AGREEMENT
THIS AGREEMENT, dated for purposes of identification only this ___day of July, 2022, is made and entered into by and between the CITY OF ANAHEIM, a municipal corporation, hereinafter referred to as "ANAHEIM,"
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TOWNSEND PUBLIC AFFAIRS, a California corporation, hereinafter referred to as “CONSULTANT.”
ANAHEIM and CONSULTANT are sometimes individually referred to herein as “Party” and collectively as “Parties.”
W I T N E S S E T H:
WHEREAS, ANAHEIM is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and
WHEREAS, ANAHEIM desires to obtain the services of a consultant to formulate and assist with legislative and regulatory advocacy and strategies, including assistance with securing state and federal support and funding for City projects and services; and WHEREAS, CONSULTANT represents that it is qualified to perform the professional consulting services described in this Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
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2 1. SERVICES TO BE PROVIDED BY CONSULTANT
CONSULTANT shall provide to ANAHEIM the labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide the following services, as further detailed in the scope of services attached as Exhibit A:
a) Strategic advocacy with key members of the Administration, Legislature, and state agencies to ensure that funding guidelines developed by the Legislature and agencies are created in such a manner that ensures that ANAHEIM projects will be in the most competitive position possible to receive funding. b) Research and outreach to key members of the Administration, Legislature, and state agencies to identify and analyze funding programs that will benefit ANAHEIM and specific priority projects identified by ANAHEIM.
2. TERM
The term of this Agreement shall be for a six (6) month term beginning on July 16, 2022 and ending on January 15, 2023, unless terminated earlier pursuant to Section 20 of this Agreement.
3. COMPENSATION
3.1 ANAHEIM shall pay CONSULTANT for services satisfactorily performed pursuant to this Agreement, the sum of Five Thousand Dollars ($5,000) per month, for a period of six (6) months. CONSULTANT and ANAHEIM agree that no changes to the monthly rate shall be made during the term of this Agreement.
3.2 The Parties agrees that the Contract Amount set forth below includes all out-of-pocket expenses of CONSULTANT, with the exception of extraordinary expenses or travel-related costs pre-approved by the City Manager. CONSULTANT shall not be reimbursed for any other expenses.
3.3 It is understood by and agreed between the Parties to this Agreement that full and complete payment for all services pursuant to this Agreement shall not exceed Thirty Thousand Dollars ($30,000) (“Contract Amount”).
3 3.4 CONSULTANT shall submit monthly invoices to ANAHEIM for work performed during the billing period. ANAHEIM shall pay CONSULTANT within thirty (30) days after approval of the invoice by ANAHEIM staff.
3.5 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of ANAHEIM, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget. ANAHEIM does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to ANAHEIM in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on items delivered, services provided, monies paid and monies due.
4. RESERVED
5. STANDARD OF CARE
5.1 CONSULTANT shall perform all services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. CONSULTANT represents and maintains that it is skilled in the professional calling necessary to perform the services required by this Agreement. By delivery of completed work, CONSULTANT certifies that the work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the professional standard of care.
5.2 CONSULTANT represents and warrants to ANAHEIM that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of CONSULTANT to practice its profession.
6. INDEPENDENT CONTRACTOR
6.1 Neither ANAHEIM nor any of its employees shall have any control over 4 the manner, mode or means by which CONSULTANT performs the services required herein, except as otherwise set forth herein. Except as expressly provided herein, ANAHEIM shall have no voice in the selection, discharge, supervision or control of CONSULTANT or its representatives, contractors, or agents, or in fixing their number, compensation or hours of service. CONSULTANT shall perform all services required herein as an independent contractor of ANAHEIM and shall remain at all times, as to ANAHEIM, a wholly independent contractor with only such obligations as are consistent with that role. CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of ANAHEIM. ANAHEIM shall not in any way or for any purpose become or be deemed to be a partner of CONSULTANT in its business or otherwise or a joint venture or a member of any joint enterprise with CONSULTANT.
6.2 In consideration for the compensation paid to CONSULTANT by ANAHEIM, CONSULTANT agrees that ANAHEIM shall not be liable or responsible for any benefits, including, but not limited to, worker’s compensation, disability, retirement, life, unemployment, health or any other benefits, and CONSULTANT agrees that it shall not sue or file a claim, petition or application therefor against ANAHEIM or any of its officers, employees, agents, representatives or sureties.
7. INSURANCE
7.1 Without limiting ANAHEIM's right to indemnification, it is agreed that CONSULTANT shall secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage as follows:
.01 Workers' Compensation Insurance if and as required by California statutes.
7.2 ANAHEIM's Risk Manager is hereby authorized to reduce the requirements set forth above in the event he determines that such reduction is in ANAHEIM's best interest.
5 7.3 Prior to commencing any work under this Agreement, CONSULTANT shall deliver to ANAHEIM insurance certificates confirming the existence of the insurance required by this Agreement.
8. INDEMNIFICATION
As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its officers, agents, employees, representatives and volunteers from and against any and all claims, demands, defense costs, liability or consequential damages of any kind or nature arising directly out of CONSULTANT's negligent acts, errors or omissions in the performance of his professional services under the terms of this Agreement.
As respects all acts or omissions of CONSULTANT which do not arise directly out of the performance of professional services, CONSULTANT agrees to indemnify, defend (at ANAHEIM's option), and hold harmless ANAHEIM, its officers, agents, employees, representatives, and volunteers from and against any and all claims, demands, defense costs, liability, or consequential damages of any kind or nature arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) performance or failure to perform, under the terms of this Agreement, excepting those which arise out of the sole negligence of ANAHEIM.
9. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to ANAHEIM for entering into this Agreement is the professional reputation, experience and competence of CONSULTANT. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of ANAHEIM. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to ANAHEIM. If ANAHEIM approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to 6 the permitted successors and assigns of CONSULTANT.
10. SUBCONTRACTING
CONSULTANT warrants and represents that it shall not use any subcontractor to perform work or services required under this Agreement, unless approved in writing by ANAHEIM.
11. USE AND OWNERSHIP OF DOCUMENTS AND DATA
11.1 ANAHEIM shall furnish to CONSULTANT such documents and materials as may be relevant and pertinent to the provision of services hereunder as ANAHEIM may possess or acquire.
11.2 All documents and materials furnished by ANAHEIM to CONSULTANT, pursuant to Section 11.1, shall remain the property of ANAHEIM and shall be returned to ANAHEIM upon termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by CONSULTANT in the course of implementing this Agreement, shall become the exclusive property of ANAHEIM, and ANAHEIM shall have the sole right to use such materials in its discretion without further compensation to CONSULTANT or any other party. CONSULTANT shall, at CONSULTANT’s sole cost and expense, provide such documents and material to ANAHEIM upon prior written request.
12. CONFIDENTIALITY
All documents, including drafts, preliminary drawings or plans, notes, ideas and communications that result from the services provided under this Agreement, shall be kept confidential by CONSULTANT unless ANAHEIM authorizes, in writing, the release of said information.
13. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT shall defend and indemnify ANAHEIM, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to ANAHEIM 7 pursuant to this Agreement.
14. RECORDS
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to ANAHEIM, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT under this Agreement. All such records and invoices shall be clearly identifiable. CONSULTANT shall allow a representative of ANAHEIM to examine, audit and make transcripts or copies of such records and any other documents created, pursuant to this Agreement, during regular business hours. CONSULTANT shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to CONSULTANT under this Agreement.
15. WITHHOLDINGS
ANAHEIM may withhold payment to CONSULTANT of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. CONSULTANT shall not discontinue work as a result of such withholding. CONSULTANT shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums and his/her decision shall be final. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of return that ANAHEIM earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
16. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of CONSULTANT which result in expense to ANAHEIM greater than what would have resulted if there were not errors or omissions in the work accomplished by CONSULTANT, the additional cost and expense shall be borne by CONSULTANT. Nothing in 8 this paragraph is intended to limit ANAHEIM’s rights under the law or any other sections of this Agreement.
17. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
CONSULTANT acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that ANAHEIM may enter into similar agreements with other entities for the provision of similar services.
18. CONFLICTS OF INTEREST
18.1 CONSULTANT represents that neither it nor any of its officers, partners or employees has a financial interest, as defined in Section 87103 of the Government Code, in the subject matter of this Agreement other than the right to receive payment from ANAHEIM for services rendered.
18.2 CONSULTANT agrees that it shall not make, participate in making, nor in any way attempt to use its position as consultant to influence any decision of ANAHEIM in which CONSULTANT knows, or has reason to know, that any of its officers, partners or employees has a financial interest as defined in Section 87103 of the Government Code.
18.3 CONSULTANT warrants that neither CONSULTANT nor any of its officers, partners or employees, has any financial interest in any real property, building or structure within 2,500 feet of the location of any project or assignment to which this Agreement may apply in the City of Anaheim. CONSULTANT agrees to disclose to ANAHEIM any financial interest in such property as may be acquired by its officers, partners or employees during the term of this Agreement.
18.4 CONSULTANT is familiar with the terms of Government Code Section 87000 et. seq., and will comply with any of those terms that apply to it.
19. NOTICES
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either ANAHEIM or CONSULTANT to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the 9 third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to ANAHEIM: ANAHEIM City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Maggie Solorio
Executive Coordinator
City of Anaheim
200 S. Anaheim Blvd., 7th Floor
Anaheim, CA 92805
FAX No. (714) 765-5164
To CONSULTANT: Townsend Public Affairs
1401 Dove Street, Suite 330
Newport Beach, California 92660
20. ENFORCEMENT OF AGREEMENT
20.1 Events of Default.
.01 For purposes of this Section 20, the word “Default” shall mean the failure of CONSULTANT to perform any of CONSULTANT’s duties or obligations or the breach by CONSULTANT of any of the terms and conditions set forth in this Agreement. In addition, CONSULTANT shall be deemed to be in Default upon CONSULTANT’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of CONSULTANT’s assets or of CONSULTANT’s interests hereunder. .02 ANAHEIM shall not be deemed to be in Default in the 10 performance of any obligation required to be performed by ANAHEIM hereunder unless and until ANAHEIM has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from CONSULTANT specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of ANAHEIM’s obligation is such that more than thirty (30) days are required for its performance, then ANAHEIM shall not be deemed to be in Default if ANAHEIM shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
20.2 Immediate Termination for CONSULTANT’s Default. In the event of any Default by CONSULTANT, ANAHEIM may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by CONSULTANT of written notice from ANAHEIM. In such event, CONSULTANT shall have no further rights hereunder, and ANAHEIM shall have all other rights and remedies as provided by law.
20.3 Termination Without Cause. Either of the Parties may terminate this Agreement at any time without the necessity of cause or Default by giving seven (7) days written notice to the other Party. In such event, CONSULTANT shall be paid for all services adequately rendered prior to such termination.
21. COMPLIANCE WITH ALL LAWS
CONSULTANT shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted, and including, but not limited to, the laws and regulations that prohibit the use of public funds for campaign activities or personal use. In addition, all work prepared by CONSULTANT shall conform to applicable local, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the City Manager.
22. WAIVER
A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any 11 other term, covenant or condition contained herein, whether of the same or a different character.
23. INTEGRATED CONTRACT
This Agreement contains the entire agreement of ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, statement or promise made by either ANAHEIM or CONSULTANT which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose.
24. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement any other documents referenced herein, the terms of this Agreement shall govern.
25. INTERPRETATION
Each Party acknowledges that he/she/it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
26. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both CONSULTANT and ANAHEIM and approved as to form by the City Attorney.
27. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
12 28. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be cumulative and are given without impairing any other rights given ANAHEIM or CONSULTANT by statute or law now existing or hereafter enacted and the exercise on any one remedy by ANAHEIM or CONSULTANT shall not exclude the exercise of any other remedy.
29. NO THIRD PARTY BENEFICIARIES
The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
30. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
31. DISCRIMINATION
CONSULTANT agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its provision of services under this Agreement. To the extent this Agreement provides that CONSULTANT offer accommodations or services to the public, such accommodations or services shall be offered by CONSULTANT to the public on fair and reasonable terms.
32. AUTHORITY
Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants that it or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. CONSULTANT shall, at ANAHEIM’s request, deliver a certified copy of its governing board’s resolution or certificate authorizing or evidencing such execution.
13 33. EFFECTIVE DATE
This Agreement shall be effective on the date it is signed by ANAHEIM (“Effective Date”).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
CITY OF ANAHEIM,
a municipal corporationDATE OF EXECUTION:
By:
Trevor O’Neil, Mayor Pro Tem
“ANAHEIM”
ATTEST:
By:
City Clerk of Anaheim
TOWNSEND PUBLIC AFFAIRS,
a California corporation
DATE OF EXECUTION:
__________________________ By:
Title:
Printed Name:
“CONSULTANT”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Kristin Pelletier
Chief Assistant City Attorney, Civil
Dated:
137976v.2