AGREEMENT
THIS AGREEMENT, dated for pur poses of identification only this ___day of January, 2023, is made and entered into by and between the CITY OF ANAHEIM, a municipal corporation, hereinafter referre d to as "ANAHEIM,"
A
N
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TOWNSEND PUBLIC AFFAIRS, a California corporation, hereinafter referred to as “CONSULTANT.”
ANAHEIM and CONSULTANT are somet imes individually referred to h erein as “Party” and collectively as “Parties.”
W I T N E S S E T H:
WHEREAS, ANAHEIM is a munici pal 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 obt ain 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 represent s 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 PARTIE S HERETO AGREE AS FOLLOWS:
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2 1. SERVICES TO BE PROVIDED BY CONSULTANT
CONSULTANT shall provide to ANAHEIM the labor, materials, too ls, 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 Leg islature 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 sh all be one year, beginning on Ja nuary 16, 2023 and ending on January 15, 2024, unless terminated earlier pursuant to Section 20 of this Agreement.
The Agreement may be renewed for two additional one year terms at ANAHEIM’s discretion.
3. COMPENSATION
3.1 ANAHEIM shall pay CONSULTANT for services satisfactorily performed pursuant to this Agreement, the sum of Seven Thousand Five Hundred Dollars ($7,500) per month.
CONSULTANT and ANAHEIM agree that no changes to the monthly rat e shall be made during the term of this Agreement.
3.2 The Parties agrees that the Contract Amount set forth belo w includes all out-of-pocket expenses of CONSU LTANT, with the exception of ext raordinary expenses or travel-related costs pre-approved by the City Manager. CONSULT ANT shall not be reimbursed for any other expenses.
3.3 It is understood by and agreed between the Parties to thi s Agreement that full and complete payment for all services pursuant to this Agr eement shall not exceed Two Hundred Seventy Thousand Dollars ($270,000) (“Contract Amount”). 3 3.4 CONSULTANT shall submit monthly invoices to ANAHEIM for w ork 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 3 0 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 actual ly 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 sha ll 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 a ll services under this Agreemen t in a skillful and competent manner, consistent with the standards ge nerally recognized as being employed by professionals in the same discipline in the State o f California. CONSULTANT represents and maintains that it is skilled in the professional calling necessary to perform the services required by this Agreem ent. By delivery of completed work, CONSULTANT certifies that the work conforms to the requirements of this Agreement; a ll 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 w hatsoever nature t hat is legally required of CONSULTANT to practice its profession.
6. INDEPENDENT CONTRACTOR
6.1 Neither ANAHEIM nor any of its employees shall have any c ontrol over the manner, mode or means by which CONSULTANT performs the serv ices required herein, 4 except as otherwise set forth herein. Except as expressly prov ided herein, ANAHEIM shall have no voice in the selection, discha rge, 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 ind ependent 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. CONSULT ANT 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 agre es 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 i s 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 s t a t u t e s .
7.2 ANAHEIM's Risk Manager is he reby 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, CONSUL TANT shall deliver to ANAHEIM insurance certificates confirming the existence of the insurance required by this Agreement.
8. INDEMNIFICATION
As respects acts, errors or omi ssions in the performance of pr ofessional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its o fficers, 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 perform ance of his professional services under the terms of this Agreement.
As respects all acts or omissions of CONSULTANT which do not a rise directly out of the performance of professional services, CONSULTANT agrees to indemnify, defend (at ANAHEIM's option), and hold ha rmless ANAHEIM, its officers, age nts, employees, representatives, and volunteers from and against any and all cl aims, demands, defense costs, liability, or consequential damages of any kind or nature arisi ng 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 ANAH EIM for entering into this Agreement is the professiona l reputation, experience and c ompetence 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 w ay without the prior written consent of ANAHEIM. Any such purported assignment, transfer, e ncumbrance, 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 the permitted successors and assigns 6 of CONSULTANT.
10. SUBCONTRACTING
CONSULTANT warrants and represents that it shall not use an y 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 CON SULTANT, pursuant to Section 11.1, shall re main the property of ANAHEIM and shall be returned to ANAHEIM upon termination of this Agreement, for any reason. Al l documents or material prepared or caused to be prepared by CONSULTANT in the course o f implementing this Agreement, shall become the exclu sive property of ANAHEIM, and ANAHEIM shall have the sole right to use such materials in its discretion without furt her compensation to CONSULTANT or any other party. CONSULTANT sh all, at CONSULTANT’s sole cos t and expense, provide such documents and material to ANAHEIM upon prior written request.
12. CONFIDENTIALITY
All documents, including drafts, preliminary drawings or plan s, notes, ideas and communications that result from t he services provided under thi s Agreement, shall be kept confidential by CONSULTANT unle ss ANAHEIM authorizes, in writin g, the release of said information.
13. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT shall defend and indemnify ANAHEIM, its agents, o fficers, representatives and employees against any and all liability, in cluding 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 ANAH EIM pursuant to this 7 Agreement.
14. RECORDS
CONSULTANT shall keep records and invoices in connection wit h the work to be performed under this Agreement. CONSULTANT shall maintain comp lete 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. C ONSULTANT 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 t he 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 Agre ement. 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 du ring 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 neg ligence or professional inexperience of CONSULTANT which result in expense to ANAHEIM g reater 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. N othing in this paragraph is 8 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 th e provision of services hereunder are nonexc lusive and that ANAHEIM may ent er 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 of ficers, 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 receiv e payment from ANAHEIM for services rendered.
18.2 CONSULTANT agrees that it s hall 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 n either CONSULTANT nor any of i ts 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 ANAHE IM any financial interest in such property as may be acquired by its officers, partners o r 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 sen t 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 del ivered or if mailed on the third (3rd) day after being deposited in the United States mail, cert ified or registered, postage prepaid, 9 and addressed to the respective Parties at the following addresses:
If to ANAHEIM: ANAHEIM City Clerk
C i t y of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
A n a h e i m , C a l i f o r n i a 92805
F A X N o. (714) 765-4105
With copies to: Maggie Solorio
E x e c u t i v e C o o r d i n a t o r
C i t y of Anaheim
200 S. Anaheim Blvd., 7
th Floor
A n a h e i m , C A 92805
F A X N o. (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” sh all mean the failure of CONSULTANT to perform any of CONSULTANT’s duties or obligations or the breach by CONSULTANT of any of the ter ms and conditions set forth in t his 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) maki ng a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or sufferin g an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unle ss 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 asse t s o r o f C O N S U L T A N T ’ s interests hereunder.
.02 ANAHEIM shall not be deemed to be in Default in the pe rformance of any obligation required to be performed by ANAHEIM hereunder unless and until ANAHEIM 10 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 b e deemed to be in Default if ANAHEIM shall commence to cure such performance within such thi rty (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 ma y immediately terminate this A greement. Such termination shall be effective immediately upon receipt by CONSULTANT of written notice from ANAHEIM. In such event, CONSULTA NT shall have no further right s hereunder, and ANAHEIM shall have all other rights and remedies as provided by law.
20.3 Termination Without Cause. Either of the Parties may te rminate 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 al l statutes, ordinances, regulations and requirements of all governmental en tities, including federal, state, county or municipal, whether now i n force or hereinafter enacte d, 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 p ermit requirements and be subject to approval of the City Manager.
22. WAIVER
A waiver by either Party of a ny 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. 11 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 betwe en 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 Agreem e n t . T h e p r o v i s i o n s o f t h i s Agreement shall be interpreted to give effect to their fair mea ning and shall be construed as prepared by both Parties.
26. AMENDMENTS
This Agreement may be modified or amended only by a written d ocument 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 unenfo rceable, 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.
28. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be cumulative 12 and are given without impairing any other rights given ANAHEIM or CONSULTANT by statute or law now existing or hereafte r enacted and the exercise on an y 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 grante d to any third party as a beneficiary of this Agreement or of any covenant, duty, oblig ation or undertaking established herein.
30. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreem ent and all matters relating to it and any action brought relating to this Agreemen t shall be adjudicated in a court of competent jurisdiction in the County of Orange.
31. DISCRIMINATION
CONSULTANT agrees not to discri minate against any person or c lass of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its p rovision of services under this Agreement. To the extent this Agreement provides that CONSULT ANT offer accommodations or serv ices to the public, such accommodations or services shall be offered by CONSULTANT to th e public on fair and reasonable terms.
32. AUTHORITY
Each individual executing this Agreement on behalf of a corpora tion, nonprofit corporation, partnership or othe r entity or organization, repre sents 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.
33. EFFECTIVE DATE
This Agreement shall be effective on the date it is signed by ANAHEIM (“Effective 13 Date”).
IN WITNESS WHEREOF, the partie s hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION:
CITY OF ANAHEIM,
a municipal corporation
B y :
Ashleigh Aitken, Mayor
“ ANAHEIM”
ATTEST:
B y :
City Clerk of Anaheim
DATE OF EXECUTION:
__________________________
TOWNSEND PUBLIC AFFAIRS,
a California corporation
B y :
Title:
P r i n t e d N a m e :
“ C O N S U L T A N T ”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
B y :
Kristin Pelletier
Chief Assistant City Attorney, Civil
D a t e d :
137976v.3
EXHIBIT “A”
SCOPE OF WORK
FOR CONSULTING SERVICES
Objective
1. Strategic funding advocacy to identify and apply for state a nd federal legislative directed funding opportunities. TPA will work with the City to identify projects, draft applications, and advocate for funding for Anaheim projects.
2. Strategic advocacy with key members of the Administration, L egislature, 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.
3. Research and outreach to key members of the Administration, Legislature, and state agencies to identify and analyze funding programs that will ben efit Anaheim and specific priority projects identified by Anaheim.
Scope of Services
Townsend Public Affairs has conducted the following scope of se rvices to complete the project objective.
Research
o Collect and review all relevant information and priority proje cts from the City of Anaheim.
Develop Strategy:
o Identify targeted funding programs and funding opportunities t hrough legislative directed funding. Those programs and opportunities have include d, and are not limited to:
Continued funding for the North Orange County Public Safety Co llaborative California State Legislature
United States Congress
o Educate and advocate key members of the Administration, Legisl ature and state and federal agencies to ensure that Anaheim projects are in competitive positions to receive funding.
Ongoing Advocacy: Continue to work with the Administration, Legislature, state an d federal agencies and key stakeholders to identify and analyze f unding programs that will benefit Anaheim priority projects as well as advocate for the t argeted creation of new funding programs that will benefit Anaheim priority projects.
Legislative Opportunities to create Funding Programs: TPA will identify opportunities and advocate for Anaheim priorities to be reflected in any funding guidelines.