A G R E E M E N T
THIS AGREEMENT, dated for purposes of identification only this _____ day of __________, 2026, 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 consulting services on an as -needed basis for compliance with the City's Municipal Nat ional Pollutant Discharge Elimination System ("NPDES") Permit and with the Statewide General Waste Discharge Requirem ents for Sanitary Sewer Systems for ANAHEIM 's Public Works Department as described in the Req uest for Proposal ("RFP") dated December 1, 2025 issued by ANAHEIM ; 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 ________________ (the "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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SAMPLE
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") Regulatory Permit Compliance Programs (the "Compliance Programs") 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 P ublic 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.
In the event of conflicting provisions, the provisions shall govern in the following order: (1) this Agreement, (2) the RFP, and (3) the Proposal.
2. TERM
The term of this Agreement shall commence on the date this Agreement is executed by ANAHEM and shall terminate one (1) year thereafter, unless sooner terminated as provided herein ("Initial Term"). The Director is hereby authorized to renew this Agreement upon the same terms and conditions for no more than four (4) additional one year terms after the Initial Term ("Renewal Term"), unless CONSULTANT provides written notice of termination no less than thirty (30) days prior to completion of the term in progress; provided however, that compensation rates may be adjusted during the renewal of each subsequent term (hereinafter the phrases “Initial Term” and “Renewal Term,” if any, shall be collectively referred to as the “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 CONSULTANT, including, but not restricted to, acts o f 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, sabo tage, 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, which by th e 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 commencement of such delay notify the Project Admini strator 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 SAMPLE
3 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 th is 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 the Services satisfactorily rendered pursuant to this Agreement in accordance with the hourly rates and Fee Sched ules attached hereto as Exhibit A and incorporated herein by this reference. CONSULTANT and ANAHEIM agree that no changes to the hou rly rates set forth in Exhibit A shall be made during the Term of this Agreement without the prior written authorization of the Department Head. It is understood by and agreed between the Parties to this Agreement that full and complete payment for all Services during the Term of this Agreement shall not exceed Six Hundred Thousand Dollars and 00/100 Cents ($600,000.00) in any fiscal year.
4.2 CONSULTANT shall submit monthly invoices to ANAHEIM describing the work performed the preceding month and shall be submitted via email to City’s contract manager no later than the last day of the month subsequent to the work performed. Failure to submit timely invoices to the City may be deemed a Default per Section 25 below .
CONSULTANT's bills shall include the name and title 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. CONSULTANT is responsible for ensuring correctness of the billing rates, time spent and project scope worked upon.
ANAHEIM shall endeavor to pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff. Upon demand by City, CONSULTANT shall provide evidence of work performed.
4.3 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 i n 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.
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 Manger shall be responsible during the Term of this Agreement for directing all activities of CONSULTANT and devoting sufficient time to personally SAMPLE
4 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 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 terminat e services in accordance with Section 25 of this Agreement.
(ii) The Project Administrator is authorized to take those specific acti ons set forth herein and review and approve all Services performed by CONSULTANT under this Agreement. The Project Administ rator shall not be authorized to approve Extra Work, change billing rates or 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. CONSULTANT represents and maintains that it is skilled in the professional calling necessary to perform the Services. CONSULTANT warrant s 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 practice 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) SAMPLE
5 has carefully considered how the Services should be provided; and (iii) fully unde rstands 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 CONSULTANT's risk until written instructions are received from ANAHEIM.
9. INDEPENDENT CONTRACTOR
9.1 Neither ANAHEIM nor any of its employee s 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 selec tion, 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 ANAHE IM 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 compen sation 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 officers, employees, agents, representatives or sureties.
10. INSURANCE
Without limiting ANAHEIM’S right to indemnification, it is agreed that CONSULTANT shall secure, pri or to commencing any activities under this Agreement, and maintain, during the term of this Agreement, minimum limits of insurance coverage as follows:
Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000.
Commercial General Liability Insurance , including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent CONSULTANT’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, prior to the inception of this Agreement.
SAMPLE
6 Commercial Automobile Liability Coverage as required by California law, including—as applicable —owned, non -owned, and hired autos, i n an amount not less than $2,000,000 per occurrence, combined single limit.
Professional Liability Insurance, inclusive of Cyber Liability Insurance where required, 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 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.
Any required coverage written with p rimary 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.
CONSULTANT is responsible for the satisfaction of any deductible or self -insured retention obligation.
CONSULTANT agrees that this insurance shall not be voluntarily cancelled by CONSULTANT or limited in scope or coverage by CONSULTANT until after thirty (30) days prior written notice has been given to the City Clerk, City of A naheim, 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.
Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions:
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:
“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.”
“The City of Anaheim, its officers, agents, emp loyees, representatives and volunteers are included as additional insured with respect to the scope of work, operations, and/or activities of or performed on behalf of or at the direction of the Named Insured, performed under this Agreement with the City of Anaheim.” Prior to commencing any work under this Agreement, CONSULTANT 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, CONSULTANT shall provide ANAHEIM (i) SAMPLE
7 endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documenta tion 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 CONSULTANT shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action.
In addition to other remedies ANAHEIM may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time required, ANAHEIM may, at its sole option:
Order CONSULTANT to stop work under this Agreement and/or withhold any payment(s) that become due to CO NSULTANT hereunder until CONSULTANT demonstrates compliance with the requirements hereof.
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 CON SULTANT’S failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed in any way as limiting the extent that an CONSULTANT may be held responsible for payments of damages to persons or property resulting from CONSULTANT’S, (or CONSULTANT’S AGENT or SUB-AGENT, if any) performance of the work covered under this Agreement.
In the event CONSULTANT hires other persons or firms to perform some of the work related to this Agreement, CONSULTANT 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 CONSULTANT 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, CONSULTANT shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
ANAHEIM’S Risk Manager is hereby authorized to amend or reduce the requirements SAMPLE
8 set forth herein if such customer -generated requested amendment or reduction request is i n ANAHEIM’S best interest.
11. INDEMNIFICATION
As respects acts, errors or omissions in the performance of professional services, CONSULTANT 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 the negligent acts, errors or omissions of the CONSULTANT or any SUB -AGENT in the performance of professional services under this Agreement.
As respects a ll 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, CONSULTANT 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 any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with CONSULTANT’S (or CONSULTANT'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.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAHEIM, CONSULTANT or any other person or entity maintains or fails to maintain insurance coverage or a self -insurance program, for any such Claim(s); and (ii) shall survive the termination of this Agreement.
12. PREVAILING WAGES
12.1 By execution of this Agreement, CONSULTANT certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., the California Code of Regulations, Title 8, Section 16000 et seq. and the Davis-Bacon Act (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” or "maintenance" projects. It shall be CONSULTANT’s sole obligation to determine whether, and t o what extent if any, the Prevailing Wage Laws apply to the Services. If CONSULTANT determines the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation for the Services is $1,000 or more, CONSULTANT shall fully comply with the Prevailing Wage Laws. Copies of the prevailing rate of per diem wages are on file at the City of Anaheim, Office of the City Clerk, 200 South Anaheim Boulevard, Anaheim, Ca lifornia 92805, and are available to any interested party on request. If the Prevailing Wage Laws apply to the Services, CONSULTANT 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 CONSULTANT’s principal place of business and at the project site. CONSULTANT shall defend, indemnify and hold ANAHEIM, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
SAMPLE
9 12.2 The Parties understand and agree that if, and when, the Prevailing Wage Laws apply to the Services, CONSULTANT shall comply with the express requirements of Labor Code Sections 1725.5, 1771.1, 1771.4 and 1776, including but not limited to the contractor and subcontractor registration and requirements related to certified payroll records.
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 scheduled 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 und er 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 ANAHEIM upon termination of this Agreement, for any reason. All documents or material prepared or cause d 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 SAMPLE
10 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 th is 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 ANAHEIM or persons other than CONSULTANT, is waived against CONSULTANT and A NAHEIM 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
17.1 “Confidential Information” means, with respect to a Party hereto, all information or material which either (1) is marked or identified as “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking or identification, or (2) the other Party knew, as recipient, 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, el ectronic, or other form, furnished in connection with this Agreement by the Disclosing Party or its Representatives (“Representative” is defined as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or CONSULTANT of a Party or any of its subsidiaries or affiliates) to the Receiving Party (as defined below) or to its Representatives, and specifically includes but is not limited to ANAHEIM’s individually identifiable customer information, and ANAHEIM’s customer usage d ata and financial data.
17.2 CONSULTANT 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 as specified in 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, or to its Representatives or to others. 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 ob ligation 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 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 SAMPLE
11 Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
17.3 By virtue of this Agreemen t, 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 per tain 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 17 which shall supersede any suc h previous agreement with respect to such Confidential Information and any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement it shall be treated as though it was exchanged under this Agreement as of the date of such exchange.
17.4 The Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and the Receiving Party shall only use such info rmation 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 req uire 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 of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
17.5 If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to discl ose 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. 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.
SAMPLE
12 17.6 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.
17.7 Within two (2) weeks of the termination of this Agreement, CONSULTANT 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 other form of material, without retaining any copy or duplicate thereof; provided that CONSULTANT 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 CONSULTANT’s confidential obligations with respect to such information shall continue so long as such information is retained. CONSULTANT shall certify in writing the destruction of the Confidential Information. ANAHEIM may perform an audit of CONSULTANT’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.
17.8 Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
18. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT sha ll 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. FISCAL RECORDS AND AUDIT
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement.
CONSULTANT 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 SAMPLE
13 audit CONSULTANT's accounting procedures and internal controls of CONSULTANT's financial systems and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any items set forth in this Agreement. If CONSULTANT fail s to provide supporting documentation satisfactory to ANAHEIM for costs charged, then CONSULTANT 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. CONSULTANT agrees to fully cooperate with any such audit(s).
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 a Work Order. CONSULTANT agrees to retain all necessary records/documentation for the entire length of this audit period.
CONSULTANT will be notified in writing of any exception taken as a result of an audit. Any adjustments a nd/or payments which must be made as a result of any such audit or inspection of CONSULTANT’s invoices and/or records shall be made within thirty (30) days from presentation of ANAHEIM’s findings to CONSULTANT. If CONSULTANT fails to make such payment, CONSULTANT 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, then the higher rate will prevail. Interest will be computed from the date of written notification of exception(s) to the date CONSULTANT reimburses ANAHEIM for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by CONSULTANT 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 CONSULTANT. CONSULTANT reserves the right to contest any exception.
20. WITHHOLDINGS
ANAHEIM may withhold payment to CONSULTANT of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this 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 investments 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 o r 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. N othing in this paragraph is intended to limit ANAHEIM's rights under the law or any other sections of this Agreement.
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14 22. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
CONSULTANT acknowledges and agrees that this Agreement and the provision of services here under are nonexclusive and that ANAHEIM may enter 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 affect 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 Category 1, unle ss 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
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, po stage 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
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15 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: Name
Address
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 Agreemen t. 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 assi gnment 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 CONSULTANT's asse ts 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) days are required for its performance, then ANAHEIM shall not be deemed to be in Default if ANAHEIM shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
25.2 Immediate Termination for CONSULTANT's Default. In the event of any Default by CONSULTANT, ANAHEIM may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by CONSULTANT of written notice from ANAHEIM. In such event, CONSULTANT shall have no fu rther rights hereunder, and ANAHEIM shall have all other rights and remedies as provided by law.
25.3 Termination without Cause. ANAHEIM may terminate this Agreement at any time without the necessity of cause or Default by giving seven (7) days notice in writing to CONSULTANT. In such event, the Parties shall have no further rights hereunder, except that SAMPLE
16 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, all 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 Par ty 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 dec ision 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.
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 unenforc eable, 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 SAMPLE
17 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 hereafter 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 a ny 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 a ction 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. AUTHORITY
Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants the he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. CONSULTANT shall, at ANAHEIM's request, deliver a certified copy of it governing board's resolution or certificate authorizing or evidencing such execution.
38. EFFECTIVE DATE
This Agreement shall be effective on the date on which this Agreement is executed by ANAHEIM ("Effective Date").
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18 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
Date: _____________________________
Date: _____________________________
CITY OF ANAHEIM
A municipal corporation
By: ______________________________
ATTEST:
__________________________________
City Clerk of the City of Anaheim
“ANAHEIM”
__________________, a _____________
By: ______________________________
Title: _____________________________
Printed Name: ______________________
“CONSULTANT”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By: ____________________________________
Bryn M. Morley
Deputy City Attorney
156760
Attachments: Exhibit A
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1 EXHIBIT A
STARTS AFTER THIS PAGE
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