AGREEMENT
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 munici pal corporation, hereinafter
referred to as "ANAHEIM,"
A
N
D
ORACLE INVESTIGATIONS GROUP, LLC a California
limited liability company, hereinaf ter referred to as “CONSULTANT.”
W I T N E S S E T H:
WHEREAS, ANAHEIM desires to conduct pre-employment background investigations of applicants seeking positions within the Anaheim Po lice Department and the Anaheim Fire Department, and to conduct crim inal and related background checks of other applicants for employment, and
WHEREAS, ANAHEIM further desires to retain an investigative firm with experience conducting personnel investigations, part icularly investigations involving Police and Fire personnel; and
WHEREAS, ANAHEIM additionally desires to avail itself of other training and investigative services provided by CONSULTANT; and
WHEREAS, CONSULTANT is qualified to perform such services, and is willing to do so upon terms and conditions set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AND FOLLOWS:
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2 1. SERVICES TO BE PROVIDED BY CONSULTANT
CONSULTANT shall conduct pre-empl oyment background investigations of applicants for employment with ANAHEIM Polic e and Fire Department s, pre-employment criminal and related background checks for a pplicants for employment with ANAHEIM, and personnel investigations of ANAHEIM employees, in accordance with the Fee Proposal for the City of Anaheim attached hereto as Exhibit “A” and incorporated herein by reference.
Brian Heider shall be designated CONS ULTANT’s Project Manager, and shall be responsible for directing the serv ices to be provided under this Agreement and administering the Agreement on behalf of CONSULTANT.
2. TERM OF AGREEMENT
The term of this Agreemen t shall be three (3) years from the Effective Date of this Agreement. ANAHEIM shall have an option to extend the term of this Agreement by up to one (1) year with approval of the Human Resources Director, subject to budget appropriation.
ANAHEIM shall notify CONSULTANT in writing at least 14 days pr ior to the end of the three year term if it is exercising the additional one-year option.
3. COMPENSATION
ANAHEIM shall pay CONSULTANT for services rendered pursuant to this Agreement the rates set forth in Exhibit “A”. Such rates are inclusive of all expenses which may be incurred by CONSULTANT in conducting inves tigations, including, but not limited to travel within Southern California. In the event C ONSULTANT is required to travel outside of Southern California to for inve stigative purposes, it shall fi rst obtain approval from ANAHEIM before incurring any expenses for such travel.
CONSULTANT shall prepare separate invo ices for: i) background investigations of applicants for employment and the ANAHE IM Police Department, ii) background investigations of applicants for employment with the ANAHEIM Fire Department, iii) criminal and related background checks of applicants for employment with ANAHEIM, and iv) personnel investigations.
3 The total fees to be paid by ANAHEIM for all of CONSULTANT’S services hereunder, including expenses, shall not exceed Two Hundred Fifty Thousand Dollars and No Cents ($250,000.00) for each year of the agreement, measuring each year from the Effective Date forward.
4. INDEPENDENT CONTRACTOR
CONSULTANT is at all times an independent contractor pursuant to this Agreement and shall not, in any way, be consid ered to be an officer, agent or employee of ANAHEIM.
5. INDEMNIFICATION
As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its officials, employees, and ANAHEIM designated 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 omi ssions in the performance of his professional services under the terms of this Agreement.
As respects all acts or omissions wh ich do not arise directly out of the performance of professional serv ices, including but not limited to those acts or omissions normally covered by general and automobile lia bility insurance, CONSULTANT agrees to indemnify, defend (at ANAHEIM's option), and hold harmless ANAHE IM, its officials, agents, employees, representatives, a nd volunteers from and against any and all claims, demands, defense costs, liability, or cons equential 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 term s of this contract; excepting thos e which arise out of the sole negligence of ANAHEIM.
6. INSURANCE
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:
4 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence.
Commercial General Liability Insuran ce, including coverage for Premises and Operations, Contractual Liabil ity, Personal Injury Liability, Products/Completed Operations Liability, and Sexual Abuse and Molestation and Independent CONSULTANT’S Liability where determined appropriate by ANAHEIM’S Risk Manager, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggr egate, written on an occurrence form. Such insurance shall be written on a primary basis, but may in clude a deductible or self-insurance retention (SIR) of more than $10,000 per occurrence, provided that such deductible or SIR is disclosed to ANAHEIM in writing, at the inception of this Agreement and approved by the Risk Manager for ANAHEIM.
Comprehensive Automobile Liability C overage including—as applicable—owned, non- owned, and hired autos, in an amount not le ss than $2,000,000 per occurren ce, combined single limit, as required by California law.
Professional Liability Insurance in an amount not less than $2,000,000 per occurrence, and CONSULTANT shall maintain such coverage for at least one (1) year from the termination of this Agreement. This coverage must include Cyber Liability Insurance where determined by ANAHEIM’s Risk Manager. Such in surance shall be written on a primary basis, but may include a deductible or self-insur ance retention (SIR) of more than $10,000 per occurrence, provided that such deductible or SIR is disclosed to ANAHEIM in writing, at the inception of this Agreement and approved by the Risk Manager for ANAHEIM.
Each insurance policy required by this Agr eement 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.” 5 Each insurance policy required by this Ag reement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
“It is agreed that any insurance main tained by CONSULTANT pursuant to this Agreement shall be primary to, and not contri bute with, any insuran ce or self- insurance maintained by the City of Anaheim.”
“The City of Anaheim, its officers, ag ents, 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.” 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 po licies the applicable clauses referenced above, or (ii) in lieu of said endorsements, doc umentation acceptable to ANAHEIM evidencing that the coverage, terms, and condition s set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in Californi a, (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 othe r legal action is filed against ANAHEIM, and if ANAHEIM, in its good faith opinion, believes it ma y 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 related to such required insurance; provided, however, that this provision shal l not apply if the parties agree that CONSULTANT shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action. 6 In addition to other remedies ANAHEIM may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsemen ts to the extent and within the time herein required, ANAHEIM may, at its sole option:
Order CONSULTANT to stop work under this Agreement and/ or withhold any payment(s) that become due to CONSULTANT hereunder until CONSU LTANT demonstrates compliance with the requirements hereof;
Terminate this Agreement.
Exercise of any of the above remedies, however, is an a lternative to ot her remedies ANAHEIM may have and is not the exclusive remedy for CONSULTANT’S failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construe d in any way as limiting the extent that an CONSULTANT may be held responsible for payments of damages to persons or property resulting from CONSULTANT’S, (or CONSULTA NT’S AGENT or SUB-AGENT, if any) performance of the work covered under this Agreement.
In the event CONSULTANT hires other person s or firms to perform some of the work related to this Agreement, CONSULTANT shall en sure (i) that the acts or omissions of such persons or firms are covered under the above-referen ced 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 requ ired of CONSULTANT under this Agreement (except for firms that are not performing professi onal services—such firms shall not be required to carry the above-referenced professional liability insurance) ; and in either instan ce, CONSULTANT shall provide, or cause to be provided, evidence of su ch insurance coverage, reasonably acceptable to ANAHEIM.
ANAHEIM’S Risk Manager is hereby authoriz ed to amend the requirements set forth herein in the event that such reduction is in ANAHEIM’S best interest.
7. PROFESSIONAL PRACTICES
All services to be provided by an d through CONSULTANT pursuant to this Agreement shall be provided by personnel experienced and/or licensed in th eir respective fields 7 and in a manner consistent with th e standards of care, diligence a nd skill ordinarily exercised by professional consultants in similar circumstan ces in accordance w ith sound professional practices. Services provided by and through C ONSULTANT will be furnished in accordance with generally accepted professional consultant practice and principles and under the supervision of professionals licensed in the State of California.
CONSULTANT assumes responsibility fo r any and all neglig ence, errors or omissions that CONSULTANT comm its and any and all such negl igence, errors or omissions committed by a subcontractor of CONSULTANT in performance of this Agreement.
8. ASSIGNMENT
Neither CONSULTANT nor ANAHEIM may assign or transfer this Agreement, or any part thereof, without the written consent of the other party.
9. GOVERNING LAW
This Agreement shall be governed by the la ws of the State of California. If any portion of this Agreement is held invalid under any applicable statute or rule of law, then such portion only shall be deemed invalid.
10. COMPLIANCE WITH LAWS
In the performance of this Agreement, CONSULTANT shall abide by and conform to any and all applicable laws of the United States, the State of California and the City Charter and Ordinances of ANAHEIM.
11. WAIVER
No waiver or failure to exercise any right, option or privile ge under the terms of this Agreement on any occasion shall be construed to be a waiver of any other right, option or privilege on any other occasion.
12. TERMINATION OF AGREEMENT
ANAHEIM may terminate this Agreement with or without cause upon giving CONSULTANT at least fifteen (15) days' prior written notice. If this Agreement is terminated without cause, CONSULTANT will be paid for cost s incurred and actual services satisfactorily performed for ANAHEIM up to and including the date of termination. 8 13. NO THIRD-PARTY RIGHTS
The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any dut y, covenant, obligation or undertaking established herein.
14. ENTIRE AGREEMENT; PARTIAL INVALIDITY
This Agreement constitutes the entire agreement and understanding between the parties hereto, and supersedes all proposals, oral or written, and al l other communications between the parties with respect to the subject matter of this Agreement.
This writing constitutes the entire agr eement between the parties with respect to the subject matter hereof, and supersedes all oral or written representations or written agreements which may have been entered into between the part ies. No modification or revision shall be of any force or effect, unless the same is in writing and executed by the parties hereto.
If any provision of this Agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this Agreement are intended to be and shall be deemed severable. The parties shall agree, if reasonably practicable, upon provisions which are equivalent from an ec onomic point of view to replace any provision which is determined to be invalid.
15. CONTRACT ADMINISTRATION
The Human Resources Director or hi s designee shall be responsible for the administration of this Agreement for ANAHEIM.
Nothing contained in this section sh all be construed to authorize the Human Resources Director to amend, cancel, waive, or otherwise modify any terms of this Agreement, except to the extent such changes or modifications are expressly authorized by this Agreement.
The City Manager, may, in writing, reas sign the administration of this Agreement to another department head.
16. NOTICES
Notices and communication concerning th is Agreement shall be sent to the following addresses:
9 ANAHEIM: City of Anaheim
Attn: City Clerk
200 South Anaheim Boulevard
Anaheim, California 92805
Telephone: (714) 765-5166
Facsimile: (714) 765-4105
WITH A COPY TO: City of Anaheim
Attn: Human Resources Director
201 South Anaheim Boulevard, 5
th Floor
Anaheim, California 92805
Telephone: (714) 765-5111
Facsimile: (714) 765-5211
CONSULTANT: Oracle I nvestigations Group, LLC
13089 Peyton Drive, Suite C
Chino, California 91709
Telephone: (800) 519-1540
Either party may, by notice to the other party, change the address specified above.
Service of notice or communication shall be comple te, if personally served, when received at the designated address, or five (5) days after depos it of said notice or communication in the U.S. mail.
17. USE AND OWNERSHIP OF DOCUMENTS
It is understood by and agreed between th e parties that all documents prepared or developed by CONSULTANT purs uant to this Agreement shall become the property of ANAHEIM and shall be delivered to ANAHEIM on hard copy and electronic correspondence upon completion of the services.
18. AUTHORITY
CONSULTANT and CONSULTANT’s signato rs represent that the signators hold the positions set forth below their signatures and th at the signators are authorized to execute this Agreement on behalf of CONSULTANT and to bind CONSULTANT hereto
19. EFFECTIVE DATE
The effective date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event CONSULTANT fails to set forth a date of execution opposite the name(s) of CONS ULTANT's signator(s), 10 CONSULTANT hereby authorizes ANAHEIM, by and through its representative, to insert the date of execution by CONSULTANT's signator(s) a nd the date of said Agreement, as executed by CONSULTANT, is received by ANAHEIM.
[Signatures Appear on the Following Page]
11 IN WITNESS WHEREOF, the parties here to have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION:
CITY OF ANAHEIM
a municipal corporation
By:
“ANAHEIM”
ATTEST:
By:
Anaheim City Clerk
DATE OF EXECUTION:
ORACLE INVESTIGATIONS GROUP, LLC a
California limited liability company
B y :
Title:
Printed Name:
“CONSULTANT”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
B y :
Robert J. Tyson
Deputy City Attorney
D a t e d :
94241.2
12 EXHIBIT A
FEE SCHEDULE