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1 AGR EEMENT
2 THIS AGREEMENT ("Agreement"), dated for purposes of identification only 3 this 1.:1!._�ay of A/Jri l , 202-I , is made and entered into by and between the 4 5
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10 CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM",
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MWH CONSTRUCTORS, INC., a Delaware Corporation,
hereinafter referred to as "CONSULTANT".
ANAHEIM and CONSULT ANT are sometimes individually referred to herein as 11 "Party" and collectively as "Parties."
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WI TN E S S E T H:
WHEREAS, ANAHEIM is a municipal corporation duly organized and validly 14 existing under the laws of the State of California with the power to carry on its business as it is 15 now being conducted under the statutes of the State of California and the Charter of the City of 16 Anaheim; and
17 WHEREAS, ANAHEIM desires to obtain the construction management services 18 and consulting services for the design and construction of the Groundwater Treatment Plants - 19 Phased A, B, and C ("Project"); and
20 WHEREAS, CONSULTANT possesses the skill, experience, ability, background, 21 certification and knowledge to provide the services for the Project as described in this 22 Agreement; and
23 WHEREAS, ANAHEIM has solicited and received a proposal from 24 CONSULTANT, has reviewed the previous experience and evaluated the expertise of 25 CONSULTANT, and ANAHEIM desires to retain CONSULTANT to render professional 26 services under the terms and conditions set forth in this Agreement. 27 NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL 28 PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES 1 1 HERETO AGREE AS FOLLOWS:
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1. SERVICES TO BE PROVIDED BY CONSULTANT
In compliance with all of the terms and conditions of this Agreement, 4 CONSULTANT shall provide to ANAHEIM all labor, materials, tools, equipment, services, and 5 incidental and customary work necessary to fully and adequately supply the professional 6 consulting services necessary for the Project ("Services"). The Services are more particularly 7 described in the Scope of Services attached hereto as Exhibit A and incorporated herein by this 8 reference ("Scope of Services"). The ANAHEIM Public Utilities General Manager ("General 9 Manager") may elect to delete certain tasks or portions thereof from the Scope of Services in his 10 sole discretion. The Parties may modify the Scope of Services in writing and such modification 11 shall constitute an amendment to this Agreement; provided, such modifications do not require 12 additional compensation to CONSULTANT. In those instances, the Public Utilities General 13 Manager, on behalf of ANAHEIM, is authorized to approve modifications to the Exhibit A 14 Scope of Services.
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2. TERM
The term of this Agreement shall commence on the Effective Date, and shall 17 terminate upon the completion of the Project, unless terminated earlier as set forth in Section 25 18 herein ("Term").
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3. TIME OF PERFORMANCE
3.1 Time is of the essence m the performance of this Agreement and 21 CONSUL TANT shall perform and complete the Services in accordance with the schedule 22 included in Exhibit A. The Parties may mutually agree to amend this schedule and, in such cases, 23 the General Manager is authorized to execute the amendment on behalf of ANAHEIM. The 24 failure of CONSULTANT to strictly adhere to the schedule may result in termination of this 25 Agreement by ANAHEIM.
26 3.2 The time period(s) specified for performance of the Services rendered, 27 pursuant to this Agreement, shall be extended because of any delays due to unforeseeable causes 28 beyond the control and without the fault or negligence of CONSULTANT, including, but not 2 1 restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, 2 floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, 3 strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, labor dispute, labor 4 or material shortage, sabotage, government priorities, restraint by court order or public authority 5 and action or non-action by or inability to obtain the necessary authorization or approvals from 6 any governmental agency or authority, and/or acts of any governmental agency, including 7 ANAHEIM, which by the exercise of due diligence such Party could not reasonably have been 8 expected to avoid and which by exercise of due diligence has been unable to overcome, if 9 CONSULTANT shall within ten (10) days of the commencement of such delay notify the 10 ANAHEIM's project administrator ("Project Administrator") in writing of the causes of the 11 delay. The Project Administrator shall ascertain the facts and the extent of delay, and may 12 extend the time for performing the Services for the period of the enforced delay if, in the 13 judgment of the Project Administrator, such delay is justified. The Project Administrator's 14 determination shall be final and conclusive upon the Parties to this Agreement. In the event of 15 delay, however caused, CONSULTANT's sole remedy shall be an extension of the Agreement, 16 pursuant to this Section, and CONSULTANT shall not be entitled to recover damages against 17 ANAHEIM.
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4. COMPENSATION
4.1 ANAHEIM shall pay CONSULT ANT for the Services rendered, pursuant 20 to this Agreement, at CONSULTANT's hourly rates and manner set forth in the Schedule of 21 Compensation attached hereto as Exhibit B and incorporated herein by reference ("Schedule of 22 Compensation").
23 4.2 CONSULTANT may only be reimbursed for the following out of pocket 24 expenses: Administration, Project Vehicles & Mileage, and Office Equipment & Supplies. 25 CONSULTANT shall not be reimbursed for any such reimbursable expenses unless it is first 26 authorized in writing by the General Manager. Reimbursable expenses shall not exceed TWO 27 HUNDRED AND SEVENTY-FOUR THOUSAND DOLLARS and no/100 CENTS 28 ($274,000.00)("Reimbursement Amount"). CONSULTANT shall not be reimbursed for any 3 � "'"'z
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1 partner of CONSULT ANT in its business or otherwise or a joint venture or a member of any 2 joint enterprise with CONSULTANT.
3 9.2 In consideration for the compensation paid to CONSULTANT by 4 ANAHEIM, CONSULT ANT agrees that ANAHEIM shall not be liable or responsible for any 5 benefits, including, but not limited to, worker's compensation, disability, retirement, life, 6 unemployment, health or any other benefits, and CONSUL TANT agrees that it shall not sue or 7 file a claim, petition or application therefor against ANAHEIM or any of its officers, employees, 8 agents, representatives or sureties.
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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 Contractor's Liability, in an amount not less than $1,000,000 per occurrence, $2,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible of not more than $10,000 per occurrence, provided that such deductible is disclosed to ANAHEIM, in writing, at 21 the inception of this Agreement.
22 .03 Comprehensive Automobile Liability Coverage including-as 23 applicable-owned, non-owned, and hired autos, in an amount not less than $1,000,000 per 24 occurrence, combined single limit, as required by California law. 25 .04 Professional Liability Insurance in an amount not less than 26 $1,000,000 per claim, and CONSULTANT shall maintain such coverage for at least two (2) 27 years from the termination of this Agreement. Such insurance shall be written on a primary basis 28 (i.e., without a self-insured retention), but may include a deductible of not more than $5,000 per 8 � IP
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breach by CONSULT ANT 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 CONSULT ANT' s assets or of CONSULT ANT' 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 and until ANAHEIM has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from CONSULT ANT 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.
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 CONSULT ANT 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 termination.
CONSULTANT may not terminate this Agreement except for cause. 21 1 other term, covenant or condition contained herein, whether of the same or a different character. 2 3
28. INTEGRATED CONTRACT
This Agreement and the Exhibits hereto contain the entire agreement of 4 ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, 5 statement or promise made by either ANAHEIM or CONSULT ANT which is not contained 6 herein, shall be valid or binding. No prior agreement, understanding or representation pertaining 7 to any matters covered hereby shall be effective for any purpose. 8 9
29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and 10 the Exhibits, or any other attachments attached hereto, the terms of this Agreement shall govern. 11 12
30. INTERPRETATION
Each Party acknowledges that he/she/it has had the benefit of advice of competent 13 legal counsel with respect to its decision to enter this Agreement. The provisions of this 14 Agreement shall be interpreted to give effect to their fair meaning and shall be construed as 15 prepared by both Parties.
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31. AMENDMENTS
This Agreement may be modified or amended only by a written document 18 executed by both CONSULTANT and ANAHEIM and approved as to form by the ANAHEIM 19 City Attorney.
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32. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person 22 or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this 23 Agreement, or the application of its terms and provisions to persons and circumstances other 24 than those to which it has been held invalid or unenforceable shall not be affected thereby, and 25 each term and provision of this Agreement shall be valid and enforceable to the fullest extent 26 permitted by law.
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33. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be 23