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2017/07/01 Gary F. Hoyt Landscape Architecture, Inc. FY17/18 On-Call Engineering Services (Non-Recoverable)\, \- CITY OF MENIFET], PROFESSIONAL SERVICES AGREEMENT FY 17118 ON-CALL ENGINEERING SERVICES (NON-RECOVERABLE) THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective this 2lsr day of JUNE, 2017 ("Effective Date") by and between the CITY OF MENIFEE, a California municipal corporation. (''City")and GARY F. HOYT LANDSCAPE ARCHITECTURE INC ., an S Corporation, ("Consultant"). City and Consultant may sornetimes herein be ref-emed to individually as a "Party" and collectively as the "'Pa(ies." SECTION I. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope ofServices, attached hereto as Exhibit A and incorporated herein by this reference (the "Services"). Consultant will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. ln the event ofa conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail. l.l Term of Services. The term of this A greement shall begin on JULY l. 2017 and shall end on JUNE 30. 2018 unless the term ofthis Agreement is otherwise terminated or extended as provided for in Section 8. The time provided to Consultant to complete the Serwices required by this Agreement shall not affect City's right to terminate this Agreement, as provided fbr in Section 8. 1.2 Standard of Perfbrmance. Consultant represents and warrants that Consultant is a provider offirst class work and services and Consultant is experienced in performing the Services contemplated herein and, in light of such status and experience, Consultant shall perform the Services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession and to the sole satisfaction of the Contract Administrator. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any time during the term ofthis Agreement, desires the reassignment ofany such persons, Consultant shall, immediately upon receiving notice from City olsuch desire of City, reassign such person or persons. I .4 Time. Consultant shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations hereunder. 1.5 Authorization to Perform Services. Consultant is not authorized to perform any of the Services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. SECTION 2. COMPENSATION. City hereby agrees to pay Consuhant a sum not to exceed TWENTY TIIOUSAND DOLLARS AND ZERO CENTS (520.000.00) notwithstand ing any contrary indications that may be contained in Consultant's proposal, for the Services to be performed and reimbursable costs incurred under this Agreement. In the event ofa conflict between this Agreement and Exhibit A, regarding the amount ofcompensation, this Agreement shall prevail. City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant ior the Services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized in advance by City, Consultant shall not bitl City lor duplicate services performed by more than one person. 2.1 Invoices. Consultant shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. Invoices shalI contain the following information: a. Serial identifications ofprogress bills; i.e., Progress Bitl No. I for the first invoice, etc.; b. The beginning and ending dates ofthe bitling 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 ol 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 perlbrmed under this Agreement by Consultant and each employee. agent, and subcontractor of Consultant performing the Services hereunder necessary to complete the Services described in Exhibit A; Receipts for expenses to be reimbursed; The Consultant Representative's signature. lnvoices shall be submitted to: City of Menil-ee Attn: Accounts Payable 29714 I{aun Road Menifee. CA 92586 2.2 Monthly Pavment. City shall make monthly payments, based on invoices received, for the Services satisfactorily performed, and for authorized reimbursable costs incuned. City shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements above to pay Consultant. f. g. 2.3 Final Payment. Cit y shall pay the last ten percent ( l0%) of the total amounl due pursuant to this Agreement within sixly (60) days after completion of the Services and submittal to City ofa final invoice, if all ofthe Services required have been satisfactorily perlbrmed. 2.4 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entirety of the Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an invoice. 2.5 Hourlv Fees. Fees fbr the Services performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule included with Exhibit A. 2.6 ReimbursableExpenses Reimbursable expenses are included within the maximum amount of this Agreemcnt. 2.7 Pavment of Taxes. Consultant is solel y responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes. 2.8 Paymenl upon Termination. In the event that Cit y or Consultant terminates this Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and lbr reimbursable expenses as ofthe date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date. SECTION 3. FACILITIES AND EQUIPMENT. Except as otherwise provided. Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary lbr 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 fumish 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 4. INSURANCE REQT]IIIEMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the lypes and amounts of insurance checked below and provide Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and which is satislactory, in all respects, to City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in Consultant's compensation. Consultant shall not allow any subcontractor, consultant or other agent to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided )- v\, evidence thereofto City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover inter-insured suits between City and other Insureds. 4.1 Workers' Compensation. Consultant shall , at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant pursuant to the provisions ofthe Califomia 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 altemative, Consultant may rely on a self- insurance program to meel those requirements, but only if the program of self-insurance complies fully with the provisions of the Calilomia Labor Code. Determination of whether a self-insurance program meets the standards ofthe Califomia Labor Code shall be solely in the discretion ofthe Contract Administrator. The insurer. if insurance is provided, or Consultant, if a program of self- insurance is provided, shall waive all rights of subrogation against City and its officers, oificials, employees, and authorized volunteers for loss arising fiom the Services performed under this Agreement. It.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, fbr risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000.000.00) general aggregate. and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile 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 therefiom, and damage to property resulting from the Services contemplated under this Agreement. including the use ofhired, owned, and non-owned automobiles. b. Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial Ceneral Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage. c Additional requirements. Each of the followi ng shall be included in the insurance coverage or added as a certified endorsement to the policy: a. The insurance shafl 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 shalI not affect coverage provided to City and its officers, employees, agents, and volunteers. -4- 4.2 Commercial General and Automobile Liability Insurance. a. General requirements. Consultant . at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing the Services pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. Any deductible or self-insured retention shall be shown on the Ce(ificate. If the deductible or self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25.000), it must be approved by City. b. Claims-made limitations. 1hc followin g provisions shall apply il- the prof'essional Iiability 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 lorm with a retroactive date that precedes the Effective Date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion ofthe Services. Such continuation coverage may be provided by one of the following: (l) renewal ofthe existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement olthe Services under this Agreement. City shall have the right to exercise, at Consultant's sole cost and expense, any extended reporting provisions ofthe policy, ifConsultant cancels or does not renew the coverage. 4.4 All Policies Requirements. a. Acceplability of insurers. All insurance re quired by this Section is to be placed with insurers with a Bests' rating olno less than A:VII and admitted in Califomia. b. Verification of coverage. Prior to beginning the Services under this Agreement, Consultant shall fumish City with Certificates ol Insurance, additional insured endorsement or policy language granting additional insured status complete certifled copies ofall 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 lnsurance must include the following reference: I I7iI8 ON-CALL ENGINEERING SERVICES (N o N-RECOVERABLE). The name and address for Additional Insured endorsements, Certificates oflnsurance and Notice ofCancellation is: City of Menifee, 29714 Haun Road, Menifee, CA 92586. City must be endorsed as an 4.3 Prof'essional l-iaElitvlnsurance. d. A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement. additional insured for liabilitlrising out of ongoing and completed op--erations by or on behalf of Consultant. Notice o lRe duction in or Cancellation of Coverac e. Consultant shallc provide written notice to City within ten (10) working days if: (l) any ofthe required insurance policies is terminated; (2) the limits ofany ofthe required polices are reduced; or (3) the deductible or sell'-insured retention is increased. d. Additional insured insurance. Ci ty 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 aflorded 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 ( I ) year afler lhe expiration or termination ofthis Agreement or completion ofthe Services. A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to City and its officers, officials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage. Deductibles and Self-insured Retentions. Consultant shall obtain the wrilten approval of City for the self'-insured retentions and deductibles before beginning any ol'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 wilh respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond guaranteeing payment oflosses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. L Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements fbr each subcontractor. All coverages fbr subcontractors shall be subject 1o all of the requirements stated herein. g. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms ofsuch insurance are either not commercially available, or that City's interests are otherwise fully protected. 4.5 Remedies. In addition to any other remedies at law or equity City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent -6- \., \,. 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 AgreemenU b. Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement. SECTION 5. INDEMNIFICATION. 5.1 Indemnification lbr Prol-essional t-iabilitv. Where the law establishes a proiessional standard of care tbr performance of the Services, to the fullest extent permitted by law, Consultant shalt indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its offlcers, employees, officials, volunteers, and agents from and against any and all claims, losses. costs. damages, expenses, liabitities, liens, actions, causes of action (whether in tort, contract, under statute, at law. in equity, or otherwise) charges. awards, assessments, fines, or penalties ofany kind (including reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Consultant 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 legat liability thereot) in the performance of prol'essional services under this Agreement. 5.2 lndemnification fbr Other than Prof'essional 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 perfbrmance ofthis Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but no1 limited to officers, agents. employees or subcontractors of Consultant. 5.3 [,imitation ol Indemnification fbr Design Proi'essionals. Notwithstandin g any provision of this Section 5 to the contrary, design professionals 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 Califomia Business and Professions Code. 5.4 Limitation of Indemnification. l'he 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 7 shall not release City from li#lity arising from gross negligence o. lHru, acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity. SECTION 6. STATUS OFCONSULTANT. 6.1 Independent Contractor. At all times durin g the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalfol Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall not at any time or in any manner represent that it or any of its oftlcers, employees, or agents is in any manner o1ficers, officials, employees, or agents of City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement, City shall not pay salaries. wages, or other compensation to Consultant for performing the Services hereunder lor City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, [aw, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not quality fbr 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 fbr PERS benefits. SECTION 7. LEGAL REQUIREMENTS. 7.l Govemine Law. The laws olthe State olCalifornia shall govem this Agreement. 7 .2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with all appticable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Consultant shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Any and all work subject to prevailing wages, as determined by the Director oflndustrial Relations ofthe State of California, will be the minimum paid to all laborers, including Consultant's employee and subcontractors. It is understood that it is the responsibility of Consultant to determine the correct scale. The State Prevailing Wage Rates may be obtained from the Califomia Department of Industrial Relations C'DIR") pursuant to Califomia Public Utilities Code, Sections 465,466, and 467 by calling 415-703-4774. Appropriate records demonstrating compliance with such requirement shall be maintained in a sale and secure location at all times, and readily available at City's request. Consultant shall indemnify. defend, and hotd City and its elected and appointed boards, members, officials, officers, agents, representatives, employees, and volunteers harmless from and against any liability, loss, damage, cost or expenses (including but not limited to reasonable attomeys' fees, expert witness fees, court costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any party performing the Services ofany applicable local, state, and/or federal [aw, including, without limitation, any applicable iederal and/or state labor laws (including. without limitation, the 8- requirement to pay state prevJiing wages and hire apprentices); (ii) theXplementation of Section 1781 of the Labor Code, as the same may be amended from time to time. or any other similar law; and/or (iii) failure by Consultant or any party performing the Services to provide any required disclosure or identification as required by Labor Code Section I 781, as the same may be amended from time to time, or any other similar law. It is agreed by the Parties that, in connection with performance of the Services, including, without limitation, any and all public works (as defined by applicable law). Consultant shall bear all risks ofpayment or non-paymenl ofprevailing wages under California law and/or the implementation of I-abor Code Section I 781, as the same may be amended from time to time, and/or any other similar law. Consultant acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Consultant shall require the same ofall subcontractors. 7 .3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents. and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. SECTION 8. TERMINATION AND MODIFICATION. 8.1 l'ermination. Cit y may cancel this Agreement at any time and without cause upon written notiflcation to Consultant 8.2 I'ermination bv Consultant. Consultant ma y cancel this Agreernent upon 30 days' written notice to Citv. 8.3 Consequences ol- Termination. In the event of terminatio n. Consultant shall be entitled to compensation for the Services performed up to the date ofternrination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents. photographs, computer software, video and audio tapes, and other materials provided to Consultanl or prepared by or fbr Consultant or City in connection with this Agreement. 8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. 8.6 Assisnment 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. -9- 8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided fbr herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator. City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period- !\- 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 ofthe performance contemplated and provided for herein, other than to the subcontractors noted in Consultant's proposal, without prior written approval ol the Contract Administrator. In the event that key personnel leave Consultant's employ, Consultant shall notify City immediately. 8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the expiration or termination of this Agreement. 8.8 Ontions uoon Breach bv Consulta nl . If Consultant materially breaches any ofthe terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the following: a. Immediately terminate this AgreemenU b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; c. Retain a different consultant to complete the Services described in Exhibit A; and/or d. Charge Consultant the difference between the cost to complete the Services described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the Services. SECTION 9. KEEPING AND STATUS OF RECORDS, 9.1 Rccords Created as Part of Consultant's Perfbrmance 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 ofCity. 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 fbr 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 ofboth Parties unless required by law. 9.2 Licensinq 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 ol 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 lixed 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 -10- -\-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 wananty in regard to Documents and Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use ofthe Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 9.3 Consultant's Books and Records. Consultant shall maintain an y and all ledgers, books ofaccount, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for the Services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date oifinal payment to Consultant under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. 9.4 lnsocction and Audit of Records.Any records or documents that Section 9.3 of this Agreement requires Consultant to maintain shall be made available for inspection, audit. and/or copying at any time during regular business hours, upon oral or written request of City. Under California Government Code Section 8546.7, if the amount ofpublic 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 ofthree (3) years after linal payment under this Agreement. SECTIONIO. MISCELLANE,OUSPROVISIONS. l0.l Attorneys' Fees. Ifeither Part y to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision ofthis Agreement, the prevailing Party shall be entitled to reasonable attomeys' 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 Section shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought lor that purpose. 10.2 Anolicable Law :V enu . The internal laws of the State of Califomia shall governc the interpretation and enforcement of this Agreement. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County. 10.3 Severabili . Ifany provision of this Agreement is held invalid, the remainder oltv 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 Headinss and Subheadincs. 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. -ll- \, \/ 10.5 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver ofany other breach of that term or any other term ol this Agreement. 10.6 Successors and Assisns. The provisions ofthis Agreement shall inure to the benefit ofand shall apply to and bind the successors and assigns of the Parties. 10.7 Consultant Representative. All matters under this Agreement shall be handled lbr Consultant by Garv Hovt ("Consultant's Representative"). The Consultant's Representative shall have full authority to represent and act on behall ol Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 10.8 Citv Contract Administration. This Agreement shall be administered by a City employee, Jonathan G. Smith ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his designee. The Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction or orders from any person other than the Contract Administrator or his designee. 10.9 Notices. Any written notice to Consultant shall be sent to Gary F. Hoyt Landscape Architecture, Inc. 12888 Francine Terrace Poway, CA 92064 Any written notice to City shall be sent to the Contract Administrator at: City of Menifee 29714 Haun Road Menifee, CA 92586 Attn: Steve Glynn with a copy to: City Clerk City of Menifee 29714 Haun Road Menifee, CA 92586 -12- 10.10 Prolbssional Seal. Where applicable in the determination of the Contract Administrator, the lirst page ofa technical report, first page ofdesign specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible lor the reporVdesign preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Seal and Signature ofRegistered Professional with report/desi gn responsibility. l0.ll Riehts and Remedies. Exc ept with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies ofthe Parties are cumulative and the exercise by either Pa(y of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, olany other rights or remedies fbr the same default or any other default by the other Party. 10.12 Inteqration. This Agreement, including the scope of services attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes atl 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 ofthe authorship of this Agreement or any other rule of construction which might otherwise apply. 10.13 Countemarts. This A greement may be executed in multiple counterpa(s, each of which shall be an original and all olwhich together shall constitute one agreement. 10.14 Execution ofContract. The persons executing this Agreement on behalfoleach of the Pa(ies 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. I 0.1 5 Nondiscrimination. Consultant covenants that.by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance ofthis Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to. race, color, creed. religion, sex, marital status. sexual orientation, national origin, or ancestry. 10.16 No Third Partv Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder. 10.17 Nonliabilitv of City Officers and Emolovees. No officer , official, employee, agent, representative, or volunteer of City shall be personally liable to Consultant, or any successor in -l3- \- \, interest, in the event ofany default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach ofany obligation olthe terms of this Agreement. 10.18 No Undue Influence. Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential I'inancial 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 ofthis Agreement or any work to be conducted as a result of this Agreement. 10. I 9 No Benefit to Arise itv Emolovees. No member , officer, or employee of City,to 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 (l ) year thereafter, shall have any interest. direct or indirect, in any agreement or sub-agreement. or the proceeds thereoi for the Services to be performed under this Agreement. ISignatures on Following Page] C -14- \- \, IN WITNESS WHEREOF, the Pa(ies hereto have executed and entered into this Agreement as of the Effective Date. CITY OF MENIFEE GARY F. HOYT LANDSCAPE ARCHITECTURE INC Neil Winter . Mayor Namc: (iarv Hot t Attest:Its: President d*^oA*S A. Manw aflng.City Clerk Approved as to Form: ttornev By:rName: Gary F. Hoyt I ts:Secretary J -t 5- , -J EXHII]IT A SCOPE OF SERVICES Gary F. Hoyt Landscape Architecture, Inc. City of Menifee, CA Landscape Consultant Serviccs-Scope of Scrvices* A. Landscape Plan Checking: I . City: Accept landscape plan submittals, cost estimates and supporting construction documents from applicant. Collect any landscape fee or deposit based on the City's fee schedule. Verify that all required information has been submitted, and assemble plan check package (including building and grading plans) for delivery to Gary F. Hoyt Landscape Architecture, Inc. (Consultant). 2. Consultant: Review plans for conformance with project conditions of approval and City Landscape Standards. Coordinate plan reviews with City departments as required. Transmit check prints to the City until plan checking is complete. Turnover time for plan review will be as requested by City staff. 3. City: Review plan check comments from Consultant. Contact project applicant and/or applicant's consultants to notify them of completed plan checks or approved plans. Sign the approved plans (Engineering and Community Services). 4. Consultant: Review construction plan changes. plan revisions. and as-built drawings as required by the City. 5. City: Transt-er funds from project deposit accounts to cover fees for cost ofplan check and inspection services, inctuding additional deposits ifnecessary. Prepare City Council reports for acceptance of improvements and release of securities. 6. Consultant: Attend project meetings as requested by the City. B. Landscape Construction Field Review (inspection): l. Consultant: Attend landscape pre ronstruction meeting with project Consultant, and any subsequent meetings as requested by the City. 2. Consultant: Review installation of landscape improvements for conformance with City Park and Landscape Standards and approved plans. Prepare punch lists of landscape correction items, and review record drawings. Recommend release olsecurities. 3. Citv: Review and approve as-built plans, and release securities. 4. Consultant: Review final punch list items for correction. Ascertain to the best of his knowledge, information, and beliefthat the landscape installation is in conformance with the approved landscape construction documents and City Park and Landscape Standards. 5. Consultant: Attend project meetings as requested by the City. C. Landscape Consultation/As-needed Services: Gary F. Hoyt Landscape Architecture, Inc' will assist to prepare and update the City's landscape fee schedule, landscape standards, design manual, policies and procedures, attend meetings and assist in other tasks as requested by City staff *Please note City tosks are included in scope of services lo clarifl the plan review and inspection process. Gary F, Hoyt Landscape Architecture, Inc. SCHEDULE OF OFFICE HOURLY RATES BILLING RATES BY SERVICE TYPE Principal Landscape Architect: Landscape Architect: Project Manager/Construction Observation: Project Manager/Plan Review & Processing: Technician/CADD Services : Irri gation/Landscape Desi gner: Draft erlTechnical Support : Administrative/Clerical : $r 65.00 $ 13 s.00 $ 100.00 $ 100.00 $90.00 $90.00 $80.00 $70.00 In addition 1o fees for professional services, Contractor shall be reimbursed for all reasonable expenses necessarily incurred in performance ofthe services including, but not Iimited to, printing, plotting, photocopies, messenger services, mailings, etc. Contractor shall invoice City for such expenses at cost plus l5%o as incuned. 267 I /01 I E58-000 I r610176.2 a0610?/l?