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
WILLDAN FINANCIAL SERVICES, 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 engage CONSULTANT to provide Assessment Engineer Services for the Anaheim Resort Maintenance District (“ARMD” or “District”) and serve as City’s Assessment Engineer and prove professional services necessary to administer the District’s annual assessment program in accordance with the Landscaping and Lighting Act of 1972, Article XIII D of the California Constitution (Proposition 218), the City’s adopted assessment methodology, applicable resolutions and all other applicable federal, state and local laws (the “Project”); 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 August 25, 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
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 adequately supply the professional consulting services necessary for the Project (“Services”). The Services are more particularly described in Exhibit A, attached hereto and incorporated herein by this reference (“Scope of Services”). The Director of Public Works may elect to delete certain tasks from 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) CONSULTANT's Proposal; and (3) ANAHEIM’s Request for Proposals (RFP).
2. TERM
The term of this Agreement shall commence on the date this Agreement is executed by ANAHEIM, and shall terminate two (2) years thereafter, unless terminated sooner as provided herein ("Initial Term"). The Director of Public Works or designee, is hereby authorized to extend the term of this Agreement upon the same terms and conditions for no more than two (2) additional two (2) year terms after the Initial Term (“Renewal Term”).
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of this Agreement and the Services shall be performed to completion in a reasonably 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 of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabotage, restraint by court order or public authority and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including ANAHEIM, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if CONSULTANT shall within ten (10) days of the 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 Services for the period of the enforced delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator's determination shall be final and conclusive upon the Parties to this Agreement. In the event of delay, however caused, CONSULTANT's sole remedy shall be an extension of this Agreement pursuant to this Section and CONSULTANT shall not be entitled to recover damages against ANAHEIM. 3 4. COMPENSATION
4.1 ANAHEIM shall pay CONSULTANT for the Services satisfactorily rendered pursuant to this Agreement in accordance with the Fee Schedule attached hereto as Exhibit “A” and incorporated herein by this reference. CONSULTANT and ANAHEIM agree that no changes to the Fees set forth in Exhibit “A” shall be made during the Term of this Agreement without the prior written authorization of the Director of Public Works (“Director”).
4.2 It is understood and agreed between the parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement shall not exceed the sum of Twenty-Six Thousand Nine Hundred Eighty-Eight Dollars and No/100 Cents($26,988.00) for the first year of the Term of the Agreement. For each subsequent year of the Term of the Agreement, including any Renewal Terms, full and complete payment for all Services provided in accordance with this Agreement shall not exceed the sum of Twenty-Four Thousand Four Hundred Eighty-Eight Dollars ($24,488.00) per year.
4.3 ANAHEIM also agrees to reimburse CONSULTANT for reasonable outof-pocket expenses. CONSULTANT shall not be reimbursed for any other expenses unless the reimbursable expense is first approved in writing by ANAHEIM.
4.4 Extra Work. The Director of Public Works is authorized to approve additional expenditures to be paid to CONSULTANT, pursuant to this Agreement, for Extra Work not included in the Scope of Services, in the amount of Ten Thousand Dollars ($10,000.00) per year for the Term of the Agreement, if the Director of Public Works determines, in their sole discretion, that the additional Extra Work is necessary for the successful completion of the Services.
.01 In no event shall CONSULTANT render Extra Work
beyond the scope of this Agreement without the written authorization of the Director of Public Works.
.02 All Extra Work approved in writing by the Director of Public Works shall be billed at either the rates set forth in the Schedule of Compensation or at a fixed price, at ANAHEIM’ s sole discretion. If billed at a fixed price, CONSULTANT shall provide ANAHEIM with general description of the Extra Work to be performed with a proposed price. At such time as the Director of Public Works has approved the Extra Work, has agreed to a fixed price for the services, and has notified CONSULTANT of such approval and agreement in writing, CONSULTANT shall perform the Extra Work.
.03 Except as specifically provided herein, no additional Services or Extra Work beyond the scope of this Agreement shall be rendered by CONSULTANT unless previously authorized in writing by the City Manager. .04 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 4 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.
4.5 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 sum of Two Hundred Nine Thousand Four Hundred Twenty-Eight Dollars and No/100 Cents ($209,428.00) (“Total Compensation”)
4.6 CONSULTANT shall submit monthly invoices to ANAHEIM describing the work performed the preceding month. CONSULTANT's bills shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. ANAHEIM shall pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff.
4.7 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of ANAHEIM, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget. ANAHEIM does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to ANAHEIM in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on items delivered, services provided, monies paid and monies due.
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 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.
5 6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. The employees of the Public Works Department shall be authorized to take the following actions pursuant to this Agreement:
(i) The Director of Public works is authorized to take any and all actions on behalf of ANAHEIM as set forth herein and to terminate services in accordance with Section 25 of this Agreement.
(ii) The Contract Administrator is authorized to take those specific actions set forth herein and review and approve all Services performed by CONSULTANT under this Agreement, including any revisions to billing rates as further described in Section 4.5 above.
The Contract Administrator shall not be authorized to terminate Services under this Agreement.
7. STANDARD OF CARE
7.1 CONSULTANT shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. 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) 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 6 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 CONSULTANT of ANAHEIM and shall remain at all times as to ANAHEIM a wholly independent contractor with only such obligations as are consistent with that role.
CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of ANAHEIM. ANAHEIM shall not in any way or for any purpose become or be deemed to be a partner of CONSULTANT in its business or otherwise or a joint venture or a member of any joint enterprise with CONSULTANT.
9.2 In consideration for the compensation paid to CONSULTANT by ANAHEIM, CONSULTANT agrees that ANAHEIM shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, health or any other benefits and CONSULTANT agrees that it shall not sue or file a claim, petition or application therefore 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, 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. This coverage requires a Waiver of Subrogation Endorsement.
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. This coverage requires a Waiver of Subrogation Endorsement.
Commercial Automobile Liability Coverage as required by California law, including— as applicable—owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit. This coverage requires a Waiver of Subrogation Endorsement.
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 7 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 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 applicable deductible or selfinsured 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 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, 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, 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 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) 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 8 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 CONSULTANT 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 CONSULTANT’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 set forth herein if such CONSULTANT generated amendment or reduction request is in ANAHEIM’S best interest.
9 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 directly arising out of the negligence, recklessness, or willful acts, misconducts, 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 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 maintains or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
12. PREVAILING WAGES
Where required pursuant to the provisions of the State of California Labor Code or the Davis Bacon Act, not less than the general prevailing rate of per diem wages including legal holidays, and overtime work for each craft or type of workman needed to execute the work contemplated under this Agreement, shall be paid to all workmen employed on the work to be done according to this contract by CONSULTANT or any approved Subcontractor, and shall be deemed to include employer payments for health and welfare, pension, vacation and similar purposes. If both the Davis-Bacon Act and State of California prevailing wage laws apply and the federal and state prevailing rate of per diem wages differ, CONSULTANT and Subcontractor, if any, shall pay the higher of the two rates. Said prevailing rate of per diem wages are on file at the City of Anaheim, Office of the City Clerk, 200 South Anaheim Boulevard, Anaheim, California 92805, and are available to any interested party on request.
13. PROGRESS
CONSULTANT is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of 10 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 under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of ANAHEIM. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to ANAHEIM. If ANAHEIM approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of CONSULTANT.
15. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of ANAHEIM. CONSULTANT shall be fully responsible to ANAHEIM for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between ANAHEIM and subcontractor nor shall it create any obligation on the part of ANAHEIM to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. ANAHEIM is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and ANAHEIM pursuant to this Agreement.
16. USE AND OWNERSHIP OF DOCUMENTS AND DATA
16.1 ANAHEIM shall furnish to CONSULTANT such documents and materials as may be relevant and pertinent to the provision of services hereunder as ANAHEIM may possess or acquire.
16.2 All documents and materials furnished by ANAHEIM to CONSULTANT pursuant to Section 16.1 shall remain the property of ANAHEIM and shall be returned to ANAHEIM upon termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by CONSULTANT, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of ANAHEIM, and ANAHEIM shall have the sole right to use such materials in its discretion without further compensation to CONSULTANT or any other party. CONSULTANT shall, at CONSULTANT's sole cost and expense, provide such documents and material to ANAHEIM upon prior written request.
Documents and material prepared by CONSULTANT pursuant to this Agreement are not intended or represented to be suitable for reuse by ANAHEIM or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from CONSULTANT will be at ANAHEIM's sole risk and without liability to CONSULTANT. Further, any and all liability arising out of 11 changes made to CONSULTANT's deliverables under this Agreement by ANAHEIM or persons other than CONSULTANT, is waived against CONSULTANT and ANAHEIM assumes full responsibility for such changes unless ANAHEIM has given CONSULTANT prior notice and has received from CONSULTANT written consent for such changes.
17. CONFIDENTIALITY
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, 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 Representatives, 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 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 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 obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
17.3 By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke or supersede any existing confidentiality, non-disclosure or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 17 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential 12 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 information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party, and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach 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 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.
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 13 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 shall defend and indemnify ANAHEIM, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to ANAHEIM pursuant to this Agreement.
19. RECORDS
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to ANAHEIM, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT under this Agreement. All such records and invoices shall be clearly identifiable. CONSULTANT shall allow a representative of ANAHEIM to examine, audit and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. CONSULTANT shall allow inspection of all work, data, Documents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment to CONSULTANT under this Agreement.
20. WITHHOLDINGS
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 14 discontinue work as a result of such withholding. CONSULTANT shall have an immediate right to appeal to the Director of Public Works or 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 CONTRACTORS
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.
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, unless otherwise directed by ANAHEIM, and shall periodically complete ethics training as required by ANAHEIM. CONSULTANT shall at its own cost and expense ensure such employee’s compliance with these filing and ethics-training requirements.
CONSULTANT shall indemnify and hold harmless ANAHEIM for any and all claims for damages resulting from CONSULTANT’s violation of this Section. 15 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
Department of Public Works
Operations Division
400 East Vermont
Anaheim, CA 92805
To CONSULTANT:
Willdan Financial Services
Josephine Moses, Vice President
27368 Via Industria, Suite 200
Temecula, CA 92590
Tel No. (951) 587-3564
25. ENFORCEMENT OF AGREEMENT
25.1 Events of Default.
.01 For purposes of this Section 25, the word "Default" shall mean the failure of CONSULTANT to perform any of CONSULTANT's duties or obligations or the breach by CONSULTANT of any of the terms and conditions set forth in this Agreement. In addition, CONSULTANT shall be deemed to be in Default upon CONSULTANT's (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit 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) 16 consecutive days any attachment, levy, execution or seizure of all or a substantial portion of CONSULTANT's assets or of CONSULTANT's interests hereunder. .02 ANAHEIM shall not be deemed to be in Default in the performance of any obligation required to be performed by ANAHEIM hereunder unless and until ANAHEIM has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from CONSULTANT specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of ANAHEIM's obligation is such that more than thirty (30) 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 further 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 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 Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement and the exhibits hereto contain the entire agreement of ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, statement or promise made by either ANAHEIM or CONSULTANT which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose.
17 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.
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 any one (1) remedy by ANAHEIM or CONSULTANT shall not exclude the exercise of any other remedy.
34. NO THIRD PARTY BENEFICIARIES
The Parties intend that no rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
18 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").
[Signatures on Following Page]
19 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION:
CITY OF ANAHEIM
a municipal corporation
By:
Rudy Emami, Director of Public Works
“ANAHEIM”
ATTEST:
By:
City Clerk of Anaheim
DATE OF EXECUTION: WILLDAN FINANCIAL SERVICES, a California corporation
By:
Title:
Printed Name:
“CONSULTANT”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
Dated:
Attachments: Exhibit A
159430
1 EXHIBIT A
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