2812839v1.doc City of MB Form
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is dated December 2, 2024 ("Effective Date") and is between the City of Manhattan Beach, a California municipal corporation ("City") and Canon Solutions Am erica, Inc., a New York Corporation ("Consultant"). City and Consultant are sometimes referred to herein as the "Parties", and individually as a "Party".
RECITALS
A. City desires to acquire multi-f unction imaging equipment (“Equipment”), application software license subscription (“Software”), Equipment maintenance including supplies under a supply inclusive maint enance plan (“Maintenance”), and subscription support services for on-site in person tr aining (“Subscription Support Services”) (the Maintenance and Subscription Support Services collectiv ely are “Services”) from Consultant as listed on Consultant’s form of order with transaction number 21123979 (the “Order Schedule,” Exhibit A) via a lease (“Lease”) through Canon Financial Services, Inc. (“CFS” or “Lessor”).
B. City acknowledges that invoices fo r such Lease will be invoiced by and paid to CFS.
C. The Equipment, Software, and Serv ices sought by City and offered by Consultant are available for lease through a cooperative purchasing agreement, University of California (UC) Contract # 2020002755 (t he “Cooperative Agreement”), available at https://www.omni apartners.com/suppliers-files/A- D/Canon_Solutions_America/Contract_Documents/2020002755/2020002755_Canon_ MAD_12_16_2020.pdf, the terms of which apply to UC Contract # 2020002755 are incorporated herein by reference.
D. Consultant represents that it is fully qualified to provide the Equipment and perform the Services by virtue of its experience and the training, education and expertise of its principals and employees.
E. City desires to retain Consultant and Consultant desires to serve City to provide the Equipment and perform the Services in accordance with, and subject to, the terms and conditions of this Agreement.
The Parties therefore agree as follows:
1. Consultant's Services.
A. Scope of Services. Consultant sha ll provide the Equipment and Software and perform the Services. City may request, in writing, changes in the Services to be performed.
Any changes to the scope or cost of work must be in writing and mutually agreed upon by the Parties.
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B. Party Representatives. For the pur poses of this Ag reement, the City Representative shall be the City Manager, or such other person designated in writing by the City Manager (the "City Representative"). For the purposes of this Agreement, the Consultant Representative shall be Mark Leestma, Major Account Ex ecutive (the "Consultant Representative") or such other person designated in writing by the Consultant. The Consultant Representative s hall directly manage Consulta nt's Services under this Agreement. Consultant shall not change the Consultant Representative without Consultant’s written notice.
C. RESERVED.
D. Standard of Performance. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar ci rcumstances and in a manner r easonably satisfactory to City.
E. Personnel. Consultant ha s, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by C onsultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such Services.
F. Compliance with Laws. Consultant s hall comply with all applicable federal, state and local laws, ordinances, codes, regulations and requirements.
G. Permits and Licenses. Consultant s hall obtain and maintain during the Agreement term all necessary licenses, permi ts and certificates r equired by applicable law for the provision of Services under this Agreement, including a business license.
2. Term of Agreement. The term of this Agreement shall be for a period of sixty (60) months from the Effective Date, unless sooner terminated as provided in Section 12 of this Agreement or extended.
3. Compensation.
A. Compensation. As full compensation for Equipment, Software, Subscription Support Services, and Services satisfactorily rendered, City shall pay Lessor the amounts invoiced by Lessor, and Consultant for Maintenance invoiced by Consultant, at the rates set forth in the Order Schedule attached hereto as Exhibit A. In no event shall Consultant and Lessor collectively be paid more than $800,000 (the "Maximum Compensation") for such Services without the Parties’ prior written agreement thereto.
B. Expenses. The amount set forth in paragraph 3.A. above includes reimbursement for all cove red expenditures incurred in the performance of this Agreement.
C. Unauthorized Services and Unanticipated Expenses. Subject to paragraph 3.B hereof, City will not pay for any services not specified in Exhibit A, unless the City Council or the City Representative, if applicable, and the Consultant Representative authorize such
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services in writing prior to Consultant's performance of those services or incurrence of additional expenses. Any additional services authorized by th e City Council, or (where authorized) the City Manager shall be compensated at the rates set forth in Exhibit A, or, if not specified, at a rate mutually agreed to by the Parties. At the request of the Consultant, the City Council may, in writing, reimburse Consultant for an unanticipated expense at its actual cost. City shall make payment for additional services and expenses in accordance with Section 4 of this Agreement.
4. Method of Payment.
A. Invoices. Lessor and Consultant shall submit to City invoices, on a monthly basis, for the Services performed pursuant to this Agreement. Each invoice shall itemize the Services rendered during the b illing period, hourly ra tes charged, if applicable, and the amount due. City shall review each invoice and notify Consultant in writing within ten Business days of receipt of any disputed invoice amounts.
B. Payment. City shall pay all undis puted invoice amounts within 30 calendar days after receipt up to t he Maximum Compensation set fo rth in Section 3 of this Agreement. City does not pay interest on past due amounts. City shall not withhold federal payroll, state payroll or other taxes, or other similar deductions, from payments made to Consultant or Lessor. Notwithstanding the preceding sentence, if Consultant is a nonresident of California, City will withhold the amount required by the Franchise Tax Board pursuant to Revenue and Taxati on Code Section 18662 and applicable regulations.
C. Audit of Records. Consultant shal l, upon the written request of City, make all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with the fees c harged under this Agreement available upon commercially reasonable notice during Consultant's regular working hours, at the location where such records are kept, to City for review and audit by City.
5. Independent contractor. 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. 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, at any time, or in an y manner, represent that it or any of its officers, agents or employees are in any manner employees of City.
6. Information and Documents.
A. Consultant covenants that all data, reports, documents, discussion, or other information (collectively "Data") specifically developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed or released by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. Consultant, its officers, employees, agents, or subcontractors shall not without written authorization from the City Manager or unless requested in writing by the City Attorney, voluntarily provide declarations, letters of support, testimony at
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depositions, response to interrogatories or other information concerning the work performed under this Agreement or relating to any project or property located within the City. A response to a subpoena or court order shall not be considered "voluntary," provided Consultant gives City notice of such court order or subpoena, if legally permitted to provide such notice.
B. Consultant shall promptly not ify City, if Consultant is legally permitted to do so, should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the City. City may, but has no obligation to, be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City by way of providing City with the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct or rewrite the response.
C. All Data required to be furnished to City in connection with this Agreement shall become City's property, and City may use all or any portion of the Data submitted by Consultant as City deems appropriate. Consultant may take and retain copies of the written products as desired, but the written products shall not be the subject of a copyright application by Consultant.
D. Consultant's covenants under this Se ction shall survive the expiration or termination of this Agreement.
7. Conflicts of Interest. Consultant affirms that it presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. Consultant and its officers, employees, associates and subcontractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant's Services under this Agreement, including the Political Reform Act (Gov.
Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar Services for other clients, but Consultant and its officers, employees, associates and subcontractors shall not, without the City Representative's prior written approval, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
Consultant shall incorporate a clause subst antially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.
8. Indemnification, Hold Harmless, and Duty to Defend.
A. Indemnities.
1) To the fullest extent permitted by law, Consultant s hall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, des ignated volunteers, successors, assigns and those City agents serving as i ndependent contractors in t he role of City officials
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(collectively “Indemnitees”), from and agains t any and all third party damages, costs, expenses, liabilities, claims, demands, c auses of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the willful misconduct or negligent acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, ma terialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement. City shall provide Consultant prompt written notice of the Liabilities. Consultant shall defend the Indemnitees in any action or actions filed in c onnection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. 2) Consultant shall pay all r equired taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted agains t City by reason of the independent contractor relationship created by this Agreement. 3) Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consult ant to comply with applicable workers’ compensation laws.
4) City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbur sement or indemnification arising under this subparagraph A.2).
5) Consultant shall obtain executed indemnity agreements with provisions substantially similar to those in this Section 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, Consultant shall be fully responsible an d indemnify, hold harmless and defend the Indemnitees from and against any and all Liabiliti es at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the willful misconduct or negligent acts or omissions of Consultant’s subcontractor, its officers, agents, servants, employees, subcontra ctors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreement,.
B. Workers’ Compensation Acts not Limi ting. Consultant’s indemnifications and obligations under this Section, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act.
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C. Insurance Requirements not Limiting. 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. The indemnities in this Section shall apply regardless of whether or not any insurance policies are determined to be applic able to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Consultant’s i ndemnifications and obligations under this Section shall survive the expiration or termination of this Agreement.
9. Insurance.
A. Minimum Scope and Limits of Insurance. Consultant shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability In surance with a mi nimum limit of $2,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its managers, affiliates, employees, agents and other persons nece ssary or incidental to its operation are insureds.
2) Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $2,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non-owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non-owned auto endorsement to the Commercial General Liability policy required under subparagraph A.1) of this Section.
The limits for Commercial General Liability and Automobile Liability may be met using a combination of primary and Umbrella / Excess.
3) Workers' Compensation Insurance as required by the State of California and Employer's Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consulta nt has no employees while perf orming Services under this Agreement, workers' compensation policy is not required, but Consultant shall execute a declaration that it has no employees.
4) Professional Liability/Errors and Omissions Insurance with minimum limits of $2,000,000.00 in aggregate.
B. Acceptability of Insurers. The insurance policies required under this Section shall be issued by an insurer authorized to write insurance in the State of California with a rating of A- :VI' or better in the latest edition of the A.M. Best Insurance Rating Guide. Self insurance shall not be considered to comply with the insurance requirements under this Section.
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C. Additional Insured. The commercial gene ral and automobile liability policies shall include City and its elected and appointed officials, officers, employees, agents and volunteers as additional insureds; such requirement may be met with production of blanket endorsements. This provision shall also apply to any excess/umbrella liability policies.
D. Primary and Non-Contributing. The insura nce policies required under this Section (except Professional Liability) shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its elected and appointed officials, officers, employees, agents or volunteers, shall be in excess of Consultant's insurance and shall not contribute with it.
E. Consultant's Waiver of Subrogation. The insurance policies required under this Section 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 City; such requirement may be met with production of blanket endorsements.
F. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to City.
G. Cancellations or Modifications to Coverage. Should any of the above described policies of insurance be canceled before the expiration date thereof, notice will be delivered in accordance with the policy provisions.
H. City Remedy for Noncomp liance. If Consultant does not maintain the policies of insurance required under this Section in full force and effect during the term of this Agreement, or in the event any of Consultant's policies do not comply with the requirements under this Section, City shall have the right to terminate this Agreement upon written notice and provided Consultant does not cure such noncompliance wi thin 10 business days of written notice from City.
I. Evidence of Insurance. Prior to the performance of Services under this Agreement, Consultant shall furnish City's Risk Manager with a certificate or certificates of insurance and applicable endorsements. Consultant shall maintain current endorsements on file with City's Risk Manager. Consultant shall provide proof to City's Risk Manager that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies that meet the requirements set forth in this agreement. . Consultant shall endeavor to furnish such proof at least two weeks prior to the expiration of the coverages.
J. Indemnity Requirements not Limiting. Pr ocurement of insurance by Consultant shall not be construed as a limi tation of Consultant's liability or as fu ll performance of Consultant's duty to indemnify City under Section 8 of this Agreement.
K. Subcontractor Insurance Requirements. Consultant shall require each of its subcontractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Section.
10. Mutual Cooperation.
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A. City's Cooperation. City shall provide Consultant with all pertinent Data, documents and other requested info rmation as is reasonably av ailable for Consultant's proper performance of the Services required under this Agreement.
B. Consultant's Cooperation. In the event any claim or action is brought against City relating to Consultant's performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.
11. Records and Inspections. Consultant shall maintain complete and accurate records with respect to time, costs, expenses, receipts, correspondence, and other such information required by City that relate to the fees charged under this Agreement. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant, upon the written request of City, shall provide upon commercially reasonable notice free access to City, its designees and representatives at reasonable times at the location where such records are kept, and shall allow City to examine and audit the books and records, to make transcripts therefrom as necessary, and to inspect all work, data, documents, proceedings and activi ties related to fees charged under this Agreement. Such records, together with supporting documents, shall be maintained for a period of three years after receipt of final payment.
12. Termination of Agreement.
A. Right to Terminate. City may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to Consultant at least 30 calendar days before the termination is to be effective. Consultant may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to City at least 60 calendar days before the termination is to be effe ctive. For the avoidance of dou bt, notwithstanding any such termination of this Agreement, City’s obligations with respect to the stream of payments owed on any Lease with CFS shall continue in effect for the remainder of the term thereof.
B. Obligations upon Termination. Consul tant shall cease the performance of Services under this Agreement on or before the effective date of termination specified in the notice of termination. In the event of City's termination of this Agreement due to no fault or failure of performance by Consultant, with respect to Services(as opposed to Leases, per paragraph 12.A), City shall pay Consultant based on the percentage of Services satisfactorily performed up to the effective date of termination. 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. Consultant shall have no other claim against City in relation to the Services by reason of such termination, including any claim for compensation.
13. Force Majeure. Consultant shall not be liable for any failure to perform its obligations under this Agreement if such failure was due to acts of God, embargoes, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, judicial orders, enemy or hostile governmental action, fire or other casualty, pandemics or epidemics, or other causes beyond Consultant's reasonable control and not due to any act by Consultant.
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14. Default.
A. Consultant's failure to materially comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default, pending cure thereof.
B. In addition to the right to terminate pursuant to Section 12, if the City Manager determines that Consultant is in material default in the performance of any of the terms or conditions of this Agreement, City shall serve Consultant with written notice of the material default. Consultant shall have 15 calendar days after service upon it of the notice in which to cure the material default by re ndering a satisfactory perfo rmance. In the event that Consultant fails to cure it s material default within su ch period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
15. Notices. Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on personal delivery, (b) on c onfirmed delivery by courier service during Consultant's and City 's regular business hours, or (c) three Business Days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:
If to City: If to Consultant:
Attn: Mario Hernandez ___ Customer Service
City of Manhattan Beach C anon Solutions America, Inc. 1400 Highland Avenue 300 Commerce Square Blvd
Manhattan Beach, California 90266 Burlington, NJ 08016
Telephone: 310.802.5567 800.220.4002
Email:
[email protected] Email: [email protected]
With a copy of any notice of default, breach, request for indemnity, or any other legal demand or claim to:
Quinn M. Barrow, City Attorney Attn: VP, Legal
Canon Solutions America, Inc.
1400 Highland Avenue One C anon Park
Manhattan Beach, California 90266 Melville, NY 11747
Telephone: (310) 802-5061 800.220.4002
Email: [email protected] [email protected]
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16. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation or other basis prohibited by law.
Consultant will take affirmative action to ensure that subc ontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability , medical condition, genetic information or sexual orientation.
17. Prohibition of Assignment and Delegation. Consultant shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without City's prior written consent, which shall not be unreasonably withheld, delayed, or conditioned, provided that City hereby consents to Consultant’s merger into its parent company Canon U.S.A., Inc. City's consent to an assignment of rights under this Agreement shall not release Consultant from any of its obligations or alter any of its primary obligations to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section shall be void and of no effect and shall entitle City to terminate this Agreement. As used in this Section, "assignment" and "del egation" means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the right s, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
18. No Third Party Beneficiaries Intended. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
19. Waiver. No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall impair any right, power or remedy of City, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the Party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
20. Final Payment Acceptance Constitutes Release. The acceptance by Consultant of the final payment as invoiced by Consultant and made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant's work or services. Acceptance of such invoiced payment shall be any negotiation of City's check or the failure to make a written extra compensation claim within ten calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work
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prepared by Consultant, its employees, subcontractors and agents.
21. Corrections. In addition to the above indemnification obligations, Consultant shall correct, at its expense, all errors in the work which may be disclosed during City's review of Consultant's report or plans. Should Consultant fail to make such correction in a reasonably timely manner, after City’s exhaustion of all contractual remedies, such correction may be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction from the maintenance service portion of any retention amoun t held by City or may withhol d payment otherwise owed Consultant for maintenance services under this Agreement up to the amount of the cost of correction.
22. Non-Appropriation of Funds. Payments to be m ade to Consultant by City for services performed within the current fiscal year are within the current fiscal budget and within an available, unexhausted fund. In the event that City does not appropriate sufficient funds for payment of Consultant's services beyond the current fiscal year, this Agreement shall cover payment for Consultant's services only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall autom atically terminate at the conclusion of such fiscal year. In order to terminate the Agreement or an Order thereunder due to non- appropriation of funds, City must provide Consultant with written notice of the insufficient funding, which must certify that the canceled equipment is not being replaced by equipment performing similar functions during the ensuing fiscal year. In addition, City will be required to return the equipment to Cons ultant with transport ation costs borne by Consultant. City will then be released from it s obligation to make any further payments beyond those through the end of the last fiscal year for which funds have been appropriated.
23. Exhibit. Exhibit A constitutes a part of this Agr eement and is incorporated into this Agreement by this reference. The Part ies intend for this Ag reement, inclusive of Exhibit A, and the Cooperative Agreement to be construed in harmony with each other.
Notwithstanding the foregoing, if any irreconcilable inconsistency exists or arises between a provision of this Agreement, the Cooperativ e Agreement, the Exhibit, or a provision of Consultant's proposal (if any), then the order of precedence shall be this Agreement, the Cooperative Agreement, the Exhibit, and Consultant’s proposal.
24. Entire Agreement and Modification of Agreement. This Agreement, the Cooperative Agreement, and all exhibits referred to in this Agreement constitute the final, complete and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by both Parties.
25. Headings. The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
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26. Word Usage. Unless the context clearly requires otherwise, (a) the words "shall," "will" and "agrees" are mandatory and "may" is per missive; (b) "or' is not exclusive; and (c) "includes" or "including" are not limiting.
27. RESERVED.
28. Business Days. "Business days" means days Manhattan Beach City Hall is open for business.
29. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the Parties to this Agreemen t, shall be governed by and construed in accordance with the laws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether contract, to rt or both) shall be resolved in a superior court with geographic jurisdiction over the City of Manhattan Beach.
30. Attorneys' Fees. In any litigation or other proc eeding by which a Party seeks to enforce its rights under this Agreement (whether in contract , tort or both ) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be entitled to recover all attorneys' fees, experts' fees, and othe r costs actually incurred in connection with such litigation or other proceeding, in addition to all other relief to which that Party may be entitled.
31. Severability. If a court of competent jurisdic tion holds any provision of this Agreement to be illegal, invalid or unenforc eable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
32. Counterparts. This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument.
33. Corporate Authority. Each person executing this Agreement on behalf of his or her Party warrants that he or she is duly authorized to execute this Agreement on behalf of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement. [SIGNATURE PAGE FOLLOWS]
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The Parties, through their duly authorized representatives are signing this Agreement on the date stated in the introductory clause.
City: Consultant:
City of Manhattan Beach, C anon Solutions America, Inc., a California municipal corporation a New York Corporation
By: ________________________________ By: ____________________________ Name: Talyn Mirzakhanian
Title:
Acting City Manager
Name:
Title:
ATTEST: By: ____________________________
Name: ______________________
Title: ________________________
By: ________________________________
Name: Liza Tamura PROOF OF AUTHORITY TO BIND
Title: City Clerk CONTRACTING PARTY REQUIRED
APPROVED AS TO FORM:
By: ________________________________
Name: Quinn M. Barrow
Title: City Attorney
APPROVED AS TO FISCAL IMPACT:
By: ________________________________
Name: Onyx Jones
Title: Interim Finance Director
APPROVED AS TO CONTENT:
By: ________________________________
Name: Miguel Guardado
Title: Information Technology Director
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