A G R E E M E N T
THIS AGREEMENT, dated for purposes of identification only this _____ day of __________, 2025, is made and entered into by and between the
CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
A
N
D
_________________, a ___________________,
hereinafter referred to as "CONSULTANT."
ANAHEIM and CONSULTANT are sometimes individually referred to herein as "Party" and collectively as "Parties."
W I T N E S S E T H:
WHEREAS, ANAHEIM is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and
WHEREAS, ANAHEIM desires to obtain the services of a consulting firm for inspection, management and close out activities, or any other services as may be needed, on an as- needed basis for ANAHEIM 's Public Works Department 's Construction Services Division's projects and programs, as described in the Request for Proposal ("RFP") issued by ANAHEIM on ___________________; and
WHEREAS, CONSULTANT possesses the skill, experience, ability, background, certification and knowledge to provide the services for the Project as described in this Agreement; and
WHEREAS, ANAHEIM has solicited and received a proposal from CONSULTANT dated __________________ ("Proposal"), has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to retain CONSULTANT to render professional services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
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2 1. SERVICES TO BE PROVIDED BY CONSULTANT
In compliance with all of the terms and conditions of this Agreement, CONSULTANT shall provide professional consulting services to support ANAHEIM's Department of Public Work's (the "Department") Construction Services Division's project s including but not limited to inspection, management and close out activities, or any other services as may be needed, on an as -needed basis, and the Department's other projects and programs as directed by the Director or his or her designee ("Services"). The Services are more particularly described in the CONSULTANT’s Proposal and in the RFP, copies of both of which are available in the Department of Public Works upon request and both of which are incorporated herein by this reference ("Scope of Services"). ANAHEIM reserves the right to modify the Scope of Services in its sole discretion.
When CONSULTANT's Services are required, ANAHEIM will issue a Request for Work Order Proposal ("RFWOP") for a specific project, including a specific scope of work, schedule for completion of the project, ANAHEIM’s project manager’s name, and other information specific to that RFWOP. CONSULTANT shall submit, within the time stated in the RFWOP, a sealed Work Order Proposal indicating the cost, completion schedule, and other information requested in that RFWOP. If CONSULTANT elects not to submit a Work Order Proposal in response to the RFWOP, it shall so indicate in writing to ANAHEIM within the time stated in the RFWOP for response. ANAHEIM will open the responsive proposal(s) at the time and place stated in the RFWOP. Selection of the firm to complete the specific project requested in the RFWOP shall be based on the criteria set forth therein.
In the event of conflicting provisions, the provisions shall govern in the following order: (1) the Notice to Proceed; (2) the RFWOP; (3) CONSULTANT’s Work Order; (4) this Agreement; (5) the RFP; and (6) CONSULTANT's Proposal.
2. TERM
The term of this Agreement shall commence on the date this Agreement is executed by ANAHEM and shall terminate on June 30, 2027, unless terminated sooner as provided herein ("Term").
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of th is Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by CONSULTANT to perform the Services in a diligent and timely manner may result in termination of this Agreement by ANAHEIM.
3.2 The time period(s) specified for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of CON SULTANT, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabotage, restraint by court order or public authority and action or non- action by or inability to obtain the necessary
3 authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including ANAHEIM, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if CONSULTANT shall within ten (10) days of the com mencement of such delay notify the Project Administrator in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, CONSULTANT's sole remedy shall be an extension of this Agreement pursuant to this Section and CONSULTANT shall not be entitled to recover damages against ANAHEIM.
4. COMPENSATION
4.1 ANAHEIM shall pay CONSULTANT for services rendered pursuant to this Agreement in accordance with the lump sum fee offered in response to a RFWOP or the CONSULTANT's hourly rate schedule, a copy of which is attached and incorporated as part of Exhibit "A".
The Director is hereby authorized to exercise the options on behalf of ANAHEIM if budget appropriations are made therefor. Notwithstanding the foregoing, and consistent with the debt limitation provisions of the California Constitution, ANAHEIM may terminate this Agreement after its initial year if the ANAHEIM City Council fails or refuses to appropriate moneys therefor.
4.2 The Parties understand and agree that each RFWOP will request, and each Work Order Proposal will provide, the CONSULTANT rate sheet and a total not-to-exceed amount for the Services described in the RFWOP. CONSULTANT shall invoice ANAHEIM for the Services rendered pursuant to this Agreement in accordance with the Work Order Proposal or applicable hourly rates and other costs set forth in CONSULTANT's rate sheet, up to the not-to- exceed amount provided in the Notice to Proceed. CONSULTANT and ANAHEIM agree that no changes to the rates set forth in CONSULTANT's rate sheet shall be made without the prior written approval of ANAHEIM.
4.3 If a Work Order provides for the reimbursement of expenses, ANAHEIM shall reimburse CONSULTANT f or only those out -of-pocket expenses set forth in the Work Order. Reimbursable expenses invoiced to ANAHEIM shall not exceed any cap on reimbursable expenses set forth in the Work Order unless the additional reimbursable expenses are first approved in writing by ANAHEIM.
4.4 CONSULTANT shall submit monthly invoices to ANAHEIM describing the work performed the preceding month. CONSULTANT's bills shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. ANAHEIM shall pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff.
4 4.5 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of ANAHEIM, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget.
ANAHEIM does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to ANAHEIM in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on items delivered, services provided, monies paid and monies due.
4.6 CPI Increase. Upon the first anniversary of the Effective Date, as defined in Section 39, and upon each anniversary of the Effective Date thereafter, CONSULTANT may submit a request for adjustment of rates for the City’s approval, as set forth in the Schedule of Compensation, and shall be adjusted in proportion to changes in the Consumer Price Index. Such adjustment shall be made by multiplying CONSULTANT’s hourly rates set forth in the Schedule of Compensation by a fraction, the numerator of which is the value of the Consumer Pri ce Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month immediately prior to the Effective Date. For example, if the adjustment is to occur effective June 1, 2025, the index to be used for the numerator is the index for the month of March 2025 and the index to be used for the denominator is the index for the month of March preceding the Effective Date. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index.
For labor classifications that fall under prevailing wage rate law only , as an alternative to the rate increase per CPI described above, CONSULTANT’s hourly rates, as set forth in the Schedule of Compensation, may be adjusted in proportion to changes in the DIR prevailing wage rate increase.
5. PROJECT MANAGER
5.1 CONSULTANT shall designate a Project Manager, who shall coordinate the Services. This Project Manager shall be available to ANAHEIM at all reasonable times during the Term of this Agreement. CONSULTANT has designated _______________ to be its Project Manager. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Project Manager is a substantial inducement for ANAHEIM to enter into this Agreement. Therefore, the foregoing Project Manager 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 Project Manager may not be changed by CONSULTANT and no other personnel may be assigned to supervise the Services to be provided hereunder without the express written consent of ANAHEIM.
5.2 Any personnel or subconsultant, if any, who fail or refuse to perform the Services in a manner acceptable to ANAHEIM, or who are determined by ANAHEIM, in its sole
5 discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, or a threat to the safety of persons or property, shall be promptly removed from the Project by CONSULTANT at the request of ANAHEIM. CONSULTANT warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. The employees of the Public Works Department shall be authorized to take the following actions pursuant to this Agreement:
(i) The Director of Public works is authorized to take any and all actions on behalf of ANAHEIM as set forth herein and to terminate services in accordance with Section 25 of this Agreement.
(ii) The Contract Administrator is authorized to take those specific actions set forth herein and review and approve all Services performed by CONSULTANT under this Agreement, including any revisions to billing rates as further described in Section 4.5 above. The Contract Administrator shall not be authorized to terminate Services under this Agreement.
7. STANDARD OF CARE
7.1 CONSULTANT shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. CONS ULTANT represents and maintains that it is skilled in the professional calling necessary to perform the Services. CONSULTANT warrants that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work, CONSULTANT certifies that the work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the professional standard of care.
7.2 CONSULTANT represents and warrants to ANAHEIM that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of CONSULTANT to pr actice its profession. CONSULTANT shall maintain a City of Anaheim business license during the term of this Agreement.
8. FAMILIARITY WITH WORK
By executing this Agreement, CONSULTANT represents and warrants that CONSULTANT: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement.
Should CONSULTANT discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by ANAHEIM, CONSULTANT shall immediately inform ANAHEIM of such fact and shall not proceed except at CONSULT ANT's risk until written instructions are received from ANAHEIM.
6 9. INDEPENDENT CONTRACTOR
9.1 Neither ANAHEIM nor any of its employees shall have any control over the manner, mode or means by which CONSULTANT, its agents or employees, perform the services required herein, except as otherwise set forth herein. Except as expressly provided herein, ANAHEIM shall have no voice in the selection, discharge, supervision or control of CONSULTANT's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. CONSULTANT shall perform all services required herein as an independent contractor of ANAHEIM and shall remain at all times as to ANAHEIM a wholly independent contractor with only such obligations as are consistent with that role. CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are 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.
9.2 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 agrees that it shall not sue or file a claim, petition or application therefor e against ANAHEIM or any of its offi cers, employees, agents, representatives or sureties.
10. INSURANCE
10.1 Without limiting ANAHEIM’s right to indemnification, it is agreed that CONSULTANT shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, 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 and must include a Waiver of Subrogation
.02 Commercial General Li ability 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 ANAHEIM, in writing, at the inception of this Agreement and is subject to the acceptance of the City’s Risk Manager. .03 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.
.04 Professional Liability, inclusive of Cyber Liability, in an amount not less than $2,000,000, and CONTRACTOR 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 ANAHEIM, in writing, at the inception of this Agre ement and is subject to the acceptance of the City’s Risk Manager.
7 10.2. CONTRACTOR 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 of Anaheim, 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.
10.3. Each insuranc e policy required by this Agreement, excepting policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
.01 “It is agreed that any insurance maintained by CONSULTANT, pursuant to this Agreement, shall be primary to, and not contribute with, any insurance or self - insurance maintained by the City of Anaheim.”
.02 “The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM-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 of Anaheim.”
10.4. Prior to commencing any work under this Agreement, CONTRACTOR 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, CONTRACTOR shall provide ANAHEIM: (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation accepta ble to ANAHEIM 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 ANAHEIM, with prior written permission from ANAHEIM. In the event that a claim or other legal action is filed against ANAHEIM, and if ANAHEIM, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then ANAHEIM has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that CONSULTANT shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action.
10.5. In addition to other remedies ANAHEIM may have if CONTRACTOR fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, ANAHEIM may, at its sole option:
.01 Order CONTRACTOR to stop work under this Agreement
and/or withhold any payment(s) which beco me due to CONTRACTOR hereunder until CONTRACTOR demonstrates compliance with the requirements hereof; or .02 Terminate this Agreement.
8 Exercise of any of the above remedies, however, is an alternative to other remedies ANAHEIM may have and is not the ex clusive remedy for CONTRACTOR’s failure to maintain insurance or secure appropriate endorsements.
10.6. In the event CONTRACTOR hires other persons or firms to perform some of the work related to this Agreement, CONTRACTOR shall ensure, and certify to ANAHEIM 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 CONTRACTOR under this Agreement (except for firms which are not performing professional services-such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, CONTRACTOR shal l provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
10.7. ANAHEIM’s Risk Manager is hereby authorized to amend or reduce the requirements set forth herein in the event such reduction is in ANAHEIM’s best interest.
11. INDEMNIFICATION
11.1 As respects acts, errors or omissions in the performance of professional services, CONTRACTOR agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, to the extent arising directly out of CONTRACTOR’s (or CONTRACTOR’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.
11.2. As respects all acts, errors or omissions which do not arise directly out of 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, CONTRACTOR agrees to indemnify, defend (at ANAHEIM's option), and hold harmless ANAHEIM, its officials, officers, employees, a gents, 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 CONTRACTOR’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 ANAHEIM..
11.3. The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAHEIM, CONTRACTOR, 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.
12. PREVAILING WAGES
Where required pursuant to the provisions of the State of California Labor Code or the Davis Bacon Act, not less than the general prevailing rate of per diem wages including legal holidays, and overtime work for each craft or t ype of workman needed to execute the work
9 contemplated under this Agreement, shall be paid to all workmen employed on the work to be done according to this contract by CONSULTANT or any approved Subcontractor, and shall be deemed to include employer payments for health and welfare, pension, vacation and similar purposes. If both the Davis-Bacon Act and State of California prevailing wage laws apply and the federal and state prevailing rate of per diem wages differ, CONSULTANT and Subcontractor, if any, shall pay the higher of the two rates. Said prevailing rate of per diem wages are on file at the City of Anaheim, Office of the City Clerk, 200 South Anaheim Boul evard, Anaheim, California 92805, and are available to any interested party on request.
13. PROGRESS
CONSULTANT is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been sc heduled or are desired.
14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to ANAHEIM for entering into this Agreement is the professional reputation, experience and competence of CONSULTANT.
Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of ANAHEIM. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to ANAHEIM. If ANAHEIM approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of CONSULTANT.
15. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of ANAHEIM. CONSULTANT shall be fully responsible to ANAHEIM for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between ANAHEIM and subcontractor nor shall it create any obligation on the part of ANAHEIM to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. ANAHEIM is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and ANAHEIM pursuant to this Agreement.
16. USE AND OWNERSHIP OF DOCUMENTS AND DATA
16.1 ANAHEIM shall furnish to CONSULTANT such documents and materials as may be relevant and pertinent to the provision of services hereunder as ANAHEIM may possess or acquire.
16.2 All documents and materials furnished by ANAHEIM to CONSULTANT pursuant to Section 16.1 shall remain the property of ANAHEIM and shall be returned to
10 ANAHEIM upon termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by CONSULTANT, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of ANAHEIM, and ANAHEIM shall have the sole right to use such materials in its discretion without further compensation to CONSULTANT or any other party. CONSULTANT shall, at CONSULTANT's sole cost and expense, provide such documents and material to ANAHEIM upon prior written request.
Documents and material prepared by CONSULTANT pursuant to this Agreement are not intended or represented to be suitable for reuse by ANAHEIM or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from CONSULTANT will be at ANAHEIM's sole risk and without liability to CONSULTANT. Further, any and all liability arising out of changes made to CONSULTANT's deliverables under this Agreement by AN AHEIM or persons other than CONSULTANT, is waived against CONSULTANT and ANAHEIM assumes full responsibility for such changes unless ANAHEIM has given CONSULTANT prior notice and has received from CONSULTANT written consent for such changes.
17. CONFIDENTIALITY
All documents, including drafts, preliminary drawings or plans, notes, ideas and communications that result from the Services provided under this Agreement, shall be kept confidential by CONSULTANT unless ANAHEIM authorizes, in writing, the release of said information.
18. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT shall defend and indemnify ANAHEIM, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to ANAHEIM pursuant to this Agreement.
19. RECORDS
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to ANAHEIM, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT under this Agreement.
All such records and invoices shall be clearly identifiable. CONSULTA NT 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 this Agreement for a period of three (3) years from the date of final payment to CONSULTANT under this Agreement.
20. WITHHOLDINGS
11 ANAHEIM may withhold payment to CONSULTANT of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. CONSULTANT shall not discontinue work as a result of such withholding. CONSULTANT shall have an immediate right to appeal to the City Manager or his Designee with respect to such disputed sums and his/her decision shall be final. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of return that ANAHEIM earned on its in vestments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of CONSULTANT which result in expense to ANAHEIM greater than what would have resulted if there were not errors or omissions in the work accomplished by CONSULTANT, the additional cost and expense shall be borne by CONSULTANT. Nothing in this paragraph is intended to limit ANAHEIM's rights under the law or any other sections of this Agreement.
22. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
CONSULTANT acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that ANAHEIM may e nter into similar agreements with other entities for the provision of similar services.
23. 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 aff ect such interest. If subject to the Act, CONSULTANT shall conform to all other requirements of the Act that may be 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 future involve participation in governmental decision-making processes such that ANAHEIM 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 Form 700 Filer, such employee(s) shall file under Disclosure Categ ory 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.
CONSULTANT shall indemnify and hold harmless ANAHEIM for any and all claims for damages resulting from CONSULTANT’s violation of this Section.
24. NOTICES
12 All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either ANAHEIM or CONSULTANT to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to ANAHEIM: City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Director of Public Works
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-5225
To CONSULTANT: (Company)
Attn:
(Street Address)
(City, State, Zip)
(email or FAX, if provided)
25. ENFORCEMENT OF AGREEMENT
25.1 Events of Default.
.01 For purposes of this Section 25, the word "Default" shall mean the failure of CONSULTANT to perform any of CONSULTANT's duties or obligations or the breach by CONSULTANT of any of the terms and conditions set forth in this Agreement. In addition, CONSULTANT shall be deemed to be in Default upon CONSULTANT's (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit o f 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 CONSULTANT's assets or of CONSULTANT's interests hereunder.
.02 ANAHEIM shall not be deemed to be in Default in the performance of any obligation required to be performed by ANAHEIM hereunder unless and until ANAHEIM has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from CONSULTANT specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of ANAHEIM's obligation is such that more than thirty (30)
13 days are required for its performance, the n ANAHEIM shall not be deemed to be in Default if ANAHEIM shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
25.2 Immediate Termination for CONSULTANT's Default. In the event of any Default by CONSULTANT, ANAHEIM may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by CONSULTANT of written notice from ANAHEIM. In such event, CONSULTANT shall have no further rights hereunde r, 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.
26. COMPLIANCE WITH ALL LAWS
CONSULTANT shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, a ll work prepared by CONSULTANT shall conform to applicable local, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator.
27. WAIVER
A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement and the exhibits hereto contain the entire agreement of ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, statement or 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.
29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits or any other attachments attached hereto, the terms of this Agreement shall govern.
30. INTERPRETATION
Each Party acknowledges that he / she / it has had the benefit of advice of competent 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 prepared by both Parties.
31. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both CONSULTANT and ANAHEIM and approved as to form by the City Attorney.
32. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
33. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be cumulative and are given without impairing any other rights given ANAHEIM or CONSULTANT by statute or law now existing or her eafter enacted and the exercise on any one (1) remedy by ANAHEIM or CONSULTANT shall not exclude the exercise of any other remedy.
34. NO THIRD PARTY BENEFICIARIES
The Parties intend that no rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
36. DISCRIMINATION
CONSULTANT agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that CONSULTANT offer accommodations or services to the public, such accommodations or services shall be offered by CONSULTANT to the public on fair and reasonable terms.
37. COMMUNITY WORKFORCE AGREEMENT
15 CONSULTANT agrees to comply with the Community Workforce Agreement (“CWA”) and, if there is conflict between this Agreement and the CWA, CONSULTANT agrees to comply with the terms of the CWA. CONSULTANT shall require each of its subcontractors, of whatever tier, to be bound by the terms of the CWA.
38. AUTHORITY
Each individual executing this Agreement on behalf of a corporation, nonprofi t corporation, partnership or other entity or organization, represents and warrants the he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. CONSULTANT shall, at ANAHEIM's request, deliver a certified copy of it governing board's resolution or certificate authorizing or evidencing such execution.
39. EFFECTIVE DATE
This Agreement shall be effective on the date on which this Agreement is executed by ANAHEIM ("Effective Date").
[Signatures on Following Page]
16 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION:
CITY OF ANAHEIM
a municipal corporation
By:
Rudy Emami
Director of Public Works
“ANAHEIM”
ATTEST:
By:
Theresa Bass, City Clerk
DATE OF EXECUTION:
____________________, a ________________
By:
Title:
Printed Name:
“CONSULTANT”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
Dated:
Attachments: Exhibit A
(Doc #)
1 EXHIBIT A
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