1 GENERAL SERVICES AGREEMENT –
WATER ENGINEERING
This General Services Agreement – Water Engineering (“Agreement”), dated by the Anaheim City Clerk on _____________________ (“Effective Date”), is made and entered into by and between the City of Anaheim, a municipal corporation (“Anaheim”), and [ENTITY NAME, STATE, AND TYPE] (“Service Provider” or “Provider”). Anaheim and Provider are sometimes individually referred to as “Party” and collectively as “Parties.”
RECITALS
A. 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 Anaheim Charter.
B. Anaheim desires to engage Provider to provide professional water engineering, civil engineering, or other consulting services (“Services”) on an as-needed basis to support Anaheim’s Public Utilities Department’s (“Department”) Water Services Division.
C. Provider possesses the skill, experience, ability, licenses, certifications, and materials necessary to perform in accordance with the Standard of Care described in Section 7.1 below.
D. Anaheim has solicited and received a proposal from Provider, has evaluated Provider’s previous experience and expertise, and desires to prequalify Provider to render the Services under the terms and conditions set forth in this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. SERVICES TO BE PROVIDED
1.1 Provider shall provide all labor, materials, tools, equipment, services, systems, and incidental and customary work necessary to fully and adequately supply the Services, which are more particularly described in the Scope of Services attached hereto as Exhibit A and incorporated herein by this reference (“Scope of Services”). The Scope of Services includes specific Service categories (“Service Category”) for which Provider and other consultants have been prequalified to receive a RFWOP. In addition to the Scope of Services, the Services will also be described in a Request for Work Order Proposal (“RFWOP”) and in a Notice to Proceed, as described below in Section 1.5. On behalf of Anaheim, the Public Utilities General Manager (“General Manager”) or designee is authorized to add, modify, or delete tasks from the Scope of Services. Anaheim may elect to delete certain tasks from the Scope of Services or the RFWOP at its sole discretion.
2 The Services will not be performed by Provider until Anaheim selects Provider in accordance with the provisions of this Section 1 and issues a Notice to Proceed. If selected, Provider shall perform the Services as directed by Anaheim and in accordance with the RFWOP, the Notice to Proceed, and this Agreement.
By entering into this Agreement, Anaheim does not give any guarantee to Provider that Anaheim will select Provider to provide any Services under this Agreement.
1.2 When Services are required, Anaheim will issue a RFWOP that provides a specific scope of work, schedule for completion of the Services, task specifications, the name of Anaheim’s project administrator (“Project Administrator”), and other information specific to the RFWOP. Anaheim may, at its sole discretion, (a) issue a RFWOP for a specific Service Category or multiple Service Categories, or (b) open a RFWOP to all prequalified providers regardless of Service Category.
1.3 If Provider is eligible for a specific Service Category identified in a RFWOP, then within the time stated in the RFWOP, Provider shall submit a Work Order Proposal indicating the cost, task completion schedule, and other information requested in the RFWOP (“Work Order Proposal”). Unless Anaheim expressly requires or allows a hard copy format, Provider shall submit an electronic sealed Work Order Proposal and abide by all RFWOP requirements for Work Order Proposal submittals. Provider is not eligible to submit a Work Order Proposal in response to a RFWOP for a Service Category for which Provider is not prequalified.
1.4 Anaheim does not give any guarantee to Provider that Anaheim will send a RFWOP for Services to Provider, or select Provider’s Work Order Proposal to provide Services, at any point during the term of this Agreement.
1.5 Selection of prequalified provider(s) to complete the Services requested in any RFWOP shall be based on the criteria in Section 1.6 below. Anaheim will issue a formal notification authorizing a provider to begin work on the Services (“Notice to Proceed”) to the successful provider that has submitted a Work Order Proposal. The Notice to Proceed and RFWOP shall together constitute the “Work Order.” If Provider fails to promptly commence work and/or diligently pursue a Work Order as set forth therein, Anaheim may elect to terminate the Work Order and/or this Agreement.
1.6 Provider acknowledges that Anaheim intends to enter into as-needed agreements similar to this Agreement with other providers. Anaheim’s consideration of Work Order Proposals submitted for a RFWOP, a Work Order will be awarded to the prequalified provider most qualified, in Anaheim’s opinion, to provide the Services set forth in the RFWOP within the scheduled completion date based upon the following criteria:
3 1.6.1 Ability of prequalified provider to perform the specific tasks outlined in the RFWOP;
1.6.2 Qualifications of the specific individuals to perform the specific tasks outlined in the RFWOP;
1.6.3 Amount and quality of the time key personnel will be involved in their respective portions of the Services outlined in the RFWOP;
1.6.4 Reasonableness of the fee requested to provide the Services outlined in the RFWOP;
1.6.5 Demonstrated record of success by the prequalified provider on work previously performed for Anaheim or for other municipalities or enterprises; and
1.6.6 The specific methods and techniques to be employed by the prequalified provider in performing the Services outlined in the RFWOP.
1.7 In the event of conflicting provisions, the provisions shall govern in the following order: (1) this Agreement, except for Exhibit A; (2) the Notice to Proceed; (3) the RFWOP; (4) Provider’s Work Order Proposal; and (5) Exhibit A to this Agreement.
2. TERM
2.1 The term of this Agreement commences on the Effective Date and shall terminate on, _________________, 2030, unless extended as provided in this Section 2 or Section 3.2, or terminated earlier per Section 26 (“Initial Term” or, if not extended, “Term”).
2.2 If the Public Utilities General Manager (“General Manager”), in their sole discretion, determines that an extension of Initial Term is necessary for the successful completion of the Services, then the General Manager is authorized to extend the Initial Term (upon the same terms and conditions) for no more than two (2) one-year terms after the Initial Term. The “Term” of this Agreement consists of the Initial Term, plus any extensions pursuant to Section 2 or Section
3.2. 3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of a Work Order and this Agreement.
Provider shall perform and complete all Services in accordance with the Work Order, unless otherwise modified in writing by Anaheim. Notwithstanding the foregoing, Provider shall at all times perform the Services with the degree of skill, care, and diligence normally exercised by professionals in the same discipline under similar circumstances, consistent with the applicable standard of care. In the event that any conflict arises between meeting the prescribed deadlines and 4 maintaining the requisite standard of care, Provider shall promptly notify Anaheim in writing, identifying the nature of the conflict and proposing a reasonable solution. Anaheim may, at its sole discretion, grant a reasonable extension of time to ensure that the Services are completed in a manner that does not compromise professional standards or public safety. Provider’s failure to adhere to meet the specified deadlines without prior written approval from Anaheim, or to perform in accordance with the standard of care described herein, may constitute a material breach of this Agreement resulting in Anaheim’s election to terminate the Work Order this Agreement, and pursue any remedies available at law or equity.
3.2 A Project Administrator may extend the time for performing a Work Order if:
(1) Within ten (10) days of the commencement of a delay described in this Section
3.2, Provider gives the Project Administrator written notice of the causes of the delay; and
(2) The delay is due to unforeseeable causes beyond the control and without the fault or negligence of Provider, including, but not restricted to, acts of God or of the public enemy ; unusually severe weather, fires, earthquakes, floods, pestilence, or other natural catastrophes ; epidemics; pandemics; quarantine restrictions; riots; strikes; freight embargoes; wars; litigation; civil disturbance or disobedience; labor disputes; labor or material shortages; sabotage; change in government priorities; restraint by court order or public authority; and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Anaheim; and
(3) Provider could not reasonably have been expected to avoid the delay; and (4) Provider, by exercise of due diligence, has not been able to overcome the delay; and
(5) The Project Administrator ascertains the facts and the extent of delay, and in their sole reasonable judgment, determines such delay is justified.
3.3 If the Project Administrator grants an extension pursuant to Section 3.2 above, then the extension may be for up to the same time as the duration of the enforced delay.
3.4 The Project Administrator’s determination shall be final and conclusive upon the Parties. In the event of delay, however caused, Provider’s sole remedy shall be an extension of the Term, pursuant to this Section, and Provider shall not be entitled to recover damages against Anaheim.
5 4. COMPENSATION
4.1 Anaheim shall pay Provider for the Services satisfactorily completed and provided in accordance with this Agreement in an amount not-to-exceed (“NTE”) five hundred thousand dollars ($500,000) per Work Order (“Total Compensation”) for the Services described in a single RFWOP. In addition, the Parties agree to a NTE limit on the total amount awarded to any one provider of one million, five hundred thousand dollars ($1,500,000) for each fiscal year, where the fiscal year shall begin on July 1st and end on June 30th. Except as provided in this Section 4, Anaheim shall pay the Total Compensation in the manner set forth in the Work Order.
4.2 Each RFWOP will request a not-to-exceed amount for the Services described in the RFWOP, and each Work Order Proposal will provide Provider’s rate sheet.
The Work Order sets the “Work Order Amount,” which is the maximum compensation a Provider may receive for Services performed pursuant to the Work Order. Provider shall not exceed the Work Order Amount unless otherwise authorized by this Section 4. Provider shall perform the Services at the rates and other costs set forth in Provider’s rate sheet, and shall not change the rates without Anaheim’s prior written approval.
4.3 If a Work Order provides for the reimbursement of expenses, Anaheim shall reimburse Provider for only those out-of-pocket expenses set forth in the Work Order. Unless the additional reimbursable expenses are first approved in writing by Anaheim, reimbursable expenses or subconsultant fees invoiced to Anaheim shall not exceed any cap on reimbursable expenses set forth in the Work Order.
4.4 Except as provided in Section 4.55 below, the Total Compensation dollar amount established in Section 4.1 is inclusive of all reimbursable expenses. The Total Compensation does not constitute a guarantee of payment to Provider but instead constitutes a spending option for Anaheim, as may be needed.
4.5 If the General Manager or designee, in their sole discretion, determines that Extra Services (defined below) is necessary for the successful completion of a Work Order, then the General Manager or designee may approve additional expenditures for the Extra Services. Such additional expenditures shall not exceed fifteen percent (15%) of the Work Order Amount stated in the Work Order for which the General Manager or designee approved Extra Services.
4.5.1 Provider shall not render Extra Services beyond the scope of a Work Order without the written authorization of the General Manager or designee.
4.5.2 All Extra Services approved in writing by the General Manager or designee shall, shall be billed at either the unit prices/billing rates set forth in the Work Order or at a fixed price, at the General Manager’s discretion. 6 If billed at a fixed price, Provider shall provide Anaheim with a general description of the Extra Services to be performed with a proposed price.
4.5.3 Any approved Extra Services will be incorporated into the Services and the Agreement upon the Parties’ execution of a letter agreement (“Extra Services Letter”) that contains (a) the agreed price for the Extra Services and (b) a description of the Extra Services. Provider shall commence performance of the Extra Services either upon the Parties’ execution of the Extra Services Letter or such other time expressly indicated therein.
4.5.4 Other than the Extra Services that the General Manager or designee is authorized to approve pursuant to this Section 4.5, Provider shall not render additional services beyond the scope of this Agreement unless such services are first approved by a written amendment to this Agreement.
4.5.5 For purposes of clarity, as used herein, “Extra Services” means any work that: (1) Anaheim determines is necessary for the proper completion of the Services contained in the Work Order; (2) but which was not included in a RFWOP; and (3) which the Parties did not reasonably anticipate would be necessary at the time of the issuance of the Work Order.
4.6 Except as indicated in a Work Order, after the issuance of a Work Order, Provider shall submit monthly invoices to Anaheim describing the work that was performed the preceding month. Provider’s invoices shall include identify the Work Order for which the Services were performed, the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Work Order 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 or subconsultant fees. Provider shall invoice Anaheim for the Services rendered in accordance with the hourly rates and other costs set forth in Provider’s rate sheet submitted with the corresponding Work Order Proposal. Anaheim shall pay Provider no later than thirty (30) days after approval of the monthly invoice by Anaheim staff. Unless the General Manager has approved Extra Services on a Work Order, the total amount of all invoices submitted for a Work Order shall not exceed the Work Order Amount.
4.7 All Parties recognize that the continuation of this Agreement or any Work Order 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 actually be adopted, said determination being the determination of the City Council at the time of the adoption of the budget. No penalty shall accrue to Anaheim in the event this provision shall be exercised.
Should termination be accomplished in accordance with this Section, the Parties shall negotiate a settlement based on monies paid and due, items delivered, and Services provided.
7 5. PROJECT MANAGER
5.1 Provider designates [NAME OF PROJECT MANAGER] as its “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.
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 Provider and devoting sufficient time to personally supervise the provision of Services hereunder. The Provider may not change the Project Manager without the General Manager or designee’s express written authorization.
5.2 Within the Work Order Proposal, Provider shall designate a “Work Order Manager” who shall coordinate the Services performed for a specific Work Order. This Project Manager shall be available to Anaheim at all reasonable times during the performance period of the Work Order. The foregoing Project Manager shall be responsible for directing all activities of Provider and devoting sufficient time to personally supervise the provision of Services. Unless Anaheim provides express written consent, Provider shall not change its Work Order Manager or assign other personnel to supervise the Services to be provided pursuant to this Agreement.
5.3 If Provider’s personnel (or subconsultants, if any) fail or refuse to perform the Services in accordance with the requirements of this Agreement, or if Anaheim, in its sole discretion, determines the personnel (or subconsultants) to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services set forth in a Work Order, or a threat to the safety of persons or property, then at Anaheim’s request, Provider shall promptly remove the personnel (or subconsultants) from the performance of Services. Provider warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement and the impacted Work Order.
5.4 The Project Manager and all of Provider’s employees shall be fully qualified and licensed for the Services set forth in the Work Order.
6. ADMINISTRATION
The Anaheim Public Utilities Department (“APU”) will administer this Agreement. The following APU employees are authorized to take the below actions pursuant to this Agreement:
• The General Manager is authorized to take any action on behalf of Anaheim as set forth herein and to terminate this Agreement in accordance with Section 26 below. • When APU issues a RFWOP, the RFWOP will identify the Project Administrator. The General Manager or designee may change the Project Administrator at any time, and Anaheim will provide Provider written notice of such change as soon as is practical. The 8 Project Administrator, or designee, shall have the power to act on behalf of Anaheim for ordering, reviewing, and approving all Services performed by Provider under this Agreement. The Project Administrator is not authorized to approve changes unit prices/billing rates, or to terminate Services under this Agreement. Unless authority is delegated by the General Manager in writing, the Project Administrator is not authorized to approve Extra Services.
7. STANDARD OF CARE
7.1 As a material inducement for Anaheim to enter this Agreement, Provider represents that it is a provider of professional services and is experienced in performing the Services contemplated herein, and in light of such status and experience Provider represents that it shall follow prevailing industry standards in performing the work and Services required hereunder and that all work will be performed 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. Provider further warrants that all employees and subcontractors, if any, shall have sufficient skill and experience to perform the Services assigned to them.
7.2 Provider 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, certifications, and approvals of whatsoever nature that is legally required of Provider to practice its profession, including any licenses and certifications, if any, listed in Exhibit A. Provider shall maintain a City of Anaheim business license during the Term.
7.3 At no cost to Anaheim, Provider shall re-perform any Services that Anaheim reasonably deems unsatisfactory, provided that Provider is notified by Anaheim, in writing, of any such deficiency or defect within a reasonable period after discovery thereof, but in no event later than one (1) year after Provider’s completion or termination of the Services under the impacted Work Order.
8. FAMILIARITY WITH WORK
By executing this Agreement, Provider represents and warrants that Provider: (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 Provider discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by Anaheim, Provider shall immediately inform Anaheim of such fact and shall not proceed except at Provider’s risk until written instructions are received from Anaheim.
9. INDEPENDENT CONTRACTOR
9.1 Neither Anaheim nor any of its employees shall have any control over the manner, mode, or means by which Provider, its agents or employees, perform the 9 Services, except as otherwise set forth herein. Except as expressly provided herein, Anaheim shall have no voice in the selection, discharge, supervision, or control of Provider’s employees, servants, representatives or agents, or in fixing their number, compensation, or hours of service. Provider shall perform all Services 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. Provider 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 Provider in its business or otherwise or a joint venturer or a member of any joint enterprise with Provider.
9.2 In consideration for the compensation Anaheim pays to Provider, Provider 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 that Provider offers to its employees/agents, and Provider agrees that it shall not sue or file a claim, petition, or application therefor against Anaheim or any of its appointed or elected officials (together, “officials”), officers, employees, agents, representatives, or sureties.
10. INSURANCE
10.1 Without limiting Anaheim’s right to indemnification, it is agreed that Provider shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, the following minimum insurance coverage requirements:
10.1.1 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000.
10.1.2 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Contractor’s Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate. Such insurance shall be written on a primary basis but may include a deductible or self- insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
10.1.3 Commercial 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 per occurrence, combined single limit.
10.1.4 Professional Liability Insurance, inclusive of Cyber Liability Insurance, in an amount not less than $2,000,000 . Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of 10 more than $10,000 per occurrence, provided that such deductible or self- insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
10.2 Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by Anaheim’s Risk Manager prior to the inception of the final Agreement.
10.3 Provider agrees that this insurance shall not be voluntarily cancelled by Provider or limited in scope or coverage by Provider 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. This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
10.4 Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
10.4.1 “It is agreed that any insurance maintained by Provider pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City of Anaheim.”
10.4.2 “The City of Anaheim, its officers, agents, employees, representatives and Anaheim- designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
10.5 Prior to commencing any work under this Agreement, Provider 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, Provider shall provide Anaheim (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable 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 Provider shall fully defend, hold harmless, and indemnify Anaheim against any such claim or other legal action.
11 10.6 In addition to other remedies Anaheim may have if Provider 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:
10.6.1 Order Provider to stop work under this Agreement and/or withhold any payment(s) that become due to Provider hereunder until Provider demonstrates compliance with the requirements hereof; or
10.6.2 Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies Anaheim may have and is not the exclusive remedy for Provider’s failure to maintain insurance or secure appropriate endorsements.
10.7 Nothing herein contained shall be construed in any way as limiting the extent that a Provider may be held responsible for payments of damages to persons or property resulting from Provider’s, (or Provider’s agent or sub-agent, if any) performance of the work covered under this Agreement.
10.8 In the event Provider hires other persons or firms to perform some of the work related to this Agreement, Provider shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Provider under this Agreement (except for firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Provider shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Anaheim.
10.9 Anaheim’s Risk Manager is hereby authorized to amend or accept any Provider generated request to amendment or reduction to the requirements set forth herein in the event such amendment or reduction is in Anaheim’s best interest.
11. INDEMNIFICATION
11.1 As respects acts, errors or omissions in the performance of professional services, Provider 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 directly arising out of the negligent acts, errors or omissions of the Provider or any sub-agent in the performance of professional services under this Agreement.
11.2 As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, Provider agrees to indemnify, defend (at Anaheim's option), and hold harmless Anaheim, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of 12 any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with Provider’s (or Provider’s agent or sub-agent, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that 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, Provider, 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. INTELLECTUAL PROPERTY
12.1 Provider shall, at its sole expense, defend, indemnify, and hold harmless Anaheim, its officials, officers, employees, and agents from and against any claims, liabilities, damages, losses, and expenses (including reasonable attorneys’ fees and costs) arising from infringement or alleged infringement of any U.S. patent, trademark, copyright, or other intellectual property rights related to any work product, materials, or documents (collectively, “work product”) provided by Provider to Anaheim under this Agreement. This indemnity obligation includes any claims that may arise out of or are related to Provider’s use of third- party intellectual property in connection with the performance of this Agreement.
This indemnity excludes claims resulting solely from Anaheim’s unauthorized modification or misuse of work product.
12.2 In the event of any indemnifiable claim under Section 12.1, Provider shall, at its expense and option, (a) secure for Anaheim the right to continue using the work product, (b) modify the work product to be non-infringing while maintaining equivalent functionality, or (c) replace the work product with a non-infringing alternative that provides equivalent functionality.
13. EXCLUDED DAMAGES
Unless otherwise expressly stated herein, each Party’s maximum liability (and sole remedy against the other) for any loss or damage arising from performance or non-performance under this Agreement shall be limited to proven direct, actual damages. Neither Party shall be liable to the other for any indirect, punitive, incidental, reliance, special, or consequential damages, whether or not such Party had been advised of the possibility of such damages.
14. PREVAILING WAGES
14.1 By executing this Agreement, Provider certifies that it is aware of the requirements of California Labor Code sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. To the extent applicable, Provider agrees to fully comply with such Prevailing Wage Laws in the performance of the Services. The prevailing rates of per diem wages are available at:
13 http://www.dir.ca.gov/dlsr/DPreWageDetermination.htm.
Provider shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Services available to interested parties upon request and shall post copies at the Provider’s principal place of business and at the project site.
14.2 Provider shall pay all workers pursuant to the Prevailing Wage Laws and not less than the prevailing wage rates as determined by the Director of Industrial Relations in accordance with the provisions of the Labor Code. As provided in Labor Code section 1775, if Provider violates the foregoing, Provider shall forfeit, as a penalty to Anaheim, fifty dollars ($50) for each calendar day or portion thereof for each workman paid less than the stipulated prevailing wage rate for such work or craft in which such workman is employed, for any Service subject to the Prevailing Wage Laws. In addition to said penalty and pursuant to said section 1775, the difference between such stipulated prevailing wage rates and the amount paid to each workman shall be paid to each workman by Provider, as applicable.
14.3 Provider shall strictly adhere to the provisions of the Labor Code, including sections 1810 through 1813 and 1815, regarding minimum wages, the 8-hour day, the 40-hour week, overtime, Saturday, Sunday, and holiday work. Provider shall forfeit to Anaheim the penalties prescribed in the Labor Code for noncompliance, including the penalties set forth in section 1813 for violations of sections 1810 through 1815.
14.4 Provider shall comply with the provisions of Labor Code sections 1777.5 and 1777.6 and Title 8, sections 200 et seq. of the California Code of Regulations relating to apprentice employment and training. Provider shall assume full responsibility for compliance with said sections with respect to all apprenticeable occupations providing Services. In the event of noncompliance by Provider, Anaheim shall withhold the penalties provided for under section 1777.7 of the Labor Code from payments then due.
14.5 Pursuant to the requirements of section 1860 of the Labor Code, Provider will be required to secure the payment of workers’ compensation to its employees in accordance with the provisions of section 3700 of the Labor Code.
14.6 Anaheim will not recognize any claim for additional compensation because of the payment by Provider of any wage rate in excess of the prevailing wage rate effective on the Effective Date. The possibility of prevailing wage increases is one of the elements to be considered by Provider at the time of the proposal submission and will not, under any circumstances, be considered as the basis of a claim against Anaheim for additional compensation.
14 14.7 Provider shall maintain accurate payroll records in accordance with the provisions of Labor Code section 1776 and shall, upon request, file said records with Anaheim.
14.8 Provider shall forfeit as a penalty to Anaheim twenty five dollars ($25) for each calendar day during which a Provider’s employee subject to the Prevailing Wage Laws is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the Labor Code and, in particular, section 1810 to section 1815 thereof, inclusive, except that the Services performed by the employees of Provider in excess of eight (8) hours per day and forty (40) hours during any one week shall be permitted upon compensation of all hours worked in excess of eight (8) hours per day at not less than one and one-half times the basic rate of pay as provided in section 1815.
14.9 Provider shall defend, indemnify, and hold Anaheim, its officials, officers, employees, and agents free and harmless from any claims, liabilities, costs, penalties, or interest arising out of any failure or alleged failure by Provider or its employees, agents, contractors, and subcontractors to comply with the Prevailing Wage Laws.
15. PERFORMANCE OF SERVICES
15.1 Provider is responsible for keeping the Project Administrator or designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
15.2 In performing the Services, Provider agrees to work closely and cooperate fully with the Project Administrator and such other employees, consultants, or contractors of Anaheim, whom Anaheim has assigned to the Work Order.
16. 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 Provider. Provider has no right to assign, transfer, delegate, or otherwise encumber (together “Assignment”) any rights, obligations, duties, interests, or privileges in or arising out of this Agreement, including as a result of a merger, acquisition, consolidation, or other form of corporate assimilation, without the prior written consent of Anaheim. Any such purported Assignment without Anaheim’s prior consent shall be void as to Anaheim. If Anaheim approves an Assignment, 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 Provider.
17. SUBCONTRACTING
Except for those subcontractors set forth in Provider’s Work Order Proposal, if any, Provider shall not subcontract any portion of the work to be performed under this Agreement without the 15 prior written authorization of Anaheim. Provider shall be fully responsible to Anaheim for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between Anaheim and the subcontractor, nor shall it create any obligation on the part of Anaheim to pay or ensure 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.
18. USE AND OWNERSHIP OF DOCUMENTS AND DATA
18.1 Anaheim shall furnish to Provider such documents, data, and materials as may be relevant and pertinent to the provision of Services hereunder as Anaheim may possess or acquire. Provider may rely upon the accuracy and completeness of such materials, provided that Provider shall provide Anaheim prompt notice of any known defects in such materials.
18.2 All documents, data, and written materials furnished by Anaheim to Provider pursuant to Section 18.1 shall remain the property of Anaheim and shall be returned to Anaheim upon termination of this Agreement, for any reason. All documents, data, or written material prepared or caused to be prepared by Provider, 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 Provider or any other party. Provider shall, at Provider’s sole cost and expense, provide such documents, data, and material to Anaheim upon prior written request.
19. CONFIDENTIALITY
19.1 “Confidential Information” means, with respect to a Party hereto, all information or material that are either (1) marked or identified as “Confidential,” “Restricted,” or “Proprietary,” or other similar marking or identification, or (2) the Receiving Party knew, or under the circumstances should have known, was considered confidential or proprietary by the “Disclosing Party” (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, digital, or other form that was furnished in connection with this Agreement by the Disclosing Party or its Representatives (“Representative” is defined as any elected or appointed official, affiliate, director, officer, employee, agent, advisor, or consultant of a Party or any of its subsidiaries or affiliates) to the Receiving Party or to its Representatives and specifically includes, but is not limited to, Anaheim’s individually identifiable customer information and Anaheim’s customer usage data and financial data. The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the 16 Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
19.2 Provider and Anaheim shall each hold the other’s Confidential Information in confidence. Neither Party shall make the other’s Confidential Information available in any form to any third party or use the other’s Confidential Information for any purpose other than to perform this Agreement. The Party providing Confidential Information (“Disclosing Party”) to the other Party (“Receiving Party”) shall remain the sole owner of such information. Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software, or other technology, either expressly or by implication to the Receiving Party, its Representatives, or to others.
19.3 By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke, or supersede any existing confidentiality, non-disclosure, or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 19, which shall supersede any less-restrictive provisions of such previous agreement with respect to such Confidential Information. Any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it were exchanged under this Agreement as of the date of such exchange.
19.4 The Receiving Party will treat all Confidential Information of the Disclosing Party as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach 17 of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
19.5 If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible, but in no event later than five (5) days after knowledge of Provider’s obligation to such requirement. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose and will exercise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
19.6 In the event the Receiving Party discloses, disseminates, or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination, or release will be deemed a material breach of this Agreement, and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate.
Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies the Disclosing Party may have.
19.7 Within two (2) weeks of the termination of this Agreement, Provider will return to Anaheim or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions, or any 18 other form of said material without retaining any copy or duplicate thereof; provided that Provider may retain Confidential Information contained on backup media created in the ordinary course of business; provided further that there is no effort to access such Confidential Information, and Provider’s confidential obligations with respect to such information shall continue so long as such information is retained. Provider shall certify in writing the destruction of the Confidential Information. Anaheim may perform an audit of Provider’s records to confirm the return or destruction of the Confidential Information. Anaheim shall have this audit right for three (3) years after the termination of this Agreement.
19.8 Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
20. FISCAL RECORDS AND AUDIT
20.1 Provider shall keep records and invoices in connection with the Services. Provider shall use recognized accounting methods in preparing such reports and invoices.
Anaheim reserves the right to designate its own employee representative(s) or its contracted representative(s) with a certified public accounting firm, who shall have the right to audit Provider’s accounting procedures and internal controls of Provider’s financial systems and to examine any cost, revenue, payment, claim, record, or supporting documentation resulting from any item set forth in this Agreement. If Provider fails to provide supporting documentation satisfactory to Anaheim for costs charged, then Provider agrees to reimburse Anaheim for those costs. Any such audit(s) shall be undertaken by Anaheim or its representative(s) at reasonable times and in conformance with generally accepted auditing standards.
Provider agrees to fully cooperate with any such audit(s).
20.2 This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer if required by law, following the date of final payment under this Agreement. Provider agrees to retain all necessary records/documentation for the entire length of this audit period.
20.3 Provider will be notified in writing of any exception taken as a result of an audit.
Any adjustments and/or payments that must be made as a result of any such audit or inspection of Provider’s invoices and/or records shall be made within thirty (30) days from presentation of Anaheim’s findings to Provider. If Provider fails to make such payment, Provider agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interest, which higher rate would then prevail. Interest will be computed from the date of written notification of exception(s) to the date Provider reimburses Anaheim for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by Provider to Anaheim in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of Anaheim’s audit shall be reimbursed to Anaheim by Provider.
19 21. WITHHOLDINGS
Anaheim may withhold payment to Provider 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. Provider shall not discontinue the Services as a result of such withholding. Provider shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums, and his decision shall be final.
Provider shall be entitled to receive interest on any withheld sums at the rate of return that Anaheim earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the Provider’s negligence, recklessness, willful misconduct, or breach of the applicable standard of care, and that result in expense to Anaheim greater than what would have resulted if there were not errors or omissions in the Services performed by Provider, the additional cost and expense shall be borne by Provider. Nothing in this paragraph is intended to limit Anaheim’s rights under the law or any other sections of this Agreement.
23. ANAHEIM’S RIGHT TO EMPLOY OTHERS
Provider acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that Anaheim may enter into similar agreements with other entities for the provision of similar services.
24. CONFLICTS OF INTEREST
24.1 Provider 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.
24.2 If subject to the Act, Provider shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by Anaheim. Provider shall indemnify and hold harmless Anaheim for any and all claims for damages resulting from Provider’s violation of this Section.
24.3 Unless otherwise allowed by law, Provider shall not bid on Anaheim construction bid packages if Provider’s Services rendered pursuant to this Agreement produce design work that is subsequently used, in whole or in part, in Provider’s preparation of the construction bid package.
20 25. NOTICES
Any notice or demand to be made under this Agreement shall be in writing and shall be deemed effective when: (1) delivered personally, upon receipt or refusal of receipt by the receiving Party; (2) sent by registered or certified mail, return receipt requested, postage prepaid, on the date shown on the return receipt or the date of refusal of receipt; or (3) sent by recognized overnight courier service, delivery fees prepaid, the business day following deposit with the courier.
Notices shall be addressed to the Parties at the following addresses:
If to Anaheim: Anaheim City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
With copies to: Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
If to Provider: [PROVIDER ENTITY NAME]
[ADDRESS]
[CITY, STATE, ZIP]
Each Party may change its address for notice by providing written notice to the other in accordance with this Section.
26. EARLY TERMINATION
26.1 Events of Default
26.1.1 “Default” shall mean the failure of Provider to perform any of Provider’s duties or obligations or the breach by Provider of any of the terms and conditions set forth in this Agreement.
26.1.2 In addition, Provider shall be deemed to be in Default upon Provider’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 Provider’s assets or of Provider’s interests hereunder. 21 26.1.3 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 Provider 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.
26.2 Immediate Termination for Provider’s Default
26.2.1 In the event of Provider’s Default, as described in Section 26.1.2 (deemed Defaults) above, Anaheim may immediately terminate this Agreement.
Such termination shall be immediately effective as of the date on Anaheim’s written notice of termination.
26.2.2 In the event of any Default other than deemed Defaults described in Section 26.1.2 above, Provider shall not be deemed to be in Default in the performance of any obligation pursuant to this Agreement unless and until Provider has failed to perform such an obligation (completely curing the Default) for a period of thirty (30) days after the date of Anaheim’s written notice specifying in reasonable detail the nature and extent of any such failure. If, however, the nature of Provider’s obligation is such that more than thirty (30) days are required for its performance, then Provider shall not be deemed to be in Default as long as Provider can verify that it commenced and made substantial efforts to cure such performance within thirty (30) days after the notice, and then diligently cures the failure.
26.2.3 If Provider fails to cure a Default as described in Section 26.1.2, then Anaheim may immediately terminate this Agreement.
26.2.4 Except for the right to receive compensation for Services properly performed (as solely determined by Anaheim) prior to the termination date and deliverables accepted by Anaheim in writing, Provider shall have no further rights, including the performance of the Services set forth in a Work Order, and Anaheim shall have all other rights and remedies as provided by law.
26.2.5 For any Default involving a breach of the requirements of a Work Order, Anaheim at its sole discretion, may immediately terminate that Work Order. Except for the right to receive compensation for Services properly performed (as solely determined by Anaheim) prior to the termination date and deliverables accepted by Anaheim in writing, Provider shall have no further rights regarding the performance of Services set forth in the terminated Work Order, and Anaheim shall have all other rights and 22 remedies as provided by law. Anaheim may, but is not required to, give Provider a cure period when giving Provider written notice of a Work Order breach.
26.3 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 Provider. In such event, the Parties shall have no further rights hereunder, except that Provider shall be paid for all services adequately rendered prior to such termination.
26.4 Termination For Cause. Provider may not terminate this Agreement except for cause. “For Cause” termination includes failure to pay invoices as required in Section 4.6. Anaheim’s dispute of invoice amounts and withholding of payments as described in Section 21 shall not constitute grounds for for-cause termination for failure to pay invoices.
26.5 Anaheim may suspend or abandon a Work Order for any reason with or without notice. If any part of the Services of a Work Order is suspended or abandoned for any reason, then Anaheim shall have the right to suspend or terminate the affected portions(s) of the Work Order, including the entire Work Order. In the event of such suspension or termination, Provider shall only expend such additional time as is necessary to assemble the Services in progress for the purpose of properly filing and closing the job and as is previously approved by Project Administrator.
In no event shall additional time exceed ten percent (10%) of the total time expended on the suspended or abandoned portion of the Work Order prior to the date of notice of suspension or termination. If Anaheim suspends a Work Order’s Services for longer than six (6) months, then Provider may cancel the Work Order by giving Anaheim at least thirty (30) days’ written notice.
26.6 Provider shall not be relieved of liability to Anaheim for damages sustained by Anaheim by virtue of any breach of Agreement by Provider, and Anaheim may withhold any payments to Provider for the purpose of set-off until such time as the exact amount of damages due Anaheim from Provider is determined. In addition, Anaheim may pursue all remedies available under law for breach of this Agreement. The waiver by either Party of any breach to this Agreement shall not constitute a waiver as to any concurrent or succeeding breach.
27. COMPLIANCE WITH ALL LAWS
Provider shall at its own cost and expense comply with all applicable statutes, ordinances, regulations, and requirements of all governmental entities, including federal, state, county, or municipal, whether now in force or hereinafter enacted during performance of the Services. In addition, all work prepared by Provider shall conform to applicable local, county, state, and federal laws, rules, regulations, and permit requirements and be subject to approval of the Project Administrator.
23 28. WAIVER
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right, nor shall any waiver of a breach or default be deemed a waiver of any concurrent or subsequent breach or default. Any waiver must be in writing and signed by the waiving Party.
29. INTEGRATED CONTRACT
This Agreement and its Exhibits hereto, if any, contain the entire agreement between the Parties with respect to the matters covered hereby, and no agreement, statement, or promise made by either Anaheim or Provider that is not contained herein shall be valid or binding. No prior agreement, understanding, or representation pertaining to any the matters covered hereby shall be effective for any purpose.
30. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and its Exhibits or any other attachments hereto, if any, the terms of this Agreement shall govern.
31. 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 Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
32. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both Parties and approved as to form by the Anaheim City Attorney’s Office.
33. 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.
34. REMEDIES CUMULATIVE
The remedies given to Anaheim and Provider herein shall be cumulative and are given without impairing any other rights given Anaheim or Provider by statute or law now existing or hereafter enacted, and the exercise of any one remedy by Anaheim or Provider shall not exclude the exercise of any other remedy.
24 35. NO THIRD-PARTY BENEFICIARIES
The Parties intend that neither 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.
36. CONTROLLING LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Any legal action or proceeding arising under or related to this Agreement shall be brought exclusively in a court located in Orange County, California. The Parties irrevocably consent to the jurisdiction of such court and waive any objection to venue or forum based on inconvenience or any other grounds.
37. DISCRIMINATION
Provider 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 Provider offer accommodations or services to the public, such accommodations or services shall be offered by Provider to the public on fair and reasonable terms.
38. SIGNATURE & DATE AUTHORITY
38.1 Each Party and each Party’s signatory represents and warrants that each is duly authorized to execute and deliver this Agreement on behalf of such Party and that this Agreement is binding upon such Party in accordance with its terms. Upon Anaheim’s request, Provider shall deliver a certified copy of its governing board’s resolution or certificate authorizing or evidencing such execution.
38.2 Anaheim shall have the authority to fill in the date field opposite the Provider’s signature if Provider fails to write a date.
39. HEADINGS
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
40. COUNTERPARTS AND ELECTRONIC SIGNATURE
This Agreement may be executed in counterparts, each deemed an original and together constituting one instrument. Digital signatures obtained through DocuSign shall be considered valid and binding as though signed in ink.
[SIGNATURES ON FOLLOWING PAGE]
25 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATED: ____________________
[ENTITY NAME], a [STATE ENTITY TYPE]
By:
NAME
TITLE
DATED: ____________________
CITY OF ANAHEIM, a California municipal
corporation
By:
Dukku Lee
Public Utilities General Manager
DATED: ____________________
ATTEST
By:
Theresa Bass
City Clerk
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY’S OFFICE
By:
[NAME]
Deputy City Attorney
155224.6
1 EXHIBIT A
WATER ENGINEERING – GENERAL SERVICES AGREEMENT
SCOPE OF SERVICES
Service Categories
Services provided by selected Provider, on an as -needed basis, are organized into the following categories:
Category 1: Planning, Resources, and Design
Category 2: Construction Management
Category 3: Pipeline Design
Category 4: Electrical, Instrumentation & Control
Category 5: Geotechnical Engineering
The services to be performed by Provider may involve one or multiple disciplines, and the associated services and programs may include, but shall not be limited to, the following scope:
Category 1: Planning, Resources, and Design
Provide water engineering and technical services to support the Water Services Division, including but not limited to, water engineering, water field operations, and water capital improvement projects.
1-A Planning Studies and Feasibility Studies
• Provide engineering, financial, and planning services and other studies that may be required in water system planning (such as water system planning, asset management, water demand, rate studies, etc.).
• Provide consulting services related to water resources and conservation. This can include planning and developing customer awareness campaigns for Public Outreach and Education, developing tools and dashboards to track and measure water use, savings, and compliance with state mandated water use efficiency standards, providing turf retrofit/drought tolerant landscape design and consultation services, development and implementation of water conservation incentive/rebate programs, leak detection and repair services, etc. • Studies may include water supply assessments, water supply verifications, urban water management plans, water use surveys, and other studies that may be required for water resources and conservation programs.
2 1-B Hydraulic Modeling
• Perform Water System Master Planning, including various types of studies (comprehensive, hydraulic, etc.) and analyses (hydraulic, transient, fire flow, outages, risk, flow optimization, etc.).
• Manage, maintain, calibrate, and update Asset Management model (City’s current model uses Innovyze Info Asset Planner software).
1-C Condition Assessment
• Provide comprehensive condition assessment of Anaheim’s water system. Disciplines may include mechanical, structural, electrical, process, hydraulics, seismic, security, and vulnerability. Assessment of the structural integrity of pipelines (identifying leaks, pipe damage, pipe defect, loss of pipe wall thickness due to corrosion or erosion, etc.).
• Provide reports and memorandums with maps and exhibits as required to detail the data, results, and impacts of the study including the likelihood of failure, risk and consequence of failure.
• Provide detailed explanations of data collected and used for studies, prepare high level cost estimates for proposed improvements, as well as recommendations for short-term and long-term risk mitigation strategies, or recommended alternatives. 1-D Design Services
• Provide consulting services for the design of water facilities (including water wells, pump stations, pressure regulating stations reservoirs, water quality and treatment, water mains, recycled water, etc.), associated appurtenances, as well as other related components of the facilities such as buildings, landscape, grading, drainage, etc., for a complete and operative project.
1-E Other Related Services
Provide other related services including, but not limited to, the following:
1-E-1 Architecture
o Provide consulting services for architectural design, architectural renderings, line-of-sight analyses, building sections, code interpretation issues, and other architectural related issues.
3 1-E-2 Structural
o Provide consulting services for structural investigations of Anaheim’s existing facilities, seismic analysis, miscellaneous structural calculations, and design on Anaheim’s existing and proposed systems and structures.
1-E-3 Civil
o Provide consulting services for general engineering services as required for the project. Scope of work may include but is not limited to site design, street improvements, grading, drainage, preparation of Water Quality Management, Erosion Control, and Stormwater Pollution Prevention Plans, and related calculations and reports as necessary.
1-E-4 Mechanical & HVAC
o Provide consultation, engineering, and design services on modification, upgrade, and replacement of existing mechanical and HVAC systems, including piping, plumbing, support systems, controls, code interpretation, and related calculations as necessary.
1-E-5 Landscape Architecture
o Provide consulting services for landscape architecture design, including landscape planting plans, renderings and views of proposed landscape plantings, and landscape installation inspection services. Provide consultation for irrigation system design and inspection.
1-E-6 Field Survey
o Conducting boundary and topographic surveys, documenting and identifying existing elevations, contours, natural features, and manmade structures (water, gas, sewer, telecom, etc.), establishing ground control points using GPS, providing staking services for construction projects, and assisting with preservation of existing monuments, and filing survey information with the City, County, and/or state regulatory agencies.
1-E-7 Hydrogeology
o Provide consulting services on groundwater issues related to potable water production wells, including design and hydrogeology of new potable water production wells and well sites, destruction of inactive wells, evaluation of contamination plumes, groundwater modeling, parameters and requirements
4 necessary to drill, construct, operate, and maintain proposed wells, prepare Drinking Water Source Assessment and Protection (DWSAP) plans, and any additional inspection and hydrogeologic analysis.
1-E-8 Environmental Compliance Services
o Provide consulting services for the preparation of environmental documents and support studies to comply with California Environmental Quality Act (CEQA), which may include an Initial Study, Negative Declaration, Mitigated Negative Declaration, Addendum, or Environmental Impact Report (EIR), or Supplement or Subsequent EIR, National Environmental Policy Act (NEPA) when complying with federal grants, permit applications with support studies, aesthetic simulations, and other environmental compliance tasks that may be needed.
1-E-9 Recycled Water Compliance
o Aid with compliance requirements for recycled water treatment and distribution system monitoring and reporting.
1-E-10 Engineering Support During Bidding and Construction
o Review and respond to Requests for Information (RFI) and review and approve shop drawings submitted by contractor for conformance with the contract documents, reviewing progress reports and payment logs, preparing supplementary sketches and details to resolve field construction challenges, providing project inspection services, and preparing “as constructed” corrections to the original drawings and specifications. 1-E-11 Plan Check Services
o Provide consulting services to support City development services to coordinate compliance with applicable standards, guidelines, policies, rules, ordinances, codes, and practices.
Category 2: Construction Management
Provide part-time or full -time construction management and inspection services during construction of Anaheim’s facilities. This may include International Council of Building Officials (ICBO) certified deputy inspectors as required by Anaheim. The tasks o f construction management and inspection shall include, but are not limited to:
5 2-A Construction Management and Coordination with Contractor
• Provide construction management and coordinate as needed for the project, review and coordinate construction schedule and activities, conduct meetings on behalf of Anaheim, provide permits and clearances documentation as required on projects, as well as attend meetings to assist in maintaining public relations as needed.
2-B Project Administration
• Assist Anaheim with owner directed changes, including:
o Manage the progress of work, monitor field conditions, and track potential changes.
o Provide review of, recommend, and prepare change order(s) and/or extra work order(s) as needed on construction project.
o Coordinate and process RFI’s and shop drawings submittals, and ensure construction conformance with the contract documents.
o Review and adjust progress pay estimates prepared and submitted by the contractor for conformance with the contract documents. o Monitor warranty, standard operating procedures, and operation and maintenance manual submittals.
o Oversee commissioning and operating period work.
o Assist with substantial completion, record documentation, punch list, and final completion.
2-C Construction Inspection
• Provide construction inspection by qualified inspectors and maintain daily inspection reports, construction progress reports, and project logs, etc., of the progress of the construction work.
• Secure record drawing information from the construction contractor. • Provide start-up support for a Project, including final acceptance testing, support, and final completion sign off.
• Prepare the Final Construction Report.
6 Category 3: Pipeline Design
Provide consulting services for the design of water mains, transmission mains, siphons and associated appurtenances. Provide preliminary and final design services including the preparation of plans, specifications, and cost estimates. Provide bidding ass istance, construction support, and final as-builts as needed for projects.
Category 4: Electrical, Instrumentation & Control Services
Provide consultation, engineering, and design services on modification, upgrade, troubleshooting, restarting, adjusting control settings, repair, and replacement of the following:
• Existing electrical systems;
• Motor control centers and motor starters;
• Electrical panels and instrumentation and control systems (SCADA); • SCADA systems components, including instrumentation, communication system components;
• Security systems, including cameras and door/gate access controls; • Information technology for SCADA system; and
• Cybersecurity support for PLC/HMI/OIT software and custom applications for Anaheim Water System.
Category 5: Geotechnical Engineering Services
Conduct geotechnical investigations, including field explorations and tests, laboratory tests, and seismic investigations, to assess the general conditions of a project site area and prepare geotechnical reports of final design and construction recommendations. • Field explorations may require drilling plans and classification of underlying soils and must be done under the supervision of a licensed geotechnical engineer or registered geologist.
• Investigations may include slope stability analysis of reservoir embankments, foundations, retaining walls, and dams and earthen dam monitoring and inspection to comply with California Department of Water Resources, Division of Safety of Dams (DSOD) and other Anaheim requirements.
• Provider may also be asked to provide seismic hazard analyses and site-specific seismic criteria as needed for project design.
7 Project Management
For each service that may be performed by Provider in a specific Work Order, Provider shall provide project management services, including:
Project Schedule
Create schedules with the critical milestones for the major tasks involved in a project. Update the schedule monthly, or more often, as required by Anaheim. Schedules shall be submitted in PDF format unless other format is requested by Anaheim.
Meetings
Attend meetings and/or job walks, as requested by Anaheim. Prepare meeting agendas and meeting minutes.
Monthly Project Status Report
Prepare Monthly Project Status Reports that show accurate accountability of work effort rendered and a continuous appraising and monitoring of both work progress and financial conditions on a project. Provider’s fee for project management services, including the time and related expenses shall be included among the fees for the service(s) it may perform in a specific RFWOP.