PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made this , by the CITY OF GARDEN GROVE, a municipal corporation, ("CITY") and WILLDAN ENGINEERING , herein after referred to as “CONSULTANT”.
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to Garden Grove Council Resolution No. 9212-14 (January 28, 2014).
2. CITY desires to utilize the services of CONSULTANT to provide services in the administration of grants received from the U.S. Department of Housing and Urban Development (HUD), including Community Development Block Grant (CDBG), HOME Investment Partnerships Program (HOME), and the Emergency Solutions Grant (ESG).
3. CONSULTANT is qualified by virt ue of experience, training, education and expertise to accomplish services.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term and Termination The term of the agreement shall be from the date of this agreement through June 30, 2025, with options to extend said agreement for four (4) additional one-year periods corresponding the City’s July 1 through June 30 fiscal year . Option years shall be exercised at the end of the set agreement date, at the sole option of the CITY. This agreement may be terminated by the CITY without cause. In such event, the CITY will compensate CONSULTANT for work performed to date in accordance with CONSULTANT’s proposal which is attached as Attachment A and is hereby incorporated by reference. CONSULTANT is required to present evidence to support performed work.
2. Services to be Provided. The services to be performed by CONSULTANT shall consist of tasks as set forth in the Proposal. The Proposal is attached as Attachment A, and is incorporated herein by reference. The Proposal and this Agreement do not guarantee any specific amount of work.
3. Compensation. CONSULTANT shall be compensated as follows:
3.1 AMOUNT. Total Compensation under this agreement shall not exceed the amount of FIFTY THOUSAND DOLLARS ($50,000.00) (the “NTE 2 amount”), payable in arrears and in accordance with proposal in Attachment “A”.
3.2 Payment. For work under this Agreement, payment shall be made per invoice for work completed. Within 45 day of delivery of goods or performance of services, CONSULTANT must promptly render an invoice to CITY or payment may be significantly delayed. For extra work not a part of this Agreement, a written authorization by CITY will be required, and payment shall be based on schedule included in Proposal (Attachment A).
3.3 Records of Expenses. CONSULTANT shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to CITY.
3.4 Termination. CITY and CONSULTANT shall have the right to terminate this agreement, without cause, by giving thi rty (30) days written notice of termination. If the Agreement is terminated by CITY, then the provisions of paragraph 3 would apply to that portion of the work completed.
4. Insurance requirements.
4.1 COMMENCEMENT OF WORK. CONSULTANT shall not commence work under this Agreement until all certificates and endorsements have been received and approved by the CITY. All insurance required by this Agreement shall contain a Statement of Obligation on the part of the carrier to notify the CIT Y of cancellation at least thirty (30) days in advance (10 days for cancellation for non -payment of premium) and provide a Waiver of Subrogation in favor of the City.
4.2 WORKERS COMPENSATION INSURANCE. During the duration of this Agreement, CONSULTANT and all subcontractors shall maintain Workers Compensation Insurance in the amount and type required by law, if applicable.
4.3 INSURANCE AMOUNTS . CONSULTANT shall maintain the following insurance for the duration of this Agreement:
(a) Commercial general liability in an amount of $1,000,000.00 per occurrence (claims made and modified occurrence
policies are not acceptable); Insurance companies must
be acceptable to CITY and have a Best’s Guide Rating of A- , Class VII or better, as approved by the CITY.
(b) Automobile liability in an amount of $1 ,000,000.00 combined single limit (claims made and modified
occurrence policies are not acceptable); Insurance
3 companies must be acceptable to CITY and have a Best’s Guide Rating of A-, Class VII or better, as approved by the CITY.
(c) Professional liability in an amount not less than $1,000,000 per claim . Insurance companies must be licensed In
California and have a Best’s Guide Rating of A-,Class VII or better, as approved by the City. If the policy is written on a “claims made” basis, the policy shall be continued in full force and effect at all times during the term of the
agreement, and for a period of three (3) years from the date of the completion of services provided subject to its availability commercially a nd at reasonable cost . In the event of termination, cancellation, or material change in the policy, professional/consultant shall obtain continuing insurance coverage for the prior acts or omissions of
professional/consultant during the course of performi ng services under the term of the agreement. The coverage shall be evidenced either by a new policy evidencing no gap in coverage, or by obtaining separate extended “tail”
coverage with the present or new carrier.
An On-Going and Completed Operations Additional Insured Endorsement for the policy under section 4.3 (a) shall designate CITY, its officers, officials, employees, , and volunteers as additional insureds for liability arising out of work or operations performed by or on behalf of the CONSULTANT. CONSULTANT shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY.
An Additional Insured Endorsement for the policy under section 4.3 (b) shall designate CITY, its officers, officials, employees, , and volunteers as additional insureds for automobiles, owned, leased, hired, or borrowed by the CONSULTANT. CONSULTANT shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY.
For any claims related to this Agreement, CONSULTANT’s insurance coverage shall be primary insurance as respects CITY, it’s officers, officials, employees, and volunteers. Any insurance or self -insurance maintained by the CITY, its officers, officials, employees, , and volunteers shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
If CONSULTANT maintains higher insurance limits than the minimums shown above, CONSULTANT shall provide coverage for the higher insurance limits otherwise maintained by the CONSULTANT.
4 5. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable to CONSULTANT in the event of any default or breach by CITY, or for any amount which may bec ome due to CONSULTANT.
5.1 Non-Liability of Officials and Employees of the CONSULTANT. No official or employee of CONSULTANT shall be personally liable to CITY in the event of any default or breach by CONSULTANT, or for any amount which may become due to CITY.
6. Non-Discrimination. CONSULTANT covenants there shall be no discrimination against any person or group due to race, color, creed, religion, sex, marital status, age, handicap, national origin, or ancestry, in any activity pursuant to this Agreement.
7. Independent Contractor. It is agreed to that CONSULTANT shall act and be an independent contractor and not an agent or employee of the CITY, and shall obtain no rights to any benefits which accrue to CITY'S employees.
8. Compliance with Law. CONSULTANT shall comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local government.
CONSULTANT shall comply with, and shall be responsible for causing all contractors and subcontractors performing any of the work pursuant to this Agreement to comply with, all applicable federal and state labor standards, including, to the extent applicable, the prevailing wage requirements promulgated by the Director of Industrial Relations of the State of Californi a Department of Labor. The City makes no warranty or representation concerning whether any of the work performed pursuant to this Agreement constitutes public works subject to the prevailing wage requirements.
9. Notices. All notices shall be personally delivered or mailed to the below listed address, or to such other addresses as may be designated by written notice.
These addresses shall be used for delivery of service of process.
a. Willdan Engineering
Attention: Salvador Lopez Jr.
2401 E. Katella Avenue, STE. 300
Anaheim, CA 92806
b. City of Garden Grove
Attention: Monica Covarrubias
11222 Acacia Parkway
Garden Grove, CA 92840
10. CONSULTANT 'S PROPOSAL. This Agreement shall include CONSULTANT 'S proposal or bid which shall be incorporated herein by reference. In the event of 5 any inconsistency between the terms of the proposal and this Agreement, this Agreement shall govern.
11. Licenses, Permits, and Fees. At its sole expense, CONSULTANT shall obtain a Garden Grove Business License, all permits, and licenses as may be required by this Agreement.
12. Familiarity with Work. CONSULTANT shall perform all services in accordance with the Standard of Care and b y executing this Agreement, CONSULTANT warrants that: (1) it has investigated the work to be performed; (2) it has investigated the site of the work and is aware of all conditions there; and (3) it understands the facilities, difficulties, and restrictions of the work under this Agreement. Should CONSULTANT discover any latent or unknown conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY of this and shall not proceed, except at CONSULTANT 'S risk, until written instructions are received from CITY.
13. Time of Essence. Time is of the essence in the performance of this Agreement, subject however, to exercise of the Standard of Care required for performance of the Services.
14. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability, and reputation of CONSULTANT, its principals and employees were a substantial inducement for CITY to enter into this Agreement.
CONSULTANT shall not contract with any other entity to perform the service s required without written approval of the CITY. This Agreement may not be assigned voluntarily or by operation of law, without the prior written approval of CITY. If CONSULTANT is permitted to subcontract any part of this Agreement, CONSULTANT shall be responsible to CITY for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor and CITY. All persons engaged in the work will be considered employees of CONSULTANT. CITY will deal directly with and will make all payments to CONSULTANT.
15. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute t his Agreement and that by executing this Agreement, the parties are formally bound.
16. Indemnification. To the fullest extent permitted by law, CONSULTANT agrees to defend, and hold harmless CITY and its elective or appointive boards, officers, and employees from any and all claims, liabilities, expenses, or damages of any nature, including reasonable attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, to the extent arising out of, the negligence, recklessness and/or intentional wrongful conduct of CONSULTANT, CONSULTANT's agents, officers, employees, subcontractors, or independent contractors hired by CONSULTANT in the performance of the Agreement. The only exception to 6 CONSULTANT'S responsibility to protect, defend, and hold harmless CITY, is due to the negligence, recklessness and/or wrongful conduct of CITY, or any of its elective or appointive boards, officers, agents, or employees . This hold harmless agreement shall app ly to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT.
17. Appropriations. This Agreement is subject to and contingen t upon funds being appropriated therefor by the Garden Grove City Council for each fiscal year covered by the term of this Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the CITY.
18. Modification. This Agreement constitutes the entire agreement between the parties and supersedes any previous agreements, oral or written. This Agreement may be modified only by subsequent mutual written agreement executed by CITY and CONSULTANT.
19. Waiver. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the CITY and CONSULTANT.
20. California Law. This Agreement shall be construed in accordance with the laws of the State of California. Any action commenced about this Agreement shall be filed in the central branch of the Orange County Superior Court.
21. Interpretation. This Agreement shall be interpreted as though prepared by both parties
22. Preservation of Agreement . Should any pr ovision of this Agreement be found invalid or unenforceable, the decision shall affect only the provision interpreted, and all remaining provisions shall remain enforceable.
23. Waiver of Consequential Damages. Neither party shall have any claim or right against the other, whether in contract, warranty, tort (including negligence), strict liability or otherwise, for any special, indirect, incidental, or consequential damages of any kind or nature whatsoever, such as but not limited to loss of revenue, los s of profits on revenue, loss of customers or contracts, loss of use of equipment or loss of data, work interruption, increased cost of work or cost of any financing, howsoever caused, even if same were reasonably foreseeable.
24. Force Majeure. Consultant shall not be liable for any failure to perform or any impairment to its performance to the extent such failure or impairment is caused by any act of God, fire, flood, natural catastrophe, labor dispute or strike or shortage, national or state emergency, epidemic or pandemic, insurrection, riot, act of terrorism, war, act of government, any action or inaction of the City or a third -party engaged by it, and/or any other event, occurrence or circumstance beyond the reasonable control of Consultant. The 7 compensation due Consultant and the schedule governing the timing for Consultant's performance shall be equitably increased and extended, respectively, to address any such impacts to Consultant's performance.
25. Standard of Care. Consultant's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions (the “Standard of Care”).
\ \ \ \
(Agreement Signature Block on Next Page)
8 IN WITNESS THEREOF, these parties have executed this Agreement on the day and year shown below.
Date: _____________ "CITY"
CITY OF GARDEN GROVE
By: ___________________________
City Manager
ATTESTED:
____________________________
City Clerk
Date: _______________________
"CONSULTANT"
Willdan Engineering
By: ___________________________
Name: _________________________
Title: __________________________
Date: __________________________
Tax ID No. ______________________
If CONSULTANT is a corporation, a
Corporate Resolution and/or Corporate
Seal is required. If a partnership,
Statement of Partner ship must be
submitted to CITY.
APPROVED AS TO FORM:
____________________________
Garden Grove City Attorney
________________________
Date
9 ATTACHMENT A
WILLDAN ENGINEERING SCOPE OF WORK