Rev 1/2019
AMENDMENT NO. 1 FOR PROFESSIONAL CONSULTING SERVICES
This Amendment (“Amendment No. 1”) is hereby entered into effective _______ ___, 2026 by and between the City of Lancaster, a Municipal Corporation, in the State of California, and LDM Associates, Inc., a California Corporation (“CONTRACTOR”) with respect to the Professional Services Agreement dated March 2, 2022 between the Parties.
The Parties agree as follows:
1. The “Term; Effective Date” is amended to be in effect until the project is completed (SEPTEMBER 30, 2030), unless the Agreement is sooner terminated in accordance with this Agreement.
2. All other terms and provisions of the Agreement are hereby reaffirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their respective officers thereunto duly authorized.
CITY OF LANCASTER LDM ASSOCIATES, INC.
_______________________ _______________________________ Trolis Niebla, City Manager Rudy Munoz, Senior Executive Vice President
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney RM APPROVED
DEPARTMENT HEAD APPROVAL
Department Director
Rev 1/2019
Exhibit A
Scope of Services
Docusrgn Envelope lD FgAsFA9A-A42F -42F4-82AF-0FBAC7A79CDg THIS PROFESSIONAL SERVICES AGREEMUNl' (hereinafter "Agrccment") is made and entered into as of this 2'd day of March, 2022, by and between CITY OF LANCASTER. a municipal corporation and Charter City, (hereinalier referred to as "City") and LDM Associates. lnc., a California Corporation. (hereinafter referred to as "Consultant"). City and Consuhant are sometimes hereinafter individually referred to as "Party" and are hereinafter collectively referred to as the "Parties."
RECITALS
NOW. THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as tbllows:
I SERVICESOF'CONSULTANT
l.l. Scone ofServices. Consultant shall provide the Services described in the Scope of Services, subject to the terms and conditions ol'this Agreement. Consultant acknowledges that lunds awarded to City under the IIOME progranr will be used to pay forthc Services. Consuhant services are funded bytheCityof Lancaster's IIOME (CFDA 14.239) grant programs. Contractor agrees to and shall provide the Services in accordance with all applicable HOME program regulations, including Pan 92 of Title 24 of the Code of Federal Regulations. lf HOME program funds will be used to fund only a certain portion ofthc Services. those Services shall be designated or identified on thc Scopc ofServices.
CI'fY OI] I,AN('AS]'ER
ITEQIJEST t:OIt I'ttOI'OSAt_ 757-22
PI{oF-I.]SSIONA I, SI]ITV IC' I]S AGItEEM EN1'
A. City has determined that there is a need lbr a HOME - American Rescue Plan (ARP) Allocation Plan and Policies,/Procedures Manual, (hereinafler the "Projcct").
B. Consultant has submitted to City a proposal to provide certain professional services ("Services") related to the Project, as more particularly described in the Scope ofServices. located on page 9 ofthc Consultant's Proposal, which is attachcd hcreto as Exhibit "A" and incorporated herein ("Scope of Services") for the Project.
C. Consultant is qualified by virtue of its experience, training, education, reputation, and expertise to provide the Services and agrees to provide the Services pursuant and subject to the terms and conditions ofthis Agreement.
D. The term ("Term") of this Agreement is one ( l) year, commencing on March 2"d.2022.
Consultant is subject to the requircments in 24 CFR Part 92 that are applicable to the City, except d92.505 (Uniform Administrativc Requirements) and 992.506 (Audit) do nol apply, and Consultant cannot assume the participating jurisdiction responsibilities for environmental review. decision making. and action under \92-352- Consultant is responsible for providing services in accordance with 92.350 Other Federal requirements and nondiscrim ination.
92.351 Affimative marketing; minority outreach program: 92.353 Displacement. relocation, and I
Docusron Envelope lD F9A5F89&A42F-42F4-82AF-0FBAC7A79CD9 acquisition; 92.355 Lead-based paint; and 92.356 Conflict of Interest. lf the scope of work includes administration ofTBRA or rental housing and City requires Consultant to be responsible for any notice obligations and any obligations under the emergency transfer plan, the VAWA requirements under $92.359 shall apply.
Consultant represents and warrants to City that Consultant is a provider of first- class work and professional services, and thal Consultant is experienced in performing the Scrvices contemplated herein and, in light ofsuch status and experience, Consultant covenants that it shall follow the highest professional standards in performing the Services required hereunder. For purposes ofthis Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized as high quality among well-qualified and experienced professionals performing similar work under similar circumstances.
Project deliverables shall be reviewed and approved by City to determine acceptable completion. City shall have the right to review and inspect the Services during the course of its performance at such times as may be determ ined by City. 1,2. Contract flocuments. This Agreement consists of and incorporates all of the following (which are collectively rel'errcd to as the "Contracl Documents"): (l) this Agreement (including all exhibits): (2) City's Reques( for Proposals; and (3) Consultant's signed. original proposal submitted to Cit)' ("Consultant's Proposal"). All provisions ofthe Contract Documents shall be binding on thc Parties. Should any conflict or inconsistency exist between or anrong Contract Documents. the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document. which shall be determined in the following order of priority: ( I st) the provisions ofthe Scope of Senices; (2nd) the provisions of City's Request for Proposal; (3rd) the provisions of this Agreemen(: and, (4th) the provisions ofConsultant's Proposal.
1.3. Comnliance with Law. Consultant represents and warrants to C ity that all Services rendercd hereunder shall bc pcrfornred in accordance with all applicablc fbderal, state, and local laws. stalutes. and ordinances and all lawful orders, rules. and regulations promulgated thereunder.
1.4. @. Consuhant rcprcsents and warrants to
City that it has obtained all licenses (including a City Business License), permits, qualilications. and approvals of whatever nature that arc legally required to practice its profession and perlbrm the Scrvices required by this Agrcemcnt. Consultant represents and warrants Io City that Consultant shall, at its sole cost and expcnsc. keep in etlect at all times during the term ol'this Agreement, any license. permit. qualilication. or approval that is legally required lbr Consultant Io perform the Services under this AgrecmBnt. Consultant shall have the solc obligation to pay for any fees. assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant's perfonnance ofthe Services required by this Agreement. and shall indemnify, def'end, and hold harmlcss City against any such t'ees. assessments. taxes, penalties. or interest lcvied. assessed. or imposed against City hereunder.
1.5. Familiaritv r['ith Work. Consultant repre sents and waraants to C ity that Consu ltant (a) has thoroughly investigated and considered the Services to be performed. (b) has carefllly considered how the Scrviccs should be perfbrmed, and (c) lully understands the thcilities, )
DocuSign Envelope lD FgA5F898-A42F-42F4-82AF-0FBAC7A79CDg difficulties, and restrictions attending performance of the Services under this Agreement. If thc Services involve work upon any site. Consultant represents and warrants to City that Consul(ant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services hereunder. Should Consultant discover any latent or unknown conditions that will materially atfect the performance of the Services hereunder, Consultant shall immediately inforrn City ofsuch fact and shall not proceed except at Consultant's risk until written instructions are received from City. l 6. CeEjf-lYjIX. Consultant shall adopt reasonable methods during the term of the Agreement to lurnish continuous protection to any site where the Services are performed and the equipment, materials, papers. documents, plans, studies, and/or other components thereof to prevent losses or damages. and shall be responsible for all such damages, to persons or property, until acceptance ofthe Services by City. except such losses or damages as may be caused by City's own negligence.
1.7. Further Resnonsibilities ofParties. The Parties agree to and shall use reasonable carc and diligence to pcrform their respective obligations under this Agreement. The Parties agree to and shall act in good lhith to execute all instruments, prepare alldocuments. and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. t.8. AdditiO6l-Sgfig9& City shall have the right at any time during the performance ofthe Services, without invalidating this Agreement. to order extra work beyond that spccificd in the Scope ofServices or nrakc changes by altering, adding to, or deducting liom the Scope of Services. No such extra work may bc undertaken unless a written order is first given by City to Consultant, incorporating therein any adjustment in (i) the Maximum Contract Amount. as dellncd belou and/or(ii) the time to perlbrm this Agreement, which adjustments are subject to the written approval of Consultant. Any increase in compensation of up to ten percent (10%) of the Maximum Contract Amount, as set tbrth in Section 2.1 of this Agreement, may be approved by the City Manager, or his or her dcsignee, as may be needed to perform any exlra work. Any increases. occurring either separately or cumulatively which exceed the City Manager's approval authority must be approved by the Lancaster City Council. lt is expressly understood by Consultant thal the provisions of this section shall not apply to Services specifically set forth in the Scope ofServices or reasonably contemplated therein. regardless of whether the time or materials required to complete any such Services exceeds any time or material amounls or estimates provided therein. 2 COMPENSATION
2.1. @ For the Services rendered pursuant lo this
Agreement, Consultanl shall be compensated by City in accordance with the Schedule of Compensation ("Schcdulc of Compcnsation"), located on page 28 ofthe Consultant's Proposal, which is attached hereto as Exhibit "B" and is incorporated herein: provided, however. that the amount paid to Colltractor undcr this Agrcem ent shall not exceed tlre amount ol- eighty-nine lhousand. ninc hrrnrlrcrl arrrl s xlv-four Dollars. (589.964.00 1 l"Maximunr ('ontract Arnount"). except as may be provided pursuant to Section 1.8 above. The method ofcompensation shall be as set forth in the Schedule of Conrpensation. Compensation for necessary expenditures lbr reproduction costs. telephone cxpenses, and transportation expenses must be approved in advance 3 DocuSign Envelope lD F9A5FA98.A42F 42F 4-82AF-0FBAC7A79C Dg by the Contract Officer designated pursuant to Section 4.2 and will only be approved if such expenses are also specified in the Schedule of Compensation. The Maximum Contract Amount shall include the attendance ofConsultant at all Project meetings reasonably deemed necessary by City. Consultant shall not be entitled to any increase in the Maximum Conlract Amount for attending such meetings. Consultant hereby acknowledges that it accepts the risk that the Services identified in the Scope of Services may be more costly and/or time-consuming than Consultant anticipates. that Consultant shall not be entitled to additional compensation theretbre. and that the provisions ofSection 1.8 shall nol be applicable to the Services identified in the Scope ofServices.
The Maximum Contract Amount shall be the maximum amount of City's payment obligations under this Agreement. lf the Maxinrum Contract Amount is reachcd before Consultant's Services undcr this Agreement are completed, Consultant shall nevertheless complete the Services without liability on City's parl for further payment.
2,2. Method of Pavment. Consultant shall submit to City, in a form approved by the Contract Officer. an invoice for Services rendered prior to the date of the invoice. Such requests shall be based upon the amount and value of the Services perlormed by Consultant and accompanied by such reporting data including an itemized breakdorvn of all costs incurred and tasks performed during the period covered by the invoice, as may be required by City. City shall use reasonable efforts to make payments to Consultant within thirty (30) days after receipt ofthe invoice or a soon thereafter as is reasonably practical. There shall be a maximum ofone payment per month.
2.3. Chanses in Scone. ln the event any change or changes in the Scope of Services is requested by City or Consultant, the Parties shall execute a writlen amendment to Ihis Agreement seuing lbrth with particularity all terms of such amendment. including, but not limited to, any additional compensation. An amendment shall be entered into: (a) to provide lor revisions or modilications to documents or other work product or work when documents or other work product or u,ork is required by the enactment or revision of law subsequent to the preparation of any documents, other work product, or work; and/or (b) to provide lbr additional serviccs not included in this Agreemenl or not customarily lurnished in accordance with generally accepted practice in Consultant's protbssion.
2.4. Apfppfietiq1!. This Agreement is subject to and contingent upon funds being appropriated thercfor by the Lancaster City Council for each fiscal year covered by this Agreement. If such appropriations are not made. this Agreement shall automatically terminate without penalty or any liability whatsoever to City.
3.1. IiUS-iLqI-lh$.$SnCe. Timc is of the essence in the performance of this Agreement. The tirne lbr completion olthe Services to be performcd by Consultant is an essential condition ofthis Agrcement. Consultant shall prosecute regularly and diligently the Services of this Ag,rcement according to the agreed upon Schedule of Performance described in Section 3.2.
3.2. lfXfddC-qL&f&IIilS,C. Consultant shall conrmence the Services pursuanl to this Agreement upon receipt of a written notice to proceed given by City, and shall perform all Services within one (l) year. When requestedrby Consultant, cxtensions 10 the time period(s) 3 SCIIEDT]I.E 0F PE RFORMANCE
OocuSign Envelope lD FgAsF89&A42F-42F4-82AF-0FBAC7479CDg
3.3. Force Maieure. The time period(s) specilied in the Schedule of Performanoe fbr performance ofthe Services rendered pursuant to this Agrcement shall be extended because ofany delays due to unforeseeable causes beyond the control and without (he fault or negligcnce of Consultant (financial inability cxccpted). including. but not limited to, acts ofCod or ofthe public enemy, unusually severe weather, fires, ea(hquakes. Iloods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, and/or acls ofany governmental agency. including City, if Consultant, within ten ( l0) days of the commcncement ol'such delay. notifies the City Manager in writing of the causes of the delay. The City Manager shall ascertain the facts and lhe extent of delay, and extend the time for perfbrming thc Services fbr the period of the enforced delay when and if in the judgment of the City Manager such dclay is justified. The City Managcr's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City lbr any delay in the performance of this Agreement, however caused. Consultant's sole remedy being extension ofthe Agreement pursuant to this section.
3.4. fggjq. Unless earlier terminated as provided elsewhere in this Agreement. this Agreement shall commence upon the eft-ectivc date of this Agreemcnt and continue in full force and effect (br one ( I ) year for Scrviccs.
3.5. Terminalion Prior lo Exniralion of Tcrm. City may tcrminate this Agreement in lor its convcnience at any time, without cause, in whole or in part, upon giving Consultant thirty (30) days written notice. Where lermination is due to the fault ol'Consuhant and constilutes an immediate danger to health, safety, and general welfarc, the period of notice shall be such shorter time as may be determined by City. Upon such notice. City shall pay Consultanl for Services performed through the date of termination. Upon rcceipt of such notice, Consultant shall immediately cease all work under this Agreement. unless stated otherwise in the notice or by written authorization ofthe Contract Officer. After such notice. Consultant shall have no furthcr claims against City under this Agreement. Upon termination of the Agreement under this section, Consultant shall submit to City an invoice lbr work and Services performed prior to the date of te rmination. Consultant may terminate this Agreement. with or withoul cause. upon sixty (60) days written notice to City, except thal u,here termination is due to material default by City. the period of noticc may be such shorter time as Consultant may detcrmine. 4 COORDINATION OF WORK
4.1. Renresentative of Consultant, The following representative of Consultant rs hereby designated as being the nrain point ofcontact ofConsultant authorized to act on its behalf with respect to the Services lo be perfomed under this Agreement and make all decisions in connection therewith: Rudy Munoz. lt is exprcssly understood that the experience. knowledge, cducation, capability, expertise, and reputation of the lbregoing representalive is a substantial inducemcnt fbr City trr enter into this Agreement. Thcrcfore. the foregoing representative shall be responsible during the term ol'lhis Agreement for dirccting all activities ol' Consultant and 5 specified in the Schedulc ofPerformance may be approved in writing by the Contract Of{icer. but such extensions shall not exceed one hundred eighty ( I 80) days cumulatively; howcver, City shall not be obligated to grant such an cxtension.
DocuSign Envelope lD F9A5FA9EM2F 42F 4-62AF-0FBAC 7A79CD9
4.2. Contract Officer. The "Contract Officer" shall be such person as may be designated by the City Manager, and is subject to change by the Housing Manager. It shall be the Consultant's responsibility to ensure that the Contract Ofl'icer is kept fully informed ofthe progress of the perfbrmance of the Services, and the Consultant shall refer any decisions which must be made by City to (he Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Olficer. The Contract Officer shall have authority to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.
4.3. Prohibition Aqainst Subcontracting or Assipnments. The experience. knowledge. capability, cxpertise, and reputation ofConsultant. its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, Consultant shall not assign the perlbrmance of this Agreement, nor any paft thereof, nor any monies due hereunder. voluntarily or by operation of'law. without the prior written consent of City. Consultant shall not contract with any other cntity to perform the Services required under this Agreement without the prior written consent of Cily. IfConsultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City lor the acts and omissions of its subcontractor(s) in the sanre manner as it is for persons directly employed. Nothing contained in this Agreenrent shall create any contraclual relationships between any subcontractor and City. All persons engaged in the Scope ot Services will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition. neither this Agreement nor any interest herein may be transfcrred, assigned. convel'cd, hypothecated. or encumbered voluntarily or by operation of law. whethcr for the benefit of creditors or otherwise. without the prior written consenl of Cit1,. Transfers restricted hereunder shall include the transfer to any person or group ofpersons acting in concert of more lhan twenty five percent (25%) ofthc present ownership and/or control of Consultant, taking all transfers into accounl on a cumulative basis. In the event of any such unapproved transl'er. including any bankruptcy proceeding. this Agreement shall be void. No approved transfer shall release Consultant or any surety ofConsultant from any liability hereunder without the express written consent of City.
A. The legal relationship between lhe Parties is that of an independent contractor, and nothing herein shall be deemed to make Consultant a City employee. During the performance of this Agreenrent, Consultant and its officers, employees, and agents shall act in an independent capacity and shall not act as City officers or employees. The personnel performing the Services under this Agreenrent on behalf of Consultanl shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, excep( as set forth in this Agreement. Consultant, its officers, enrployees, or agents shall not maintain an oflice or any other type offlxcd business location at City's ol'fices. City shall have no voice in the selection, discharge, supen,ision, or control ofConsultant's employees, servants, representatives. 6 devoting sufficient time to personally supervise the services performed hereunder. The foregoing representative may not be changed by Consultant without prior written approval of the Contract C)fficer-
4.4. IndenendentContractor.
DocuSign Envelope lD F 9A5F A9&A42F 42F 4-82AF-0FBAC 7A79CD9 or agents, or in fixing their number. compensation, or hours of service. Consultant shall pay all wages. salaries, and other amounts due its employees in connection with this Agrecment and shall be responsible fbr all reports and obligations respecting them. including but not limited to social security income tax withholding, unemployment conrpensation, workcrs' conrpensation, and other similar matters. City shall not in any way or for any purpose be decmed to be a partner of Consultant in ils business or otherwise a joint venturer or a member of any joint entcrprise with Consultant.
B. Consultant shall not incur or have the power to incur any debt, obligation, or liability against City, or bind City in any manner.
C. No City benefits shall be available to Consultant. i1s officers, entployees, or agents in connection with any perlormance under this Agreement. Except for professional fecs paid to Consultant as provided for in this Agrcement. City shall not pay salaries. wages, or other compensation to Consultant for the performance of the Scope of Services undcr this Agreement.
City shall not be liable lbr compensation or indemnification to Consultant. its officers, employees. or agents, for injury or sickness arising out of perfomring the Scope of Services hereunder. 5 INS(]I{ANCE
5.1. Tvocs of Insurance. Consultanl shall procure and maintain, at its sole cost. and expense. in a form and content satislhctory to City, the insurance describcd hercin for the duration of,this Agreement, including any extension lhereof, or as otherwise spccified herein, against claims which may arise lrom or in connection with the perlonnance of tlre Scope of Services hcreunder by Consultant. its agents, representatives. or employees. In the event the City Manager determines that the Scope ofServices to be perlbrmed underthis Agreenrent creates an increased or decreased risk of loss 10 (he City. the Consultant agrees that the minimum limits of the insurance policies may be changcd accordingly upon receipt ofwritten notice fionr the City Manager or his designec.
Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified herein. [ixcept as otherwise authorized below for prolessional liability (errors and omissions) insurance, all insurance provided pursuant to this Agreement shall be on an occurrence basis. 'fhc minimum amount of insurance required hereunder shall be as follows:
Insurance shall be maintained for the length ofthe contract rvith insurers listed "A-. VIII" or better in the Best's Key Rating Guidc, for the amounts listed below:
Commercial Gcneral Liability
Each Occurrence
Per Project General Aggregate
Including Products/Completed Operations
Including Contractual Liability/lndependent Contractors Including Broad Form Property Damage
Commercial Automobile Liability
Conrbined Singlc Linrit per Accident for Bodily lnjury and Propcrty Darnage $ r .000.000
$2.000.000
s | ,000.000
7 DocuSgn Envelope lD F9ASF 898-442F42F4-82AF-0FBAC7A79CD9 Workers Compensation
As Required by the State of California
Employer's Liability
Each Accident
Bodily Injury by Disease
Professional Liability/Cybcr Liabitity (Errors and Omissions) Each 0ccurrencc
General Aggregate
Statutory
$ 1,000,000
$ | .000.000
$ r .000.000
$ I .000,000
Covcrage needs to be on a per project hasis. Not per policy unless waivcd by Risk Management. Insurance shall be at leasl as broad as ISO tbrm CG 20 I 0 I I 85 or CG 20 l0 07 04 and CG 20 37 07 04 (or equivalent) covering Commercial General Liahility.
Commercial Automobile coverage shall be at least as broad as ISO form CA 00 01.
A Waiver of Subrogation must be provided on behalf of the Certificate Holder for the Workers Compensation/Employers Liability policies and must accompany the certificate.
All insurance shall be primary and non-contributory as respects the City insured entities. Any insurance or self-insurance maintained by the City insured entities shall be in excess of the CONSULTANT'S insurance and shall not contribute with it.
List in the "Certilicate Holder" section:
The City of Lancaster
44933 Fern Avenue. Lancasler, Calitbmia 93534
List in the "Description of Operations" box (unless it fits in the Certificate Holder section):
"1-he City of l,ancaster. its elected offlcials. officers. enrployees. and volunteers are included as additional covered parties, but only insolar as the operations under this contracl are concerned." List in the "Cancellation" section:
Should any of the above described policies be cancelled befbre the expiration date thereof, the issuing company will mail 30 written notice (10 days written notice for non-payment) to the Certificate Holders named to the left.
6 INDEMNIFICATION
To the fullest extent permitted by law. Consultant shall indemnify. defend (at Consultant's sole cost and expense), protect and hold harmless City and its elected officials, officcrs, employees. agents. attorneys, and volunteers and all other public agencies whose approval of the Project is required, (individually "lndemnified Party"; collectively "lndemnified Parties") against any and all liabilities. claims, judgments, arbitration awards, settlements, costs. demands. orders, and penalties (collcctively "Claims"), including but not limitcd to Claims arising from injuries or death ofpersons (Consultant's employees included) and damage to property. which Claims arise out ol. pertain to, or are related to the negligence. rccklessness, or willful misconducl of 8 DocuSgn Envelope lD FgA5F89&A42F-42F4-82AF-0FBAC7A79CDg Consultant, its agcnts. employces. or subcontractors, or arise from Consultant's negligent. reckless, or willful performance ofor failure to perform any term. provision. covenant, or condition of this Agreement ("Indemnified Claims"). but Consultant's liability for Indemnified Claims shall be reduced to the extent such Claims arise from the sole negligence or willful misconduct of City. its elected olticials, officers, enrployees, agents, attorneys and volunteers.
Consultant shall reimburse the Indemnified Parties for any reasonable expenditurc, including reasonable attomeys' lces. expert fees, litigation costs, and expenses that cach Indemnified Party may incur by reason of Indemnified Claims. Upon request by an Indemnified Party. Consultant shall defend with legal counsel reasonably acceptable to the Indemnified Party all Claims against the lndemnified Party that may arise out of. pertain to, or relate to Indemnified Claims, whether or not Consultant is nanred as a party to the Claim proceeding. The determination whether a Claim "may arise out of, perlain (o, or relate to Indenrnilled Clainrs" shall be based on the allegations made in the Claim and the facts known or subsequently discovered by the Parties.
In the event a final judgment. arbitration award, order, setllement, or other final resolution expressly determines that CIaims did not arise out o1, pertain to, nor rclale to the negligence, recklessness, or willful misconduct of Consultant to any extent, then City shall reimburse Consultant for the reasonable costs of defending the Indemnified Parties against such Claims, except City shall not reinrburse Consultant for attorneys' fees, expert fees, litigation costs, and expenses that were incurred defending Consultant or any parties other than Indenrnified Parties against such Claims.
7 RIiPOIITS ANI) II.ECORI)S
7,2. BSUA3|!. Consultant shall periodically prepare and submit to thc Contracl Ofllcer such reports concerning the performance of the Serviccs required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that City is greatly concerned about the cost of the Services Io be performed pursuant to this Agreement. For this reason.
Consultant agrees that if Consultant becomes aware of any facts, circumstances, Lechniques. or events that may or will materially increase or decrease lhe cost ofthe Services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Oficer of such fac(. circumstance. technique, or event and thc g
Consultant's indcmnification obligation hereundcr shall survive the expiration or earlier termination of this Agreement until all actions against the lndcmnificd Parties for such matters indemnitled hereunder are I'ully and finally barrcd by the applicablc statute of limilations or. if an action is timely filcd. unlil such action is final. 'lhis provision is intended for the bcnefit of third party lndemnificd Parties not otheru,ise a party lo lhis Agreement.
7.1. Accountins Records. Consultanl shall keep complete, accurate, and detailed accounts of all tinre. costs. expenses. and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perlbrm the Services required by this Agreement and to enable the Contract Oflicer to evaluate the pertbrmance of such Services. The Contract Oflicer shall have lull and free access to such books and records at all reasonable tirnes. including lhe right to inspect. copy, audit, and nrake records and transcripts from such records.
DocuSgn Envelope lD FgA5F898.A42F-42F4-82AF-oFBAC7A7scog estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate lor the project being designed.
7.3, flwnershin of Documents, AII drawings. specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subcontractors. and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request ofthe Contract Officer or upon the termination of this Agreement. and Consultant shall have no claim for further employment or additional compensation as a resull of the exercise by City of its full rights of ownership oflhe documents and materials hereunder. Any use ofsuch completed documents for othcr projects and/or use of incomplete documents without specific rvritten authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and City shall indemnify the Consultant for all damages resulting therefrom. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. Consultant shall cnsure that all its subcontractors shall provide lbr assignment to City ofany docunrents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnift City for all damages resulting therefrom. ?.4. BSIS3$JI!9SC@$. All drauings. specifications. reporls. records. documcnts. and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gaincd by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization.
7.s.@Afterreceiptofreasonablenoticeandduring
the regular business hours of City. Consultant shall provide City, or other agents of City, such access to Consultant's books. records, payroll documents. and facilities as City dcems necessary to examine, copy, audit. and inspect all accounting books. records. work data. documents, and activities directly related to Consultant's performance under this Agreement. Consultant shall maintain such books. records. data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during thc term o,'this Agreemcnt and for a period ofthree (3) years from the date ofllnal payment by City hereunder.
It ENFORCEMENT OF AGREEME,NT
8.1. f.ali&f4ia-laU-aglJgrc. This Agreement shall be construed and interpreted both as to validity and as to performance ofthe Parties in accordance with the laws ofthe State of Califomia.
8.2. LUIf,IDEte$e[. This Agrcement shall bc construed as a whole according to its lair language and common meaning to achieve the objectives and purposes of the Panies. The terms of this Agreement are contractual and the resul[ of negotiation between thc Parties. Accordingly, any rule ot'construction olcontracts (including. without limitation. Calitbrnia CivilCode Section 1654) that ambiguities are (o be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of t0
DocuSEn Envelope lDr F gA5F898-A42F-42F4-82AF-0FBAC7A79COg this Agreement are for convenience and identification purposes only and shall not be deemed to lim it, expand, or define the contenls of the respective sections or paragraphs.
8.3. I)efault of Consultant.
A.
constitute a default.
Consultant's lailure to comply with any provision of this Agreement shall B. I lthe City Manager. or his designee, determ ines that Consultant is in defau lt in the performance of any of the lerms or conditions of this Agreement, he/she shall notifo Consultant in writing of such default. Consultant shall have ten ( l0) days, or such longer period as City may designate, to cure the default by rendering satisfactory pertbrmance. In the event Consultanl t'ails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement. to tenninate this Agreement without further noticc and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for any and all reasonable costs incurred by City as a result ofsuch default. Compliance with the provisions ofthis section shall not constilute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause pursuant to Section 3.5.
C. If termination is due to the failure ofthe Consultanl to fulfill its obligations under (his Agreement, City may, aftcr compliance with the provisions of Section 8.3. 8., lake over the Services and prosecute the same to completion by contract or otherwise, and the Consuhanl shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that City shall use reasonable efforts to mitigate such damages). and City may withhold any payments to the Consultant for the purpose ofset-off or partial payment of the amounls owed City as previously stated. The withholding or lhilure to withhold payments to Consultant shall not limit Consultant's Iiability for completion of the Services as provided herein.
8,4. ldaiygt, No waiver ofany provision of this Agreement shall be effective unless rn writing and signed by a duly authorized reprcsentative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties ofany default or breach ofany covenant, condition, or term contained in this Agreenrent, shall not be construed to be a waiver ofany subsequent or other default or breach. nor shall failure by the Panies to require exact, full. and complete compliance with any of the covenants, conditions. or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions hcreof.
8.5. Riphts and Remcdies Cumulativc. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Partics are cumulative and the exercise by either Pa(y of one or morc of such rights or remedies shall not preclude the exercise by it, at the same or dift'ercnt times. of any other rights or remedies for the same default or any other default by the other Party.
II
OocuSrgn Envelope lD F 9A5F A9*A42F42F 4-82AF-0FBAC7A79CD9 9 CITY OFFTCE,RS AND EMPLOYEF],S: NON.DISCRIMINATION
9.1. NonJiahilitv of Citv Officers and Emolovees. No olficer or employee of City shall be personally liable to Consultant, or any successor-in-interest. in the event ofany default or breach by City or lbr any amount which may beconre due to Consultant or to its successor, or for breaoh ofany obligation ofthe terms ofthis Agreement.
9.2. Conflict of Interest. No officer or employee of City shall have any financial interest. direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest ofany corporation, partnership, or association in which he/she is, directly or indirectly, interested in violation of any state statute or regulation. Consultant represents and warrants that it has not paid or given and will not pay or give any third party any money or other consideration in exchange for obtaining this Agreement.
9,3. Covenant Asainst Discrimination. In connection rvith its performance undcr this Agreement, Consultant shall not discriminate against any employee or applicant for employment because ol'race, religion. color. sex, age. marital status, ancestry. disability, medical condition, sexual orientation. or national origin. Consuhant shall ensurc that applicants are employed. and that employees are treated during their employment. without regard to their race, religion, color, sex. age, marital status. ancestry, or national origin. Such actions shall include, but not be limited to. the lbllowing: employment, upgrading. denrotion or transfer; recruitment or recruitment advertising; layof'f or termination; rates ofpay or other tbrms ofcompensation; and selection lbr training. inc ludints apprenticesh ip.
9.4, Equal Emplovment Opportunitv. Exce pt as otherwise provided under 4l CFR Part 60. all contracls thal meet the dcfinition of "federally assisted construction contract" in 4l CFR Part 60-1.3 must include the equal opportunity clause provided undcr 4l CFR 60-1.4(b). in accordance wilh Exccutivc Ordcr I l246. "Equal Employmcnt Opportunity" (30 FR 12319, I2935, I CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order ll375, "Amending Executive Order | 1246 Relating to Equal Employment Opportunity," and implementing rcgulations at 4l CFR part 60, "Oftice of Fcderal C()ntract Compliance Programs, Equal Employment Opportunity, Department o l- l.abor."
IO NIISCELLANH,OUSPIIOVISIONS
l)
8,6. Lesal Action. In addition to any other rights or remedies. either Party may take legal action, in law or in equity. to cure. correct or remedy any dcfault. to recover damages tbr any dcfault. to compel spccific perlbrmancc ol'this Agreement. to obtain declaratory or injunctive reliel, or to obtain any other remedy consistent with the purposes of'this Agreement.
DocuSrgn Envelope lD FgA5F89&A42F-42F4-82AF-0FBAC7A79CDg A. To the fullest extcnt permissible under law. and in lieu ofany other warranty by City or Consultanl against patent or copyright infringcment, statutory or otherwise, it is agreed lhat Consultant shall del'cnd at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale thereof arising out ofthc performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultanl shall pay all costs and danrages finally awarded in any such suit or claim. provided that Consultant is promptly notilled in writing of the suit or claim and given authority. information and assistance at Consultant's expense lbr the defense of sanre. l-lowever.
Consultant will not indemnily City if the suit or claim results from: ( I ) City's alteration of a dclivcrable. such thal City's altcration of such deliverablc crcatcd the infringcnrent upon any prescntly existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other nralerial not provided by Consultant when it is such use in combination which inliinges upon an existing U.S. letters patent or copyright.
B. Consultant shall not be obligated to indcmnify City under any settlement made without Consultant's consent or in thc event City fails to cooperate in thc defense ofany suit or claim, provided, however, that such defense shall be at flonsultant's expense. Ifthe use or sale of such itenr is enjoined as a result of the suit or claim, Consultant, at no expense to City. shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to Cily and extend this patent and copyright indenrnity thereto.
I0.2. layi5;pAg1!gg. When required by Federal program legislation. Contractor shall comply with the Davis-Bacon Act (40 U.S.C. 3l4l-3144. and 3146-3148) as supplemented by I)cpartment ol l.abor regulations (29 Ch'R Part 5, "Labor Standards Provisions Applicahle to Contracts Covering Federall,v Financed and Assisted Construction"). In accordance with the statute. Contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition. conlractors must be required to pay wages nol less than once a week. The non-Federal entity must place a copy ofthe current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. City shall report all suspected or reported violations to the HUD. The Contractor shall comply with thc Copcland "Anti-Kickback" Act (40 U.S.C. 3145), as supplemented by Department o[ I-abor regulations (29 CFR Pan 3, "Conlractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the lJnited States"). The Act provides that the Contractor shall be prohibited from inducing. by any means. any person employed in lhe construction. completion. or repair ofpublic work, to give up any part of the compensation to which he or she is otherwisc entitled. City shall report all suspected or reported violations to the HUD.
10.3. Where applicable, contracts in
excess of $100,000 that involve the employment of meclranics or laborers shall comply with the provision tbr compliance with 40 U.S.C. 8$ 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 LJ.S.C. $ 3702 o{'the Act, the Contractor shall compute thc wages of every mechanic and laborer on the basis of a standard work wcek of 40 hours. Work in excess of the standard work rvcek is permissible provided that the worker is compensated at a rate ofnot lcss than one and a halftimes the basic rate ofpay for all hours worked l-l
OocuSgn Envelope lD F9ASF A9&442F 42F4-82AF-0F BAC 7A79C Dg in excess of 40 hours in the work week. The requirements of 40 U.S.C. $ 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases ofsupplies or materials or articles ordinarily available on the open market, or contracts for transponation or transmission ofintelligence.
10.4, Rishls to InvcntionrM4de llndela Contract or Agrecmcnt. If the IIOME award meets the definition of"funding agreement" under 37 CFR $401.2 (a) and the recipient or subrecipient wishes to enter into a contract wi(h a small business firm or nonprofit organization regarding the substitution ofparlies, assignment or performance ofexperimental. developmental, or research work under that "f'unding agreement," the recipient or subrecipient must comply with the requirements of37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements." and any implementing regulations issued by the awarding agency.
10.5. Clcan Air Act and the Fcderal Watcr Pollution Control Act. Clontracts and subgrants ofamounts in excess of$150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant lo the Clean Air Act (42 U.S.C.7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. l25l-1387). Violations must be reported to the Federal awarding agency and the Regional Office ofthe Environmental Protection Agency (EPA).
10.6. DS!e1ry!_e!gjg54qiq. A contract award (see 2 CFR $ 180.220) must not be made to pa(ies listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. I 89) and 12689 (3 CL-R part 1989 Comp., p. 235), "l)ebarment and Suspension." SAM Exclusions contains the names ofparties debarred, suspended, or othenvise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
10.7. Bvrd Anti-Lobbvins Amendment. Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an ofllcer or employee of any agency, a member of Congress. officer or employee ofCongress, or an employee ofa member ofCongress in connection with obtaining any Federal contract. grant or any other award covered by 3l U.S.C. $ 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
A. As appropriate and to the extent consistent with law, the non-Federal entity should. to the greatest extent practicable under a Federal award, provide a preference for the purchase. acquisition. or use of goods. products. or materials produccd in the [Jnited States (including but not limited to iron. aluminum. steel. cement. and other manufactured products). The requirements ofthis section must be included in all subawards including all conlracts and purchase t4
10.8.@
DocuSign Envelope lD: FgA5F89&A42F-42F4-82AF-0FBAC7A79CDg orders for work or products under this award.
B. l"or purposes of this section:
( I ) "Produced in thc United States'' nreans, tbr iron and steel products. that all nranufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) "Manufactured products" nreans itenrs and construction materials composed in whole or in pan ofnon-ferrous nretals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass. including optical fiber; and lumber.
10.9. !q!ESCl. All notices or other conrmunications required or permitted hereunder shall be in writing, and shall be personally delivered. sent by pre-paid First Class U.S. Mail. registered or certified mail. postage prepaid, return receipt requestcd. or delivered or sent by facsimile with atlached evidcnce ol'completcd transmission. and shall be deemed received upon the earlier of (i) the date ol'delivery to the address of'the person to receive such notice if delivered personally or by messenger or overnight courien (ii) five (5) business days alter the date ofposting by the United Stales Post Office if by mail; or (iii) when sent if given by facsimile. Any notice. request. demand, direction. or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailcd or delivered. Other lornrs ofclectronic transmission such as e-mails. text messages, and instant messages are not acceptable manners of notice required hereunder. Noticcs or other communications shall be addressed as tbllows:
To ('itv City of Lancaster
Attention: ChristopherAune
44933 Fern Ave
Lancaster. Califomia 935 34
Telephone: (661\723-5870
'fo Consultant:[.DM Associates .lnc
Attention: Rudy Munoz
10722 Arrow Roule. Suite 822
Rancho Cucamonga, CA 91730
Telephone: (909)476-9696
10.10. E11lifS;|gfS9lgll. This Agreement, including all Contract Documents, constitutcs the entire agreement between thc Pa(ies and supersedes all prior negotiations. arrangements. agreements. representations, and u ndersl.and in gs, ifany, made by or among (he Parties with respcct to the subject matter hereof. No amendments or other nrodifications of this Agreement shall be binding unless executed in writing by both Parties hereto, or their respectivc succcssors. assigns, or grantees.
l0.ll. Scverabilitv. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be ef'fective and valid under applicable law. but ifany provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of l5
DocuSrgn Envelope lD F9A5F898-A42F-42F4-82AF-0FBAC7A79CDg competent jurisdiction, such provision shall be ineffective only to the extent ofsuch prohibition or invalidity. without invalidating the reminder ofthat provision, or the remaining provisions ofthis Agreement unless the invalid provision is so material that its invalidity deprives either Party ofthe basic benefit oftheir bargain or renders this Agreement meaningless.
10.12. $.USS4I; iLIilg;S$. This Agreernent shall be binding upon and inure to the benelit of the Panies' successors and assignees.
10.13. I[!f.1!-hf1[-Bege!!Sie1a. llxcept as may bc expressly provided for herein, nothing contained in this Agreement is intcnded to confer. nor shall this Agreement be construed as conferring. any rights, including. without limitation, any rights as a third-party beneficiary or otherwise. upon any entity or person not a party hereto.
10.14. Bgfi$b. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth herein and each Party acknowledge and agree that such Party is bound, for purposes of this Agreement, by the same.
10.15. Cq1[q13&3$tg1ig,. Each of the undersigned represents and warrants that:
A. the Pany for which he or she is executing this Agreement is duly authorized and existing,
B. he or she is duly authorized Io execute and deliver this Agreement on behalfofthe Party for which he or she is signing.
C. by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement. and
D. the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound.
ISIGNATARES ON FOLLOWING PAGEI
t6
DocuSrgn Envelope lD: F9A5F A9&A42F 42F 4-82AF-0FBAC7A79CDg IN WITNESS WIIEREOF, the parties hereto have caused Ihis AGREIIMENT to be executcd and attested by their respective officers lhercunto duly authorized.
CITY OF LANCASTER
LANCASTER. CALIFORNIA
Bv: a;#ru @
Jason Caudle, City Manager
Dut"d, ,u..h 8, 2022 | 2:57:s3 PM Psr
I,DM ASSOCIA'IES. INC.
RANCO CUCAMONGA. CALIITORNIA
By, G*jv,
Rudy Munoz, Senior Executive Vice President
uarch 7, 2022 I 5:01:09 Pl4 PsT
Dated:
ATTEST:
lffia*a'-.*"
Andrea Alexander, City Clerk
APPROVt]D AS 'fO FOII,M:
aT :e->
city Attorney
G
I oL,.)
TY G