PROFESSIONAL SERVICES AGREEMENT
By and Between the
CITY OF ANAHEIM
and
KIMLEY-HORN AND ASSOCIATES, INC.
TABLE OF CONTENTS
Page
Section 1. Status of Parties..................................................................................................... 1
1. 1 City.......................................................................................................................... 1
1.2 Consultant..................................................................................................... ......... 1 Section 2. Services of Consultant.......................................................................................... 2
2. 1 Description of Services.................................................................................,........^
2. 2 Services to be Provided As Required...................................................................... 2
2.4 Time for Performance............................................................................................ 2
2.5 Compliance with Law............................................................................................. 2
2. 6 Licenses, Permits, Fees and Assessments............................................................... 3
2.7 Nondiscrimination................................................................................................... 3
2. 8 Familiarity with Work............................................................................................. 3
2. 9 Additional Services................................................................................................. 3 Sections. Term....................................................................................................................... 3 Section 4. Compensation.......................................................................................................^
4. 1 Amount of Compensation....................................................................................... 4
4.2 Billing and Payment Procedures............................................................................^ Section 5. Coordination of Services...................................................................................... 4
5. 1 Representative of City.................................................................. ................ ......... 4
5.2 Representative of Consultant........................................................ ......................... 4
5.3 Prohibition Against Subcontracting and Assignments ................. ...... -....... ........ 5
5.4 Independent Contractor................................................................. ................ ........ 5 Section 6. Insurance and Indemnification............................................................................ 5
6. 1 Insurance................................................................................................................. 5
6.2 Indemnification....................................................................................................... 7 Section 7. Enforcement of Agreement.................................................................................. 8
7. 1 Events of Default.................................................................................................... 8
7. 2 Immediate Termination for Consultant's Default................................................... 8
7. 3 Termination Without Cause.................................................................................... 8 Section 8. Use and Ownership of Documents and Data...................................................... 9
8. 1 Data to be Furnished by City................................................................................. 9
8.2 Ownership of Documents ....................................................................................... 9 Section 9. Miscellaneous Provisions...................................................................................... 9
9. 1 Waiver....................................................................................................................^
9.2 Notices.........................,.........................................................................................^
9. 3 Relationship of Parties......................................................................................... 10
9.4 No Third Party Rights........................................................................................... 10
9.5 Non-Liability of Members, Officials and Employees of the City ........................ 10
9. 6 Controlling Law.................................................................................................... 10
9. 7 Time of the Essence.............................................................................................. 10
9. 8 Remedies Cumulative........................................................................................... 11
9.9 Effect of Invalidity............................................................................................... 11
9. 10 Successors and Assigns......................................................................................... 11
9. 11 Entire Agreement...................... ........................................................................... 11
9. 12 Authority............................................................................................................. 11
9. 13 Conflicts of Interest............................................................................................. 11
9. 14 Time for Acceptance of Agreement by City................................ ........................ 12
9. 15 Conflicts or Inconsistencies.................................................................................. 12
9. 16 Effective Date....................................................................................................... 12
EXHIBITS
Exhibit A Scope of Services
Exhibit B Schedule of Compensation
11 PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is made and entered into as of July 1, 2025 (the "Effective Date"), by and between CITY OF ANAHEIM, a public body, corporate and politic (the "City"), A
N
D
KIMLEY-HORN AND ASSOCIATES, INC., a California corporation (the "Consultant").
RECITALS
A. On March 28, 2025, the City issued a Request for Proposals (the "RFP") seeking proposals from qualified firms to provide the Planning and Building Services Division with On- Call Professional Services for Environmental Review related to the preparation of documents pursuant to the requirements of the California Environmental Quality Act (CEQA). A copy of the RFP is on file in the office of the Planning and Building Director of the City of Anaheim and is incorporated herein by this reference.
B. Consultant submitted a response dated April 25, 2025 (the "Proposal") to respond to the City's need, which Proposal is on file in the office of the Planning and Building Director and is incorporated herein by this reference.
C. The City and Consultant (each, a "Party" and jointly, the "Parties") desire to enter into an agreement pursuant to which the Consultant will provide the Services as requested by the City.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE CITY AND THE CONSULTANT AGREE AS FOLLOWS:
Section 1. Status of Parties.
1. 1 City. The Consultant acknowledges that the City is a municipal corporation formed and operating pursuant to a freeholders charter.
1.2 Consultant. Consultant represents that Consultant is a California corporation, formed and in good standing under all applicable laws.
Section 2. Services of Consultant.
2. 1 Description of Services. In compliance with all of the terms and conditions of this Agreement, Consultant shall provide the Services, as more fully set forth in the "Scope of Services," attached hereto as Exhibit A and incorporated herein by this reference (the "Services").
Consultant represents and warrants that all Services to be provided hereunder shall be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services.
2.2 Services to be Provided As Required. Consultant acknowledges and agrees that City shall request that Consultant provide the Services on an "as required" basis and that City does not guaranty a minimum number of hours for which Consultant's services shall be requested and required hereunder. Consultant further acknowledges and agrees that this Agreement and any request for the provision of services hereunder is nonexclusive and that the City may enter into similar agreements with other entities for the provision of similar services.
2.3. The Contract Documents and Order of Precedence. The contract documents consist of this document, the RFP and the Proposal. The RFP and the Proposal are deemed to be a part of this Agreement by reference, hi the event of any inconsistencies, discrepancies or conflicts among or between any of the contract documents which make up this Agreement, the following shall control:
(a) Any duly executed amendment to this Agreement, with execution date to control as between conflicting amendments such that the more recent amendment shall govern all those prior;
(b) This Agreement (including the Exhibits);
(c) The RFP; and, then,
(d) The Proposal.
2.4 Time for Performance. Time is of the essence in the performance of this Agreement. Consultant shall perform and complete all services as may be requested pursuant to Section 2. 2 hereof in a timely and expeditious manner. Consultant shall perform such services in accordance with those schedules which Consultant and the City may mutually agree to as to any particular study, job or analysis.
Consultant shall not be responsible for delays caused by circumstances beyond its reasonable control, provided that Consultant has delivered to the City written notice of the cause of any such delay within ten (10) days of the occurrence of such cause.
2.5 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of Anaheim and any Federal, State or local governmental City of competent jurisdiction.
2.6 Licenses, Permits, Fees and Assessments. Consultant shall obtain, at Consultant's sole cost and expense, such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for the performance of the Services required by this Agreement.
2.7 Nondiscrimination. Consultant agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry or national origin in its provision of services. 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.
2. 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 the Consultant discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by the City, Consultant shall iinmediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City.
2.9 Additional Services. Consultant shall provide Services in addition to those specified in the Description of Services when directed to do so in writing by the City, provided that Consultant shall not be required to provide any such additional Services without compensation.
Section 3. Term. This Agreement shall be for a term (the "Term") commencing on July 1, 2025, and terminating on June 30, 2030 (the "Temi Expiration Date"), subject to earlier termination as provided in Sections 6. 1.4 and 7 hereof. (a) The rates and charges set forth in the Proposal shall remain valid and in effect from the Effective Date of this Agreement to and including June 30, 2026. Thereafter, any proposed adjustment to Consultant's rates and charges shall be submitted to the Planning Director, in writing, not more frequently than annually and no later than sixty (60) days prior to the end of each fiscal year during the Term. No adjustment request shall be accepted by the City unless timely submitted in writing. No adjustment to rates and charges during the Term shall become effective without the prior written approval of the Planning Director. Failure to agree upon any proposed increase of rates and charges during the Temi shall be cause to terminate the Agreement. (b) The City's obligation to pay the sum herein stated for any one fiscal year (or portion thereof) shall be contingent upon the City Council appropriating the necessary fimds for such payment by the City in each fiscal year during the term of this Agreement, as the same may be extended. In the event that the City Council fails to appropriate the necessary funds for any fiscal year (or portion thereof), then, and in that event, the City, acting through its Planning Director, may terminate this Agreement by giving written notice to the Consultant specifying the date of termination. Should the City terminate this Agreement, the City shall pay the Consultant for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this Agreement.
Section 4. Compensation.
4. 1 Amount of Compensation. It is understood by and agreed between the Parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement, including sub-consultant fees, if any, and reimbursable expenses, shall not exceed ONE MILLION DOLLARS AND N0100 ($1, 000, 000) ("Maximum Compensation"), without the prior written authorization of City. City agrees to pay, and Consultant agrees to accept, as full compensation for Consultant's services, compensation at the hourly rates for the positions shown on Exhibit B attached hereto and incorporated by this reference herein.
4.2 Billing and Payment Procedures. Consultant shall present monthly itemized invoices for Services performed during the previous monthly period to the City. Each invoice shall state the date the Services were provided and the number of hours spent providing the Services. If requested by the City, Consultant shall present additional documentation evidencing the provision of Services satisfactory to the City. The City agrees to approve or disapprove Consultant's invoice and/or additional documentation, as the case may be, within ten (10) days after the City's receipt of the invoice and/or additional documentation. The City agrees to pay the Consultant for work satisfactorily performed and expenses properly incurred within thirty (30) days after the City's approval of a statement from the Consultant describing such work and expenses. The City shall not be responsible to pay Consultant for any Services or expenses in excess of the Maximum Compensation. Consultant shall notify City in writing when seventy-five percent (75%) of the Maximum Compensation has been reached in any fiscal year during the Term of this Agreement.
Section 5. Coordination of Services.
5.1 Representative of City. The City's Planning and Building Director, or such person's designee, (the "Director") shall represent the City in all matters pertaining to this Agreement. Whenever a reference is made herein to an action or approval to be undertaken by the City, the Director is authorized to act unless this Agreement specifically provides otherwise or the context should otherwise require.
5.2 Representative of Consultant. Dana Privitt is hereby designated as being the principal and representative of Consultant authorized to act on Consultant's behalf with respect to the services and work to be provided hereunder and make all decisions in connection therewith.
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal are a substantial inducement for the City to enter into this Agreement.
Therefore, the foregoing principal shall be responsible during the Term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the provision of Services hereunder. The foregoing principal may not be changed by Consultant and no other persomiel may be assigned to supervise the Services to be provided hereunder without the express written consent of the City.
5.3 Prohibition Against Subcontracting and Assignments. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assignable or transferable or encumbered in any way without the prior written consent of City. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to City. This is a personal services contract and the Consultant was chosen on the basis of characteristics unique to the Consultant. City shall have the right to unreasonably or arbitrarily withhold its consent to any such assignment, transfer, encumbrance, pledge, subuse, or permission.
5.4 Independent Contractor. Consultant and any agent or employee of Consultant shall act in an independent capacity and not as officers or employees of City. City assumes no liability for Consultant's actions and perfonnance, nor assumes responsibility for taxes, bonds, payments, or other commitments, implied or explicit, by or for Consultant. Consultant shall not have authority to act as an agent on behalf of City unless specifically authorized to do so in writing.
Consultant acknowledges that it is aware that because it is an independent contractor. City is making no deduction from any amount paid to Consultant and is not contributing to any fund on its behalf. Consultant disclaims the right to any fee or benefits except as expressly provided for in this Agreement.
As respects all acts or omissions of Consultant relating to Consultant's responsibility for taxes, bonds, payments, or other commitments, implied, or explicit, by or for Consultant, the Consultant agrees to indemnify, defend (at the City's option), and hold harmless the City, its officers, agents, employees, representatives, and volunteers from and against any and all claims, demands, defense costs, liability, or consequential damages of any kind or nature arising out of or in connection with the Consultant's performance or failure to perform under this Section.
Section 6. Insurance and Indemnification.
6. 1 Insurance. Without limiting City'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:
6.1.1 Required Insurance Coverage. Consultant shall secure and maintain the following insurance coverage:
(a) Workers' Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1, 000, 000 and must include a Waiver of Subrogation.
(b) Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Contractor's Liability (if applicable), in an amount not less than $2,000, 000 per occurrence, $4, 000, 000 annual aggregate. Any deductible or self-insured retention in excess of $10,000 must be disclosed to City, in writing, at the inception of this Agreement and is subject to the acceptance of the City's Risk Manager. (c) Commercial/Comprehensive Automobile Liability Coverage, as required by California law, including-as applicable-owned, non-owned, and hired autos, in an amount not less than $2, 000, 000, combined single limit. (d) Professional Liability, inclusive ofCyber Liability, in an amount not less than $2,000,000, and Consultant shall maintain such coverage for at least one (1) year from termination of this Agreement. Any deductible or self-insured retention in excess of $10,000 must be disclosed to City, in writing, at the inception of this Agreement and is subject to the acceptance of the City's Risk M^anager.
Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by City's Risk Manager prior to the inception of the final Agreement.
6. 1.2 Cancellation Notice. Consultant agrees that each insurance policy required by this Agreement shall not be voluntarily cancelled or otherwise limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City ofAnaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium which shall provide for not less than ten (10) days' notice.
6. 1.3 Required Clauses in Policies. Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions:
"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 ofAnaheim." "The City of Anaheim, its officers, agents, employees,
representatives and City -designated volunteers are added as additional insureds 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 ofAnaheim."
6. 1.4 Required Certificates and Endorsements. Prior to commencing any work under this Agreement, Consultant shall deliver to City 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 City: (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation acceptable to City evidencing that the coverage, terms, and conditions 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 California; (ii) possessing an A. M. Best's rating of A VII or higher; or (iii) otherwise acceptable to City, with prior written permission from City. In the event that a claim or other legal action is filed against City, and if City, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then City 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 shall not apply if the Parties agree that Consultant shall fully defend, hold harmless, and indemnify City against any such claim or other legal action.
6. 1.5 Remedies for Default Re: Insurance. In addition to other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required. City may, at its sole option:
(a) Order Consultant to stop work under this Agreement and/or withhold any payment(s) which become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof; or; (b) Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies City may have and is not the exclusive remedy for Consultant's failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be constmed as limiting in any way the extent to which Consultant may be held responsible for payments of damages to persons or property resulting from Consultant's (or Consultant's contractors/subcontractor, if any) performance of the work covered under this Agreement, provided, however, that in no event shall Consultant's liability to City under this provision exceed the greater of (i) the total amount of the fees paid to Consultant for such work or services, or (ii) the amount of valid and collectible insurance carried by, maintained by, or otherwise available to Consultant (or Consultant's professional staff, contractors, or sub-contractors), which is applicable to any claim, loss, costs, defense, or liability arising out of this agreement.
In the event Consultant hires other persons or firms to perform some of the work related to this Agreement, Consultant shall ensure, and certify to City in writing that: (i) the acts or omissions of such persons or firms are covered under the above-referenced liability insurance; or (ii) 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 which are not performing professional services-such finns 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 City.
City's Risk Manager is hereby authorized to amend or reduce the requirements set forth herein in the event such reduction is in City's best interest.
6.2 Indemnification. As respects acts, errors or omissions in the performance of professional services, Consultant agrees to indenmify and hold harmless City, 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 Consultant's (or Consultant's contractors' or subcontractors', if any) negligent acts, errors or omissions in the performance of professional services under this Agreement, except those matters arising out of the sole negligence or willful misconduct of the City. As respects all acts, errors or omissions which do not arise directly out of 7 the performance of professional services, including but not limited to those acts, errors or omissions typically covered by ISO-based general and automobile liability insurance coverage, Consultant agrees to indemnify, defend (at City 's option), and hold harmless City, its officials, officers, employees, agents, and representatives 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 Contractor's contractors' or subcontractors', if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of City.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not City, 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.
City's Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such amendment is in City's best interest.
Section 7. Enforcement of Agreement.
7. 1 Events of Default. For purposes of this Section 7, 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 temis 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, tmstee or liquidator for all or a substantial portion of its assets, (ii) making a general assignment for the benefit of creditors, (iii) being adjudged bankmpt, (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing), or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Consultant's assets or of Consultant's interests hereunder.
City shall not be deemed to be in Default in the performance of any obligation required to be performed by City hereunder unless and until City 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 failiire; provided, however, that if the nature of City's obligation is such that more than thirty (30) days are required for its performance, then City shall not be deemed to be in Default if City shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
7.2 Immediate Termination for Consultant's Default. In the event of any Default by Consultant, City may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by Consultant of written notice from City. In such event, Consultant shall have no ftirther rights hereunder; City shall have all other rights and remedies as provided by law.
7.3 Termination Without Cause. Either City or Consultant may terminate this Agreement at any time without the necessity of cause or Default by the other Party by giving fifteen (15) days' notice in writing to the other Party. In such event, the Parties shall have no further rights hereunder, except that Consultant shall be paid for all Services rendered prior to such termination.
Section 8. Use and Ownership of Documents and Data.
8.1 Data to be Furnished by City. City shall furnish to Consultant such documents and materials as may be relevant and pertinent to the provision of Services hereunder as City may possess or acquire.
8.2 Ownership of Documents. All documents and materials furnished by the City to Consultant pursuant to Section 8. 1 hereof shall remain the property of the City and shall be returned to the City upon termination of this Agreement. All documents and materials prepared by Consultant hereunder shall become the property of the City at the time of payment to Consultant of all fees and expenses for their preparation, and shall be delivered to the City by Consultant at the request of the City. The documents and materials prepared by Consultant hereunder shall not be used by the City or others, except for the purpose for which they were intended. The City agrees not to associate Consultant's name with any documents or materials not prepared by Consultant.
Section 9. Miscellaneous Provisions.
9. 1 Waiver. Inaction by City or Consultant with respect to a Default hereunder shall not be deemed to be a waiver of such Default. The waiver by either City or Consultant of any Default hereunder shall not be deemed to be a waiver of any subsequent Default.
9.2 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 City 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 registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to City:
With copies to:
Planning and Building Director
City of Anaheim
200 S. Anaheim Boulevard, 1st Floor
Anaheim, California 92805
FAX No. (714) 765-5280
City Clerk
200 S. Anaheim Boulevard, 2nd Floor
CityofAnaheim
Anaheim, California 92805
FAX No. (714) 765-4105
To Consultant:
City Attorney
CityofAnaheim
200 S. Anaheim Boulevard, 3rd Floor
Anaheim, California 92805
FAX No. (714) 765-5123
Kimley-Hom and Associates, Inc.
Attn: DanaPrivitt
1100 W. Town & Country Road, Suite 700
Orange, CA 92868
TEL. : (714) 949-1030
9.3 Relationship of Parties. Nothing contained herein shall be deemed or construed by the Parties, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that Consultant is and will be at all times an independent contractor pursuant to this Agreement and shall not, in any way, be considered to be an officer, agent or employee of the City.
9.4 No Third Party Rights. 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.
9.5 Non-Liability of Members, Officials and Employees of the City. No member, official or employee of the City shall be personally liable to Consultant, or any successor in interest, in the event of any Default or breach by the City or for any amount which may become due to Consultant or Consultant's successors, or on any obligation under the terms of this Agreement. Consultant hereby waives and releases any claim Consultant may have against the members, officials or employees of the City with respect to any Default or breach by City or for any amount which may become due to Consultant or Consultant's successors, or any obligations under the terms of this Agreement. Consultant makes such release with the full knowledge of Civil Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTD<JG
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR."
9.6 Controlling Law. This Agreement shall be governed by and constmed in accordance with the laws of the State of California.
9.7 Time of the Essence. Time is hereby expressly declared to be the essence of this Agreement and of each and every term, covenant and condition hereof which relates to a date or a period of time.
10 9.8 Remedies Cumulative. The remedies given to City and Consultant herein shall be cumulative and are given without impairing any other rights given City or Consultant by statute or law now existing or hereafter enacted and the exercise on any one (1) remedy by City or Consultant shall not exclude the exercise of any other remedy.
9.9 Effect of Invalidity. If any tenn or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be 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.
9.10 Successors and Assigns. This Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the successors and assigns of City and to the permitted successors and assigns of Consultant, and all references to "City" or "Consultant" shall be deemed to refer to and include all permitted successors and assigns of such Party.
9. 11 Entire Agreement. This Agreement and the exhibits hereto contain the entire agreement of the City and the Consultant with respect to the matters covered hereby, and no agreement, statement or promise made by either City 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. No provision of this Agreement may be amended, modified or added except by an agreement in writing signed by City and Consultant.
9. 12 Authority. Each individual executing this Agreement on behalf of a corporation, 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 City's request, deliver a certified copy of its governing board's resolution or certificate authorizing or evidencing such execution.
9. 13 Conflicts of Interest. 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 Services 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 other requirements of the Act that maybe applicable. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by Anaheim.
Consultant's Services under this Agreement may now or in the fuhire involve participation in governmental decision-making processes such that Ajaaheim deems it necessary to designate one or more of Consultant's employees a filer of a Statement of Economic Interests ("Form 700 Filer") under the Act. Anaheim shall make such designations based on the nature and scope of the Services and requirements of the Act. If Consultant's employee(s) is designated a 11 Form 700 Filer, such employee(s) shall file under Disclosure Category 1, unless otherwise directed by Anaheim, and shall periodically complete ethics training as required by Anaheim. Consultant shall at its own cost and expense ensure such employee's compliance with these filing and ethics- training requirements.
9. 13.1 Consultant represents that neither it nor any of its officers, partners or employees has a financial interest, as defined in section 87103 of the Government Code, in the subject matter of this Agreement other than the right to receive payment from City services rendered.
9.13.2 Consultant agrees that it shall not make, participate in making, nor in any way attempt to use its position as consultant to influence any decision of City 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.
9.13.3 Consultant warrants that neither Consultant nor any of its officers, partners or employees, has any financial interest in any real property, building or stmcture 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 City any financial interest in such property as may be acquired by its officers, partners or employees during the term of this Agreement.
9. 13. 4 In conformity with the conflict of interest code of City, Consultant or, if Consultant is a firm or corporation, each individual who will be performing work under this Agreement shall complete, under penalty of perjury, a Statement of Economic Interests (From 700) and all required attachments and shall provide the originals thereof to the City Clerk. Copies of those completed forms and attachments shall be public records of City, to be kept and disclosed at the discretion of City and according to law. Consultant and individuals who will be performing work under this Agreement shall disclose pursuant to the broadest disclosure category unless the City Manager (or his or her designee) makes a written determination that the foregoing should be more limited. Such written determination should be made in the manner required by the City's Conflict of Interest Code.
9. 14 Time for Acceptance of Agreement by City. This Agreement, when executed by Consultant and delivered to City, must be authorized, executed and delivered by the City on or before forty-five (45) days after the execution and delivery by Consultant or this Agreement shall be void, except to the extent that Consultant and City shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement.
9. 15 Conflicts or Inconsistencies. It is further expressly agreed by and between the parties hereto that, should there be any conflict between the terms of this Agreement and any of the exhibits or attachments hereto, this Agreement shall control and nothing herein shall be considered as an acceptance of the said tenns of said exhibits or attachments conflicting herewith.
9. 16 Effective Date. This Agreement shall be effective on the Date of Agreement. [SIGNATURES BEGIN ON NEXT PAGE]
12 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS
AGREEMENT ON THE RESPECTIVE DATES SET FORTH BELOW.
"CITY"
Dated:
ATTEST:
THERESA BASS, CITY CLERK
City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
Leonie Mulvihill
Assistant City Attorney
155415/LHM/155534
CITY OF ANAHEIM,
a municipal corporation and charter city
By
Heather Alien
Director of the Planning and Building
Department
"CONSULTANT"
KIMLEY-HORN AND ASSOCIATES, INC.
By
Steven E. Lefton, Chief Executive Officer
13 ACKNOWLEDGEMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of
)
On , before me,
[date] [here insert name and title of the officer]
personally appeared
[here insert name(s) ofsigner(s)]
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instmment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/ies, and that by his/her/their signature(s) on the instmment the person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is tme and correct.
Witness my hand and official seal.
(Signature) (Seal)
EXHIBIT A
SCOPE OF SERVICES
On-Call Professional Services for Environmental Review related to the preparation of documents pursuant to the requirements of California Environmental Quality Act (CEQA) including the following:
. Environmental Impact Reports (E!K)
. Initial Studies/I^titigated Negative Declarations (IS/MND) . Addenda to the above documents
. Checklists to support the use of a previously-certified EIR or previously-approved IS/MND . Checklists to support a Class 32 Exemption or any Streamlining Exemptions permitted pursuant to Sections 15182-15183.3 of the CEQA Guidelines . Technical Studies in support of the above documents
. Health Risk Assessments and Noise Analysis of the surrounding environment's impact on a proposed project, not otherwise required by CEQA
. Peer Review of the above documents
. Provide services to the City on a project-by-project basis primarily for private development projects reviewed by the City.
No specific project is included in this scope of services, and services will be provided on an as- needed basis. Consultants may be requested to provide professional specialized consulting services to the Planning and Building Department for the preparation of Environmental Documents, primarily for, but not exclusively related to, the review of proposals for private development projects.
Consultants shall furnish all services, materials, supplies, labor, and studies in connection with the work described in this Scope of Services. Services will be in compliance with all applicable laws, including federal, state, and local, as well as City policies.
Exhibit A
EXHIBIT B
SCHEDULE OF COMPENSATION
(following this page)
Exhibit B
Kimley>»Horn
Kimley-Horn and Associates, Inc.
Hourly Labor Rate Schedule
Classification
Analyst
Professional
Senior Professional I
Senior Professional II
Senior Technical Support
Support Staff
Technical Support
Rate
$165-$250
$235 - $300
$260 - $360
$345 - $380
$160-$285
$110-$150
$125-$155
Internal Reimbursable Expenses will be charged at 5% of Labor Billings External Reimbursable Expenses will be charged at 15% mark-up, or per the Contract Sub-Consultants will be billed per the Contract
kimley-horn. com 1100 W. Town & Country Road, Suite 700, Orange, CA 92868 BROOPRPST. A. CCT
714-393-1030
ROCKS
BIOLOGICAL CONSULTING
CITY OFANAHEIM ON-CALL PROFESSIONAL SERVICES FOR ENVIRONMENTAL REVIEW
PROPOSAL RATE SHEET
Dated April 2025
TITLE
Biology Staff
Principal Biologist
Project Manager/Senior Biologist II
Project Manager/Senior Biologist I
Senior Biologist II
Senior Biologist I
Associate Biologist III
Associate Biologist II
Associate Biologist I
Staff Biologist II
Staff Biologist I
Aquatic Regulatory Staff
Principal/Lead Regulatory Specialist
Senior Aquatic Regulatory Specialist II
Senior Aquatic Regulatory Specialist I
Associate Aquatic Regulatory Specialist II
Associate Aquatic Regulatory Specialist I
Staff Aquatic Regulatory Specialist
Other Staff
Senior GIS Specialist
CIS Specialist
Technical Editor II
Technical Editor I
Contract Administrator
Publications Specialist
RATE
$207
$191
$176
$171
$160
$140
$129
$119
$114
$104
$228
$202
$186
$155
$140
$119
$166
$129
$135
$114
$98
$93