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(a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee, or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt, or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant’s officers, employees, sub consultants or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
SECTION 11. STANDARD OF PERFORMANCE
Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner. Consultant shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all Services. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Consultant under this Agreement, and shall use such skill, prudence, and diligence as other members of Consultant’s profession commonly possess and exercise. In addition to the general standards of performance set forth in this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Services” that shall also be applicable to Consultant’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 12. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES
Consultant shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes, codes, ordinances, regulations, and rules in effect during the term of this Agreement. Consultant shall at all times observe and comply with all such laws, ordinances, and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances, and regulations. Consultant represents and warrants that Consultant has obtained or shall promptly obtain all necessary licenses to perform the Services set forth in this Agreement
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and that such licenses are in good standing, including but not limited to obtaining a City business license. Consultant further represents and warrants that the services provided herein shall conform to all ordinances, policies, and practices of the City. Neither City nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.
SECTION 13. PREVAILING WAGE LAWS
Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. To the extent applicable, Consultant shall defend, indemnify, and hold the City, its elected officials, officers, employees, and agents free and harmless from any claim or liability arising out of any failure or alleged failure of Consultant to comply with the Prevailing Wage Laws.
SECTION 14. NONDISCRIMINATION
Consultant and subconsultants shall not unlawfully discriminate, harass, or allow harassment against any person because of sex, sexual orientation, gender, gender identity, gender expression, reproductive health decision-making, race, color, religious creed, marital status, ancestry, national origin, medical condition, genetic information, age, disability (mental and physical), or military or veteran status in connection with or related to the performance of this Agreement. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Code of Regs, tit. 2, § 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, § 12990 (a)-(f), are incorporated into this Agreement by reference and made a part hereof as set for in full (Cal. Code of Regs, tit. 2, § 7285.0, et seq.). Consultant shall include the non-discrimination and compliance provisions of this section in all subcontracts to perform work under this Agreement.
SECTION 15. CONFLICTS OF INTEREST
(a) Consultant covenants that neither it nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of the Services. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
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(b) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for the purposes of this section. (c) City understands and acknowledges that Consultant will, perform non-related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 16. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law. (b) Consultant, its officers, employees, agents, or sub consultants, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent, or sub consultant of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs, and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents, or sub consultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right but has no obligation, to represent Consultant or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right of City to control, direct, or rewrite said response.
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SECTION 17. INDEMNIFICATION
(a) To the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with legal counsel reasonably selected by the City) and hold harmless City and any and all of its elected and appointed officials, officers, employees, representatives and agents (“Indemnified Parties”) from and against any and all claims, actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, injuries (including, without limitation, injury to or death of an employee of Consultant or sub consultants), liabilities of every kind (including, without limitation, incidental and consequential damages, court costs, and litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and cost of investigation), damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, performance of Services by Consultant, its officers, agents, employees, representatives, sub consultants, anyone directly or indirectly employed by any of them, or anyone that they control. Consultant’s duty to indemnify, protect, defend, and hold harmless Indemnified Parties, shall not include any Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. (b) Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub consultant, subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns, or heirs of Consultant and shall survive the termination of this Agreement and this section.
SECTION 18. INSURANCE
Consultant agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content.
These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Consultant agrees to provide City with copies of required policies upon request.
SECTION 19. ASSIGNMENT
The expertise and experience of Consultant are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities
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who will fulfill the duties and obligations imposed upon Consultant under this Agreement. In recognition of that interest, Consultant shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Consultant’s duties or obligations under this Agreement without the prior written consent of the City, which may be given in the sole and absolute discretion of the City Manager. Any attempted assignment shall be ineffective, null, and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 21 “Termination of Agreement.” City acknowledges, however, that Consultant, in the performance of its duties pursuant to this Agreement, may utilize sub consultants.
If in the performance of its duties Consultant utilizes sub consultants or subcontractors, Consultant covenants that subcontracts, if any, shall contain a provision making sub consultants or subcontractors subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section 18 “Insurance.” The Consultant acknowledges and agrees that the City is an intended beneficiary of any work performed by any sub consultant or subcontractor for purposes of establishing a duty of care between any sub consultant or subcontractor and the City.
SECTION 20. CONTINUITY OF PERSONNEL
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors / sub consultants, if any, assigned to perform the Services.
Consultant shall notify City of any changes in Consultant’s staff and subcontractors/sub consultants, if any, assigned to perform the Services prior to and during any such performance.
SECTION 21. TERMINATION OF AGREEMENT
(a) City may terminate this Agreement in its sole and absolute discretion, with or without cause, at any time by giving written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress. (b) Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant’s possession shall be returned to City.
Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 5 “Method of Payment and Invoicing” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 5 “Method of Payment and Invoicing” of this Agreement.
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(e) Upon written notice, City may suspend all or any portion of Consultant’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City will pay to Consultant a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Consultant with written notice of the rescission, at which time Consultant would be required to resume performance in compliance with the terms and provisions of this Agreement. Consultant will be entitled to an extension of time to complete performance under this Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
SECTION 22. EXCUSABLE DELAYS
Neither Party shall be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of either Party. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Hemet
Attn: City Manager
445 E. Florida Ave.
Hemet, CA 92543
To Consultant: Van Dyke Landscape Architects, Inc.
Attn: Yale Hooper
18581 Old Town Front St.
Temecula, CA 92590
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
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SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.
SECTION 25. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 27 “Amendment” and the City Manager’s contracting authority under the Hemet Municipal Code.
SECTION 26. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Consultant and by City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 28. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
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SECTION 30. ATTORNEY’S FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached exhibits and addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 33. INCORPORATION AND CONFLICTING TERMS.
(a) The following documents are incorporated and made part of this Agreement by this reference:
1. All exhibits and addendums
2. All amendments
3. Consultant’s proposal, if any
4. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by City to pay Consultant for any portion of work done under Agreement (“Funding Restrictions”)
(b) The documents listed above shall be referred to collectively as the “Agreement Documents.” The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, exhibits and addendums, and Consultant’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.
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SECTION 34. TIME OF THE ESSENCE.
Time is of the essence for each and every provision of this Agreement. [SIGNATURE PAGE FOLLOWS]
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00091740.2
Signature Page
PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL LANDSCAPE PLAN CHECK SERVICES
BETWEEN THE CITY OF HEMET AND VAN DYKE LANDSCAPE ARCHITECTS, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF HEMET
___________________________
Mark Prestwich
City Manager
ATTEST:
CITY CLERK
By: ___________________________
APPROVED AS TO FORM:
CITY ATTORNEY
By: ____________________________
CONSULTANT
By:
Its:
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Exhibit A – Scope of Services
Page | 1
EXHIBIT “A”
SCOPE OF SERVICES
Consultant to provide the following services to the satisfaction of the City:
1. Final Offsite Landscape Plan Check Services
2. Final Onsite Landscape Plan Check Services
3. Other services related to Landscape Plans and Landscape Services Plan check services will be based upon the following rates:
1. Final Offsite Landscape plan check fee is set at 80% of the fees collected by the City for three plan checks. Any plan checks that go beyond three will be billed by the consultant at an hourly rate, which is to be included in the fee schedule provided by the consultant.
2. Final Onsite Landscape plan check fee is set at 80% of the fees collected by the City for three plan checks. Any plan checks that go beyond three will be billed by the consultant at an hourly rate, which is to be included in the fee schedule provided by the consultant.
3. Other services will be based upon letter proposals provided to the City, or other agreed upon amount for services.
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Exhibit B – Compensation
Page | 1
EXHIBIT “B”
COMPENSATION
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EXHIBIT “C”
INSURANCE
(A)INSURANCE REQUIREMENTS. Consultant shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the Term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Consultant, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultant shall provide the following scope and limits of insurance:
1. MINIMUM SCOPE OF INSURANCE. Consultant shall maintain the following types and limits of insurance.
2. MINIMUM LIMITS OF INSURANCE.
GENERAL LIABILITY INSURANCE. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
AUTOMOBILE LIABILITY INSURANCE. Consultant shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $2,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
WORKERS’ COMPENSATION INSURANCE. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
UMBRELLA OR EXCESS LIABILITY INSURANCE. [Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Consultant may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary
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coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
1. A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
2. Pay on behalf of wording as opposed to reimbursement;
3. Concurrency of effective dates with primary policies;
4. Policies shall “follow form” to the underlying primary policies; and
5. Insureds under primary policies shall also be insureds under the umbrella or excess policies.
(B) OTHER PROVISIONS. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, canceled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. (C) OTHER REQUIREMENTS. Consultant agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Consultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Upon request from the City, Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to City or its respective elected or appointed officers, officials, employees, and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Consultant’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
4. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on
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a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its sub consultants.
6. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
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00091740.2
PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN
THE CITY OF HEMET
A CALIFORNIA MUNICIPAL CORPORATION
AND
WILLDAN ENGINEERING
A CALIFORNIA CORPORATION
AGREEMENT # 2026-024
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PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL LANDSCAPE PLAN CHECK SERVICES
BETWEEN THE CITY OF HEMET AND WILLDAN ENGINEERING
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 28th day of October, 2025 (“Effective Date”), by and between the CITY OF HEMET (“City”), a California municipal corporation and Willdan Engineering, a California corporation (“Consultant”). For the purposes of this Agreement City and Consultant are sometimes hereinafter referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
1. City has sought by request for proposals the performance of the On-Call Landscape Plan Check Services defined and described particularly in Section 2, “Scope of Services and Schedule of Performance” of this Agreement.
2. Consultant was selected by City to perform those services.
3. Consultant was selected by City on the basis of Consultant’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required.
4. City has authority to enter into this Agreement and the City Manager has authority to execute this Agreement.
5. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Section 2 “Scope of Services” of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT
Subject to the provisions of Section 21 "Termination of Agreement" of this Agreement, the Term of this Agreement is through October 27, 2028, commencing on the Effective Date, unless otherwise extended by written agreement of the Parties. City shall be granted two (2) one (1) year options to extend the Term of the Agreement. City shall exercise option(s) by written notice to Contractor no less than (30) days prior to the end of the existing Term.
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(a) The City Manager may, in his or her sole discretion, unilaterally exercise an option to extend the Agreement on a month-to-month basis following expiration on the same terms and conditions, including compensation as set forth in Section 4 “Compensation.” (b) Consultant acknowledges that the Agreement term may extend over multiple City fiscal years, and that the work and compensation under this Agreement is contingent on the City Council appropriating funding for and authorizing such work and compensation for those fiscal years. This Agreement may be terminated by the City Manager at the end of a fiscal year when sufficient funding is not appropriated and authorized for the subsequent fiscal year. City is not obligated to pay Consultant for any amounts not duly appropriated and authorized by the City Council.
SECTION 2. SCOPE OF SERVICES
Subject to this Agreement, all addendums and exhibits attached and incorporated hereto, Consultant agrees to perform the services and tasks set forth in Exhibit “A,” “Scope of Services” (hereinafter, the “Services”), and the City agrees to retain and does hereby retain Consultant for the Services.
SECTION 3. ADDITIONAL SERVICES
Consultant shall not be compensated for any work rendered in connection with its performance of this Agreement that is in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 25 “Administration and Implementation” or Section 27 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed the amount agreed to and set forth in the scope of work for which a purchase order has been issued. The amount shall also never exceed the appropriated budget for the professional services in any City Fiscal Year, unless additional compensation is approved in writing in accordance with Section 25 “Administration and Implementation” or Section 27 “Amendment” of this Agreement. (b) All City vendors and consultants receiving new contracts, contract renewals, or contract extensions must sign up to receive electronic payments through the City's Automated Clearing House (ACH) payments service/provider. Electronic payments are processed bi- weekly and are safe and secure. To enroll in ACH electronic payments contact
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[email protected].
(c) Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant. (d) If this Agreement is extended pursuant to Section 1 “Term of Agreement,” the City shall pay the same rates specified in Exhibit “B” “Compensation.” SECTION 5. METHOD OF PAYMENT AND INVOICING
(a) Payment shall be made in accordance with City’s usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be emailed to [email protected]. Under no circumstances shall the total amount paid to Consultant under this Agreement exceed the City Manager’s authority without approval by the City Council.
(b) Consultant shall submit within 30 days of the end of each month a complete and accurate written itemized invoice for services performed and/or goods provided. The invoice must be in a format approved by City. In order to receive payment, Consultant shall submit to City an itemized invoice, on a monthly basis, for services performed pursuant to this Agreement. Each itemized invoice shall identify at the top of the first page, the Not to Exceed Amount (as set by Section 4(a) above), the total amount billed to date, the services rendered during the billing period, and the amount due for the statement invoice for which reimbursement is sought in the statement invoice. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub consultant contracts. Sub consultant charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in Section 4(a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of tasks performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant’s correct and undisputed invoice. (d) The Parties estimate that performance of this Agreement will be accomplished without an increase in the Not to Exceed Amount. Consultant shall notify the City in writing
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whenever it has reason to believe that the costs the Consultant expects to incur under this Agreement in the following sixty (60) days, when added to all costs previously incurred, will exceed eighty percent (80%) of the Not to Exceed Amount specified herein. As part of the notification, the Consultant shall provide the City with a revised estimate of the total cost of performing this Agreement.
SECTION 6. INSPECTION AND FINAL ACCEPTANCE
City may inspect and accept or reject any of Consultant’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Consultant’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise, Consultant’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud, and such gross mistakes as amount to fraud. Acceptance of any of Consultant’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 17 “Indemnification” and Section 18 “Insurance.” SECTION 7. OWNERSHIP OF DOCUMENTS
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed, or discovered by Consultant in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Consultant. Upon completion, expiration, or termination of this Agreement, Consultant shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files, or other documents prepared, developed, or discovered by Consultant in the course of providing the Services pursuant to this Agreement, Consultant’s guarantees and warranties in Section 11 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
SECTION 8. INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT
For no additional compensation, Consultant hereby assigns to City all of Consultant’s rights, title, and interest in and to the content of all deliverable materials created by Consultant or its employees, agents, or sub consultants, including copyrights, in connection with the Services performed under this Agreement. Consultant shall promptly execute and deliver and shall cause its employees, agents, and sub consultants to promptly execute and deliver, upon request by the City or any of its successors or assigns at any time and without further compensation of any kind, any power of attorney, assignment, application for copyright, patent, trademark or other
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intellectual property right protection, or other papers or instruments which may be necessary or desirable to fully secure, perfect or otherwise protect to or for the City, its successors, and assigns, all right, title and interest in and to the content of the deliverable materials. For purposes of this section deliverable materials include all works, tangible or not, created under this Agreement including, without limitation, documents, material, data, reports, manuals, specifications, artwork, drawings, sketches, computer programs and databases, schematics, photographs, video and audiovisual recordings, sound recordings, marks, logos, graphic designs, notes, website, domain names, inventions, processes, formulas matters and combinations thereof, and all forms of intellectual property. The provisions of this paragraph are binding on the successors, assigns and heirs of Consultant and shall survive the termination of Consultant’s Services under this Agreement.
SECTION 9. CONSULTANT’S BOOKS AND RECORDS
(a) Consultant shall maintain any and all documents and records demonstrating or relating to Consultant’s performance of the Services. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures, and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the Services provided by Consultant pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit, and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Consultant’s address indicated for receipt of notices, “Section 23,” of this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Consultant’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors in interest and authorized representatives.
SECTION 10. INDEPENDENT CONTRACTOR
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(a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee, or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt, or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant’s officers, employees, sub consultants or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
SECTION 11. STANDARD OF PERFORMANCE
Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner. Consultant shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all Services. In meeting its obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Consultant under this Agreement, and shall use such skill, prudence, and diligence as other members of Consultant’s profession commonly possess and exercise. In addition to the general standards of performance set forth in this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Services” that shall also be applicable to Consultant’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 12. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES
Consultant shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes, codes, ordinances, regulations, and rules in effect during the term of this Agreement. Consultant shall at all times observe and comply with all such laws, ordinances, and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances, and regulations. Consultant represents and warrants that Consultant has obtained or shall promptly obtain all necessary licenses to perform the Services set forth in this Agreement
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and that such licenses are in good standing, including but not limited to obtaining a City business license. Consultant further represents and warrants that the services provided herein shall conform to all ordinances, policies, and practices of the City. Neither City nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section.
SECTION 13. PREVAILING WAGE LAWS
Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. To the extent applicable, Consultant shall defend, indemnify, and hold the City, its elected officials, officers, employees, and agents free and harmless from any claim or liability arising out of any failure or alleged failure of Consultant to comply with the Prevailing Wage Laws.
SECTION 14. NONDISCRIMINATION
Consultant and subconsultants shall not unlawfully discriminate, harass, or allow harassment against any person because of sex, sexual orientation, gender, gender identity, gender expression, reproductive health decision-making, race, color, religious creed, marital status, ancestry, national origin, medical condition, genetic information, age, disability (mental and physical), or military or veteran status in connection with or related to the performance of this Agreement. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Code of Regs, tit. 2, § 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, § 12990 (a)-(f), are incorporated into this Agreement by reference and made a part hereof as set for in full (Cal. Code of Regs, tit. 2, § 7285.0, et seq.). Consultant shall include the non-discrimination and compliance provisions of this section in all subcontracts to perform work under this Agreement.
SECTION 15. CONFLICTS OF INTEREST
(a) Consultant covenants that neither it nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of the Services. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
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(b) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for the purposes of this section. (c) City understands and acknowledges that Consultant will, perform non-related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 16. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law. (b) Consultant, its officers, employees, agents, or sub consultants, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent, or sub consultant of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs, and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents, or sub consultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right but has no obligation, to represent Consultant or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right of City to control, direct, or rewrite said response.
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SECTION 17. INDEMNIFICATION
(a) To the fullest extent permitted by law, Consultant shall indemnify, protect, defend (with legal counsel reasonably selected by the City) and hold harmless City and any and all of its elected and appointed officials, officers, employees, representatives and agents (“Indemnified Parties”) from and against any and all claims, actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, injuries (including, without limitation, injury to or death of an employee of Consultant or sub consultants), liabilities of every kind (including, without limitation, incidental and consequential damages, court costs, and litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and cost of investigation), damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, performance of Services by Consultant, its officers, agents, employees, representatives, sub consultants, anyone directly or indirectly employed by any of them, or anyone that they control. Consultant’s duty to indemnify, protect, defend, and hold harmless Indemnified Parties, shall not include any Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. (b) Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub consultant, subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns, or heirs of Consultant and shall survive the termination of this Agreement and this section.
SECTION 18. INSURANCE
Consultant agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content.
These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Consultant agrees to provide City with copies of required policies upon request.
SECTION 19. ASSIGNMENT
The expertise and experience of Consultant are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities
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who will fulfill the duties and obligations imposed upon Consultant under this Agreement. In recognition of that interest, Consultant shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Consultant’s duties or obligations under this Agreement without the prior written consent of the City, which may be given in the sole and absolute discretion of the City Manager. Any attempted assignment shall be ineffective, null, and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 21 “Termination of Agreement.” City acknowledges, however, that Consultant, in the performance of its duties pursuant to this Agreement, may utilize sub consultants.
If in the performance of its duties Consultant utilizes sub consultants or subcontractors, Consultant covenants that subcontracts, if any, shall contain a provision making sub consultants or subcontractors subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section 18 “Insurance.” The Consultant acknowledges and agrees that the City is an intended beneficiary of any work performed by any sub consultant or subcontractor for purposes of establishing a duty of care between any sub consultant or subcontractor and the City.
SECTION 20. CONTINUITY OF PERSONNEL
Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors / sub consultants, if any, assigned to perform the Services.
Consultant shall notify City of any changes in Consultant’s staff and subcontractors/sub consultants, if any, assigned to perform the Services prior to and during any such performance.
SECTION 21. TERMINATION OF AGREEMENT
(a) City may terminate this Agreement in its sole and absolute discretion, with or without cause, at any time by giving written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress. (b) Consultant may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant’s possession shall be returned to City.
Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 5 “Method of Payment and Invoicing” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 5 “Method of Payment and Invoicing” of this Agreement.
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(e) Upon written notice, City may suspend all or any portion of Consultant’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City will pay to Consultant a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Consultant with written notice of the rescission, at which time Consultant would be required to resume performance in compliance with the terms and provisions of this Agreement. Consultant will be entitled to an extension of time to complete performance under this Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
SECTION 22. EXCUSABLE DELAYS
Neither Party shall be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of either Party. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Hemet
Attn: City Manager
445 E. Florida Ave.
Hemet, CA 92543
To Consultant: Willdan Engineering
Attn: Tyrone Peter
650 E. Hospitality Ln, Suite 400
San Bernardino, CA 92408
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
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SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.
SECTION 25. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 27 “Amendment” and the City Manager’s contracting authority under the Hemet Municipal Code.
SECTION 26. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Consultant and by City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 28. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
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SECTION 30. ATTORNEY’S FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached exhibits and addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Consultant and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 33. INCORPORATION AND CONFLICTING TERMS.
(a) The following documents are incorporated and made part of this Agreement by this reference:
1. All exhibits and addendums
2. All amendments
3. Consultant’s proposal, if any
4. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by City to pay Consultant for any portion of work done under Agreement (“Funding Restrictions”)
(b) The documents listed above shall be referred to collectively as the “Agreement Documents.” The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, exhibits and addendums, and Consultant’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.
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SECTION 34. TIME OF THE ESSENCE.
Time is of the essence for each and every provision of this Agreement. [SIGNATURE PAGE FOLLOWS]
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Signature Page
PROFESSIONAL SERVICES AGREEMENT
FOR ON-CALL LANDSCAPE PLAN CHECK SERVICES
BETWEEN THE CITY OF HEMET AND WILLDAN ENGINEERING
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF HEMET
___________________________
Mark Prestwich
City Manager
ATTEST:
CITY CLERK
By: ___________________________
APPROVED AS TO FORM:
CITY ATTORNEY
By: ____________________________
CONSULTANT
By:
Its:
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Exhibit A – Scope of Services
Page | 1
EXHIBIT “A”
SCOPE OF SERVICES
Consultant to provide the following services to the satisfaction of the City:
1. Final Offsite Landscape Plan Check Services
2. Final Onsite Landscape Plan Check Services
3. Other services related to Landscape Plans and Landscape Services Plan check services will be based upon the following rates:
1. Final Offsite Landscape plan check fee is set at 80% of the fees collected by the City for three plan checks. Any plan checks that go beyond three will be billed by the consultant at an hourly rate, which is to be included in the fee schedule provided by the consultant.
2. Final Onsite Landscape plan check fee is set at 80% of the fees collected by the City for three plan checks. Any plan checks that go beyond three will be billed by the consultant at an hourly rate, which is to be included in the fee schedule provided by the consultant.
3. Other services will be based upon letter proposals provided to the City, or other agreed upon amount for services.
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Exhibit B – Compensation
Page | 1
EXHIBIT “B”
COMPENSATION
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EXHIBIT “C”
INSURANCE
(A)INSURANCE REQUIREMENTS. Consultant shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the Term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Consultant, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultant shall provide the following scope and limits of insurance:
1. MINIMUM SCOPE OF INSURANCE. Consultant shall maintain the following types and limits of insurance.
2. MINIMUM LIMITS OF INSURANCE.
GENERAL LIABILITY INSURANCE. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
AUTOMOBILE LIABILITY INSURANCE. Consultant shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $2,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
WORKERS’ COMPENSATION INSURANCE. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
UMBRELLA OR EXCESS LIABILITY INSURANCE. [Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Consultant may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary
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coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
1. A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
2. Pay on behalf of wording as opposed to reimbursement;
3. Concurrency of effective dates with primary policies;
4. Policies shall “follow form” to the underlying primary policies; and
5. Insureds under primary policies shall also be insureds under the umbrella or excess policies.
(B) OTHER PROVISIONS. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, canceled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. (C) OTHER REQUIREMENTS. Consultant agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Consultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Upon request from the City, Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to City or its respective elected or appointed officers, officials, employees, and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Consultant’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
4. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on
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a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its sub consultants.
6. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Oct 28 2025
Department: Police Department
Submitted by: Mark Prestwich, City Manager
Michael Arellano, Chief of Police;
☐ Receive and File ☐ Consent Calendar ☒ Business Item ☐ Public Hearing
TITLE:
Police Department Update on Proposition 36 and 2024 City of Hemet Crime Data
RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Receive, review, and discuss report on implementation of Proposition 36 and 2024 City of Hemet crime statistics.
STRATEGIC PLAN INTEGRATION:
N/A
18.A.
City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Oct 28 2025
Department: City Attorney
Submitted by: Mark Prestwich, City Manager
Steven Graham, City Attorney;
☐ Receive and File ☐ Consent Calendar ☒ Business Item ☐ Public Hearing
TITLE:
A Resolution of the City Council of the City of Hemet, California, Authorizing the City Manager to Negotiate and Execute a Temporary Facilities Use Agreement (“TFUA”) with Valley Community Pantry, a California Nonprofit Public-Benefit Corporation, for the Limited, Temporary use of a Portion of the Simpson Center Facility as an Interim Location Until no Later than June 30, 2026, Together with any Ancillary Documents Necessary to Implement the Agreement, all in a Form Approved by the City Attorney
RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Adopt a Resolution of the City Council of the City of Hemet, California, Authorizing the City Manager to Negotiate and Execute a Temporary Facilities Use Agreement (“TFUA”) with Valley Community Pantry, a California Nonprofit Public-Benefit Corporation, for the Limited, Temporary use of a Portion of the Simpson Center Facility as an Interim Location Until no Later than June 30, 2026, Together with any Ancillary Documents Necessary to Implement the Agreement, all in a Form Approved by the City Attorney.
BACKGROUND:
Valley Community Pantry has served Hemet and the greater San Jacinto Valley for decades as a nonprofit provider of emergency groceries and related referrals for vulnerable residents. Its longstanding host site is no longer available, and the organization is actively pursuing a permanent facility. In the interim, the City has been asked to consider making a portion of a City-owned facility available for a limited term so that food distribution and basic intake/administrative functions can continue without interruption. The City owns facilities capable of accommodating a low-impact, time- limited operation with appropriate safeguards. Partnering temporarily with a nonprofit to deliver a core public benefit, food security, fits within the City’s traditional role and past practice of working with community-based organizations where the primary benefits accrue to the public and the City can protect its operational needs and risk profile. Staff therefore recommends authorizing a temporary, revocable license, rather than creating any tenancy, to bridge the Pantry’s services until a permanent location is secured or until June 30, 2026, whichever occurs first.
18.B.
ANALYSIS:
Authorizing a temporary facilities use agreement advances a legitimate municipal purpose by maintaining access to emergency food assistance for low- and moderate-income households, which supports public health and welfare and reduces downstream public-safety and social-service impacts.
The recommended legal instrument is a revocable, non-exclusive license, not a lease. A license preserves the City’s full control and possession of the premises, creates no property interest, and allows termination for convenience, immediate suspension for emergencies, and preemption for critical municipal functions. Because no leasehold is conveyed and no land is disposed of, the Surplus Land Act is not implicated. The agreement would run through a fixed outside date of June 30, 2026, with earlier termination rights to ensure flexibility as City priorities, emergency uses, or facility needs evolve.
PREVIOUS COUNCIL ACTION:
None
STRATEGIC PLAN INTEGRATION:
GOAL TWO: ECONOMIC OPPORTUNITY
To ensure that Hemet is a hub, with access to quality jobs, shopping options, and a varied and sustained tax base.
Objective 1: Develop business practices that welcome new development by streamlining processes.
Objective 2: Provide resources for new businesses to enhance the customer service experience.
GOAL FOUR: PARTNERSHIP & COLLABORATION
To pursue partnerships that will increase the opportunities available to the community, including our businesses, unemployed, and youth populations.
Objective 1: Develop concepts and programs to increase opportunities for youth recreation.
Objective 2: Develop concepts and programs to enhance the quality of life services.
Objective 3: Develop programs to offer support to the community's businesses
FISCAL IMPACT:
The terms of the agreement are still being finalized; however, as currently proposed, the City will provide space for the community pantry at the Simpson Center at no cost, or at a subsidized rate.
The pantry will be responsible for paying its proportional share of electricity usage. Any minor costs associated with providing the space, including general maintenance or oversight, will be absorbed within existing departmental budgets. Overall, the fiscal impact to the City is expected to be minimal.
ATTACHMENT(S):
Attachment 1: Resolution Authorizing Valley Community Pantry (TFUA)
18.B.
CITY OF HEMET RESOLUTION NO. 2025-XXX 1
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CITY OF HEMET
HEMET, CALIFORNIA
RESOLUTION NO. 2025-xxx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HEMET, CALIFORNIA, AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND EXECUTE A
TEMPORARY FACILITIES USE AGREEMENT (“TFUA”)
WITH VALLEY COMMUNITY PANTRY, A CALIFORNIA
NONPROFIT PUBLIC-BENEFIT CORPORATION, FOR
THE LIMITED, TEMPORARY USE OF A PORTION OF
THE SIMPSON CENTER FACILITY AS AN INTERIM
LOCATION UNTIL NO LATER THAN JUNE 30, 2026,
TOGETHER WITH ANY ANCILLARY DOCUMENTS
NECESSARY TO IMPLEMENT THE AGREEMENT, ALL IN
A FORM APPROVED BY THE CITY ATTORNEY
The City Council of the City of Hemet, California (hereafter referred to as the “City Council”) does resolve as follows:
WHEREAS, the City of Hemet (“City”) owns the Simpson Center, located at 305 E. Devonshire Avenue, Hemet, California, a City-operated facility that serves as a hub for community-based programs and public benefit activities; and WHEREAS, Valley Community Pantry (“Pantry”), a California nonprofit public- benefit corporation, has served Hemet and the greater San Jacinto Valley for decades by providing emergency groceries, food distribution, and related referral services to vulnerable residents; and
WHEREAS, the Pantry’s longstanding host site is no longer available, and the organization is actively pursuing a permanent facility to continue its mission of addressing food insecurity and supporting at-risk community members; and
18.B.
CITY OF HEMET RESOLUTION NO. 2025-XXX 2
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WHEREAS, to avoid service disruption during this transition, the Pantry has requested temporary use of a portion of the Simpson Center to conduct limited food distribution, basic intake, and administrative functions; and WHEREAS, City staff has evaluated the request and determined that the Simpson Center contains available space suitable for accommodating a low-impact, time-limited operation without interfering with existing City programs, provided that appropriate safeguards and operational controls are implemented; and WHEREAS, partnering temporarily with a nonprofit to deliver essential food security services aligns with the City’s longstanding practice of collaborating with community-based organizations to serve public needs, and such partnership represents a direct public benefit to Hemet residents; and WHEREAS, City staff recommends the execution of a Temporary Facilities Use Agreement (“TFUA”) establishing a revocable, non-tenant license that ensures the City maintains control of the facility and protects its operational and risk management interests, while supporting continuity of critical food assistance services; and WHEREAS, the TFUA shall remain in effect only for a limited term not to exceed June 30, 2026, or until the Pantry secures a permanent location, whichever occurs first, unless otherwise extended by mutual written agreement and City Council authorization.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HEMET FINDS, DETERMINES, ORDERS, AND RESOLVES AS FOLLOWS:
SECTION 1. The City Council hereby finds that the above recitals are true and correct and are incorporated herein by this reference.
18.B.
CITY OF HEMET RESOLUTION NO. 2025-XXX 3
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SECTION 2. The City Council authorizes the City Manager, or designee, to negotiate and execute a Temporary Facilities Use Agreement (“TFUA”) with Valley Community Pantry, a California nonprofit public-benefit corporation, for the limited, temporary use of a portion of the Simpson Center facility as an interim location until no later than June 30, 2026, together with any ancillary documents necessary to implement the agreement, all in a form approved by the City Attorney.
SECTION 3. The City Clerk is directed to attest to the adoption of this Resolution and maintain a copy on file in the Office of the City Clerk.
18.B.
CITY OF HEMET RESOLUTION NO. 2025-XXX 4
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PASSED, APPROVED, AND ADOPTED this 28th day of October, 2025. ____________________________
Jackie Peterson, Mayor
ATTEST:
_____________________________
John Paul Maier, City Clerk
18.B.
CITY OF HEMET RESOLUTION NO. 2025-XXX 5
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State of California )
County of Riverside )
City of Hemet )
I, John Paul Maier, City Clerk of the City of Hemet, do hereby certify that the foregoing resolution was adopted by the Hemet City Council on the 28th day of October, 2025, and was passed by the following vote:
AYES: Council Members:
NOES: Council Members:
ABSTAIN: Council Members:
ABSENT: Council Members:
_____________________________
John Paul Maier, City Clerk
18.B.