2019/07/01 Gary F. Hoyt Landscape Architecture, Inc. FY19/20 On-Call Engineering Services (Non-Recoverable) Landscape Plan Review and InspectionsCITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
FY20l9/20 ON-CALL ENGINEERING SERVICES (NON-RECOVERABLE)
LANDSCAPE PLAN REVIEW AND INSPECTIONS
. JHIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and elfeclive
$is f?$ day of Jtt!-2019 ("Effective Date") by and between the CITY oF MENIFEE, a
Calilolnia municipal corporation, ("City") and Garv F. Hovt Landscaoe Architecture. Inc., a
Califomia S-Corporation ("Consultant"). City and Consultant may sometimes herein be referred
to individually as a "Party" and collectively as the "Parties."
SECTION I. SERVICE,S.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, atlached hereto as Exhibit A and incorporated
herein by this reference (the "Services"). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event ofa conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
l.l Term of Services. The term of this Agreement shall begin on July l,2019 and
shall end on June 30,2020 unless the term ofthis Agreement is otherwise terminated or extended
as provided for in Section 8. The time provided to Consultant to complete the Services required
by this Agreement shall not affect City's right to terminate this Agreement, as provided for in
Section 8.
1.2 Standard of Performance. Consultant re presents and warrants that Consultant is a
provider of first class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perform the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction of the
Contract Administrator.
1.3 Assignment of Personnel.Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any
time during the term ofthis Agreement, desires the reassignment ofany such persons, Consultant
shall, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
1.4 f!1q9. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
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1.5 Authorization to Perform Services. Consultant is not authorized to perform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
SECTION2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed FIFTEEN THOUSAND
DOLLARS AND ZERO CENTS ($15,000.00) not withstanding any contrary indications that
may be contained in Consultant's proposal, for the Services to be performed and reimbursable
costs incurred underthis Agreement. ln the event ofa conflict between this Agreement and Exhibit
A, regarding the amount ofcompensation, this Agreement shall prevail. City shallpay Consultant
for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified below shall be the only payments from City to Consultant for the Services
rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner
specified herein. Except as specifically authorized in advance by City, Consultant shall not bill
City for duplicate services perlormed by more than one person.
2.1 lnvoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a. Serial identifications ofprogress bills; i.e., Progress Bill No. I for the first
invoice, etc.;
b. The beginning and ending dates ofthe billing period;
c. A "Task Summary" containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City's option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant performing the
Scrvices hereunder necessary to complete the Services described in Exhibit A;
Receipts for expenses to be reimbursed;
The Consultant Representative's signature
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
t
g
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a
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. Ci ty shall make monthly payments, based on invoices received,
lor the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have thirty (30) days from the receipt of an invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Payment. Ci ty shall pay the last ten percent ( l0%) of the total amount due
pursuant to this Agreement within sixty (60) days after completion of the Services and submittal
to City ofa final invoice, if all ofthe Services required have been satisfactorily performed.
2.4 Total Payment. Cit y shall not pay any additional sum for any expensc 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.
ln no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourly Fees. [:'ces for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the lee schedule included with lrxhibit A.
2.6 Reimbursable ExDenses. Reimbursable ex penses are included within the maxrmum
amount of this Agreement.
2.7 Payment of Taxcs. Consultant is solel y responsible lor the payment ofemployment
taxes incurred under this Agreement and any lederal or state taxes.
2.8 Payment uDon Termination. In the event that Ci ty or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred lor Services satisfactorily completed and for 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 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 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.
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SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance 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 satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant's compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein lor the subcontractor(s) and provided
evidence thereofto City. Verification ofthe required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other Insureds.
4.1 Workers' Compensation. Consultant shall . at ils sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's l,iability Insurance f,or any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe Califomia
Labor Code. Statutory Workers' Compensation lnsurance and Employer's Liability Insurance
shall be provided with limits of not less than ONE MII.LION DOLLARS ($1,000,000.00) per
accident, ONE MILI,ION DOLLARS ($ 1,000,000.00) disease per employee, and ONE, MILLION
DOLLARS (S1,000,000.00) disease per policy. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only ifthe program of self-insurance complies
fully with the provisions of the Califomia Labor Code. Determination olwhether 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, ifl a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commercial General and Automobile Liability lnsurance.
a.General requirements. Consultant . at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLI-ARS (S2,000,000.00) general aggregate, and TWO MILLION
DOLLARS (S2,000,000.00) products/completed operations aggregate. lfa Commercial Ceneral
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 perlormed 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 lrom 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 General Liabilitv occurrence form CG 0001.
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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 requircmcnts. Each of the tbllowin g shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occunence or an accident basis, and
not on a claims-made basis.
b. Any lailure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its oflicers, employees, agents,
and volunteers.
a General require mcnts. Consultant , at its own cost and expensc. 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.
b. Claims-made limitations. The followin g provisions shall apply if the
prolessional 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 ofthe Services.
c. Ifcoverage 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 ofthe Services. Such continuation coverage may be provided by
one ofthe 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 ofthe Services under this Agreement. City shall have the
right to exercise, at Consultant's sole cost and expense, any extended reporting
provisions ofthe policy, ifConsultant 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.
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4.3 Professional Liabilitvlnsurance.
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.
4.4 AII P olicies Requirements.
Acceptability of insurers. All insurance re quired by this Section is to be
placed with insurers with a Bests' rating of no less than A:Vlland admitted in Calil'ornia.
b. Verification of covera Prior to beginning the Services under this
Agreement, Consultant shall furnish City with Certificates of lnsurance, additional insured
endorsement or policy language granting additional insured status complete certified 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 Insurance must include the following reference:
FY2OIgI2O ON.CALL ENGINEERING SERVICES (NON.RECOVERABLE)
c. LANDSCAPE PLAN REVIEW AND INSPECTIONS. The name and
address for Additional Insured endorsements. Certificates of Insurance and Notice ofCancellation
is: City of Menifee, 29844 Haun Road, Menifee, CA 92586. City must be endorsed as an
additional insured for liability arising out ofongoing and completed operations by or on behalfof
Consultant.
Additional insurcd Dnmary tnsurance . City and its officers, employees,
a
c
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 allorded
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 alter the expiration or termination ofthis Agre€ment 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, oflicials, 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.
I Deductibles and Self-insured Retentions. Consultant shall obtain the
written approval of City for the self-insured retentions and deductibles before beginning any ofthe
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
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d. Notice of Reduction in or Cancellation of Coverase. Consultant shall
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 self-insured retention is increased.
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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 expcnses that is satisfactory in all
respects to each of them.
Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall fumish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all olthe requirements stated
here in.
h. 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 Rcmedies. In addition to an y 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 thc 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
Terminate this Agreementc
5.1 Indemnification lor Prolessional Liabilitv. Where the law cstablishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its o{Ticers, 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 thereot) in the performance ofprofessional
services under this Agreement.
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SECTION 5. INDEMNIFICATION.
5.2 lndemnification for Other than Professional Liability. Other than in the
performance ol professional services and to the full extent permitted by law, Consultant shall
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indemnify, protect, defend (with counsel selected by City). and hold harmless City, and any and
all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
5.3 l.imitation of Indemnification for Desiqn Professionals. 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 lndemnif ication. 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 lrom liability arising from gross negligence or willful acts or omissions of
City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At alltimes durin g the term ofthis Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers.
employees, or agents is in any manner o(Ticers, 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 forthe fees paidto Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of perlorming the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify lor 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 [or employer contributions and/or employee contributions for PERS benefits.
Sf,CTION 7. LEGAL REQUIREMENTS.
7.1 Covemins Law. The laws of the State of California shallgovem this Agreement.
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7 .2 Compliance with Applicable Laws. Consultant and an y subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance 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 of Industrial Relations ofthe State
of Califomia, will be the minimum paid to all laborers, including Consultant's employee and
subcontractors. It is understood that it is the responsibility ofConsultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the California Department of
lndustrial Relations ("DlR") pursuant to California Public Utilities Code, Sections 465,466, and
467 by calling 415-703-4774. Appropriate records demonstrating compliance with such
requirement shall be maintained in a safe and secure location at all times, and readily available at
City's request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officers, agents, representatives, employees, and volunteers harmless
lrom 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 lrom or related to (i) the noncompliance by Consultant or any
party performing the Services ofany applicable local, state, and/or lederal 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 ofSection
l78l of the Labor Code, as the same may be amended from time to time, or any other similar lawi
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
lrom time to time. or any other similar law. It is agrecd by the Parties that, in connection with
performance ofthe Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks ofpayment or non-payment ofprevailing wages
under California law and/or the implementation of Labor Code Section 1781, as the same may be
amended from time to time, and/or any other similar law. 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 havc 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 prol'essions. In addition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term ofthis Agreement valid Business Licenses from City.
SE,CTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon
written noti fi cation to Consultant.
8.2 'l ermination by Consultant. Consultant ma
written notice to City
9-2671l0llE5E-0001
y cancel this Agreement upon 30 days'
8.3 Consequences of Termination. In the event of termination . Consultant shall be
entitled to compensation for the Services pcrformed up to the date of termination; City, however,
may condition payment ol 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 lor Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection l.l. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and agrees
that, if City grants such an extension, City shall have no obligation to provide Consultant with
compensation beyond the maximum amount provided for in this Agrcement. Similarly, unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5
all the Parties.
Amendments. The Parties ma y amend this Agreement only by a writing signed by
8.6 Assignment and Subcontractin s. Cit y and Consultant recognize and agree that this
Agreemenl 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 lor entering into this Agreement was and is the
professional reputation and competence ofConsultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval ofthe 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. ln 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 nB hb Con . lf Consultant materially breaches any ofthe
terms of this Agreement, City's remedies shall include, but not be limited tr:, any or all of the
following:
a. lmmediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the time of breach and the amount that City
would have paid Consultant pursuant to Section 2 if Consultant had completed the
Services.
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SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Perlormance. 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 lorm 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 deliverthose documents to City upon the expiration
or termination of this Agreement. lt 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
useofsuch documents for other projects byCity shall be without liabilityto Consultant. City and
Consultant agree that. until final approval by City, all data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
of both Parties unless required by law.
9.2 Licensing of Intellectual Propcrty. This A greement creates a non-exclusive and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodied in plans. specifications, studies.
drawings, estimates, test data, survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and
Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
9.3 Consultant's Books and Records. Consultant shall maintain 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 ofthree (3) years, or for any longer period required by law, from
the date offinal payment to Consultant under this Agreement. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 Inspcction and Audit of Records. An y 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 Califomia Govemment Code Section 8546.7, ifthe amount olpublic funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit ofthe State Auditor, at the request of City or as part ofany
audit of City, for a period ofthree (3) years after final payment under this Agreement.
261lot tEtS{00r
1630716 2 a061o6/19 -ll-
SECTION IO.MISCELLANEOUS PROVISIONS.
l0.l Attomeys' Fees. Ifeither Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
Pany 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 attomeys' fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number ofhours spent by the prevailing Party in the conduct ofthe
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 intemal laws of the State of Califomia shall govern
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severabilitv. 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 lull force and eflfect.
I0.4 Section Headings and Subheadines. The section headi ngs 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 lmplied Waiver of Breach. The waiverofany breach of a specific provision of
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
I 0.6 Successors and Assisns, The provisions ofthis Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns ofthe Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by Gary Hoy ("Consultant's Representative"). l'he Consultant's Representative shall
have full authority to represent and act on behali of Consultant for all purposes under this
Agreement. Thc Consultant's Representative shall supervise and direct the Services, using his
best skill and attention, and shall be responsible lor all means, methods, techniques, sequences,
and procedures and for the satislactory coordination of all portions of the Services under this
Agreement.
10.8 City Contract Administration. l'his A greement shall be administered by a City
employee, Jonathan Smith, Public Works Director/City Engineer ("Contract Adm in istrator"). All
correspondence shall be directed to or through the Contract Administrator or his designee. The
Contract Administrator shall have the power to act on behall of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
26?l/031858 0001 -12-
Gary F. Hoyt Landscape Architecture, Inc
Attn: Gary Hoy
12888 Francine Terrace
Poway, CA 92054
Any written notice to City shall be sent to the Contract Administrator at
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Jonathan Smith, Public Works Director/City Engineer
with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee. CA 92586
10.l0 Professional Seal. Where applicable in the determination of the Contract
Administrator. the first 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 for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and
Signature of Registered Professional with report/design responsibility," as in the following
example.
Seal and Signature of Registered Prolessional with
report/desi gn responsibi I ity.
l0.ll Riehts and Remedies. Exce pt 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.
I 0.12 lntesration. This Agreement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either Party by reason ofthe authorship of
this Agreement or any other rule ofconstruction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
267 t1031858-000 t
1630f16 2
^O6tO6t
19 - l3-
10.14 Execution ofContract. The persons executing this Agreement on behalfofeach of
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that, by and for itself, itsheirs, 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 ol persons on
account of any impermissible classification including, but not limited to, race, color, crecd.
religion, sex, marital status. sexual orientation, national origin, or ancestry.
10.16 No Third Party Benellciaries. With the ex ception of the specific provisions sct
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 Nonliability of Citv 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 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 ofthe terms of this Agreement.
10. I 8 No Unduc lnfluence Consultant declares and warrants that no undue influence or
pressure is used against or in conce( with any officer or employee of City in connection with the
award, terms or implementation ofthis Agreement, including any method ofcoercion, confidential
financial arrangement, or financial inducement. No ofTicer 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.
I 0. I 9 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 (l ) 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.
ISignatures on Following Page]
2671/031858-0001
1630376 2 a06n6t19 -t4-
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as ofthe Effective Date.
CITY OF MENIFE,E CONSULTANT
Bill Zim ayor
City Cle rk
as to Form:
J 1'elching. City
Gary F.oyt,resident
Cary F'Ho Secretary
[Corporation must have two signatures]
A.M anwanng,
v
267tl0118t8400t
16103t62 LO6tO6t19 -15-
EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide the following services in the not to exceed amount of FIFTEEN
THOUSAND DOLLARS AND ZERO CENTS ($1s,000.00):
Comprehensive Landscape Design and Inspection Services as requested by City of Menifee
Public Works/Engineering staff, including but not limited to:
City of Mcnifea, CA
lrndrcrpe Coorultrnr Scrvicrg--SaoF of Scrvkcsl
.{. hndrcrpc Plan Cbcckiog:
l. gi!y: Acc.pt ludrcapc plan $ubminrls, cosr cstimatcs and supporring
mnstsrrction documen$ from rpplic$t. Collect any lrn&crpc fcc or dcposit
bnsed on drc City's foc schcdulc. VcriS th* all required information has been
submittcd, rnd asscrnblc plar. chcck gackrg€ (including building and grading
plsns) for dclivcry to Gary F. Hoy Lmdscapc ArEhitcctun, lnc. (Consrll8nr).
2. Consultant: Review plans for conformancc with prcjcct conditions of.ptrovslid City Plit ,rd LlndsclF Stlndrrds. Coordin8t! plrn revicws with Ciry
&p€rtm€nts 8s roquirod. Transmir check prinB to thc City until plan chcdring is
complac. Tunrovcr timc for plan rcview will bc as rcqucstcd by City sreff
3. Qfu1: Rcvicw phn chcck commcnrs fiom Consulrrnr. Contla project rpy'icmr
and/or !p,plic!r['s cone trnB !o notiry thcm ofcomplacd phn chccks or
approvcd plans. Sign the approvcd plrns (Enginering).
4. Con3ultJrt: Rcvicw consuuc$on pbn changcs, phn rcvisions. and arbuilt
drawings rs rcquircd by lhc City.
5. Qily: Transfcr frmds ftom projcct &porit rccounts to covcr fees for cost of plen
chcck rnd impcction servicer, including additionrl dcposfu if neccssery. Prcparc
City Council rcports for ecccptencc of imp.ovcmcflts d Elcese ofsccuritics.6. Eq!Ig,!g0$ Aulnd pmjcct msctings &5 roqucstod by thc City.
B. I.radsctpe Coortructina Freld Rc{icr (iNpcctioo):
I . Consultsna; A(cnd landscspe preronsttuction mccting with projcct Coll.(ullrnt,
rnd any su@wnt mrrtings &s r€qucstod by thc City.
2. Consultrnt: Revi€r# i$trllsrion of landx:pc improvemcrts for conformalcc with
City Park and Lsndscspc Standards and approved plans. Plrpare punch liiB of
landsc{Fra corrcction itcms, ard revicw recod drawings. Rccommcod rclcrsc of
sccuritics.
3. QjE: Rcvicw and rpprcvc as-tuilt phns, lrd rclc.r. securitics.4. Coflrult nr: Rcvicw final purch lisa itcms for corrEction. AlcensJn ro the :cst of
his knowlcdgc. infomario& rnd bclisf that the landscape installation is in
coflformoncc with thc approrrd landscape construction documcns and City park
and Landxrpc Standards.
5. Conssltlnt: ArErd plojcct meltings cs.€qucstod by thc City.
C. l,rndrcrpe Conrultrtlotr"/Ar-r€.dcd Scrvi.s:
Grry F, Hoyt Lrndrctp. ArEhltccturc, trc. will assi$ ro p.eprc and updetc tlE City's
landrapc foc schcdulc, pert ard |rndscapc strndsrds, dcsign manul, policics anC
procedurEs, stlcnd mcctings 8nd lssi5t in other tlsks as rcqucstcd by City staff.
t Plcasc ,,r,re City taE,Ls ore lri{'ludr.d ln rcqc ol scrvi..t to clotilrt tl, plot raid qrd
irspcaion poccs'
7630316 2 ro6tosrs tsAl-lllJl I A
Grry F. Hoyt Lrndscape Archltecture, tnc.
HOURLY RATE SCHEDULE:llst oll
DeSlsrJ LAUDSC. ARcr{fTEdf l35.oo ta6.e 136.@ l5o.oo
R+rJc.r{ecp r.Am. R.AIJ c*lecYr*.Io.oo O.oO t to.oo nb.e
Irls?Ecnod !+Nb. rilsPE I lo. oo t ro. oo I lo.oo l?o.oo
caoo/ourr.caoo TEct{r.trcrArJ q5.oo q5.@ q5.6 t05.6o
a
SPECIALTY HOURLY R^TE (S)TiTLE &
DESCRIPTION
YEAR 1
(20r 8/19)
YEAR 2
azo19taot
YEAR 3
(2020t211
YEAR 4
(z021t2o7zl
267tl0llE5E{00t
?630376 2 a00/00/00 1
o
l,l
I
I
lI
UST ALL ANTICIPATED REUTIURSAELE COSTS
Note: Llst all equlpm€nt hourly rate on a separate sheet as needed.
City reserves the rlght to negotiate thls price on a project-by-project basis.
PLFASE I\,IARK ALL ACXNOWGEMENTS AND COMPLETE FOLLowtNG SECTION:
Ef- thc lropocat p.ovldld rctlcctt.try .ddtflon t .drbndun(r) lrrued wtth rerp.ct to thts RFe
GenV F. Flo:f LA$DscA?e AReFI ITECTURe ,lLlc.
ArL coSTS rs.laxD€D rxl
rl-RrY RATE:S
REIMBURSABLE COST DESCRIPTION AMOUNT (at cost)
CornDany ia!m.
lzbbb FRAl.lctue TERRAee
Addr6s
qzob+
Clty St.te Zlp Code
Lll &- 4zt,r85BI 4bt -GlbL
Fax NumbcrTol€phonc Numbcr
Sl8ned By
Print Name
CorDpany Type:
lg-Corporation tr Pr^ne6hip f Trwt/Ejtatc
D lrxtividu.t/sotc Proprlctor or si'lltc rmmbcr LLC tr Oth"r:
tr Limited Uabitlty Company (LLC)
srDeNT CEOF+l
3
2671/0tr 958-000r
1630176.2 aO0/O0tO1
t/I
Po.')f'{ CA