1 A G R E E M E N T
THIS AGREEMENT, dated for purposes of identification only this _____ day of __________, 2022, is made and entered into by and between the
CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
A
N
D
MIKE D ATKINSON, an individual DBA LANDSCAPE CONSULTANTS &
CONTRACT MANAGEMENT,
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 consulting firm to assist in the development of RFQ, RFP and SOW documents for landscape consulting and contract management services to support ANAHEIM'S Public Works Department (“Department”) (collectively, the “Services”); and
WHEREAS, CONSULTANT possesses the skill, experience, ability, background, certification and knowledge to provide the services for the Project as described in this Agreement; and
WHEREAS, ANAHEIM has solicited and r eceived a proposal from CONSULTANT dated March 14, 2022 ("Proposal"), has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to retain CONSULTANT to render professional services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
2 1. SERVICES TO BE PROVIDED BY CONSULTANT
1.1 In compliance with all of the terms and condit ions of this Agreement, CONSULTANT shall assist in the development of RFQ, RFP and SOW documents for landscape consulting and contract management to support ANAHEIM'S Public Works Department (the "Department") and other projects and programs as directed by the Director or his or her designee ("Services"). The Services are more particularly described in the CONSULTANT’s Proposal , attached hereto as Exhibit "A,” incorporated herein ("Scope of Services"). ANAHEIM reserves the right to modify the Scope of Services in its sole discretion.
In the event of conflicting provisions, the provisions shall govern in the foll owing order: (1) this Agreement and (2) the Proposal.
1.2 Non-Exclusive Agreement . CONSULTANT acknowledges that ANAHEIM may enter into agree ments similar to this Agreement with other consultants. It is understood and agreed that any Services to be performed pursuant to this Agreement will be awarded to the CONSULTANT that ANAHEIM determines, in its sole discretion, to be most qualified to provide such Services to ANAHEIM.
2. TERM
The term of this Agreement shall commence on the date this Agreement is executed by ANA HEM and shall terminate one (1) year thereafter, unless sooner terminat ed as provided herein ("Initial Term"). The Public Works Dire ctor is hereby authorized to extend the term of this Agreement upon the same terms a nd conditions for no more than one (1) additional one-year after the Initial T erm; provided the Public Works Director determines, in their sole discretion, that such extension is necessary for the successful completion of the Services.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of th is Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by CONSULTANT to perform the Services in a diligent and timely manner may result in termination of this Agreement by ANAHEIM.
3.2 The time period(s) specified for performance of the Services rendered pursuant to this Agreement shall be extended because of any del ays due to unforeseeable causes beyond the control and without the fault or negligence of CONSULTANT, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabotage, restraint by court order or public authority and action or non- action by or inability to obtain the necessar y authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including ANAHEIM, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if CONSULTANT shall within ten (10) days of the commencement of such delay notify the Project Administrator in writing of the causes of the delay. The Project
3 Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, CONSULTANT's sole remedy shall be an extension of th is Agreement pursuant to this Section and CONSULTANT shall not be entitled to recover damages against ANAHEIM.
4. COMPENSATION
4.1 ANAHEIM shall pay CONSULTANT for the Services satisfactorily rendered pursuant to this Agreement in accordance with the hourly rates set forth in the Proposal under "Consulting Fees", which is attached hereto as Exhibit “A” and incorporated herein by this reference. CONSULTANT and ANAHEIM agree that no changes to the hourly rates set forth in Exhibit “A” shall be made during the Term of this Agreement without the prior written authorization of the Director of Public Works.
4.2 It is understood and agreed betwe en the parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement shall not exceed the sum of One Hundred Thousand Dollars ($100,000.00) for the Services described herein (“Total Compensation”).
4.3 CONSULTANT shall submit monthly invoices to ANAHEIM describing the work performed the preceding month. CONSULTANT's bills shall include the name and title of the person who performed the work, a brief description of the Services performed and/or the sp ecific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. ANAHEIM shall pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff.
4.4 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 a doption 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.
5. PROJECT MANAGER
5.1 CONSULTANT shall designate a Project Manager, who shall coordinate the Services. This Project Manager shall be available to ANAHEIM at all reasonable times during the Term of this Agr eement. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Project Manager is a substantial inducement for ANAHEIM to enter into this Agreement. Therefore, the foregoing Project Mana ger shall be responsible during the Term of this Agreement for directing all activities of CONSULTANT and
4 devoting sufficient time to personally supervise the provision of Services hereunder. The foregoing Project Manager may not be changed by CONSULTANT and no other personne l may be assigned to supervise the Services to be provided hereunder without the express written consent of ANAHEIM.
5.2 Any personnel or subconsultant, if any, who fail or refuse to perform the Services in a manner acceptable to ANAHEIM, or who are determined by ANAHEIM, in its sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, or a threat to the safety of persons or property, shall be promptly removed from the Project by CONSULTANT at the request of ANAHEIM. CONSULTANT warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Departmen t. The employees of the Public Works Department shall be authorized to take the following actions pursuant to this Agreement:
(i) The Director of Public works is authorized to take any and all actions on behalf of ANAHEIM as set forth herein and to terminate services in accordance with Section 25 of this Agreement.
(ii) The Project Administrator is authorized to take those specific acti ons set forth herein and review and approve all Services performed by CONSULTANT under this Agreement. The Project Admini strator shall not be authorized to approve Extra Work, change billing rates or terminate Services under this Agreement.
7. STANDARD OF CARE
7.1 CONSULTANT shall perform all Services under this Agreement in a skillful and competent manner, consistent with t he 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. CONSULTANT warrants that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. 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.
7.2 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. CONSULTANT shall maintain a City of Anaheim business license during the term of this Agreement.
5 8. FAMILIARITY WITH WORK
By executing this Agreement, CONSULTANT represents and warrants that CONSULTANT: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement. Should CONSULTANT discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by ANAHEIM, CONSULTANT shall immediately inform ANAHEIM of such fact and shall not proceed except at CONSULTANT's risk until written instructions are received from ANAHEIM.
9. INDEPENDENT CONTRACTOR
9.1 Neither ANAHEIM nor any of its emp loyees shall have any control over the manner, mode or means by which CONSULTANT, its agents or employees, perform 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's employees, servants, representatives 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 agent s 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.
9.2 In consideration for the c ompensation 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 e against ANAHEIM or any of its officers, employees, agents, representatives or sureties.
10. INSURANCE
10.1 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, insurance coverage as follows:
.01 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. .02 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent CONSULTANT’S Liability, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis and may include a deductible or self -insured retention (SIR)
6 of more than $10,000 per occurrence, provided that such deductible is disclosed to ANAHEIM, in writing, at the inception of this Agreement.
.03 Comprehensive Automobile Liability Coverage including -as applicable- owned, non- owned, and hired autos, in an amount not less than $1,000,000 per occurrence, combined single limit, as required by California law.
.04 Professional Liability Insurance in an amount not less than $2,000,000 per occurrence, and CONSULTANT shall maintain such coverage for at le ast one (1) year from the termination of this Agreement. Such insurance shall be written on a primary basis and may include a deductible or SIR of not more than $10,000 per occurrence, provided that such deductible is disclosed to ANAHEIM, in writing, at the inception of this Agreement.
10.2 Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: “This insurance shall not be cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non- payment of premium that shall provide for not less than ten (10) days’ notice.”
10.3 Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
.01 “It is agreed that any insurance maintained by CONSULTANT pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self - insurance maintained by the City of Anaheim.”
.02 “The City of Anaheim, its officers, agent s, employees, representatives and ANAHEIM- designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
10.4 Prior to commencing any work under this Agreement, CONSULTANT shall deliver to ANAHEIM insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, CONSULTANT shall provide ANAHEIM (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above; or (ii) in lieu of those endorsements, documentation acceptable to ANAHEIM evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in the insurance policies. Insurance required hereunder shall be placed with insurers: (i) admitted to write insurance in California; (ii) possessing an A. M. Best’s rating of A VII or higher; or (iii) otherwise acceptable to ANAHEIM, with prior written permission from ANAHEIM. In the event that a claim or other legal action is filed against ANAHEIM, and if ANAHEIM, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then ANAHEIM has the right to demand, and to receive within a reasonable time period, copies of the insurance policies
7 related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that CONSULTANT shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action.
10.5 In addition to other remedies ANAHEIM may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, ANAHEIM may, at its sole option:
.01 Order CONSULT ANT to stop work under this Agreement and/or withhold any payment(s) that become due to CONSULTANT hereunder until CONSULTANT demonstrates compliance with the requirements hereof
.02 Terminate this Agreement.
Exercise of any of the above remedies, however , is an alternative to other remedies ANAHEIM may have and is not the exclusive remedy for CONSULTANT’S failure to maintain insurance or secure appropriate endorsements.
10.6 Nothing herein contained shall be construed in any way as limiting the extent that CONSULTANT may be held responsible for payments of damages to persons or property resulting from CONSULTANT’S, (or CONSULTANT’S AGENT or SUB -AGENT, if any) performance of the work covered under this Agreement.
10.7 In the event CONSULTANT hires other persons or firms to perform some of the work related to this Agreement, CONSULTANT shall ensure that: (i) that the acts or omissions of such persons or firms are covered under the above -referenced liability insurance; or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of CONSULTANT under this Agreement (except for firms that are not performing professional services —such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, CONSULTANT shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
10.8 ANAHEIM’S Risk Manager is hereby authorize d to amend the requirements set forth herein in the event that such amendment is in ANAHEIM’S best interest.
11. INDEMNIFICATION
11.1 As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, to the extent arising directly out of the negligent acts, errors or omissions of the CONSULT ANT or any SUB -AGENT in the performance of professiona l services under this Agreement.
11.2 As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, CONSULTANT
8 agrees to indemnify, defend (at ANAHEIM'S option), and hold harmless ANAHEIM, its officials, officers, employees, agents, and represent atives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with CONSULTANT’S (or CONSULTANT'S AGENT or SUB-AGENT, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence o r willful misconduct of ANAHEIM.
11.3 The obligations set forth in this indemnification provision (i) shall be in effect wit hout regard to whether or not ANAHEIM, CONSULTANT, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
11.4 ANAHEIM’S Risk Man ager is hereby authorized to amend the requirements set forth herein in the event that such amendment is in ANAHEIM’S best interest.
12. PREVAILING WAGES
Where required pursuant to the provisions of the State of California Labor Code or the Davis Bacon Act , not less than the general prevailing rate of per diem wages including legal holidays, and overtime work for each craft or type of workman needed to execute the work contemplated under this Agreement, shall be paid to all workmen employed on the work to be done according to this contract by CONSULTANT or any approved Subcontractor, and shall be deemed to include employer payments for health and welfare, pension, vacation and similar purposes. If both the Davis -Bacon Act and State of California prevailing wage laws apply and the federal and state prevailing rate of per diem wages differ, CONSULTANT and Subcontractor, if any, shall pay the higher of the two rates. Said prevailing rate of per diem wages are on file at the City of Anaheim, Office of the City Clerk, 200 South Anaheim Boulevard, Anaheim, California 92805, and are available to any interested party on request.
13. PROGRESS
CONSULTANT is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to AN AHEIM 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 encum bered 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
9 conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of CONSULTANT.
15. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of ANAHEIM. CONSULTANT shall be fully responsible to ANAHEIM for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between ANAHEIM and subcontractor nor shall it create any obligation on the part of ANAHEIM to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. ANAHEIM is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and ANAHEIM pursuant to this Agreement.
16. USE AND OWNERSHIP OF DOCUMENTS AND DATA
16.1 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.
16.2 All documents and materials furnished by ANAHEIM to CON SULTANT pursuant to Section 16.1 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, its officers, employees, agents and subcontractors, 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 p arty. CONSULTANT shall, at CONSULTANT's sole cost and expense, provide such documents and material to ANAHEIM upon prior written request.
Documents and material prepared by CONSULTANT pursuant to this Agreement are not intended or represented to be suitable for reuse by ANAHEIM or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from CONSULTANT will be at ANAHEIM's sole risk and without liability to CO NSULTANT. Further, any and all liability arising out of changes made to CONSULTANT's deliverables under this Agreement by ANAHEIM or persons other than CONSULTANT, is waived against CONSULTANT and ANAHEIM assumes full responsibility for such changes unles s ANAHEIM has given CONSULTANT prior notice and has received from CONSULTANT written consent for such changes.
17. CONFIDENTIALITY
All documents, including drafts, preliminary drawings or plans, notes, ideas and communications that result from the Servic es provided under this Agreement, shall be kept confidential by CONSULTANT unless ANAHEIM authorizes, in writing, the release of said information.
10 18. 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 pursuant to this Agreement.
19. 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. CONSULT ANT shall allow inspection of all work, data, Documents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment to CONSULTANT under this Agreement.
20. 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 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.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the neglige nce 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 CONSULTA NT. Nothing in this paragraph is intended to limit ANAHEIM's rights under the law or any other sections of this Agreement.
22. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
11 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.
23. CONFLICTS OF INTEREST
The CONSULTANT or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which: (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement; and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest.
If subject to the Act, CONSULTANT shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by ANAHEIM. CONSULTANT shall indemnify and hold harmless ANAHEIM for any and all claims for damages resulting from CONSULTANT’s violation of this Section.
24. 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 third (3rd) day after being deposited in the United States mail, certified or regis tered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to ANAHEIM: City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Director of Public Works
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-5225
To CONSULTANT: Mike D Atkinson DBA Landscape Consultants & Contract Management
Attention: Michael Atkinson, Principle Consultant
1439 E. Oakmont Avenue
Orange, California 92867
25. ENFORCEMENT OF AGREEMENT
25.1 Events of Default.
12 .01 For purposes of this Section 25, 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 f or 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, reorganiza tion 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 performance of any obligation required to be performed by ANAHEIM hereunder unless a nd 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 ANAH EIM'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.
25.2 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.
25.3 Termination without Cause. ANAHEIM may terminate this Agreement at any time without the necessity of cause or Default by giving seven (7) days notice in writing to CONSULTANT. In such event, the Parties shall have no further rights hereunder, except that CONSULTANT shall be paid for all services adequately rendered prior to such term ination.
CONSULTANT may not terminate this Agreement except for cause.
26. 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 fed eral, state, county or municipal, whether now in force or hereinafter enacted. 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 Project Administrator.
27. 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 other term, covenant or condition contained herein, whether of the same or a different character.
13 28. INTEGRATED CONTRACT
This Agreement and the exhibits hereto contain the entire agreement of ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, statement or p romise 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.
29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits or any other attachments attached hereto, the terms of this Agreement shall govern.
30. INTERPRETATION
Each Party acknowledges that he / she / it has had the b enefit 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.
31. 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.
32. 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.
33. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be cumulative and are given with out impairing any other rights given ANAHEIM or CONSULTANT by statute or law now existing or hereafter enacted and the exercise on any one (1) remedy by ANAHEIM or CONSULTANT shall not exclude the exercise of any other remedy.
34. NO THIRD PARTY BENEFICIARIES
14 The Parties intend that no 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.
35. CONTROLLING LAW AND VENUE
The laws of the State of California sh all 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.
36. DISCRIMINATION
CONSULTANT agrees not to discriminate against a ny 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 or hiring of subcontractors or employees. 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.
37. AUTHORITY
Each individual executing this Agreement on behalf of a corpo ration, nonprofit corporation, partnership or other entity or organization, represents and warrants the he 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 it governing board's resolution or certificate authorizing or evidencing such execution.
38. EFFECTIVE DATE
This Agreement shall be effective on the d ate on which this Agreement is executed by ANAHEIM ("Effective Date").
15 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION:
CITY OF ANAHEIM
a municipal corporation
By:
Rudy Emami, Director of Public Works
“ANAHEIM”
ATTEST:
By: _
City Clerk of Anaheim
DATE OF EXECUTION:
MIKE D ATKINSON, an individual DBA
LANDSCAPE CONSULTANTS & CONTRACT
MANAGEMENT
By: ______________________________________
Printed Name ___________________________
Title _____________________________
“CONSULTANT”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
Dated:
Attachments: Exhibit A
146002
1 EXHIBIT A
STARTS AFTER THIS PAGE
Landscape ConsultANTS &
Contract Management
1439 E Oakmont Ave.
Orange, CA 92867
[email protected]
The City Of Anaheim,
Department of Public Works
400 E Vermont
Anaheim, CA 92805
Attn: Eddie De La Torre
March 14, 2022
Re: On-Call Landscape consulting services agreement.
Dear Eddie De La Torre,
I sincerely appreciate the interest you expressed during our introduction meeting and discussing the partnership and opportunities that Landscape Consultants & Contract Management (LCCM) services can deliver to the City of Anaheim. We bring a wealth of experience in all aspects of the landscape management industry.
It is our understanding the goal of this consulting services agreement will be to assist in the development of RFQs, RFP’s and SOW documents for the purpose of gaining contractor involvement in the necessary services and functions described therein. The Staff at LCCM will work to these described goals in the development and management of the process by which these documents will be completed and supplied to Public Works for their use.
Scope of services offered
1) Contract development
Work with the City Staff to review and develop documents that encompasses the goals and needs of the described areas.
Create the RFQ/RFP for the process by which contractors will be evaluated by their information they provide to help determine their Qualification for the contract. As well as the overall proposal to be considered in the creation of the service contract. 2) Landscape contract management
Once the contracts have been awarded, the process of ensuring the proper execution of the specifications are being completed
Assistance in punch list development, management and steps for compliance 3) In-field management training and service
We will work with the maintenance coordinators as they are hired to re-enforce their abilities to understand and manage all aspects of the signed agreements. 4) Construction Management
In the event that extra services are necessary, LCCM will assist in the development of the documents that reflect the SOW and pricing sheets to help manage the individual steps to understand the full pricing effect. 5) Training Services
LCCM will be available to assist in the on the job training bid in the office and field work to introduce ideas, steps and processes to properly manage these agreements for longer term success.
Assumptions and Exclusions
Assumptions
All work produced will be sent via an electronic submission as well as (1) One hard copy for the work provided.
All requests for work will be supplied with as much detail as necessary to complete the project.
A kick-off meeting will be held to discuss the subject of contract, detailed information discussed and a review if the expected outcome.
Exclusions
All necessary fieldwork to confirm square footage numbers, quantities and other units necessary for the bid, these will be supplied by City Staff. Site maps and other visual aid items that may/will be needed for the proposal process.
Details and plan specifications for the purpose of the detail bid items. All will be supplied by City Staff
Client to Provide
Other than as detailed above, The City will complete all copies and replications of work.
Base contracts, samples and other information that will help keep the hours to a minimum for the execution of the assigned work, ie, sample documents, background and other factual information.
Key Personnel
Michael (Mike) Atkinson Principle Consultant $ 145. 00/Hr.
Mike Atkinson has been in the Landscape and related fields since his graduation from Cal Poly Pomona in 1981 with a degree in Ornamental Horticulture. He has worked extensively in the landscape service industry in all aspects of the profession. Mike has a California Contractors license, from the Department of Pesticides required licenses of a PCA, QAL and QAC.
Mike is also a Certified Arborist and has a TRAQ (Risk assessment) classification. Mike has extensive background in the contractor management process in all aspects needed.
Margaret Atkinson Administrative assistant $ 84.00/Hr.
Margaret brings years of office experience in all aspects of office management, document preparation and development. Margaret also has a background in the landscape maintenance industry in so far as the ability to supervise, observe and direct the needs of the project of subject.
Closing
It would be an honor Landscape Consultants & Contract Management to be selected as the consultant to assist in the needs of The City of Anaheim for both the Right of Way (ROW) and the Anaheim Resort Maintenance District (ARMD) in regards to all the landscape and associated needs.
Sincerely,
Mike Atkinson
Principle