Installation Support Services Agreement
(City of Barstow / HDSS)
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INSTALLATION SUPPORT SERVICES AGREEMENT FOR FORT IRWIN AND
NATIONAL TRAINING CENTER, CALIFORNIA
(City of Barstow / HDSS)
1 IDENTIFICATION
This INSTALLATION SUPPORT SERVICES AGREEMENT (“Agreement”) is entered into as of the last date indicated below by and between the City of Barstow, a California municipal corporation (“City”), and High Desert Support Services, LLC, a Louisiana limited liability corporation (“Consultant”) (collectively, “parties”).
2 RECITALS
2.1 City has entered into an Intergovernmental Support Agreement with the United States Army for Fort Irwin and the National Training Center under federal law codified at 10 USC § 2679. As part of the services the City has agreed to provide the United States Army under the Intergovernmental Support Agreement, City determined that it requires installation support services from a consultant at Fort Irwin and the National Training Center.
2.2 Consultant represents that it is fully qualified to perform such installation support services by virtue of its experience and the training, education and expertise of its principals and employees. Consultant further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and Consultant agree as follows:
3 DEFINITIONS “Scope of Services” means such installation support services as are set forth in Consultant’s Preference Work Statement and Technical Exhibits Scope of Work to City attached hereto as “Exhibit A” and fully incorporated herein by this reference.
3.2 “Approved Fee Schedule” means such compensation rates as are set forth in Consultant’s Cost estimate and assumption document proposal to City attached hereto as “Exhibit B” and fully incorporated herein by this reference. This fee schedule shall remain in effect for the duration of this Agreement unless modified in writing by mutual agreement of the parties.
3.3 “Commencement Date” means June 1, 2022.
3.4 “Termination Date” means July 31, 2032, unless this Agreement is terminated earlier under its terms.
3.5 “City Agreement Administrator” means the Barstow City Manager or delegee.
3.6 “Consultant Project Administrator” means Contracts Manager or delegee.
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4 TERM
The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall terminate at 11:59 p.m. on the Termination Date unless terminated earlier in accordance with Section 18 (“Termination”) below. The City shall have the authority to extend the term of this Agreement for nine one-year increments with 60 days written notice to the Consultant.
Additional extensions of this Agreement must be made in writing by mutual agreement of the parties.
5 CONSULTANT’S SERVICES
5.1 Time is of the essence in Consultant’s performance of services under this Agreement.
5.2 Consultant shall perform the services identified in the Scope of Services. City shall have the right to request, in writing, changes in the Scope of Services, including, but not limited to the following situation: if the scope of services in the Intergovernmental Services Agreement entered into by the City for installation support services with Fort Irwin and the National Training Center changes. Consultants shall not have the right to object to any reasonable changes in the scope of services. In such a case, the changes shall be incorporated by written amendment to this Agreement, with a corresponding increase or decrease in compensation to be determined via good faith negotiations. Otherwise, any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement. In no event shall the total compensation and costs payable to Consultant under this Agreement for the initial one-year term and each of the nine additional possible one-year terms, if renewed as applicable, exceed the sums listed below in the following table, unless specifically approved in advance and in writing by City.
YEAR OF
OPERATION
IGSA ESTIMATE
BASE $20,869,227.31
OPTION 1 $20,850,069.63
OPTION 2 $21,166,704.37
OPTION 3 $21,130,969.70
OPTION 4 $21,453,213.37
OPTION 5 $21,780,984.08
OPTION 6 $22,130,556.24
OPTION 7 $22,489,757.03
OPTION 8 $22,858,868.40
OPTION 9 $23,236,590.67
$ $217,966,940.80
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Consultant shall notify the City Agreement Administrator, in writing, when fees and expenses incurred under this Agreement have reached eighty percent (80%) of the maximum amount payable above. Consultant shall concurrently inform the City Agreement Administrator, in writing, of Consultant’s estimate of total expenditures required to complete its current assignments before proceeding, when the remaining work on such assignments would exceed the maximum amount payable above.
5.3 Consultant shall perform all work in accordance with industry standards of Consultant’s profession and in a manner reasonably satisfactory to City. Consultant shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.). Consultant shall submit all invoices and complete all work in the manner prescribed by the IGSA agreement entered into between the City and Fort Irwin/National Training Center/United States.
5.4 Consultant represents that it has advised City in writing prior to the date of signing this Agreement of any known relationships with third parties, City Council Members, or employees of City which would (1) present a conflict of interest with the rendering of services under this Agreement under Government Code Section 1090, the Political Reform Act (Government Code Section 81000 et seq.), or other applicable law, (2) prevent Consultant from performing the terms of this Agreement, or (3) present a significant opportunity for the disclosure of confidential information.
5.5 During the term of this Agreement, Consultant shall not perform any work for another person or entity if such work would require Consultant to abstain from a decision under this Agreement pursuant to Government Code section 1090 or any other conflict of interest statute unless the City has not consented in writing to Consultant’s performance of such work.
5.6 Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Contracts Manager or delegee shall be the Consultant Project Administrator and shall have direct responsibility for management of Consultant’s performance under this Agreement. No other person shall serve as Consultant Project Administrator without City’s prior written consent.
5.7 This Agreement covers professional services of a specific and unique nature.
Except as otherwise provided herein, Consultant shall not assign or transfer its interest in this Agreement or subcontract any services to be performed without the consent of both parties and through an amendment to this Agreement.
5.8 Consultant shall be responsible to City for all services to be performed under this Agreement. All subconsultants shall be approved by the City Agreement Administrator.
Consultant shall be liable and accountable for any and all payments, compensation, and federal Installation Support Services Agreement
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and state taxes to all subconsultants performing services under this Agreement. City shall not be liable for any payment, compensation, or federal and state taxes for any subconsultants. The City shall provide any Tax Exemption Certificate(s) to the Consultant.
5.9 Consultant shall notify the City Agreement Administrator, in writing, of any change in name, ownership or control of Consultant’s firm or of any subconsultant. Change of ownership or control of Consultant’s firm may require an amendment to the Agreement.
5.10 This Agreement is subject to prevailing wage law, for all work performed under the Agreement for which the payment of prevailing wages is required under the California Labor Code.
5.11 The Parties agree to meet and confer monthly regarding Contractor’s performance under this Agreement.
5.12 Government Property and Equipment Handling: The United States will provide an area that will fit the requirements written in the scope of work in the installation support services agreement between the City and the United States for use at Fort Irwin, California and the National Training Center. Consultants agrees to perform services using such facilities, under the terms and conditions set by the United States and City. Consultant and City, in conjunction with the United States, will complete a joint inventory and all applicable Army requirements before the City and Consultant accept control of any United States owned property and equipment.
Consultant shall replace or repair any destroyed or damaged equipment or property caused by its employees intentionally or through negligence. Should government furnished equipment require repairs or become inoperable, Consultant shall notify City, who in turn shall notify the United States, or notify the United States directly. Government furnished property shall not be removed from the installation or used to perform other than services specified in the agreement between the City and the United States unless specifically approved in writing by the United States and City. Consultant will be responsible for furnishing all other facilities and equipment necessary to perform the IGSA.
6 COMPENSATION
6.1 City agrees to compensate Consultant for the services provided under this Agreement, and Consultant agrees to accept payment in accordance with the Approved Fee Schedule in full satisfaction for such services.
6.2 Consultant shall submit to City an invoice, on a monthly basis or less frequently, for services performed pursuant to this Agreement. All invoices submitted to the City by Consultant must match the requirements in the Intergovernmental Support Agreement entered by the City with the United States Army. Each invoice shall identify the IGSA number, project line item number if applicable, and if appliable the order number if issued, name, title, and phone number of person to notify in event of defective invoice, Commercial and Government Entity (CAGE) Code, maximum amount payable above, the services rendered during the billing period, Installation Support Services Agreement
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the amount due for the invoice, and the total amount previously invoiced. City shall not withhold applicable taxes or other payroll deductions from payments made to Consultant except as otherwise required by law.
6.3 City shall compensate Consultant within 30 days after receiving an invoice from the Consultant for services performed pursuant to this Agreement as specified in Section 6.2 and payment from the United States as part of its Intergovernmental Support Agreement with the United States Army for Fort Irwin and the National Training Center.
6.4 City shall not be responsible for paying Consultant until 30 days after it has received payment from the United States, however partial payments may be made where the City has received partial payments from the United States, even if Consultant has submitted a valid monthly invoice and 30 days have passed. The City shall not be responsible for any late penalty fees if the United States fails to pay the City on time under the terms of the IGSA.
6.5 If the City does not receive payment from the United States as part of its Intergovernmental Support Agreement with the United States Army for Fort Irwin and the National Training Center and the City receives a Late Payment Penalty from the United States, then City agrees to remit a proportional share of the Late Payment Penalty actually received by City from the United States to Contractor.
6.6 The parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice submitted by Consultant, however the Consultant shall be paid for any undisputed amounts. Any claims for unpaid amounts owed shall be governed by applicable California law, including the Government Claims Act, Government Code section 810, et seq.
7 OWNERSHIP OF WRITTEN PRODUCTS
All reports, documents or other written material, and all electronic files, including computer-aided design files, developed by Consultant in the performance of this Agreement (such written material and electronic files are collectively known as “written products”) shall be and remain the property of City without restriction or limitation upon its use or dissemination by City except as provided by law. Consultant may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by Consultant. 8 RELATIONSHIP OF PARTIES
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Consultant is, and shall at all times remain as to City, a wholly independent contractor.
Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not represent that it is, or that any of its agents or employees are, in any manner employees of City.
Under no circumstances shall Consultant look to the City as its employer. Consultant shall not be entitled to any benefits. City makes no representation as to the effect of this independent contractor relationship on Consultant’s previously earned California Public Employees Retirement System (“CalPERS”) retirement benefits, if any, and Consultant specifically assumes the responsibility for making such a determination. Consultant shall be responsible for all reports and obligations including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation, and other applicable federal and state taxes.
9 CONSULTANT WARRANTIES, REPRESENTATIONS AND COVENANTS
9.1 Professional Standards Warranties: HDSS warrants, represents, and covenants that:
(1) HDSS has the capability, experience, and means required to perform the Services; (2) such Services will be performed using personnel, equipment, and material qualified and/or suitable therefor; and (3) within the limits prescribed by THE CITY, HDSS will perform the Services in a diligent and workmanlike manner consistent with (i) accepted professional practices and standards for nationally recognized firms engaged in similar work, as in effect at the time the Services are performed, and (ii) THE CITY's reasonable rules, standards and specifications as communicated to HDSS prior to beginning the Services under the Order.
9.2 Other HDSS Warranties: HDSS warrants, represents, and covenants that: (1) HDSS will perform the Services in compliance with (i) applicable federal, state, and local laws, regulations, and ordinances as in effect and construed at the time the Services are performed and (ii) THE CITY's reasonable rules as communicated prior to beginning Services under each Order issued pursuant to this Agreement; (2) HDSS shall utilize the licensed or permitted treatment, storage, or disposal facility or facilities designated THE CITY; (3) with respect to any contracts, purchase orders or related third party service agreements relating to the off-site transportation, storage, treatment or disposal of waste materials, HDSS shall, for the protection of THE CITY, demand from all vendors and contractors from which HDSS procures machinery, equipment, materials or services guarantees reasonably acceptable to THE CITY which shall be made available to THE CITY to the full extent of the terms thereof; provided, however, that HDSS's liability with respect to same shall be limited to procuring guarantees (but only to the extent available) from such vendors and contractors and rendering reasonable assistance to THE CITY for the purpose of enforcing the same; (4) HDSS shall use its best efforts to avoid infringements; and (5) HDSS shall maintain confidentiality, as set forth in this Agreement.
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9.3 Remedies: If THE CITY alleges that HDSS has breached a warranty set forth in this Section, then THE CITY shall promptly notify HDSS in writing and, before taking any further action against HDSS as allowed by this Agreement, shall afford HDSS the opportunity, at HDSS's cost, to either re-perform any defective Service according to the original scope of work therefor (as modified up to the time of breach), or to commence and diligently pursue the cure of such breach.
9.4 HDSS's Duties: HDSS shall use its best efforts to timely provide Services for emergency response based on its judgment of the nature and extent of each emergency and its capability to respond to that emergency.
9.5 HDSS is not the owner, operator, manager, or person in charge of all or any portion of a site, or arranged for the treatment, transportation, or disposal of, or owned or possessed, or chose the treatment, storage, or disposal site for, any material, with respect to which Services are provided. All determinations on the treatment, transportation, storage and disposal of waste, including the signing of all manifest shall be the responsibility of the FT Irwin Commander or his designated representative, not HDSS and not the City.
10 AGREEMENT ADMINISTRATOR
In performing services under this Agreement, Consultant shall coordinate all contact with City through its City Agreement Administrator. City reserves the right to change this designation upon written notice to Consultant. All services under this Agreement shall be performed at the request of the City Agreement Administrator, who will establish the timetable for completion of services and any interim milestones.
11 INDEMNIFICATION/HOLD HARMLESS
11.1 The parties agree that City, its officers, agents, employees, and volunteers, and the United States, and its officers, agents, employees, and volunteers, should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, taxes, or any other cost arising out of or in any way related to Consultant’s performance under this Agreement, except to the extent of the City’s negligence and/or fault. Accordingly, the parties intend the provisions of this indemnity provision to be interpreted and construed to provide the City and the United States with the fullest protection possible under the law. Consultant acknowledges that City would not enter into this Agreement in the absence of Consultant’s commitment to indemnify and protect City as set forth herein.
11.2 To the fullest extent permitted by law, Consultant hereby agrees, at its sole cost and expense, to protect, indemnify, and hold harmless the City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, and assigns, together with the United States, and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, and assigns, (collectively “Indemnitees”) from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, Installation Support Services Agreement
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judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith (collectively “Liabilities”), resulting from any collective bargaining agreements entered into by Consultant prior to the performance of this Agreement.
11.3 Both parties agree that City shall enter good faith negotiations with Fort Irwin/National Training Center and the United States for new compensation terms in the event that Consultant enters into any collective bargaining agreements related to the performance of this Agreement. Negotiated compensation will flow down to Consultant.
11.4 This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies which City may have under the law. Payment is not required as a condition precedent to the City’s right to recover under this indemnity provision, and an entry of judgment against the Consultant shall be conclusive in favor of the City’s right to recover under this indemnity provision. Consultant shall pay the City for any attorneys’ fees and costs incurred in enforcing this indemnification provision.
11.5 City agrees to promptly inform Consultant in writing of any claim that City believes to be subject to this Indemnification and Hold Harmless Agreement. Consultant on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the City from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Consultant regardless of any prior, concurrent, or subsequent non-active negligence by the City.
11.6 City shall have the right to offset against any compensation due Consultant under this Agreement any amount due City from Consultant as a result of Consultant’s failure to pay City promptly any indemnification arising under this Section 10 of this Agreement and any amount due City from Consultant arising from Consultant’s failure either to (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.
11.7 The obligations of Consultant under this Section 10 of this Agreement are not limited by the provisions of any workers’ compensation or similar statute. Consultant expressly waives its statutory immunity under such statutes as to City, its officers, agents, employees and volunteers.
11.8 Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in Section 10 of this Agreement from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations from others, Consultant agrees to indemnify, hold harmless City, its officers, agents, employees and volunteers from and against any and all claims, losses, costs and expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of Consultant’s subcontractors or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement, Installation Support Services Agreement
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except to the extent of the City’s negligence and/or fault. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of City’s choice.
11.9 City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply whether or not any insurance policies apply to a claim, demand, damage, liability, loss, cost or expense.
11.10 In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the City, Consultant shall indemnify and hold harmless City for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
11.11 Notwithstanding any federal, state, or local policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in CalPERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for CalPERS benefits.
12 INSURANCE
12.1 During the term of this Agreement, Consultant shall carry, maintain, and keep in full force and effect insurance against claims for death or injuries to persons or damages to property that may arise from or in connection with Consultant’s performance of this Agreement.
12.2 Any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements or limits shall be available to City as an Additional Insured as provided below. Furthermore, the requirements for coverage and limits shall be the greater of (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named Insured.
12.3 Insurance required under this Agreement shall be of the types set forth below, with minimum coverage as described:
12.3.1 Commercial General Liability Insurance with coverage limits of not less than One Million Dollars ($1,000,000) including products and operations hazard, contractual insurance, broad form property damage, independent Installation Support Services Agreement
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consultants, personal injury, underground hazard, and explosion and collapse hazard where applicable.
12.4 Automobile Liability Insurance for vehicles used in connection with the performance of this Agreement with minimum limits of One Million Dollars ($1,000,000) per claimant and One Million dollars ($1,000,000) per incident.
12.5 Worker’s Compensation insurance if and as required by the laws of the State of California.
12.6 Consultant shall require each of its subconsultants to maintain insurance coverage that meets all of the requirements of this Agreement provided however, that the City Agreement Administrator may waive the provision of Errors and Omissions Insurance by subconsultants in his or her sole discretion.
12.7 The policy or policies required by this Agreement shall be issued by an insurer approved to do business in the State of California and with a rating of at least A:VII in the latest edition of Best’s Insurance Guide.
12.8 Consultant agrees that if it does not keep the insurance coverages required by this Agreement in full force and effect, City shall provide notice to Consultant, and if not timely obtained, may immediately terminate this Agreement.
12.9 At all times during the term of this Agreement, Consultant shall maintain on file with City’s Risk Manager a certificate or certificates of insurance showing that the required coverages are in effect and naming City and its officers, employees, agents and volunteers as Additional Insureds. Prior to commencement of work under this Agreement, Consultant shall file with City’s Risk Manager such certificate(s) and Forms CG 20 10 and CG 20 37 or the substantial equivalent showing City as an Additional Insured.
12.10 Consultant shall provide proof that policies of insurance required by this Agreement expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished prior to the expiration of the coverages.
12.11 The general liability and automobile policies of insurance required by this Agreement shall contain an endorsement naming City and its officers, employees, as Additional Insureds. Consultant agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.
12.12 The insurance provided by Consultant shall be primary to any other coverage available to City. Any insurance or self-insurance maintained by City and/or its officers, and employees shall be in excess of Consultant’s insurance and shall not contribute with it.
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12.13 All insurance coverage provided pursuant to this Agreement shall not prohibit Consultant, and Consultant’s employees, agents or subcontractors, from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against the City.
12.14 Any deductibles or self-insured retentions must be declared to and approved by the City. Reasonable approval will not be withheld.
12.15 Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duties to indemnify and hold harmless under Section 11 of this Agreement.
12.16 Consultant may be self-insured under the terms of this Agreement only with express written approval from the City.
12.16.1 All self-insured retentions (SIR) must be disclosed to the City and shall not reduce the limits of liability.
13 MUTUAL COOPERATION
13.1 City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably necessary for the proper performance of Consultant’s services under this Agreement.
13.2 If any claim, action, or proceeding is brought against City relating to Consultant’s performance in connection with this Agreement, Consultant shall render any reasonable assistance that City may require in the defense of that claim, action, or proceeding. 14 CONFIDENTIALITY
The City shall treat as confidential all information and data furnished to it by Consultant in connection with this Agreement including, but not limited to, Consultant's technology, formulae, procedures, processes, methods, trade secrets, ideas, inventions, and/or computer programs; and the City shall not disclose such information to any third party, except to a related company which has first agreed in writing with Consultant to an obligation of confidentiality identical to the obligations of the City as set forth in this Section 14.
However, nothing herein is meant to prevent nor shall it be interpreted as preventing either Consultant or the City from disclosing and/or using said information or data (i) when the information or data is actually known to the receiving party before being obtained or derived from the transmitting party; or (ii) when the information or data is generally available to the public without the receiving party's fault at any time before or after it is acquired from the Installation Support Services Agreement
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transmitting party; or (iii) where the information or data is obtained or acquired in good faith at any time by the receiving party from a third party who has the same in good faith and who is not under any obligation to the transmitting party in respect thereof; or (iv) where a written release is obtained by the receiving party from the transmitting party; or (v) five (5) years from the date of receipt of the information; or (vi) when permitted by this Agreement; or (vii) when required by process of law as determined by the City Clerk’s sole judgment for the City; provided, however, upon service of such process, the recipient thereof shall notify the other party and afford it an opportunity to resist such process.
Nothing in this provision shall prevent either party from complying with the requirements of the California Public Records Act (Government Code, § 6250 et seq.) or the Freedom of Information Act (5 U.S.C. § 552).
15 RECORDS AND INSPECTIONS
Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to City under this Agreement for a minimum 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 documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. City shall further have the right to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.
In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under the Agreement.
16 PERMITS AND APPROVALS
Consultant shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary for Consultant’s performance of this Agreement. This includes, but shall not be limited to, professional licenses, encroachment permits and building and safety permits and inspections. 17 NOTICES
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier service during Consultant’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).
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If to City:
City Manager
City of Barstow
220 E. Mountain View Blvd., Suite A
Barstow, CA 92311
Telephone: (760) 256-3531
Facsimile:
If to Consultant:
High Desert Support Services, LLC
Deputy General Counsel
1200 Brickyard Lane, Suite 202 Baton
Rouge, LA 70802
Telephone:
Facsimile: 202-261-1947
Attn: Wade Bass
Email: [email protected]
With courtesy copy to:
Matthew T. Summers, City Attorney
Colantuono, Highsmith & Whatley, PC
790 E. Colorado Blvd, Suite 8500
Pasadena, California 91101
Telephone: (213) 542-5700
Facsimile: (213) 542-5710
With courtesy copy to:
High Desert Support Services, LLC
Senior Counsel
1200 Brickyard Lane, Suite 202 Baton
Rouge, LA 70802
Telephone: 202 261 1969
Facsimile: 202-261-1947
Attn: Aidan Delgado
Email: [email protected]
18 SURVIVING COVENANTS
agree that the covenants contained in Section 10, Section 13, Paragraph 12.2, Section 14, and Section 18 of this Agreement shall survive the expiration or termination of this Agreement. 19 TERMINATION
19.1 If the United States/Fort Irwin/National Training Center suspends performance of the IGSA it has entered into with City or terminates the IGSA for installation support services for any reason, including but not limited to emergency, national security, any lack of available federal appropriations, City may respectively suspend or terminate this Agreement on thirty calendar days’ written notice to Consultant. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of suspension or termination. All City data, documents, objects, materials or other tangible things shall be promptly returned to City upon the suspension or termination or expiration of this Agreement. In such an event, Consultant shall be paid based on the work satisfactorily performed at the time of termination and a proportional share of any reasonable termination costs as paid by the United States to the City. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement as provided in Section 5.2 above and as Installation Support Services Agreement
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otherwise provided in this Agreement. After suspending the Agreement, City may unsuspend the Agreement upon three calendar days’ written notice to Consultant, in which case the Consultant shall be entitled to an extension of time and an equitable cost adjustment for the period of the suspension.
19.2 The City may terminate this Agreement, in whole or in part, with 180 days’ written notice if:
19.3 Consultant fails to comply with any of the terms and conditions of this Agreement, fails to make progress so as to endanger performance, or fails to provide adequate assurances to the City of Consultant’s future performance and does not cure the default within ten (10) days of notice (or such longer period as the City may authorize in writing); provided, however, any default that results in a delivery delay shall not be subject to cure, and the City may terminate this Agreement immediately in such event;
19.4 Consultant becomes insolvent or makes a general assignment for the benefit of creditors or reasonable grounds for insecurity arise with respect to the City’sperformance;
19.5 The underlying IGSA, or that portion of the IGSA for which Consultant provides services, has been terminated bythe United States Army;
19.6 Or for any other good cause determined by the City that prevents this Agreement from being carried out.
Upon termination, Consultant shall discontinue the services on the date and to the extent specified in the notice and shall place no further purchase orders other than as may be required for completion of such portion of the services that is not terminated. Consultant shall promptly terminate any lower-tier subcontracts and other agreements related to the performance of the terminated services or assign those agreements as directed by the City. Consultant shall immediately return to the City any supplies and/or materials provided to Consultant for the performance of the services. Upon termination of this Agreement, Consultant shall have no right to perform further services under this Agreement or to receive any compensation for services or material provided after the date of termination. Consultant shall be paid for Work actually performed/delivered prior to termination and a proportional share of any reasonable termination costs as paid by the United States to the City.
Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials or other tangible things shall be promptly returned to City upon the termination or expiration of this Agreement.
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If City terminates this Agreement due to no fault or failure of performance by Consultant, then Consultant shall be paid based on the work satisfactorily performed at the time of termination and a proportional share of any reasonable termination costs as paid by the United States to the City. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement as provided in Section 5.2 above and as otherwise provided in this Agreement. 20 GENERAL PROVISIONS
20.1 Consultant shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, which consent will not be unreasonably withheld, and any attempt to do so shall be void and of no effect. City shall not be obligated or liable under this Agreement to any party other than Consultant.
20.2 The City reserves the right to suspend performance of the agreement or access to the installation in event of emergencies, mobilizations, national security reasons, or for other reasons outside the control of the City or the United States. The Consultant will be entitled to an extension of time to and for completion of the Services and shall be extended based upon the impact of the delay or suspension and shall receive an equitable compensation adjustment as agreed by the Parties. In the event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, war, pandemic, or damage reasonably beyond its control, or other causes reasonably beyond its control, such party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes and the City or the Consultant shall be entitled to a reasonable extension of time to perform their obligations.
20.3 In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability, medical condition or any other unlawful basis.
20.4 The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the section or paragraph shall govern construction of this Agreement. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular and vice versa, in any place or places herein in which the context requires such substitution(s).
20.5 The waiver by City or Consultant of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any other term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition herein contained. No term, covenant or condition of this Agreement shall be deemed to have been waived by City or Consultant unless in writing signed by one authorized to bind the party to be charged with the Installation Support Services Agreement
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waiver.
20.6 Consultant shall not be liable for any failure to perform if Consultant presents acceptable evidence, in City’s sole judgment, that such failure was due to causes beyond the control and without the fault or negligence of Consultant.
20.7 Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance from the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies.
If legal action shall be necessary to enforce any term, covenant or condition contained in this Agreement, the party prevailing in such action, whether or not reduced to judgment, shall be entitled to its reasonable court costs, including any accountants’ and attorneys’ fees expended in the action. The venue for any litigation shall be San Bernardino or Los Angeles County, California and Consultant hereby consents to jurisdiction in San Bernardino or Los Angeles County for purposes of resolving any dispute or enforcing any obligation arising under this Agreement.
20.7.1 The Parties agree and acknowledge this Agreement relates to unique land use and real property issues and that remedies at law, even if available, would be inadequate in the event of a breach. Both Parties agree and recognize that, if a breach of this Agreement occurs, it is not possible to determine an amount of monetary damages which would adequately compensate either Party for their losses nor calculate the consideration City and Owner would require from each other to justify such exposure.
Therefore, the Parties agree that monetary damages shall not be an adequate remedy for either Party if the other Party should be determined to be in default under this Agreement. The Parties further agree that specific performance, writ of mandate for performance of a required act, or rescission, shall be the sole available and appropriate remedy for either Party under this Agreement. Each Party expressly agrees that it shall not seek monetary damages from the other party under this Agreement or under any otherwise applicable legal basis for monetary damages arising out of this Agreement except for any indemnity obligations set forth herein. In no event will either party or its officers, agents, or employees, be liable for damages for any default under this Agreement, it being expressly understood and agreed that the sole legal remedy available to either Party for a default under this Agreement shall be a legal action in mandamus, specific performance, rescission, or other injunctive or declaratory relief to enforce the provisions of this Agreement. No delay or omission in the exercise of any right or remedy accruing to the non-defaulting party under this Agreement shall impair such right or remedy or be construed as a Installation Support Services Agreement
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waiver of any breach by the defaulting party. The waiver by either party of any condition or covenant contained herein shall not be deemed a waiver of any other condition or of any subsequent breach by the other party of any term, covenant or condition contained herein.
20.8 If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
20.9 This Agreement shall be governed and construed in accordance with the laws of the State of California.
20.10 All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the provisions of this Agreement and those of any document incorporated herein by reference, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between City and Consultant with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed on behalf of the City and Consultant.
20.11 Consultant shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; or in terms, conditions or privileges of employment, and selection for training, Consultant agrees to post in conspicuous places, available to employees and applicants for employment, the provisions of this nondiscrimination clause.
20.12 The failure of Consultant or City in any one or more instances to enforce one or more of the terms or conditions of this Agreement or to exercise any right or privilege in this Agreement or the waiver of any breach of the terms or conditions of this Agreement shall not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same shall Installation Support Services Agreement
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continue and remain in force and effect as if no such failure to enforce had occurred.
20.13 Unless this Agreement is exempted by law, HDSS shall comply with Executive Order 11246, the Rehabilitation Act of 1973, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, and the rules and regulations issued pursuant to said Order and Acts, as amended and all of which are incorporated herein by reference. Upon execution of this Agreement and upon request, HDSS shall furnish to THE CITY an executed Certificate of Nonsegregated Facilities.
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement as of the last date indicated below:
“City” “Consultant”
High Desert Support Services, LLC
By___________________________ By:_______________________________ Dr. Paul Anthony Courtney, Mayor [insert name], insert title] Date:______________________ Date:_________________________ Attest:
By
Andrea Flores, City Clerk
Date:_______________________
Approved as to form:
By__________________________________
Matthew T. Summers, City Attorney
Date: __________________________
“EXHIBIT A”
SCOPE OF SERVICES
A-1
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“EXHIBIT B”
APPROVED FEE SCHEDULE
B-1
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Professional Services Agreement
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WORKERS’ COMPENSATION
INSURANCE CERTIFICATE
The Contractor shall execute the following form as required by the California Labor Code, Sections 1860 and 1861:
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
DATE: ______________________ __________________________________________ Contractor
By: __________________________________________
Signature
__________________________________________
Title
Attest:
By: __________________________________________
Signature
__________________________________________
Title