended for the City’s qualified list to provide on-call language interpretation services. The list includes Interpreters Unlimited and Alliance for African Assistance who were the top two Item Title: 10.8
Community Services Department, Language Interpretation Services On-Call List Item Page Number: 2
Menifee Mayor and City Council
December 4, 2024
Page
399 of 1648
City of Menifee Staff Report
On-Call Interpretation Services List
December 4, 2024
2 4
4 2
scoring firms at the conclusion of the interview process. The two firms were selected based on their experience, current client list and references, interpreter network, and language repertoire.
Both firms have local offices, over 35 years of experience, and access to over 200 languages for interpretation and translation services. Additionally, each of these firms can support same-day phone, virtual, and in-person service requests.
The inclusion of the City’s on-call list does 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. As presented, the proposed on-call list would be eligible for the period of five years extending from Fiscal Year (FY) 2024/2025 through FY 2029/2030. The City reserves the right to re-issue a new RFQ solicitation, as deemed necessary during this period.
STRATEGIC PLAN OBJECTIVE
Safe and Vibrant Community
FISCAL IMPACT
There is no fiscal impact associated with the recommendation to establish an on-call list for interpretation services. Any proposed agreements would be incorporated within future years’ budgets. Subsequently, the City would enter into agreements with select firms on the on-call list, and the applicable agreements requiring City Council approval would be brought to the City Council in accordance with the City’s standard procurement policies.
ATTACHMENTS
1. On-Call Language Interpretation Services List
Item Title: 10.8
Community Services Department, Language Interpretation Services On-Call List Item Page Number: 3
Menifee Mayor and City Council
December 4, 2024
Page
400 of 1648
City of Menifee
Community Services Department
Fiscal Year 2024/2025-2029/2030 On Call List (Language Interpretation Services)
Language Interpretation Services
Interpreters Unlimited
Alliance for African Assistance
Item Title: 10.8
Community Services Department, Language Interpretation Services On-Call List Item Page Number: 4
Menifee Mayor and City Council
December 4, 2024
Page
401 of 1648
CITY OF MENIFEE
SUBJECT: Agreements with ETech-360, Inc. and SDI Presence, LLC for As-Needed Professional Information Technology Support
Services
MEETING DATE: December 4, 2024
TO: Mayor and City Council
PREPARED BY: Michelle Sarkissian, IT Operations Manager, Ross Sublett, Management Analyst
REVIEWED BY: Ron Puccinelli, Chief Information Officer
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute a master agreement with ETech-360, Inc. for professional as-needed service desk support for the Information Technology Department in an amount not-to-exceed $100,000 for Fiscal Year (FY) 2024/2025; and
2. Authorize the City Manager to approve a one-year renewal to the ETech-360 master agreement for professional as-needed service desk support in an amount not-to-exceed $100,000, contingent on budget availability; and
3. Approve and authorize the City Manager to execute a master agreement with SDI Presence, LLC for higher level technical support for special projects for the Information Technology Department in an amount not-to-exceed $100,000 for FY 2024/2025; and
4. Authorize the City Manager to approve a one-year renewal to the SDI Presence, LLC master agreement for higher level technical support for special projects in an amount not-to-exceed $100,000, contingent on budget availability; and
5. Authorize the Finance Department to issue individual Purchase Orders on an as-needed basis against the executed agreements, not-to-exceed the aggregate agreement amount approved for each year.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 1
Menifee Mayor and City Council
December 4, 2024
Page
402 of 1648
City of Menifee Staff Report
Master Agreement with ETech-360, Inc. and SDI Presence, LLC December 4, 2024
2 4
3 3
DISCUSSION
As the City continues to experience growth, the demand for robust technical support services has increased to ensure seamless day-to-day operations across all departments. To maintain efficiency and avoid disruptions, the Information Technology (IT) Department requires additional resources to support the expanding needs of City Hall and sustain its role as an essential internal service provider.
The IT Department conducted a Request for Proposals (RFP) to seek qualified firms that can provide on-call, time-limited, and project-based IT professional services on an as-needed basis Request for Proposal Selection
On December 3, 2021, pursuant to Section 3.08.093 of the City of Menifee Municipal Code (MMC), the City advertised a RFP for IT On-Call Support Professional Services. Nine responses to the RFP were received by the submittal deadline of January 6, 2022. The nine proposals received were evaluated by staff and are listed in the order of their ranking as noted below in Table 1.
TABLE 1 – EVALUATED PROPOSALS
Proposal Score
SHI International 86.67
SDI Presence 81.67
Etech 360, Inc. 80.33
Tec Refresh, Inc. 79.67
Cogent Info Tech 75.33
Helix Storm 74.00
Protiviti Gov Serv 74.00
Instant Serve, LLC 50.33
Ploutocracy, Inc. 22.67
Based on the results of the evaluation by City staff during the proposal review process, City staff determined that SHI International, SDI Presence LLC, and ETech360 Inc. demonstrated the competence and professional qualifications required for the requested services. During contract negotiations SHI International notified the City that they were withdrawing from consideration.
The IT Department has maintained professional services agreements with Etech-360, Inc. and SDI Presence, LLC for as-needed IT support services since FY 2022/2023. These master agreements have recently expired, necessitating the establishment of new agreements to continue receiving needed IT support services. A benefit to having multiple vendors provide as needed services would ensure vendor technical staff, with the appropriate skills, are available when needed and that there are options available. Vendors are not guaranteed or assured of any specific quantity of work to be performed. If work is performed by any one or more consultants, the City would ensure that the aggregate total compensation across the two approved vendors does not exceed the total compensation allowed.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 2
Menifee Mayor and City Council
December 4, 2024
Page
403 of 1648
City of Menifee Staff Report
Master Agreement with ETech-360, Inc. and SDI Presence, LLC December 4, 2024
2 4
3 3
Etech-360, Inc
Etech-360, Inc. has been a valuable partner in providing Service Desk IT Technician support.
Their services are crucial for handling service desk calls and providing technician-related assistance, ensuring that end-user issues are promptly addressed, and daily IT operations run smoothly.
SDI Presence, LLC
SDI Presence, LLC offers engineer-level support for special projects requiring higher-level expertise. Their specialized skills in enterprise backup services and server infrastructure support are essential for maintaining and enhancing our IT infrastructure, particularly for complex projects that demand advanced technical knowledge.
By entering into new master agreements with both Etech-360, Inc. and SDI Presence, LLC, the City would:
- Secure essential as-needed professional IT support services. - Ensure coverage for service desk calls and technician support. - Obtain engineer-level expertise for special projects and critical infrastructure support. -Provide flexibility to address IT support requirements promptly through as-needed purchase orders.
STRATEGIC PLAN OBJECTIVE
Regular City Business
FISCAL IMPACT
The fiscal impact for both agreements is in the not-to-exceed amount of $100,000 for FY 2024/2025. While individual agreements not-to-exceed $100,000 would be issued per year, it is anticipated that total expenses per year combined between the vendors would not exceed $100,000. Funding for these contracts is available within the IT Fund in the Operations Division for Professional Services (1110-ITD-ITOP-652800). If the contracts are renewed for an additional year, they would be funded in the corresponding fiscal year’s budget. No additional budget appropriation action(s) is required.
ATTACHMENTS
1. Master Professional Services Agreement – ETech-360, Inc.
2. Master Professional Services Agreement – SDI Presence, LLC Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 3
Menifee Mayor and City Council
December 4, 2024
Page
404 of 1648
2905/031858-0001
19338568.2 a10/04/23
CITY OF MENIFEE
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES FOR
INFORMATION TECHNOLOGY SUPPORT SERVICES
THIS MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES (“Agreement”) is made and effective this ______ day of __________, 2024 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and 360S2G (ETECH-360, INC), a A California Corporation (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.” SECTION 1. GENERAL PROVISIONS.
1.1 Purpose. The purpose of this Agreement is to authorize Consultant to provide on- call services to City through purchase orders issued by the City Manager or designees (each a “Purchase Order”) for privately funded and City projects which are exempt from bidding requirements for public contracting, subject to the terms and conditions herein (the “Services”).
1.2 No Guaranteed Work. The Parties acknowledge that this Agreement serves as a master services agreement to establish Consultant as an approved consultant which may perform Services for the City pursuant to Purchase Order(s) issued in the discretion of the City Manager.
This Agreement does not guarantee that Consultant will be issued any work from City, or any particular amount of work, including for any Services. By entering into this Agreement Consultant is obtaining the ability to receive Purchase Orders from the City Manager, and the City is obtaining the ability to issue Purchase Orders without a requirement for subsequent City Council approval.
1.3 Term. This Agreement shall become effective on July 1, 2024 and shall continue until 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”). 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 7. 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, unless otherwise terminated or extended by the Parties pursuant to the terms of this Agreement.
1.4 Termination. The City may terminate this Agreement at any time with or without cause by providing written notice to Consultant. The City may terminate this Agreement for any reason, including but not limited to the lack of budget allocation for the Services.
1.5 Contract Administrator. Michelle Sarkissian (“Contract Administrator”) is the City’s primary contact representative for the purposes of this Agreement. Consultant shall contact the Contract Administrator for all communications related to this Agreement. City may change the Contract Administrator upon written notification to Consultant. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or designee.
1.6 Consultant Representative. Amanda Gutierrez, Vice President is Consultant’s primary contact representative for the purposes of this Agreement. City shall contact the Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 4
Menifee Mayor and City Council
December 4, 2024
Page
405 of 1648
2905/031858-0001
19338568.2 a10/04/23 -2-
Consultant Representative for all communications related to this Agreement. Consultant may change the Consultant Representative upon written notification to City. Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement.
1.7 Notices. Any written notice to Consultant shall be sent to:
360S2G (ETECH-360, INC)
Attn: Amanda Gutierrez, Vice President
555 CALIFORNIA STREET
SAN FRANCISCO, CA 94104
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Michelle Sarkissian, IT Manager
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
SECTION 2. SERVICES.
2.1 Purchase Orders. Consultant agrees to furnish Services pursuant to Purchase Order(s) issued by the City Manager in the form attached hereto as Exhibit “A” which is attached hereto and incorporated herein by this reference. In no event shall compensation for Services exceed the “not to exceed” compensation amount set forth in the Purchase Order.
2.2 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.
2.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services. 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: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 5
Menifee Mayor and City Council
December 4, 2024
Page
406 of 1648
2905/031858-0001
19338568.2 a10/04/23 -3-
2.4 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.
2.5 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 a Purchase Order.
2.6 Warranty. By executing this Agreement, Consultant warrants that Consultant has thoroughly investigated and considered the Services, has considered how they should be performed, and fully understands the facilities, difficulties, and restrictions applicable to performance of the Services.
2.7 Facilities and Equipment. Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the Services. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 3. COMPENSATION.
3.1 Not to Exceed Compensation. Consultant shall be compensated for the Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein. Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule, attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”). The compensation set forth in the Purchase Order represents total compensation payable to Consultant without limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in performance of the Purchase Order. In no event shall the cumulative compensations under all Purchase Orders exceed the following amounts:
a. Initial Term: One Hundred Thousand Dollars and Zero Cents ($100,000.00)
b. First Renewal Term: One Hundred Thousand Dollars and Zero Cents ($100,000.00)
3.2 Invoicing. Upon completion of a Purchase Order, or monthly for Purchase Orders involving Services performed over periods of longer than one (1) month, Consultant shall submit invoices to City based on the Services performed and any reimbursable expenses approved by City in writing. Invoices shall comply with the City’s “Invoicing Requirements” attached as Exhibit “C” hereto and incorporated herein by this reference, and shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 6
Menifee Mayor and City Council
December 4, 2024
Page
407 of 1648
2905/031858-0001
19338568.2 a10/04/23 -4-
b. The beginning and ending dates of the billing period; c. A “Task Summary” containing the original Purchase Order amount, the amount of prior billings, the total due this period, the balance available under the Purchase Order, 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; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
h. Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
3.3 Payment. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
3.4 Payment Holds. City may withhold payment of any invoice for Services not satisfactorily performed until such Services are performed to City’s satisfaction at no extra cost to City. City may hold payments reasonably in dispute under this Agreement until resolution of the dispute.
3.5 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
3.6 Payment Upon Termination. In the event City or Consultant terminates this Agreement, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for preapproved 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. City may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 7
Menifee Mayor and City Council
December 4, 2024
Page
408 of 1648
2905/031858-0001
19338568.2 a10/04/23 -5-
SECTION 4. INDEMNIFICATION.
4.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of this Agreement, 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.
4.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
4.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 4 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 4.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
4.4 Limitation of Indemnification. The provisions of this Section 4 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 4 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.
4.5 Legal Requirements Related to Indemnification. If any applicable law would render any of the requirements of this Section 4 void or unenforceable, the requirements hereunder shall be construed to the greatest scope and applicability permitted by applicable law.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 8
Menifee Mayor and City Council
December 4, 2024
Page
409 of 1648
2905/031858-0001
19338568.2 a10/04/23 -6-
SECTION 5. INSURANCE.
5.1 Insurance Required. As a condition of entering into this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance specified below.
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.
a. 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. b. Commercial General and Automobile Liability Insurance. i) 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. ii) 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.
iii) Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 9
Menifee Mayor and City Council
December 4, 2024
Page
410 of 1648
2905/031858-0001
19338568.2 a10/04/23 -7-
a. The insurance shall cover on an occurrence or an
accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting
provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
c. Professional Liability Insurance.
i) General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
ii) Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services. b. Insurance must be maintained and evidence of
insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates. c. 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. d. A copy of the claim reporting requirements must be
submitted to City prior to the commencement of the Services under this Agreement.
5.2 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.
5.3 Continuation of Insurance. Consultant shall maintain the insurance policies required by this Section throughout the term of this Agreement.
5.4 Additional Insured. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant. City and its Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 10
Menifee Mayor and City Council
December 4, 2024
Page
411 of 1648
2905/031858-0001
19338568.2 a10/04/23 -8-
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.
5.5 Subcontractors’ Insurance. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract pursuant to this Agreement until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
5.6 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.
5.7 Verification of Coverage. Prior to execution of this Agreement, Consultant shall furnish City with 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 name and address for endorsements and other insurance related matters is: City of Menifee, 29844 Haun Road, Menifee, CA 92586.
5.8 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.
5.9 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. The Contractor Administrator may, but is not required to approve in writing the submission of certificates of insurance in lieu of policy copies, Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 11
Menifee Mayor and City Council
December 4, 2024
Page
412 of 1648
2905/031858-0001
19338568.2 a10/04/23 -9-
in which case the Certificate of Insurance must include the following reference: City of Menifee:
Master Agreement for Professional On Call Services.
5.10 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 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 and assignment of personnel pursuant to Section 2.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services. The personnel performing the Services 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 Purchase Orders, City shall not pay salaries, wages, or other compensation to Consultant for performing Services. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services. 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 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Consultant acknowledges and agrees Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 12
Menifee Mayor and City Council
December 4, 2024
Page
413 of 1648
2905/031858-0001
19338568.2 a10/04/23 -10-
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.
7.2 Prevailing Wages. The Parties have determined that prevailing wage laws do not apply to this Agreement because the Services do not include construction, alteration, demolition, installation, or repair work or are otherwise exempt under California’s prevailing wage laws (Lab.
Code, § 1720 et seq.). Notwithstanding the foregoing, it is agreed by the Parties that, in connection with performance of this Agreement, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, and/or any other similar law. Section 4, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing 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 under this Agreement 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.
7.3 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.4 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 Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 13
Menifee Mayor and City Council
December 4, 2024
Page
414 of 1648
2905/031858-0001
19338568.2 a10/04/23 -11-
to complete and file a “Statement of Economic Interest” to disclose such other person’s financial interests as required by City.
7.5 Amendments. The Parties may amend this Agreement and/or any Purchase Order only by a writing signed by all the Parties. The City Manager shall have the authority to execute amendments to this Agreement and any Purchase Order which extend the time for performance or modify the Services to be provided. Extensions of the time for performance of Services does not entitle Consultant to additional compensation to the compensation initially provided in the applicable Purchase Order.
7.6 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.
7.7 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; and/or d. Charge Consultant the difference between the cost to complete the Services described in the relevant Purchase Order that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 3 if Consultant had completed the Services.
SECTION 8. KEEPING AND STATUS OF RECORDS.
8.1 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 Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 14
Menifee Mayor and City Council
December 4, 2024
Page
415 of 1648
2905/031858-0001
19338568.2 a10/04/23 -12-
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.
8.2 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.
8.3 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 or expenditures and disbursements charged to City for Services under this Agreement, if any 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.
8.4 Inspection and Audit of Records. Any records or documents that Section 8.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 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: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 15
Menifee Mayor and City Council
December 4, 2024
Page
416 of 1648
2905/031858-0001
19338568.2 a10/04/23 -13-
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 Rights and Remedies. 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.
9.8 Integration. This Agreement, including the Exhibits attached hereto, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. In the event of a conflict between this Agreement and any of the Exhibits, this Agreement shall control.
9.9 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.
9.10 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.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 16
Menifee Mayor and City Council
December 4, 2024
Page
417 of 1648
2905/031858-0001
19338568.2 a10/04/23 -14-
9.11 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.
9.12 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.
9.13 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.
9.14 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.
9.15 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 any Services performed hereunder.
[Signatures on Following Page]
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 17
Menifee Mayor and City Council
December 4, 2024
Page
418 of 1648
2905/031858-0001
19338568.2 a10/04/23 -15-
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:
Stephanie Roseen, Acting City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Devon Knittle, VP Contracts and Legal
Amanda Gutierrez, SVP, Client Engagement
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 18
Menifee Mayor and City Council
December 4, 2024
Page
419 of 1648
2905/031858-0001
19338568.2 a10/04/23
EXHIBIT A.
EXHIBIT A
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth herein are guaranteed for any particular Services. The fields of each Purchase Order will vary based on the Services required. In no event shall the cumulative compensations under all Purchase Orders exceed the following amounts:
a. Initial Term: One Hundred Thousand Dollars and Zero Cents ($100,000.00) b. First Renewal Term: One Hundred Thousand Dollars and Zero Cents ($ 100,000.00) Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 19
Menifee Mayor and City Council
December 4, 2024
Page
420 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 20
Menifee Mayor and City Council
December 4, 2024
Page
421 of 1648
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 21
Menifee Mayor and City Council
December 4, 2024
Page
422 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
EXHIBIT B
RATE SCHEDULE
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 22
Menifee Mayor and City Council
December 4, 2024
Page
423 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
Consultants shall provide technical staff augmentation on an as-needed basis in the areas noted below.
Additional skillsets may also be needed. Work will be performed both on-site at City facilities and remotely.
Skillsets include the following:
SECTION 1.Network Engineer – Active Directory & Server OS •Current Microsoft certification highly desired
•Windows Server 2016 and higher OS and Active Directory including securing the OS and AD communications
•Active Directory audit & health check
•Group Policy Object inventory, review, recommendations for update, removal, or new GPOs
•Strong familiarity with VMWare V6.x and above in a clustered configuration •Familiarity with Azure environment including building and securing •Familiarity with Veeam Enterprise Backup system
•Familiarity with Nimble SAN and supporting network architecture •Familiarity with securing and managing cybersecurity in the context of Active Directory and Server OSs
SECTION 2.Network Engineer – HP/Aruba
•Current HP/Aruba certification highly desired
•Strong familiarity with designing, implementing, and maintaining Clear Pass •Strong familiarity with wired switches (layer 2, layer 3) and wireless access points •Familiarity with integrating Clear Pass with Palo Alto Networks Firewalls •Familiarity with micro-segmentation for compliance with PCI, HIPAA, CLETS/DOJ, etc.
•Familiarity with installing, configuring, and operating Aruba wireless access points •Familiarity with configuring and securing corporate WiFi service and Guest WiFi service and ensuring the security of the corporate WiFi and network services •Familiarity with securing and managing cybersecurity in the context of network infrastructure
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 23
Menifee Mayor and City Council
December 4, 2024
Page
424 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B.
SECTION 1.Microsoft SQL Server DBA
•Current MCSA highly desired – SQL Server migration, install & configuration •Strong familiarity with both on-prem and Azure SQL server environments, administration, design, operations, and security
•Strong familiarity Data protection, disaster recovery/business continuity •Assess current SQL Server implementation(s) and make recommendations relative to compliance with PCI, HIPAA, CLETS/DOJ, CCPRA
SECTION 2.Business Analyst/Project Manager
•PMP certification highly desired
•Strong working knowledge of PMBOK including Agile and Waterfall approaches
•Strong client engagement and requirements gathering and documenting skills •Experience with the full project life cycle including evaluating for de- acquisition
•Experience implementing large, complex technology projects including organizational change management
SECTION 3.Microsoft Azure Architecture and Security
•Minimum of three years of design, implementation, and securing MS Azure cloud environments for highly regulated organizations that are growing rapidly •Strong familiarity with the various services offered in MS Azure and their Total Cost of Ownership (TCO) over a five year planning horizon
•Strong familiarity with securing a MS Azure environment and systems in accordance with PCI, HIPAA, PHI, DOJ/CLETS, and other security or privacy regulations as may apply
•Strong familiarity with implementing and migrating file & print services to the MS Azure environment
•Familiarity with design and implementation of disaster recovery/business continuity within a MS Azure environment
The scope of work is not intended to be exhaustive, but a representative requirement of the work.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 24
Menifee Mayor and City Council
December 4, 2024
Page
425 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT C
EXHIBIT C
INVOICING REQUIREMENTS
As a government agency, the City of Menifee is responsible for monitoring all executed contract expenditures to ensure all expenses are within the approved contract budget, as well as monitor all work completed to ensure the scope of work requirements are being met on the approved contract timeline. At any time, project developers may request to view the invoices for their project and ask questions of City staff for items billed. To assist City staff and project developers, several items will be required to be submitted with each invoice in order to clearly and concisely standardize the information presented on all invoices provided by contracted consultants.
Details of the contract fiscal information are to be presented within each invoice as a chart. This chart will have all tasks listed with task numbers/sub-numbers, the amount due on the current invoice for each task, the amount that was previously charged to each task, and the total amount billed to each task, as in the example below:
In addition, a full work detail will be included in each invoice. This detail will identify the name and title of the person who conducted the work, the task number/sub-number that was worked on, specific duties completed, date of work, number of hours, cost per hour, and total amount due, as in the example below:
These details will be required on all future invoices submitted.
PROJECT NAME CIP or TRACT
NO.
IP / IS No. PURCHASE
ORDER NO.
PURCHASE
ORDER VALUE
CURRENT
AMOUNT DUE
PREVIOUS
AMOUNT
BILLED
TOTAL BILLED
TO DATE
Sumac Ridge PM37668 IS22-019 04123 $ 50,000.00 $ 5,700.00 $ 10,000.00 $ 15,700.00 Underwood
Park
TM29835-2 IS21-032 04043 $ 35,000.00 $ 7,850.00 $ - $ 7,850.00 Talavera TM29777 IP15-084 03999 $ 17,500.00 $ 2,500.00 $ 15,000.00 $ 17,500.00 TOTAL AMOUNT DUE FOR THIS INVOICE: $ 16,050.00
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 25
Menifee Mayor and City Council
December 4, 2024
Page
426 of 1648
2905/031858-0001
19338568.2 a00/00/00 EXHIBIT B.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 26
Menifee Mayor and City Council
December 4, 2024
Page
427 of 1648
2905/031858-0001
19338568.2 a10/04/23
CITY OF MENIFEE
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES FOR
INFORMATION TECHNOLOGY SUPPORT SERVICES
THIS MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES (“Agreement”) is made and effective this ______ day of __________, 2024, (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and SDI PRESENCE, LLC., a Delaware Limited Liability Company (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.” SECTION 1. GENERAL PROVISIONS.
1.1 Purpose. The purpose of this Agreement is to authorize Consultant to provide on- call services to City through purchase orders issued by the City Manager or designees (each a “Purchase Order”) for privately funded and City projects which are exempt from bidding requirements for public contracting, subject to the terms and conditions herein (the “Services”).
1.2 No Guaranteed Work. The Parties acknowledge that this Agreement serves as a master services agreement to establish Consultant as an approved consultant which may perform Services for the City pursuant to Purchase Order(s) issued in the discretion of the City Manager.
This Agreement does not guarantee that Consultant will be issued any work from City, or any particular amount of work, including for any Services. By entering into this Agreement Consultant is obtaining the ability to receive Purchase Orders from the City Manager, and the City is obtaining the ability to issue Purchase Orders without a requirement for subsequent City Council approval.
1.3 Term. This Agreement shall become effective on July 1, 2024 and shall continue until 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”). 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 7. 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, unless otherwise terminated or extended by the Parties pursuant to the terms of this Agreement.
1.4 Termination. The City may terminate this Agreement at any time with or without cause by providing written notice to Consultant. The City may terminate this Agreement for any reason, including but not limited to the lack of budget allocation for the Services. If the City breaches this Agreement and fails to cure such breach within 7 days of notice from Consultant, Consultant may terminate this Agreement immediately upon written notice to the City.
1.5 Contract Administrator. Michelle Sarkissian (“Contract Administrator”) is the City’s primary contact representative for the purposes of this Agreement. Consultant shall contact the Contract Administrator for all communications related to this Agreement. City may change the Contract Administrator upon written notification to Consultant. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or designee.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 27
Menifee Mayor and City Council
December 4, 2024
Page
428 of 1648
2905/031858-0001
19338568.2 a10/04/23 -2-
1.6 Consultant Representative. Phil Danie is Consultant’s primary contact representative for the purposes of this Agreement. City shall contact the Consultant Representative for all communications related to this Agreement. Consultant may change the Consultant Representative upon written notification to City. Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement.
1.7 Notices. Any written notice to Consultant shall be sent to:
SDI PRESENCE, LLC.
Attn: Sharee L. Wolff, CFO
200 E. Randolph Street, Suite 3550
Chicago, IL 60601
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Michelle Sarkissian, IT Manager
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
SECTION 2. SERVICES.
2.1 Purchase Orders. Consultant agrees to furnish Services pursuant to Purchase Order(s) issued by the City Manager in the form attached hereto as Exhibit “A” which is attached hereto and incorporated herein by this reference. In no event shall compensation for Services exceed the “not to exceed” compensation amount set forth in the Purchase Order.
2.2 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.
2.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services. 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: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 28
Menifee Mayor and City Council
December 4, 2024
Page
429 of 1648
2905/031858-0001
19338568.2 a10/04/23 -3-
2.4 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.
2.5 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 a Purchase Order.
2.6 Warranty. By executing this Agreement, Consultant warrants that Consultant has thoroughly investigated and considered the Services, has considered how they should be performed, and fully understands the facilities, difficulties, and restrictions applicable to performance of the Services.
2.7 Facilities and Equipment. Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the Services. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 3. COMPENSATION.
3.1 Not to Exceed Compensation. Consultant shall be compensated for the Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein. Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule, attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”). The compensation set forth in the Purchase Order represents total compensation payable to Consultant without limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in performance of the Purchase Order. In no event shall the cumulative compensations under all Purchase Orders exceed the following amounts:
a. Initial Term: One Hundred Thousand Dollars and Zero Cents ($100,000.00)
b. First Renewal Term: One Hundred Thousand Dollars and Zero Cents ($100,000.00)
3.2 Invoicing. Upon completion of a Purchase Order, or monthly for Purchase Orders involving Services performed over periods of longer than one (1) month, Consultant shall submit invoices to City based on the Services performed and any reimbursable expenses approved by City in writing. Invoices shall comply with the City’s “Invoicing Requirements” attached as Exhibit “C” hereto and incorporated herein by this reference, and shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 29
Menifee Mayor and City Council
December 4, 2024
Page
430 of 1648
2905/031858-0001
19338568.2 a10/04/23 -4-
b. The beginning and ending dates of the billing period; c. A “Task Summary” containing the original Purchase Order amount, the amount of prior billings, the total due this period, the balance available under the Purchase Order, 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; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
h. Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
3.3 Payment. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
3.4 Payment Holds. City may withhold payment of any invoice for Services not satisfactorily performed until such Services are performed to City’s satisfaction at no extra cost to City. City may hold payments reasonably in dispute under this Agreement until resolution of the dispute.
3.5 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
3.6 Payment Upon Termination. In the event City or Consultant terminates this Agreement, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for preapproved 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. City may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 30
Menifee Mayor and City Council
December 4, 2024
Page
431 of 1648
2905/031858-0001
19338568.2 a10/04/23 -5-
SECTION 4. INDEMNIFICATION.
4.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of this Agreement, 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.
4.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
4.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 4 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 4.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
4.4 Limitation of Indemnification. The provisions of this Section 4 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 4 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.
4.5 Legal Requirements Related to Indemnification. If any applicable law would render any of the requirements of this Section 4 void or unenforceable, the requirements hereunder shall be construed to the greatest scope and applicability permitted by applicable law.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 31
Menifee Mayor and City Council
December 4, 2024
Page
432 of 1648
2905/031858-0001
19338568.2 a10/04/23 -6-
SECTION 5. INSURANCE.
5.1 Insurance Required. As a condition of entering into this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance specified below.
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.
a. 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. b. Commercial General and Automobile Liability Insurance. i) 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. ii) 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.
iii) Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 32
Menifee Mayor and City Council
December 4, 2024
Page
433 of 1648
2905/031858-0001
19338568.2 a10/04/23 -7-
a. The insurance shall cover on an occurrence or an
accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting
provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
c. Professional Liability Insurance.
i) General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
ii) Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services. b. Insurance must be maintained and evidence of
insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates. c. 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. d. A copy of the claim reporting requirements must be
submitted to City prior to the commencement of the Services under this Agreement.
5.2 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.
5.3 Continuation of Insurance. Consultant shall maintain the insurance policies required by this Section throughout the term of this Agreement.
5.4 Additional Insured. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant. City and its Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 33
Menifee Mayor and City Council
December 4, 2024
Page
434 of 1648
2905/031858-0001
19338568.2 a10/04/23 -8-
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.
5.5 Subcontractors’ Insurance. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract pursuant to this Agreement until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
5.6 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.
5.7 Verification of Coverage. Prior to execution of this Agreement, Consultant shall furnish City with 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 name and address for endorsements and other insurance related matters is: City of Menifee, 29844 Haun Road, Menifee, CA 92586.
5.8 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.
5.9 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. The Contractor Administrator may, but is not required to approve in writing the submission of certificates of insurance in lieu of policy copies, Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 34
Menifee Mayor and City Council
December 4, 2024
Page
435 of 1648
2905/031858-0001
19338568.2 a10/04/23 -9-
in which case the Certificate of Insurance must include the following reference: City of Menifee:
Master Agreement for Professional On Call Services.
5.10 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 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 and assignment of personnel pursuant to Section 2.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services. The personnel performing the Services 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 Purchase Orders, City shall not pay salaries, wages, or other compensation to Consultant for performing Services. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services. 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 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Consultant acknowledges and agrees Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 35
Menifee Mayor and City Council
December 4, 2024
Page
436 of 1648
2905/031858-0001
19338568.2 a10/04/23 -10-
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.
7.2 Prevailing Wages. The Parties have determined that prevailing wage laws do not apply to this Agreement because the Services do not include construction, alteration, demolition, installation, or repair work or are otherwise exempt under California’s prevailing wage laws (Lab.
Code, § 1720 et seq.). Notwithstanding the foregoing, it is agreed by the Parties that, in connection with performance of this Agreement, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, and/or any other similar law. Section 4, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing 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 under this Agreement 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.
7.3 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.4 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 Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 36
Menifee Mayor and City Council
December 4, 2024
Page
437 of 1648
2905/031858-0001
19338568.2 a10/04/23 -11-
to complete and file a “Statement of Economic Interest” to disclose such other person’s financial interests as required by City.
7.5 Amendments. The Parties may amend this Agreement and/or any Purchase Order only by a writing signed by all the Parties. The City Manager shall have the authority to execute amendments to this Agreement and any Purchase Order which extend the time for performance or modify the Services to be provided. Extensions of the time for performance of Services does not entitle Consultant to additional compensation to the compensation initially provided in the applicable Purchase Order.
7.6 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.
7.7 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; and/or d. Charge Consultant the difference between the cost to complete the Services described in the relevant Purchase Order that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 3 if Consultant had completed the Services.
SECTION 8. KEEPING AND STATUS OF RECORDS.
8.1 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 Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 37
Menifee Mayor and City Council
December 4, 2024
Page
438 of 1648
2905/031858-0001
19338568.2 a10/04/23 -12-
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.
8.2 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.
8.3 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 or expenditures and disbursements charged to City for Services under this Agreement, if any 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.
8.4 Inspection and Audit of Records. Any records or documents that Section 8.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City.
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 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: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 38
Menifee Mayor and City Council
December 4, 2024
Page
439 of 1648
2905/031858-0001
19338568.2 a10/04/23 -13-
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 Rights and Remedies. 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.
9.8 Integration. This Agreement, including the Exhibits attached hereto, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. In the event of a conflict between this Agreement and any of the Exhibits, this Agreement shall control.
9.9 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.
9.10 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.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 39
Menifee Mayor and City Council
December 4, 2024
Page
440 of 1648
2905/031858-0001
19338568.2 a10/04/23 -14-
9.11 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.
9.12 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.
9.13 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.
9.14 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.
9.15 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 any Services performed hereunder.
[Signatures on Following Page]
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 40
Menifee Mayor and City Council
December 4, 2024
Page
441 of 1648
2905/031858-0001
19338568.2 a10/04/23 -15-
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:
Stephanie Roseen, Acting City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Sharee Wolf, Chief Financial Officer
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 41
Menifee Mayor and City Council
December 4, 2024
Page
442 of 1648
2905/031858-0001
19338568.2 a10/04/23
EXHIBIT A.
EXHIBIT A
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth herein are guaranteed for any particular Services. The fields of each Purchase Order will vary based on the Services required. In no event shall the cumulative compensations under all Purchase Orders exceed the following amounts:
a. Initial Term: One Hundred Thousand Dollars and Zero Cents ($100,000.00) b. First Renewal Term: One Hundred Thousand Dollars and Zero Cents ($ 100,000.00) Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 42
Menifee Mayor and City Council
December 4, 2024
Page
443 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 43
Menifee Mayor and City Council
December 4, 2024
Page
444 of 1648
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 44
Menifee Mayor and City Council
December 4, 2024
Page
445 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
EXHIBIT B
RATE SCHEDULE
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 45
Menifee Mayor and City Council
December 4, 2024
Page
446 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 46
Menifee Mayor and City Council
December 4, 2024
Page
447 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
Consultants shall provide technical staff augmentation on an as-needed basis in the areas noted below.
Additional skillsets may also be needed. Work will be performed both on-site at City facilities and remotely.
Skillsets include the following:
SECTION 1.Network Engineer – Active Directory & Server OS •Current Microsoft certification highly desired
•Windows Server 2016 and higher OS and Active Directory including securing the OS and AD communications
•Active Directory audit & health check
•Group Policy Object inventory, review, recommendations for update, removal, or new GPOs
•Strong familiarity with VMWare V6.x and above in a clustered configuration •Familiarity with Azure environment including building and securing •Familiarity with Veeam Enterprise Backup system
•Familiarity with Nimble SAN and supporting network architecture •Familiarity with securing and managing cybersecurity in the context of Active Directory and Server OSs
SECTION 2.Network Engineer – HP/Aruba
•Current HP/Aruba certification highly desired
•Strong familiarity with designing, implementing, and maintaining Clear Pass •Strong familiarity with wired switches (layer 2, layer 3) and wireless access points •Familiarity with integrating Clear Pass with Palo Alto Networks Firewalls •Familiarity with micro-segmentation for compliance with PCI, HIPAA, CLETS/DOJ, etc.
•Familiarity with installing, configuring, and operating Aruba wireless access points •Familiarity with configuring and securing corporate WiFi service and Guest WiFi service and ensuring the security of the corporate WiFi and network services •Familiarity with securing and managing cybersecurity in the context of network infrastructure
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 47
Menifee Mayor and City Council
December 4, 2024
Page
448 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
SECTION 1.Microsoft SQL Server DBA
•Current MCSA highly desired – SQL Server migration, install & configuration •Strong familiarity with both on-prem and Azure SQL server environments, administration, design, operations, and security
•Strong familiarity Data protection, disaster recovery/business continuity •Assess current SQL Server implementation(s) and make recommendations relative to compliance with PCI, HIPAA, CLETS/DOJ, CCPRA
SECTION 2.Business Analyst/Project Manager
•PMP certification highly desired
•Strong working knowledge of PMBOK including Agile and Waterfall approaches •Strong client engagement and requirements gathering and documenting skills •Experience with the full project life cycle including evaluating for de- acquisition •Experience implementing large, complex technology projects including organizational change management
SECTION 3.Microsoft Azure Architecture and Security
•Minimum of three years of design, implementation, and securing MS Azure cloud environments for highly regulated organizations that are growing rapidly •Strong familiarity with the various services offered in MS Azure and their Total Cost of Ownership (TCO) over a five year planning horizon
•Strong familiarity with securing a MS Azure environment and systems in accordance with PCI, HIPAA, PHI, DOJ/CLETS, and other security or privacy regulations as may apply •Strong familiarity with implementing and migrating file & print services to the MS Azure environment
•Familiarity with design and implementation of disaster recovery/business continuity within a MS Azure environment
The scope of work is not intended to be exhaustive, but a representative requirement of the work.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 48
Menifee Mayor and City Council
December 4, 2024
Page
449 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B.
EXHIBIT C
INVOICING REQUIREMENTS
As a government agency, the City of Menifee is responsible for monitoring all executed contract expenditures to ensure all expenses are within the approved contract budget, as well as monitor all work completed to ensure the scope of work requirements are being met on the approved contract timeline. At any time, project developers may request to view the invoices for their project and ask questions of City staff for items billed. To assist City staff and project developers, several items will be required to be submitted with each invoice in order to clearly and concisely standardize the information presented on all invoices provided by contracted consultants.
Details of the contract fiscal information are to be presented within each invoice as a chart. This chart will have all tasks listed with task numbers/sub-numbers, the amount due on the current invoice for each task, the amount that was previously charged to each task, and the total amount billed to each task, as in the example below:
In addition, a full work detail will be included in each invoice. This detail will identify the name and title of the person who conducted the work, the task number/sub-number that was worked on, specific duties completed, date of work, number of hours, cost per hour, and total amount due, as in the example below:
PROJECT NAME CIP or TRACT
NO.
IP / IS No. PURCHASE
ORDER NO.
PURCHASE
ORDER VALUE
CURRENT
AMOUNT DUE
PREVIOUS
AMOUNT
BILLED
TOTAL BILLED
TO DATE
Sumac Ridge PM37668 IS22-019 04123 $ 50,000.00 $ 5,700.00 $ 10,000.00 $ 15,700.00 Underwood
Park
TM29835-2 IS21-032 04043 $ 35,000.00 $ 7,850.00 $ - $ 7,850.00 Talavera TM29777 IP15-084 03999 $ 17,500.00 $ 2,500.00 $ 15,000.00 $ 17,500.00 TOTAL AMOUNT DUE FOR THIS INVOICE: $ 16,050.00
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 49
Menifee Mayor and City Council
December 4, 2024
Page
450 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT C
These details will be required on all future invoices submitted.
Item Title: 10.9
Agreements
with
ETech-360,
Inc.
and
SDI
Presence,
LLC
for
As-Needed
Professional
Information
Technology
Support
Services
Item Page Number: 50
Menifee Mayor and City Council
December 4, 2024
Page
451 of 1648
CITY OF MENIFEE
SUBJECT: Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services
MEETING DATE: December 4, 2024
TO: Mayor and City Council
PREPARED BY: Nancy Rodriguez, Management Analyst II
REVIEWED BY: Rebekah Kramer, Deputy City Manager
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute a master agreement for professional on- call services with Ace Uniforms for custom apparel services in the amount of $32,000 for Fiscal Year (FY) 2024/2025; and
2. Authorize the City Manager to approve four one-year renewals to the Ace Uniforms Master Agreement in an annual amount of $32,000, at the City’s discretion and contingent on availability of the corresponding budget; and
3. Approve and authorize the City Manager to execute a master agreement for professional on- call services with Macro Industries, Inc. for custom apparel services in the amount of $32,000 for FY 2024/2025; and
4. Authorize the City Manager to approve four one-year renewals to the Macro Industries, Inc.
Master Agreement in an annual amount of $32,000, at the City’s discretion and contingent on availability of the corresponding budget.
DISCUSSION
The City of Menifee’s Community Services Department purchases a variety of uniforms and custom apparel for maintenance staff, parks staff, special events staff, and program participants.
Some of these programs include the Youth Leaders of Menifee, the Lazy Creek Recreation summer camp, the tiny tots’ programs, and city sponsored sport leagues.
On August 27, 2024, staff issued Request for Proposal (RFP) No. 2025-2 for custom apparel. The vendor is to provide as needed custom apparel including, but not limited to, short sleeve t-shirts, polo shirts, windbreakers, and sweatshirts as well as any labor associated with these services.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 1
Menifee Mayor and City Council
December 4, 2024
Page
452 of 1648
City of Menifee Staff Report
Agreements for custom Apparel Services
December 4, 2024
2 4
3 5
The City received four qualifying proposals from the following firms:
•Ace Uniforms
•All Star Elite Sports
•Anchored Rose, Inc.
•Macro Industries, Inc.
An evaluation committee consisting of City staff evaluated the submittals. As part of the City’s RFP process, and as stated in the criteria set forth in RFP 2025-2, the firms were evaluated based on experience/qualification, staffing resources and organization, product quality and turnaround time, and cost proposal. All the tabulated results from the evaluations are listed in Table 1 below.
TABLE 1 – RFP EVALUATION SUMMARY
Firm Name
Evaluation
Score
Interview
Score
Ace Uniforms 83.33 88.33
Macro Industries, Inc. 88.33 77.00
All Star Elite Sports 79.33 -
Anchored Rose, Inc. 79.33 -
Following the evaluation process, interviews, and reference checks, staff determined that both Ace Uniforms and Macro Industries, Inc. were qualified to conduct the requested services with regards to pricing, reliability, and experience. Taking into consideration reoccurring supply chain issues and the wide variety of items needed by the department, staff is recommending that agreements are executed to both vendors to ensure appropriate apparel for staff and program participants can be acquired timely. Prior to each program or event, staff will solicit quotes from each vendor and proceed with the vendor who has the available supplies for the most competitive price.
STRATEGIC PLAN OBJECTIVE
Regular City Business
FISCAL IMPACT
The fiscal impact of the proposed agreements for the remainder of FY 2024/2025 is in an amount not-to-exceed $32,000. Funding for the first year of the proposed agreements is available within the Fiscal Year 2024/2025 budget, under Uniforms and Special Department Expenses for Community Services Administration and Recreation within the General Fund (1100-CSD-CADM- 652400 and 1100-CSD-RECR-651600).
If awarded, the aggregate amount purchased from both vendors collectively would not exceed $32,000 annually. While individual agreements not to exceed $32,000 would be issued per year, it is anticipated that total expenses per year between the vendors would not exceed $32,000.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 2
Menifee Mayor and City Council
December 4, 2024
Page
453 of 1648
City of Menifee Staff Report
Agreements for custom Apparel Services
December 4, 2024
2 4
3 5
Future fiscal years would be funded in the corresponding fiscal year’s budget. If each of the four renewals are exercised, the total contract amount is not-to-exceed $160,000 per vendor, however, it is anticipated that total expenses for the life of the contract would not exceed $160,000 for these services.
ATTACHMENTS
1. Agreement - Ace Uniforms
2. Agreement - Macro Industries, Inc.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 3
Menifee Mayor and City Council
December 4, 2024
Page
454 of 1648
2905/031858-0001
19338568.2 a10/04/23
CITY OF MENIFEE
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES FOR CUSTOM
APPAREL SERVICES
THIS MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES (“Agreement”) is made and effective this ______ day of __________, 2024 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and ACE UNIFORMS, a California Limited Liability Company (LLC) (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.” SECTION 1. GENERAL PROVISIONS.
1.1 Purpose. The purpose of this Agreement is to authorize Consultant to provide on- call services to City through purchase orders issued by the City Manager or designees (each a “Purchase Order”) for privately funded and City projects which are exempt from bidding requirements for public contracting, subject to the terms and conditions herein (the “Services”).
1.2 No Guaranteed Work. The Parties acknowledge that this Agreement serves as a master services agreement to establish Consultant as an approved consultant which may perform Services for the City pursuant to Purchase Order(s) issued in the discretion of the City Manager.
This Agreement does not guarantee that Consultant will be issued any work from City, or any particular amount of work, including for any Services. By entering into this Agreement Consultant is obtaining the ability to receive Purchase Orders from the City Manager, and the City is obtaining the ability to issue Purchase Orders without a requirement for subsequent City Council approval.
1.3 Term. This Agreement shall become effective on the December 4, 2024, and shall continue until 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”). 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”). 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
7. 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, unless otherwise terminated or extended by the Parties pursuant to the terms of this Agreement.
1.4 Termination. The City may terminate this Agreement at any time with or without cause by providing written notice to Consultant. The City may terminate this Agreement for any reason, including but not limited to the lack of budget allocation for the Services.
1.5 Contract Administrator. Nancy Rodriguez, Management Analyst II (“Contract Administrator”) is the City’s primary contact representative for the purposes of this Agreement.
Consultant shall contact the Contract Administrator for all communications related to this Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 4
Menifee Mayor and City Council
December 4, 2024
Page
455 of 1648
2905/031858-0001
19338568.2 a10/04/23 -2-
Agreement. City may change the Contract Administrator upon written notification to Consultant.
Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or designee.
1.6 Consultant Representative. Frank Flores, Sales Director is Consultant’s primary contact representative for the purposes of this Agreement. City shall contact the Consultant Representative for all communications related to this Agreement. Consultant may change the Consultant Representative upon written notification to City. Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement.
1.7 Notices. Any written notice to Consultant shall be sent to:
ACE UNIFORMS
Attn: Frank Flores, Sales Director
633 16th St.
San Diego, CA 92101
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Nancy Rodriguez, Management Analyst II
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
SECTION 2. SERVICES.
2.1 Purchase Orders. Consultant agrees to furnish Services pursuant to Purchase Order(s) issued by the City Manager in the form attached hereto as Exhibit “A” which is attached hereto and incorporated herein by this reference. In no event shall compensation for Services exceed the “not to exceed” compensation amount set forth in the Purchase Order.
2.2 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.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 5
Menifee Mayor and City Council
December 4, 2024
Page
456 of 1648
2905/031858-0001
19338568.2 a10/04/23 -3-
2.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services. 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.
2.4 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.
2.5 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 a Purchase Order.
2.6 Warranty. By executing this Agreement, Consultant warrants that Consultant has thoroughly investigated and considered the Services, has considered how they should be performed, and fully understands the facilities, difficulties, and restrictions applicable to performance of the Services.
2.7 Facilities and Equipment. Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the Services. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 3. COMPENSATION.
3.1 For purposes of compensation due to Consultant under this Agreement, Consultant is hereby advised that this Agreement is connected with another Professional Services Agreement by and between City and Macro Industries, Inc DBA Golden (the “Macro Industries, Inc DBA Golden Agreement”).
3.2 Not to Exceed Compensation. Consultant shall be compensated for the Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein. Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule, attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”). The compensation set forth in the Purchase Order represents total compensation payable to Consultant without limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in performance of the Purchase Order.
In no event shall the aggregate compensation between this Agreement and the Macro Industries, Inc DBA Golden Agreement exceed the following amounts:
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 6
Menifee Mayor and City Council
December 4, 2024
Page
457 of 1648
2905/031858-0001
19338568.2 a10/04/23 -4-
a. Initial Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
b. First Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
c. Second Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
d. Third Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
e. Fourth Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
3.3 Invoicing. Upon completion of a Purchase Order, or monthly for Purchase Orders involving Services performed over periods of longer than one (1) month, Consultant shall submit invoices to City based on the Services performed and any reimbursable expenses approved by City in writing. Invoices shall comply with the City’s “Invoicing Requirements” attached as Exhibit “C” hereto and incorporated herein by this reference, and 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 Purchase Order amount, the amount of prior billings, the total due this period, the balance available under the Purchase Order, 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; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
h. Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 7
Menifee Mayor and City Council
December 4, 2024
Page
458 of 1648
2905/031858-0001
19338568.2 a10/04/23 -5-
3.4 Payment. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
3.5 Payment Holds. City may withhold payment of any invoice for Services not satisfactorily performed until such Services are performed to City’s satisfaction at no extra cost to City. City may hold payments reasonably in dispute under this Agreement until resolution of the dispute.
3.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
3.7 Payment Upon Termination. In the event City or Consultant terminates this Agreement, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for preapproved 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. City may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
SECTION 4. INDEMNIFICATION.
4.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of this Agreement, 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.
4.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
4.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 4 to the contrary, design professionals, as that term is defined in Civil Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 8
Menifee Mayor and City Council
December 4, 2024
Page
459 of 1648
2905/031858-0001
19338568.2 a10/04/23 -6-
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 4.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
4.4 Limitation of Indemnification. The provisions of this Section 4 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 4 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.
4.5 Legal Requirements Related to Indemnification. If any applicable law would render any of the requirements of this Section 4 void or unenforceable, the requirements hereunder shall be construed to the greatest scope and applicability permitted by applicable law.
SECTION 5. INSURANCE.
5.1 Insurance Required. As a condition of entering into this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance specified below.
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.
a. 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. b. Commercial General and Automobile Liability Insurance. i) 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 Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 9
Menifee Mayor and City Council
December 4, 2024
Page
460 of 1648
2905/031858-0001
19338568.2 a10/04/23 -7-
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. ii) 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.
iii) Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an
accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting
provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
c. Professional Liability Insurance.
i) General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
ii) Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services. b. Insurance must be maintained and evidence of
insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates. c. 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 Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 10
Menifee Mayor and City Council
December 4, 2024
Page
461 of 1648
2905/031858-0001
19338568.2 a10/04/23 -8-
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. d. A copy of the claim reporting requirements must be
submitted to City prior to the commencement of the Services under this Agreement.
5.2 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.
5.3 Continuation of Insurance. Consultant shall maintain the insurance policies required by this Section throughout the term of this Agreement.
5.4 Additional Insured. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant. 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.
5.5 Subcontractors’ Insurance. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract pursuant to this Agreement until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
5.6 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: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 11
Menifee Mayor and City Council
December 4, 2024
Page
462 of 1648
2905/031858-0001
19338568.2 a10/04/23 -9-
5.7 Verification of Coverage. Prior to execution of this Agreement, Consultant shall furnish City with 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 name and address for endorsements and other insurance related matters is: City of Menifee, 29844 Haun Road, Menifee, CA 92586.
5.8 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.
5.9 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. The Contractor Administrator may, but is not required to approve in writing the submission of certificates of insurance in lieu of policy copies, in which case the Certificate of Insurance must include the following reference: City of Menifee:
Master Agreement for Professional On Call Services.
5.10 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 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 and assignment of personnel pursuant to Section 2.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services. The personnel performing the Services 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 Purchase Orders, City shall not pay salaries, wages, or other compensation to Consultant for performing Services. City shall not be liable for Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 12
Menifee Mayor and City Council
December 4, 2024
Page
463 of 1648
2905/031858-0001
19338568.2 a10/04/23 -10-
compensation or indemnification to Consultant for injury or sickness arising out of performing the Services. 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 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform 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.
7.2 Prevailing Wages. The Parties have determined that prevailing wage laws do not apply to this Agreement because the Services do not include construction, alteration, demolition, installation, or repair work or are otherwise exempt under California’s prevailing wage laws (Lab.
Code, § 1720 et seq.). Notwithstanding the foregoing, it is agreed by the Parties that, in connection with performance of this Agreement, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, and/or any other similar law. Section 4, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing 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 under this Agreement 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.
7.3 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 13
Menifee Mayor and City Council
December 4, 2024
Page
464 of 1648
2905/031858-0001
19338568.2 a10/04/23 -11-
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.
7.4 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.
7.5 Amendments. The Parties may amend this Agreement and/or any Purchase Order only by a writing signed by all the Parties. The City Manager shall have the authority to execute amendments to this Agreement and any Purchase Order which extend the time for performance or modify the Services to be provided. Extensions of the time for performance of Services does not entitle Consultant to additional compensation to the compensation initially provided in the applicable Purchase Order.
7.6 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.
7.7 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; and/or Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 14
Menifee Mayor and City Council
December 4, 2024
Page
465 of 1648
2905/031858-0001
19338568.2 a10/04/23 -12-
d. Charge Consultant the difference between the cost to complete the Services described in the relevant Purchase Order that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 3 if Consultant had completed the Services.
SECTION 8. KEEPING AND STATUS OF RECORDS.
8.1 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.
8.2 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.
8.3 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 or expenditures and disbursements charged to City for Services under this Agreement, if any 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.
8.4 Inspection and Audit of Records. Any records or documents that Section 8.3 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.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 15
Menifee Mayor and City Council
December 4, 2024
Page
466 of 1648
2905/031858-0001
19338568.2 a10/04/23 -13-
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 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.
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 Rights and Remedies. 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.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 16
Menifee Mayor and City Council
December 4, 2024
Page
467 of 1648
2905/031858-0001
19338568.2 a10/04/23 -14-
9.8 Integration. This Agreement, including the Exhibits attached hereto, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. In the event of a conflict between this Agreement and any of the Exhibits, this Agreement shall control.
9.9 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.
9.10 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.
9.11 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.
9.12 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.
9.13 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.
9.14 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.
9.15 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 any Services performed hereunder.
[Signatures on Following Page]
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 17
Menifee Mayor and City Council
December 4, 2024
Page
468 of 1648
2905/031858-0001
19338568.2 a10/04/23 -15-
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:
Stephanie Roseen, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Rory Staiger, CEO
Frank Flores, Director of Sales
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 18
Menifee Mayor and City Council
December 4, 2024
Page
469 of 1648
2905/031858-0001
19338568.2 a10/04/23
EXHIBIT A.
EXHIBIT A
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth herein are guaranteed for any particular Services. The fields of each Purchase Order will vary based on the Services required. In no event shall the aggregate compensation between this Agreement and the Macro Industries, Inc DBA Golden Agreement exceed the following amounts:
a. Initial Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00) b. First Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($ 32,000.00) c. Second Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00) d. Third Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($ 32,000.00) e. Fourth Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($ 32,000.00) Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 19
Menifee Mayor and City Council
December 4, 2024
Page
470 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 20
Menifee Mayor and City Council
December 4, 2024
Page
471 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B.
EXHIBIT B
RATE SCHEDULE
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 21
Menifee Mayor and City Council
December 4, 2024
Page
472 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 22
Menifee Mayor and City Council
December 4, 2024
Page
473 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 23
Menifee Mayor and City Council
December 4, 2024
Page
474 of 1648
2905/031858-0001
19338889.2 a04/02/24
EXHIBIT B.
Consultant shall provide apparel for staff and program participants. Embroidery and vinyl, as well as multiple color printing is required. Quotes must be for purchase only. All apparel shall be new, unused models free of defects in material and workmanship. The City will provide apparel orders throughout the year as needed, and the orders may vary from the originals provided in this RFP. • Proposers must have the ability to store existing screens on behalf of the City. • Repeat orders using identical screens shall not incur additional screen or embroidery fees. • Estimated annual usage is provided for evaluation purposes. • Quantities provided are an estimated annual usage only and do not guarantee purchase of a specific item or quantity during the term of the Agreement.
• The City reserves the right to add, change, or delete items as necessary. • All designs will remain the property of the City of Menifee and may not be used for any purpose other than for the specific order for which it is required. • If silk-screen or embroidery errors or quality issues are found on delivered materials, vendor will be notified and damaged items will be returned and corrected in a timely manner by vendor at no cost to the City.
• Vendor shall be within sixty (60) miles of the City of Menifee. • Vendor shall include shipping in all pricing.
• If there is a delay to any order, vendor shall notify the City and obtain approval for the delay.
Failure to notify the City of delay may result in the termination of the Agreement. • Quotes must be for the suggested brand or an equivalent. If an equivalent is being offered, pictures and a description of the equivalent must be provided.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 24
Menifee Mayor and City Council
December 4, 2024
Page
475 of 1648
2905/031858-0001
19338889.2 a00/00/00
EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 25
Menifee Mayor and City Council
December 4, 2024
Page
476 of 1648
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 26
Menifee Mayor and City Council
December 4, 2024
Page
477 of 1648
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 27
Menifee Mayor and City Council
December 4, 2024
Page
478 of 1648
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 28
Menifee Mayor and City Council
December 4, 2024
Page
479 of 1648
2905/031858-0001
19338889.2 a00/00/00 EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 29
Menifee Mayor and City Council
December 4, 2024
Page
480 of 1648
2905/031858-0001
19338568.2 a00/00/00 EXHIBIT C.
EXHIBIT C
INVOICING REQUIREMENTS
As a government agency, the City of Menifee is responsible for monitoring all executed contract expenditures to ensure all expenses are within the approved contract budget, as well as monitor all work completed to ensure the scope of work requirements are being met on the approved contract timeline. At any time, project developers may request to view the invoices for their project and ask questions of City staff for items billed. To assist City staff and project developers, several items will be required to be submitted with each invoice in order to clearly and concisely standardize the information presented on all invoices provided by contracted consultants.
Details of the contract fiscal information are to be presented within each invoice as a chart. This chart will have all tasks listed with task numbers/sub-numbers, the amount due on the current invoice for each task, the amount that was previously charged to each task, and the total amount billed to each task, as in the example below:
In addition, a full work detail will be included in each invoice. This detail will identify the name and title of the person who conducted the work, the task number/sub-number that was worked on, specific duties completed, date of work, number of hours, cost per hour, and total amount due, as in the example below:
These details will be required on all future invoices submitted.
PROJECT NAME CIP or TRACT
NO.
IP / IS No. PURCHASE
ORDER NO.
PURCHASE
ORDER VALUE
CURRENT
AMOUNT DUE
PREVIOUS
AMOUNT
BILLED
TOTAL BILLED
TO DATE
Sumac Ridge PM37668 IS22-019 04123 $ 50,000.00 $ 5,700.00 $ 10,000.00 $ 15,700.00 Underwood
Park
TM29835-2 IS21-032 04043 $ 35,000.00 $ 7,850.00 $ - $ 7,850.00 Talavera TM29777 IP15-084 03999 $ 17,500.00 $ 2,500.00 $ 15,000.00 $ 17,500.00 TOTAL AMOUNT DUE FOR THIS INVOICE: $ 16,050.00
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 30
Menifee Mayor and City Council
December 4, 2024
Page
481 of 1648
2905/031858-0001
19338568.2 a10/04/23
CITY OF MENIFEE
MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES FOR CUSTOM
APPAREL SERVICES
THIS MASTER AGREEMENT FOR PROFESSIONAL ON CALL SERVICES (“Agreement”) is made and effective this ______ day of __________, 2024 (“Effective Date”) by and between the CITY OF MENIFEE, a California municipal corporation, (“City”) and MACRO INDUSTRIES, INC DBA GOLDEN SUN, a California Corporation (“Consultant”). City and Consultant may sometimes herein be referred to individually as a “Party” and collectively as the “Parties.”
SECTION 1. GENERAL PROVISIONS.
1.1 Purpose. The purpose of this Agreement is to authorize Consultant to provide on- call services to City through purchase orders issued by the City Manager or designees (each a “Purchase Order”) for privately funded and City projects which are exempt from bidding requirements for public contracting, subject to the terms and conditions herein (the “Services”).
1.2 No Guaranteed Work. The Parties acknowledge that this Agreement serves as a master services agreement to establish Consultant as an approved consultant which may perform Services for the City pursuant to Purchase Order(s) issued in the discretion of the City Manager.
This Agreement does not guarantee that Consultant will be issued any work from City, or any particular amount of work, including for any Services. By entering into this Agreement Consultant is obtaining the ability to receive Purchase Orders from the City Manager, and the City is obtaining the ability to issue Purchase Orders without a requirement for subsequent City Council approval.
1.3 Term. This Agreement shall become effective on the December 4, 2024, and shall continue until 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”). 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”). 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
7. 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, unless otherwise terminated or extended by the Parties pursuant to the terms of this Agreement.
1.4 Termination. The City may terminate this Agreement at any time with or without cause by providing written notice to Consultant. The City may terminate this Agreement for any reason, including but not limited to the lack of budget allocation for the Services.
1.5 Contract Administrator. Nancy Rodriguez, Management Analyst II (“Contract Administrator”) is the City’s primary contact representative for the purposes of this Agreement.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 31
Menifee Mayor and City Council
December 4, 2024
Page
482 of 1648
2905/031858-0001
19338568.2 a10/04/23 -2-
Consultant shall contact the Contract Administrator for all communications related to this Agreement. City may change the Contract Administrator upon written notification to Consultant.
Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or designee.
1.6 Consultant Representative. Eric Zhang, VP Sales is Consultant’s primary contact representative for the purposes of this Agreement. City shall contact the Consultant Representative for all communications related to this Agreement. Consultant may change the Consultant Representative upon written notification to City. Consultant’s Representative shall have full authority to represent and act on behalf of Consultant for all purposes under this Agreement.
1.7 Notices. Any written notice to Consultant shall be sent to:
MACRO INDUSTRIES, INC DBA GOLDEN SUN
Attn: Eric Zhang, VP Sales
14178 Albers Way
Chino, CA 91710
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Nancy Rodriguez, Management Analyst II
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
SECTION 2. SERVICES.
2.1 Purchase Orders. Consultant agrees to furnish Services pursuant to Purchase Order(s) issued by the City Manager in the form attached hereto as Exhibit “A” which is attached hereto and incorporated herein by this reference. In no event shall compensation for Services exceed the “not to exceed” compensation amount set forth in the Purchase Order.
2.2 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.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 32
Menifee Mayor and City Council
December 4, 2024
Page
483 of 1648
2905/031858-0001
19338568.2 a10/04/23 -3-
2.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services. 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.
2.4 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.
2.5 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 a Purchase Order.
2.6 Warranty. By executing this Agreement, Consultant warrants that Consultant has thoroughly investigated and considered the Services, has considered how they should be performed, and fully understands the facilities, difficulties, and restrictions applicable to performance of the Services.
2.7 Facilities and Equipment. Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the Services. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.
SECTION 3. COMPENSATION.
3.1 For purposes of compensation due to Consultant under this Agreement, Consultant is hereby advised that this Agreement is connected with another Professional Services Agreement by and between City and Ace Uniforms (the “Ace Uniforms Agreement”).
3.2 Not to Exceed Compensation. Consultant shall be compensated for the Services and any approved reimbursable expenses as set forth in the relevant Purchase Order, and in no event shall City’s compensation to Consultant for a Purchase Order exceed the amount set forth therein. Compensation pursuant to this Agreement shall be at the rates set forth in the City’s Rate Schedule, attached hereto and incorporated herein by this reference as Exhibit “B” (“Rate Schedule”). The compensation set forth in the Purchase Order represents total compensation payable to Consultant without limitation to compensation for salary, overhead, benefits, fees, or other costs incurred by Consultant in performance of the Purchase Order.
In no event shall the aggregate compensation between this Agreement and the Ace Uniforms Agreement exceed the following amounts:
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 33
Menifee Mayor and City Council
December 4, 2024
Page
484 of 1648
2905/031858-0001
19338568.2 a10/04/23 -4-
a. Initial Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
b. First Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
c. Second Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
d. Third Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
e. Fourth Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00)
3.3 Invoicing. Upon completion of a Purchase Order, or monthly for Purchase Orders involving Services performed over periods of longer than one (1) month, Consultant shall submit invoices to City based on the Services performed and any reimbursable expenses approved by City in writing. Invoices shall comply with the City’s “Invoicing Requirements” attached as Exhibit “C” hereto and incorporated herein by this reference, and 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 Purchase Order amount, the amount of prior billings, the total due this period, the balance available under the Purchase Order, 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; f. Receipts for expenses to be reimbursed;
g. The Consultant Representative’s signature.
h. Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 34
Menifee Mayor and City Council
December 4, 2024
Page
485 of 1648
2905/031858-0001
19338568.2 a10/04/23 -5-
3.4 Payment. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
3.5 Payment Holds. City may withhold payment of any invoice for Services not satisfactorily performed until such Services are performed to City’s satisfaction at no extra cost to City. City may hold payments reasonably in dispute under this Agreement until resolution of the dispute.
3.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
3.7 Payment Upon Termination. In the event City or Consultant terminates this Agreement, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for preapproved 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. City may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or City in connection with this Agreement.
SECTION 4. INDEMNIFICATION.
4.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of this Agreement, 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.
4.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant.
4.3 Limitation of Indemnification for Design Professionals. Notwithstanding any provision of this Section 4 to the contrary, design professionals, as that term is defined in Civil Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 35
Menifee Mayor and City Council
December 4, 2024
Page
486 of 1648
2905/031858-0001
19338568.2 a10/04/23 -6-
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 4.3 shall only apply to Consultant if Consultant is a “design professional” as that term is defined in Civil Code Section 2782.8.
4.4 Limitation of Indemnification. The provisions of this Section 4 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 4 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.
4.5 Legal Requirements Related to Indemnification. If any applicable law would render any of the requirements of this Section 4 void or unenforceable, the requirements hereunder shall be construed to the greatest scope and applicability permitted by applicable law.
SECTION 5. INSURANCE.
5.1 Insurance Required. As a condition of entering into this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance specified below.
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.
a. 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. b. Commercial General and Automobile Liability Insurance. i) 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 Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 36
Menifee Mayor and City Council
December 4, 2024
Page
487 of 1648
2905/031858-0001
19338568.2 a10/04/23 -7-
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. ii) 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.
iii) Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an
accident basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting
provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
c. Professional Liability Insurance.
i) General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be approved by City.
ii) Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no later than the commencement of the Services. b. Insurance must be maintained and evidence of
insurance must be provided for at least five (5) years after the expiration or termination of this Agreement or completion of the Services, so long as commercially available at reasonable rates. c. 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 Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 37
Menifee Mayor and City Council
December 4, 2024
Page
488 of 1648
2905/031858-0001
19338568.2 a10/04/23 -8-
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. d. A copy of the claim reporting requirements must be
submitted to City prior to the commencement of the Services under this Agreement.
5.2 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.
5.3 Continuation of Insurance. Consultant shall maintain the insurance policies required by this Section throughout the term of this Agreement.
5.4 Additional Insured. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Consultant. 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.
5.5 Subcontractors’ Insurance. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract pursuant to this Agreement until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
5.6 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: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 38
Menifee Mayor and City Council
December 4, 2024
Page
489 of 1648
2905/031858-0001
19338568.2 a10/04/23 -9-
5.7 Verification of Coverage. Prior to execution of this Agreement, Consultant shall furnish City with 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 name and address for endorsements and other insurance related matters is: City of Menifee, 29844 Haun Road, Menifee, CA 92586.
5.8 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.
5.9 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. The Contractor Administrator may, but is not required to approve in writing the submission of certificates of insurance in lieu of policy copies, in which case the Certificate of Insurance must include the following reference: City of Menifee:
Master Agreement for Professional On Call Services.
5.10 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 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 and assignment of personnel pursuant to Section 2.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services. The personnel performing the Services 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 Purchase Orders, City shall not pay salaries, wages, or other compensation to Consultant for performing Services. City shall not be liable for Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 39
Menifee Mayor and City Council
December 4, 2024
Page
490 of 1648
2905/031858-0001
19338568.2 a10/04/23 -10-
compensation or indemnification to Consultant for injury or sickness arising out of performing the Services. 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 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform 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.
7.2 Prevailing Wages. The Parties have determined that prevailing wage laws do not apply to this Agreement because the Services do not include construction, alteration, demolition, installation, or repair work or are otherwise exempt under California’s prevailing wage laws (Lab.
Code, § 1720 et seq.). Notwithstanding the foregoing, it is agreed by the Parties that, in connection with performance of this Agreement, including, without limitation, any and all public works (as defined by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Sections 1726 and 1781, as the same may be amended from time to time, and/or any other similar law. Section 4, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Consultant or any party performing 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 under this Agreement 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.
7.3 Licenses and Permits, Fees and Assessments. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Consultant represents, warrants, and covenants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant’s Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 40
Menifee Mayor and City Council
December 4, 2024
Page
491 of 1648
2905/031858-0001
19338568.2 a10/04/23 -11-
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.
7.4 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.
7.5 Amendments. The Parties may amend this Agreement and/or any Purchase Order only by a writing signed by all the Parties. The City Manager shall have the authority to execute amendments to this Agreement and any Purchase Order which extend the time for performance or modify the Services to be provided. Extensions of the time for performance of Services does not entitle Consultant to additional compensation to the compensation initially provided in the applicable Purchase Order.
7.6 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.
7.7 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; and/or Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 41
Menifee Mayor and City Council
December 4, 2024
Page
492 of 1648
2905/031858-0001
19338568.2 a10/04/23 -12-
d. Charge Consultant the difference between the cost to complete the Services described in the relevant Purchase Order that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 3 if Consultant had completed the Services.
SECTION 8. KEEPING AND STATUS OF RECORDS.
8.1 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.
8.2 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.
8.3 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 or expenditures and disbursements charged to City for Services under this Agreement, if any 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.
8.4 Inspection and Audit of Records. Any records or documents that Section 8.3 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.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 42
Menifee Mayor and City Council
December 4, 2024
Page
493 of 1648
2905/031858-0001
19338568.2 a10/04/23 -13-
Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 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.
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 Rights and Remedies. 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.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 43
Menifee Mayor and City Council
December 4, 2024
Page
494 of 1648
2905/031858-0001
19338568.2 a10/04/23 -14-
9.8 Integration. This Agreement, including the Exhibits attached hereto, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. In the event of a conflict between this Agreement and any of the Exhibits, this Agreement shall control.
9.9 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.
9.10 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.
9.11 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.
9.12 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.
9.13 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.
9.14 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.
9.15 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 any Services performed hereunder.
[Signatures on Following Page]
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 44
Menifee Mayor and City Council
December 4, 2024
Page
495 of 1648
2905/031858-0001
19338568.2 a10/04/23 -15-
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:
Stephanie Roseen, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
CONSULTANT
Eric Zhang, VP Sales
Charles Cheng, Owner
[Note: 2 officer’s signatures required if
Consultant is a corporation, unless provided
with a certificate of secretary in-lieu]
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 45
Menifee Mayor and City Council
December 4, 2024
Page
496 of 1648
2905/031858-0001
19338568.2 a10/04/23
EXHIBIT A.
EXHIBIT A
FORM OF PURCHASE ORDER
This form of Purchase Order is provided for an example only, and none of the fields set forth herein are guaranteed for any particular Services. The fields of each Purchase Order will vary based on the Services required. In no event shall the aggregate compensation between this Agreement and the Ace Uniforms Agreement exceed the following amounts:
a. Initial Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00) b. First Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($ 32,000.00) c. Second Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($32,000.00) d. Third Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($ 32,000.00) e. Fourth Renewal Term: Thirty Two Thousand Dollars and Zero Cents ($ 32,000.00) Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 46
Menifee Mayor and City Council
December 4, 2024
Page
497 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT A.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 47
Menifee Mayor and City Council
December 4, 2024
Page
498 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B.
EXHIBIT B
RATE SCHEDULE
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 48
Menifee Mayor and City Council
December 4, 2024
Page
499 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 49
Menifee Mayor and City Council
December 4, 2024
Page
500 of 1648
2905/031858-0001
19338568.2 a10/04/23 EXHIBIT B.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 50
Menifee Mayor and City Council
December 4, 2024
Page
501 of 1648
2905/031858-0001
19338568.2 a00/00/00 EXHIBIT B.
Consultant shall provide apparel for staff and program participants. Embroidery and vinyl, as well as multiple color printing is required. Quotes must be for purchase only. All apparel shall be new, unused models free of defects in material and workmanship. The City will provide apparel orders throughout the year as needed, and the orders may vary from the originals provided in this RFP. • Proposers must have the ability to store existing screens on behalf of the City. • Repeat orders using identical screens shall not incur additional screen or embroidery fees. • Estimated annual usage is provided for evaluation purposes. • Quantities provided are an estimated annual usage only and do not guarantee purchase of a specific item or quantity during the term of the Agreement.
• The City reserves the right to add, change, or delete items as necessary. • All designs will remain the property of the City of Menifee and may not be used for any purpose other than for the specific order for which it is required. • If silk-screen or embroidery errors or quality issues are found on delivered materials, vendor will be notified and damaged items will be returned and corrected in a timely manner by vendor at no cost to the City.
• Vendor shall be within sixty (60) miles of the City of Menifee. • Vendor shall include shipping in all pricing.
• If there is a delay to any order, vendor shall notify the City and obtain approval for the delay.
Failure to notify the City of delay may result in the termination of the Agreement. • Quotes must be for the suggested brand or an equivalent. If an equivalent is being offered, pictures and a description of the equivalent must be provided.
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 51
Menifee Mayor and City Council
December 4, 2024
Page
502 of 1648
2905/031858-0001
19338568.2 a00/00/00 EXHIBIT C
EXHIBIT C
INVOICING REQUIREMENTS
As a government agency, the City of Menifee is responsible for monitoring all executed contract expenditures to ensure all expenses are within the approved contract budget, as well as monitor all work completed to ensure the scope of work requirements are being met on the approved contract timeline. At any time, project developers may request to view the invoices for their project and ask questions of City staff for items billed. To assist City staff and project developers, several items will be required to be submitted with each invoice in order to clearly and concisely standardize the information presented on all invoices provided by contracted consultants.
Details of the contract fiscal information are to be presented within each invoice as a chart. This chart will have all tasks listed with task numbers/sub-numbers, the amount due on the current invoice for each task, the amount that was previously charged to each task, and the total amount billed to each task, as in the example below:
In addition, a full work detail will be included in each invoice. This detail will identify the name and title of the person who conducted the work, the task number/sub-number that was worked on, specific duties completed, date of work, number of hours, cost per hour, and total amount due, as in the example below:
These details will be required on all future invoices submitted PROJECT NAME CIP or TRACT
NO.
IP / IS No. PURCHASE
ORDER NO.
PURCHASE
ORDER VALUE
CURRENT
AMOUNT DUE
PREVIOUS
AMOUNT
BILLED
TOTAL BILLED
TO DATE
Sumac Ridge PM37668 IS22-019 04123 $ 50,000.00 $ 5,700.00 $ 10,000.00 $ 15,700.00 Underwood
Park
TM29835-2 IS21-032 04043 $ 35,000.00 $ 7,850.00 $ - $ 7,850.00 Talavera TM29777 IP15-084 03999 $ 17,500.00 $ 2,500.00 $ 15,000.00 $ 17,500.00 TOTAL AMOUNT DUE FOR THIS INVOICE: $ 16,050.00
Item Title: 10.10
Agreements with Ace Uniforms and Macro Industries, Inc. for Professional On-Call Custom Apparel Services Item Page Number: 52
Menifee Mayor and City Council
December 4, 2024
Page
503 of 1648
CITY OF MENIFEE
SUBJECT: Agreement with Riverside County Flood Control and Water Conservation District, County of Riverside, and D.R. Horton for the Menifee Valley – Holland Road Channel, Stage 1
MEETING DATE: December 4, 2024
TO: Mayor and City Council
PREPARED BY: Amanda Backlund, Assistant Engineer
REVIEWED BY: Nick Fidler, Public Works Director
APPROVED BY: Armando G. Villa, City Manager
-------------------------------------------------------------------------------------------------------------------------------
RECOMMENDED ACTION
1. Approve and authorize the City Manager to execute a Cooperative Agreement to guarantee the completion of the required flood control facility improvements associated with County of Riverside Tract Map 37439 by D.R. Horton Los Angeles Holding Company, Inc., located east of Briggs Road and south of Holland Road, in the unincorporated area of the County of Riverside.
DISCUSSION
Tract No. 37439, also known as Canterwood (“Project”), is a proposed residential development in the unincorporated area of the County of Riverside just outside of the Menifee city limits. The Project is located east of Briggs Road and south of Holland Road. While the Project is not located within the city limits, D.R. Horton Los Angeles Holding Company, Inc., a California corporation (“Developer”) is required to construct Riverside County Flood Control & Water Conservation District (“District”) storm water facility improvements. A portion of these improvements fall within Menifee city limits at the intersection of Briggs Road and Holland Road as shown in the attached Location Map.
The Menifee Valley - Holland Channel, Stage 1 (“District Facilities”) improvements consist of approximately 370 feet of a 14 foot by 7 foot concrete box, approximately 225 lineal feet of transition structures, associated outlet structures, and an access road. Once completed and accepted, ownership and ongoing maintenance of the Project improvements would be designated as summarized below:
Item Title: 10.11
Agreement
with
Riverside
County
Flood
Control
and
Water
Conservation
District,
County
of
Riverside,
and
D.R.
Horton
for
the Menifee Valley – Holland Road Channel, Stage 1
Item Page Number: 1
Menifee Mayor and City Council
December 4, 2024
Page
504 of 1648
City of Menifee Staff Report
Menifee Valley - Holland Road Channel Stage 1
December 4, 2024