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
CHO DESIGN ASSOCIATES, INC., a California corporation
hereinafter referred to as "CONSULTANT."
ANAHEIM and CONSULTANT are sometimes individually referred to herein as "Party" and collectively as "Parties."
W I T N E S S E T H:
WHEREAS, ANAHEIM is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and
WHEREAS, ANAHEIM desires to obtain the services of engineering and consulting firms to provide professional engineering and design services, and/or other consulting services related to engineering services related to the Emergency Operations Center (EOC) (collectively, the “Services”); 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 April 7 , 2026 ("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:
2 1. SERVICES TO BE PROVIDED BY CONSULTANT
1.1 In compliance with all of the terms and conditions of this Agreement, CONSULTANT shall provide to ANAHEIM all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adeq uately supply the professional consulting services necessary for the Project ("Services"). The Services are more particularly described in the CONSULTANT’s Proposal dated April 7, 2026, attached hereto as Exhibit “A” and incorporated herein and in the Request for Proposal (“RFP”) issued by ANAHEIM, a copy of which is available in the Department of Public Works upon request and are both incorporated herein by this reference ("Scope of Services").
In the event of conflicting provisions, the provisions shal l govern in the following order: (1) this Agreement, (2) the RFP, and (3) the Proposal.
1.2 Non-Exclusive Agreement . CONSULTANT acknowledges that ANAHEIM may enter into agreements similar to this Agreement with other consultants. It is understood and a greed that any Services to be performed pursuant to this Agreement will be awarded to the CONSULTANT that ANAHEIM determines, in its sole discretion, to be most qualified to provide such Services to ANAHEIM.
1.3 Progress Reports. A. CONSULTANT shall subm it progress reports at least once a month. The report should be sufficiently detailed for the Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
CONSULTANT’s Project Manager shall meet with ANAHEIM’s Contract Administrator, as needed, to discuss progress on the contract.
2. TERM
The term of this Agreement shall commence on the Effective Date of this Agreement as set forth in Section 55 herein, and shall terminate upon the completion of the Services described herein, unless terminated earlier as set forth in Section 25 herein ("Term").
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of th is Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by CONSULTANT to perform the Services in a diligent and timely manner may result in termination of this Agreement by ANAHEIM.
3.2 The time period(s) specified for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and witho ut the fault or negligence of CONSULTANT, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabotage, restraint by court
3 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 the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if CONSULTANT shal l within ten (10) days of the commencement of such delay notify the Project Administrator in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Servic es for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, CONSULTANT's sole remedy shall be an extension of 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 rendered, pursuant to this Agreement, in the amount of Sixty-Eight Thousand, Eighty-Eight Dollars and No/100 Cents ($68,088.00) pursuant to the fee proposal set forth in Exhibit A and incorporated herein by reference (“Schedule of Compensation"). CONSULTANT and ANAHEIM agree that no changes to the fee proposal set forth in Exhibit A shall be made during the term of this Agreement without the prior written approval of ANAHEIM.
4.2 Extra Work. No Extra Work shall be rendered by CONSULTANT, unless such Extra Work is first approved by written amendment to this Agreement. As used herein, “Extra Work” means any work that is determined by ANAHEIM to be necessary for the proper completion of the Services, but which is not included within the Scope of Services and which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work billed on a time and expense basis shall be paid in accordance with billing rates set forth in the Schedule of Compensation.
4.3 It is understood by and agreed between the Parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement, including, but not limited to, all Extra Work, reimbursable expenses and subconsultant fees, if any, shall not exceed the fixed fee of Sixty-Eight Thousand, Eighty -Eight Dollars and No/100 Cents ($68,088.00).
4.4. CONSULTANT shall submit monthly invoices to ANAHEIM descri bing the work performed the preceding month. CONSULTANT’s bills shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. ANAHEIM shall pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff.
4.5 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of ANAHEIM, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget.
4 ANAHEIM does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to ANAHEIM in t he event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on items delivered, services provided, monies paid and monies due.
4.6 CONSULTANT agrees that the Contract Cost Principles and Procedur es, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. CONSULTANT also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 49 CFR, Part 18 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by CONSULTANT to ANAHEIM.
4.7 It is mutually understood between the parties that this contract may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the contract were executed after that determination was made.
4.8 This contract is valid and enforceable only, if sufficient funds are made available to ANAHEIM for the purpose of this contract. In addition, this contract is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, Stat e Legislature, or ANAHEIM governing board that may affect the provisions, terms, or funding of this contract in any manner.
4.9 It is mutually agreed that if sufficient funds are not appropriated, this contract may be amended to reflect any reduction in funds.
4.10 ANAHEIM has the option to void the contract under the 30-day termination clause pursuant to Section 25, or by mutual agreement to amend the contract to reflect any reduction of funds.
4.11 The method of payment for this contract will be based on actual cost plus a fixed fee. ANAHEIM will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred b y CONSULTANT in performance of the work. CONSULTANT will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved CONSULTANT’S Cost P roposal, unless additional reimbursement is provided for by contract amendment.
In no event, will CONSULTANT be reimbursed for overhead costs at a rate that exceeds ANAHEIM’s approved overhead rate set forth in the Cost Proposal. In the event, that ANAHEIM determines that a change to the work from that specified in the Cost Proposal and contract is required, the contract time or actual costs reimbursable by ANAHEIM shall be adjusted by contract amendment to accommodate the changed work. The maximum total co st as specified in Exhibit “A” shall not be exceeded, unless authorized by contract amendment.
5 4.12 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.
4.13 When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.
4.14 Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT’s fixed fee will be included in the monthly progress payments. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in th e Statement of Work, ANAHEIM shall have the right to delay payment or terminate this Contract in accordance w ith the provisions of Termination herein.
4.15 No payment will be made prior to approval of any work, nor for any work performed prior to approval of this contract.
4.16 CONSULTANT will be reimbursed, as promptly as fiscal procedures will permit upon receipt by ANAHEIM’s Contract Administrator of itemized invoices in triplicate.
Invoices shall be submitted no later than 45 calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this contract number and project title. Final invoice must contain the final cost and all credits due ANAHEIM including any equipment purchased under the provisions of Equipment Purchase of this Agreement. The final invoice should be submitted within 60 calendar days after completion of CONSULTANT’s work. Invoices shall be mailed to ANAHEIM’s Contract Administrator at the following address:
Contract Administrator
955 S. Melrose Avenue
Anaheim, CA 92805
4.17 Salary increases will be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by ANAHEIM’s Contract Administrator.
For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
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. It is expressly understood that the experience, knowledge, capability and reputation of the Project Manager is a substantial inducement for ANAHEIM to enter into this Agreement. Therefore, the Project Manger shall be responsible during the Term of this Agreement for directing all activities of CONSULTANT and devoting sufficient time to personally supervise
6 the provision of Services hereunder. The 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 b e administered by the Public Works Department. The employees of the Public Works Department shall be authorized to take the following actions pursuant to this Agreement:
(i) The Director of Public works is authorized to take any and all actions on behalf of ANAHEIM as set forth herein and to terminate services in accordance with Section 25 of this Agreement.
(ii) The 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 Administrator 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 i n 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 warrants that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work, CONSULTANT certifies that the work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the professional standard of care.
7.2 CONSULTANT represents and warrants to ANAHEIM that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of CONSULTANT to 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)
7 has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement.
Should CONSULTANT discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by ANAHEIM, CONSULTANT shall immediately inform ANAHEIM of such fact and shall not proceed except at CONSULTANT'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 CONSULTANT, its agents or employees, perform the services required herein, except as otherwise set forth herein. Except as expressly provided herein, ANAHEIM shall have no voice in the selection, discharge, supervision or control of CONSULTANT's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. CONSULTANT shall perform all services required herein as an independent contractor of ANAHEIM and shall remain at all times as to ANAHEIM a wholly independent contractor with only such obligations as are consistent with that role. CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of ANAHEIM. ANAHEIM shall not in any way or for any purpose become or be deemed to be a partner of CONSULTANT in its business or otherwise or a joint venture or a member of any joint enterprise with CONSULTANT.
9.2 In consideration for the compensation paid to CONSULTANT by ANAHEIM, CONSULTANT agrees that ANAHEIM shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, li fe, 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 limi ting ANAHEIM’S right to indemnification, it is agreed that CONSULTANT shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, 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 Lia bility, 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.
Commercial Automobile Liability Cover age as required by California law, including—as applicable —owned, non -owned, and hired autos, in an amount not less than
8 $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 t o ANAHEIM, in writing, at the inception of this Agreement.
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.
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 CONSULTAN T 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.
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’ Com pensation, 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, employees, 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 ins urance 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) 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
9 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 CONSULTANT hereunder until CONSULTANT demonstrates compliance with the requirements hereof.
Terminate this Agreement.
Exercise of any of the above remedies, ho wever, is an alternative to other remedies ANAHEIM may have and is not the exclusive remedy for CONSULTANT’S failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed in any way as limiting the extent tha t 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 set forth herein if such customer -generated requested amendment or reduction request is in ANAHEIM’S best interest.
11. INDEMNIFICATION
As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemn ify 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 caused by or directly arising 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 all acts, errors or omissions that do not arise directly out of the
10 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 fro m 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, e rrors, 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 whet her 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 CONSULTANT shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the work.
12.2 Any subcontract entere d into as a result of this contract, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Article, unless the awarding agency has an approved labor compliance program by the Director of Industrial Relations.
12.3 When prevailing wages apply to the services described in the scope of work, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov.
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 g ranted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of ANAHEIM. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to ANAHEIM. If ANAHEIM approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall
11 be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of CONSULTANT.
15. SUBCONTRACTING
15.1 Nothing contained in this contract or otherwise, shall create any contractual relation between ANAHEIM and any subconsultant(s), and no subcontract shall relieve CONSULTANT of its responsibilities and obligations hereunder. CONSULTANT agrees to be as fully responsible to ANAHEIM for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by CONSULTANT. CONSULTANT’s obligation to pay its subconsultant(s) is an independent obligation from ANAHEIM's obligation to make payments to the CONSULTANT.
15.2 CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this contract shall be subcontracted without written authorization by ANAHEIM's Contract Administrator, except that, which is expressly identified in the approved Cost Proposal.
15.3 CONSULTANT shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to CONSULTANT by ANAHEIM.
15.4 All subcontracts entered into as a result of this contract shall contain all the provisions stipulated in this contract to be applicable to subconsultants.
15.5 Any substitut ion of subconsultant(s) must be approved in writing by ANAHEIM's Contract Administrator prior to the start of work by the subconsultant(s).
16. USE AND OWNERSHIP OF DOCUMENTS AND DATA
16.1 Upon completion of all work under this contract, ownership and ti tle to all reports, documents, plans, specifications, and estimates produce as part of this contract will automatically be vested in ANAHEIM; and no further agreement will be necessary to transfer ownership to ANAHEIM. CONSULTANT shall furnish ANAHEIM all necessary copies of data needed to complete the review and approval process.
16.2 It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine -readable form, are intended for one -time use in the construction of the project for which this contract has been entered into.
16.3 CONSULTANT is not liable for claims, liabilities, or losses arising out of, or connected with the modification, or misuse by ANAHEIM of the machine-readable information and data provided by CONSULTANT under this contract; further, CONSULTANT is not liable for claims, liabilities, or losses arising out of, or connected with any use by ANAHEIM of the project documentation on other projects for additions to this project, or for the comp letion of this project by others, except only such use as many be authorized in writing by CONSULTANT.
12 16.4 Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).
16.5 ANAHEIM may permit copyrighting reports or other agreement products.
If copyrights are permitted; the agreement shall provide that the FEMA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
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 confidentia l or proprietary by the Disclosing Party (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, 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 Rep resentatives, and specifically includes but is not limited to ANAHEIM’s individually identifiable customer information, and ANAHEIM’s customer usage data 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 I nformation (“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 an y 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 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 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 o bligation 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.
17.3 By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Ag reement does not diminish, revoke or supersede any existing confidentiality, non -disclosure or similar agreement between the Parties
13 that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previ ously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 17 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential Information relati ng 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 Informat ion of the Disclosing Party, no matter written, electronic, or oral, 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 shal l 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 disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuan t 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, t he 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 exerc ise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
17.6 In the event the Receiving Party discloses, disseminates or relea ses 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 Informatio n 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 disc losed Confidential Information and immediately notify Disclosing
14 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 performa nce 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 Confiden tial 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, th is Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
18. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT shall defend and indemnify ANAHEIM, its agents, officers, representatives and employees against any and all l iability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to ANAHEIM pursuant to this Agreement.
19. RECORDS
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to ANAHEIM, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT under this Agreement.
All such records and invoices shall be clearly identifiable. CONSULTAN T shall allow a representative of ANAHEIM to examine, audit and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours.
CONSULTANT shall allow inspection of all work, data, Docum ents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment to CONSULTANT under this Agreement.
15 For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, C alifornia Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the contract pursuant to Government Code 8546.7; CONSULTANT, subconsultants, and ANAHEIM shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of the contract, including but not limited to, the costs of administering the contract. All parties shall make such materials available at the ir respective offices at all reasonable times during the contract period and for three years from the date of final payment under the contract. The state, State Auditor, ANAHEIM, FEMA, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CONSULTANT and it’s certified public accountants (CPA) work papers that are pertinent to the contract and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested.
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 or professional inexperience of CONSULTANT which result in expense to ANAHEIM greater than what would have resulted if there were not errors or omissions in the work accomplished by CONSULTANT, the additional cost and expense shall be borne by CONSULTANT. Nothing in this paragraph is intended to limit ANAHEIM's rights under the law or any other sections of this Agreement.
22. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
CONSULTANT acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that ANAHEIM may 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.
16 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 requir ements of the Act. If CONSULTANT’s employee(s) is designated a Form 700 Filer, such employee(s) shall file under Disclosure Category 1, unless otherwise directed by ANAHEIM, and shall periodically complete ethics training as required by ANAHEIM. CONSULTANT shall at its own cost and expense ensure such employee’s compliance with these filing and ethics-training requirements.
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, postage prepaid, and addressed to the respective Parties at the following addresses:
If to ANAHEIM: City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Director of Public Works
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-5225
To CONSULTANT: Cho Design Associates, Inc.
3601 W. MacArthur Blvd., Suite 903
Santa Ana, CA 92704
Phone No.: (714) 427-0680
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
17 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 f or 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 ANAHEIM reserves the right to terminate this contract upon thirty (30) calendar days written notice to CONSULTANT with the reasons for termination stated in the notice.
25.3 ANAHEIM may terminate this contract with CONSULTANT should CONSULTANT fail to perform the covenants herein conta ined at the time and in the manner herein provided. In the event of such termination, ANAHEIM may proceed with the work in any manner deemed proper by ANAHEIM. If ANAHEIM terminates this contract with CONSULTANT, ANAHEIM shall pay CONSULTANT the sum due to CONSULTANT under this contract prior to termination, unless the cost of completion to ANAHEIM exceeds the funds remaining in the contract. In which case the overage shall be deducted from any sum due CONSULTANT under this contract and the balance, if any, shall be paid to CONSULTANT upon demand.
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 Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement and the exhibits hereto contain the entire agreement of ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, statement or
18 promise made by either ANAHEI M or CONSULTANT which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose.
29. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits or any other attachments attached hereto, the terms of this Agreement shall govern.
30. INTERPRETATION
Each Party acknowledges that he / she / it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this 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.
CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by ANAHEIM's Contract Administrator.
There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this contract without prior written approval by ANAHEIM's Contract Administrator.
32. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
33. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and CONSULTANT herein shall be cumulative and are given without impairing any other rights given ANAHEIM or CONSULTANT by statute or law now existing or hereafter enacted and the exercise on a ny one (1) remedy by ANAHEIM or CONSULTANT shall not exclude the exercise of any other remedy.
34. NO THIRD PARTY BENEFICIARIES
The Parties intend that no rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covena nt, duty, obligation or undertaking established herein.
19 35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
36. DISCRIMINATION
CONSULTANT agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that CONSULTANT offer accommodations or services to the public, such accommodations or services shall be offered by CONSULTANT to the public on fair and reasonable terms.
37. 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 resolut ion or certificate authorizing or evidencing such execution.
38. FEDERAL REGULATIONS
38.1 Compliance with Regulations. This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The contractor will comply with all applicable Federal law, regulations, executive orders, FEMA policies,procedures, and directives.
38.2 Nondiscrimination.
A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestr y, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that
20 the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.) , the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by ANAHEIM to implement such article. The applicable regulations of the Fair Employment and H ousing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100 -8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and ANAHEIM upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its faci lities as said Department or ANAHEIM shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective barg aining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non - discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
I. CONSULTANT, subrecipient or subconsultan t will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin.
38.3 Solicitations for Sub-agreements, Including Procurements of Materials and Equipment. In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub -agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by
21 CONSULTANT of the CONSULTANT's obligations under this Agreement and the REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin.
38.4 Information and Reports. CONSULTANT shall provide all information and reports required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to CONSULTANT's books, records, accounts, other sour ces of information, and its facilities as may be determined by STATE or FEMA to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of CONSULTANT is in the exclusive possession of another who f ails or refuses to furnish this information, CONSULTANT shall so certify to ANAHEIM, STATE or the FEMA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
38.5 Sanctions for Noncompliance . In the event of CONSULTANT's noncompliance with the nondiscrimination provisions of this agreement, ANAHEIM and the STATE shall impose such agreement sanctions as it or the FEMA may determine to be appropriate, including, but not limited to:
(a) withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or (b) cancellation, termination or suspension of the Agreement, in whole or in part.
38.6 Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub -agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. CONSULTANT shall take such action with respe ct to any sub -agreement or procurement as STATE or FEMA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigatio n with a sub -applicant or supplier as a result of such direction, CONSULTANT may request STATE enter into such litigation to protect the interests of STATE, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
39. AUDIT REVIEW PROCEDURES
39.1 Any dispute concerning a question of fact arising under an interim or post audit of this contract that is not disposed of by agreement, shall be reviewed by ANAHEIM’S Director of Finance.
39.2 Not later than 30 days after issuance of the final audit report, CONSULTANT may request a review by ANAHEIM’S Director of Finance of unresolved audit issues. The request for review will be submitted in writing.
39.3 Neither the pendency of a dispute nor its consideration by ANAHEIM will excuse CONSULTANT from full and timely performance, in accordance with the terms of this contract.
22 39.4 CONSULTANT and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the contract, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The contract, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by ANAHEIM contract manager to conform to the audit or review recommendations.
CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the contract by this reference if directed by ANAHEIM at its sole discretion.
Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of contract terms and cause for termination of the contract and disallowance of prior reimbursed costs.
40. EQUIPMENT PURCHASE
40.1 Prior authorization in writing, by ANAHEIM’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or CONSULTANT services.
CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
40.2 For purchase of any item, service or consulting work not covered in CONSULTANT’s Cost Proposal and exceeding $5,000 prior authorization by ANAHEIM’s Contract Administrator; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.
40.3 Any equipment purchased as a result of this contract is subject to the following: “CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, ANAHEIM shall rec eive a proper refund or credit at the conclusion of the contract, or if the contract is terminated, CONSULTANT may either keep the equipment and credit ANAHEIM in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established ANAHEIM procedures; and credit ANAHEIM in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the bas is of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by ANAHEIM and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by ANAHEIM.” 49 CFR, Part 18 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the project.
23 41. REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION CONSULTANT warrants that this contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any ANAHEIM employee.
For breach or violation of this warranty, ANAHEIM shall have the right in its discretion; to terminate the contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
42. PROHIBITION OF EXPENDING ANAHEIM STATE OR FEDERAL FUNDS
FOR LOBBYING
Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended) Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not an d has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in co nnection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering i nto of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
24 3. The undersigned shall require that the language of this certification be included in the award documents for a ll subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon whi ch reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The Contractor, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
Signature of Contractor’s Authorized Official
Name and Title of Contractor’s Authorized Official
Date
43. STATEMENT OF COMPLIANCE
43.1 CONSULTANT’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that CONSULTANT has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.
43.2 . During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a -f) et seq.) and the 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by referenc e and made a part hereof as if set forth in full.
Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
43.3 The Consultan t shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49
25 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI pr ovides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
43.4 The Consultant, with regard to the work performed by it during t he Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment.
44. DEBARMENT AND SUSPENSION CERTIFICATION
(1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the contractor is required to verify that none of the contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (2) The contractor must comply with 2 C.F.R. pt. 180, subpart C and2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. (3) This certification is a material representation of fact relied upon by (insert name of recipient/subrecipient/applicant). If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to (insert name of recipient/subrecipient/applicant), the Federal Gov ernment may pursue available remedies, including but not limited to suspension and/or debarment. (4) The bidder or proposer agrees to comply with the requirements of2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
45. CONTINGENT FEE
CONSULTANT warrants, by execution of t his contract that no person or selling agency has been employed, or retained, to solicit or secure this contract upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide est ablished commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, ANAHEIM has the right to annul this contract without liability; pay only for the value of the work actually pe rformed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
46. DISPUTES
46.1 Any dispute, other than audit, concerning a question of fact arising under this contract that is not disposed of by agreement shall be decided by a committee consisting of
26 ANAHEIM's Contract Administrator and Director of Public Works, who may consider written or verbal information submitted by CONSULTANT.
46.2 Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by ANAHEIM Director of Public Works, of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
47. SAFETY
47.1 CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by ANAHEIM Safety O fficer and other ANAHEIM representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
47.2 Pursuant to the authority contained in Section 591 of the Vehicle Code, ANAHEIM has determined that such areas are within the limits of the project and are open to public traffic.
CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably nece ssary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
47.3 Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
48. CLAIMS FILED BY CONSTRUCTION CONTRACTOR
48.1 If claims are filed by ANAHEIM's construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to ev aluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with ANAHEIM's construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
48.2. CONSULTANT’s personnel that ANAHEIM considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from ANAHEIM. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this contract.
48.3 Services of CONSULTANT’s personnel in connection with ANAHEIM's construction contractor claims will be performed pursuant to a written contract amendment , if necessary, extending the termination date of this contract in order to resolve the construction claims.
27 49. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two - year period, because of CONSULTANT’s failure to comply with an order of a federal cour t that orders CONSULTANT to comply with an order of the National Labor Relations Board.
50. EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by ANAHEIM. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation t ogether with the comments shall be retained as part of the contract record.
51. RETENTION OF FUNDS
51.1 Any subcontract entered into as a result of this Contract shall contain all of the provisions of this section.
51.2. ANAHEIM may hold retainage from CONSULANTS and shall make prompt and regular incremental acceptances of portions, as determined by ANAHEIM, of the contract work, and pay retainage to CONSULTANT based on these acceptances. ANAHEIM shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant. (Choose either Method 1, Method 2, or Method 3 below and delete the other two.)
No retainag e will be held by ANAHEIM from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with ANAHEIM’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant.
52. INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit ANAHEIM, the state, and the FEMA if federal participating funds are used in this contract; to review and inspect the project activities and files at all reasonable times during the performance period of this contract including review and inspection on a daily basis.
53. PROMPT PAYMENT FROM ANAHEIM TO CONSULTANT
ANAHEIM shall make any progress payment within 30 days after receipt of an undisputed and properly submitted p ayment request from CONSULTANT on a professional
28 service contract. If ANAHEIM fails to pay promptly, ANAHEIM shall pay interest to the contractor, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsat isfied. Upon receipt of a payment request, ANAHEIM shall act in accordance with both of the following:
(1) Each payment request shall be reviewed by ANAHEIM as soon as practicable after receipt for the purpose of determining that the payment request is a proper payment request. (2) Any payment request determined not to be a proper payment request suitable for payment shall be returned to CONSULTANT as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.
54. NO OBLIGATION BY FEDERAL GOVERNMENT
The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non-Federal entity, contractor, or any other party pertaining to any matter resulting from the contract.
55. PROCUREMENT OF RECOVERED MATERIALS
A recipient or subrecipient that is a State agency or agency of a political subdivision of a State and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 as amended, 42 U.S.C. 6962.
The requirements of Section 6002 include procuring only items designated in the guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. (b) The recipient or subrecipient should, to the greatest extent practicable and consistent with law, purchase, acquire, or use products and services that can be reused, refurbished, or recycled; contain recycled content, are biobased, or are energy and water efficient; and are sustainable. This may include purchasing compostable items and other products and services that reduce the use of single-use plastic products. See Executive Order 14057, section 101, Policy.
56. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO
SURVEILLANCE EQUIPMENT
(a) Recipients and subrecipients are prohibited from obligating or expending loan or grant funds to:
(1) Procure or obtain covered telecommunications equipment or services; (2) Extend or renew a contract to procure or obtain covered telecommunications equipment or services; or
29 (3) Enter into a contract (or extend or renew a contract) to procure or obtain covered telecommunications equipment or services.
(b) As described in section 889 of Public Law 115-232, “covered telecommunications equipment or services” means any of the following:
(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities); (2) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
(3) Telecommunications or video surveillance services provided by such entities or using such equipment;
(4) Telecomm unications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believ es to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country;
(c) For the purposes of this section, “covered telecommunications equipment or services” also include systems that use covered telecommunicat ions equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. (d) In implementing the prohibition under section 889 of Public Law 115 -232, heads of executive agencies administering loan, grant, or subsidy programs must prioritize available funding and technical support to assist affected businesses, institutions, and organizations as is reasonably necessary for those affected entities to transition from covered telecommunications equipment or services, to procure replacement equipment or services, and to ensure that communications service to users and customers is sustained. (e) When the recipient or subrecipient accepts a loan or grant, it is certifying that it will comply with the prohibi tion on covered telecommunications equipment and services in this section. The recipient or subrecipient is not required to certify that funds will not be expended on covered telecommunications equipment or services beyond the certification provided upon accepting the loan or grant and those provided upon submitting payment requests and financial reports.
57. DOMESTIC PREFERENCES FOR PROCUREMENTS
(a) The recipient or subrecipient should, to the greatest extent practicable and consistent with law, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel,
30 cement, and other manufactured products). The requirements of this section must be includ ed in all subawards, contracts, and purchase orders under Federal awards. (b) For purposes of this section:
(1) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial
melting stage through the application of coatings, occurred in the United States. (2) “Manufactured products” means items and construction materials composed in whole or in part of non -ferrous metals such as aluminum; plastics and polymer -based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
(c) Federal agencies providing Federal financial assistance for infrastructure projects must implement the Buy America preferences set forth in 2 CFR part 184.
58. EFFECTIVE DATE
This Agreement shall be effective on the date on which this Agreement is executed by ANAHEIM ("Effective Date").
[SIGNATURES ON FOLLOWING PAGE]
31 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION:
CITY OF ANAHEIM
a municipal corporation
By:
“ANAHEIM”
ATTEST:
By: _
City Clerk of Anaheim
CHO DESIGN ASSOCIATES, INC., a California
corporation
DATE OF EXECUTION:
By:
Printed Name _______________________
Title ___________________________
“CONSULTANT”
APPROVED AS TO FORM:
ROBERTY FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
Dated:
Attachments: Exhibit A
158257
1 EXHIBIT A
STARTS AFTER THIS PAGE
Fee Schedule
As requested in the RFQ, the attached fee schedule presented will be used for all tasks associated with the City of Anaheim's RFWOP for AWT/EOC Window Improvement Engineering Services WO 395121. Cho Design Associates, Inc., has reviewed the requirements in the City of Anaheim's Request for Proposal issued March 20, 2026, and we fully understand the scope of work for this project. We are prepared to begin work immediately to complete the work as needed by the City, and in accordance with the fees presented herein.
Cho Design Associates, Inc., is prepared to complete the work for the City of Anaheim's RFWOP for AWT/EOC Window Improvement Engineering Services project, for a total not-to-exceed, without prior authorization fee of sixty eight thousand eighty eight dollars ($68,088.00), and in accordance with the hourly rates in our current Agreement for Professional Consulting Services Contract with the City. This proposal assumes a maximum of $3,464.00 for the task of Bid Support and $5,080.00 for construction support.
We will be maintaining the hourly rates presented herein for the entire project.
As requested in the RFP, a copy of Section VII from the RFP in its entirety is included in the appendix.