AGREEMENT BETWEEN CITY OF MANTECA
AND HIS WAY REFUGE CENTER
FOR PROFESSIONAL SERVICES
This agreement ("Agreement") is made and entered into on ____________________, 2023, by and between the CITY OF MANTECA ("City"), a municipal corporation, and HIS WAY REFUGE CENTER, INC. ("Consultant"), a non-profit corporation, based in California (individually a "Party", together the "Parties").
RECITALS
WHEREAS, City entered into an “Agreement for Professional Services” to retain Consultant to render professional services at 555 Industrial Park Drive, Manteca, CA 95337 (the “Premises”) since September 1, 2022; WHEREAS, Parties entered into an “Amendment, Settlement Agreement, and Release” on April 1, 2023 to supersede the “Agreement for Professional Services” dated September 1, 2022; WHEREAS, pursuant to the terms in the “Amendment, Settlement Agreement, and Release,” City agreed to have Consultant provide professional services on a month-to-month basis from April 1, 2023 until July 31, 2023; WHEREAS, Parties amended the “Amendment, Settlement, Agreement, and Release,” on or about July 31, 2023 via the “Addendum between City of Manteca and His Way Refuge Center” to extend Consultant’s professional services to August 30, 2023; WHEREAS, City wishes to continue to retain Consultant to render professional services and to have an agreement in place to encompass all duties and obligations of the Parties; NOW, THEREFORE, in consideration of the foregoing recitals and the following consideration, provisions, and mutual promises, the Parties agree to the following terms:
AGREEMENT
Scope of Services. Consultant shall perform the operation of Homeless Emergency Center described in the attached Attachment 1 that is incorporated by this reference, and pursuant to the Proposal submitted by Consultant dated August 10, 2023, and attached hereto as Attachment 1. Consultant shall provide these services at the time, place, and in the manner specified in Attachment 1, subject to the direction of the City through its staff that may be provided from time to time. Performance of the operation of a Homeless Emergency Center is sometimes referred to herein as "the Project." The term of this Agreement shall begin on September 1, 2023 and conclude on December 31, 2023. To be clear, Consultant shall not provide any security services per this Agreement during the term of this Agreement, provided, however, nothing herein precludes the City from contracting out with another vendor and/or Consultant (under a separate agreement) to provide security services.
Work Through City Staff. Consultant shall perform its services pursuant to this Agreement solely through City staff.
Time of Performance. Consultant's services will commence upon execution of this Agreement and shall be completed in accordance with the Schedule of Activities, attached hereto as Attachment 1. All work shall be completed no later than December 31, 2023. Failure to submit work products in accordance with the Schedule of Activities may result in the City withholding progress payments. Repeated failure to complete work products in accordance with the Schedule of Activities may result in a reduction of the total compensation provided for in Section 4 herein. The Parties may mutually agree in writing to extend the term of this Agreement up to an additional six (6) months, provided, however, such an amendment is executed prior to December 31, 2023.
Compensation. Without additional authorization from the City, compensation to be paid to Consultant shall not exceed TWO HUNDRED THOUSAND EIGHT HUNDRED EIGHTEEN DOLLARS AND SIXTY-SEVEN CENTS ($200,818.67). Payment by City under this Agreement shall not be deemed a waiver of any defects, even if those defects were known to the City at the time of payment. The City shall, and has the right, to do a line item review of billings submitted by Consultant and to request an accounting, and Consultant shall cooperate with these requests.
Method of Payment. Consultant shall submit monthly billings to City specifying and describing the work performed during the preceding month. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours expended and by whom, and a description of any reimbursable expenditures. Full payment of each task will only be made at such time as each task is completed.
City shall pay Consultant no later than 30 days after City’s approval of the monthly invoice provided by Consultant. Payments may be delayed by City if Consultant fails to provide services in accordance with the Schedule of Activities, unless the City has provided prior written consent to any delay in the schedule. To the extent the City wishes to challenge a monthly billing, it has the right to do so by providing Notice to the Consultant, consistent with Section 17 below. Upon receiving the Notice, the Parties shall meet and confer in good faith within five (5) business days after receipt of the Notice to resolve the issues.
Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, the term "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the time of execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without the City's prior written authorization.
Termination. This Agreement may be terminated by the City immediately for cause, or by either party without cause upon 60 days' prior written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination upon submittal of an invoice for the same.
Ownership of Documents; Confidentiality.
All plans, studies, documents, and other writings prepared by and for Consultant, its officers, employees, agents, and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of City upon payment to Consultant for such work. City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon written request by City. Consultant shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose.
All memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other documents and data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant. These materials shall not, without the City's prior written consent, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall these materials be disclosed to any person or entity not connected with the performance of services under this Agreement. Nothing furnished to Consultant that is otherwise known to Consultant, or is generally known, or has become known to the related profession shall be deemed confidential. Consultant shall not use City's name or insignia, photographs relating to the Project for which Consultant's services are rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the City's prior written consent.
Consultant's Books and Records.
Consultant shall maintain all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City, for a minimum period of five years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement.
Consultant shall maintain all records that document performance under this Agreement for a minimum period of five years, or for any longer period required by law, from the date of termination or completion of this Agreement.
Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor, or a designated representative of any of these officers. Copies of such documents shall be provided to City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address specified in Section 17 of this Agreement.
Where City has reason to believe that records or documents may be lost or discarded due to the dissolution or termination of Consultant's business, City may, by written request, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to these records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor-ininterest.
Independent Contractor. In the performance of the work and services required by this Agreement, Consultant shall act as and be an independent contractor and not an agent, or employee of the City. Consultant shall obtain no rights to workers’ compensation, retirement, or other benefits that accrue to City's employees, and Consultant expressly waives any claim it may have to any such rights.
Interest of Consultant.
Consultant represents that neither it nor any employee has any investment or interest in real property, and shall not acquire any such interest, direct or indirect, within the area covered by this Agreement, or any other source of income, interest in real property, or investment that would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further represents that, in the performance of its duties hereunder, no person having any such interest shall perform any services under this Agreement.
Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant:
will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation, or counsel independent of the control and direction of the City, or of any City official, other than normal Agreement monitoring; and possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendation, or counsel. (FPPC Reg. 18700(a)(2).) Professional Ability of the Consultant.
City is relying upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise.
The primary provider of the services required by this Agreement shall be His Way Refuge Center, Inc. A list of other individuals assigned to the Project will be provided to City for its review and approval, and these individuals shall not be replaced without the City's prior written consent.
Compliance with Laws. Consultant shall use the customary standard of care in its profession to comply with all applicable federal, state, and local statutes, codes, ordinances, and regulations.
Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance, and approvals that are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance, and approvals that are legally required of Consultant to practice its profession.
Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers, from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith), arising out of Consultant's performance of this Agreement, or Consultant's failure to comply with any of its obligations contained in this Agreement; excluding, however, any claim arising out of the active negligence or willful misconduct of the City, its officers, agents, employees, or volunteers.
Insurance Requirements.
Job specific insurance requirements can be found on Attachment 2. Other insurance provisions can be found below:
Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing an A.M. Best's rating of no less than A:VII and shall be endorsed with language substantially as follows:
The City, its elected and appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts, or equipment furnished in connection with such work.
The policy shall be considered primary insurance as respects the City, its elected and appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it.
The insurance shall apply to each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company.
The insurer waives all rights of subrogation against the City, its elected and appointed officers, officials, employees, and agents.
Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officers, officials, employees, agents, or volunteers.
The insurance provided by the policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after 30 days written notice has been received by the City.
The City will not accept any endorsements that were issued in 2004. Acceptable endorsement forms are CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01.
Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of those deductibles or self-insured retentions.
Certificates of Insurance. Consultant shall provide to City certificates of insurance with original endorsements as evidence of the required insurance coverage. Certificates of insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Manteca
1001 W. Center Street
Manteca, CA 95337
Attention: Vielka Guarascio
If to Consultant: His Way Refuge Center, Inc.
1006 Virginia Street
Manteca, CA 95337
Attention: Al Deardorff
Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in their entirety by this Agreement.
Amendments. This Agreement may be amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
Assignment and Subcontracting. The Parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience, and competence of Consultant. Assignments of any or all rights, duties, or obligations of the Consultant under this Agreement will be permitted only with the express written consent of the City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization by the appropriate representative of the City, which is the City Manager. If the City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and a subcontractor nor shall it create any obligation on the part of the City to pay any monies due to any such subcontractor other than as may be required by law.
Waiver. Waiver of any breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach or default of the same or any other provision under this Agreement.
Severability. If any provision of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
Controlling Law; Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California, and any legal action relating to this Agreement shall take place in the Superior Court, County of San Joaquin or United States District Court for the Eastern District of California.
Litigation Expenses and Attorneys' Fees. If either Party to this Agreement commences any legal action against the other Party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
Mediation. The Parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each Party shall have the option to strike two of the five mediators selected by JAMS, and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation.
Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy has been signed by both parties.
Authority to Enter Agreement. Consultant warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each party warrants to the other that the signatories to this Agreement have the legal power, right, and authority to enter into this Agreement and to bind each party.
Prohibited Interests.
Consultant warrants that it has not employed or retained any person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has neither paid nor agreed to pay any person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For any breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no member, officer, or employee of City, during the period of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Precedence. In case of conflict between documents related to this Agreement, this Agreement and any City-authored materials shall take precedence over Consultant's proposal/Consultant's attachments.
Compliance with Facility Rules and Maintenance. Consultant agrees to comply with and enforce the requirements and terms in Attachment 3, Facility Rules and Maintenance. The City may periodically amend the Facilities Rules and Maintenance from time-to-time and will provide Consultant with a revised copy. Nothing in the Facility Rules and Maintenance shall limit the City’s use of the Premises.
Retroactive Effect; Binding Agreement. To the fullest extent permitted by law, all agreements and obligations of the Parties contained herein shall commence upon September 1, 2023, shall continue until December 31, 2023. In this regard, the provisions contained herein are intended to be retroactive and the full benefits hereof shall be available in respect of any alleged or actual occurrences, acts or failures to act that occurred prior to the date hereof.
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Executed at Manteca, California on ______________________, 2023.
CITY OF MANTECA, a municipal corp.
By: ______________________
Gary Singh
Mayor
HIS WAY REFUGE CENTER, a non-profit corp.
By: ____________________
Al Deardorff, Founder and Executive Director
REVIEWED AS TO FORM:
By: _______________________
By: ________________________
Jared Hansen
Dawn Cortesi
Deputy Director of Finance
Interim Director of Human Resources
ATTEST:
APPROVED AS TO FORM:
________________________________
___________________________________
Cassandra Candini-Tilton
L. David Nefouse
Director or Legislative Services/City Clerk
City Attorney for the City of Manteca
ATTACHMENT 1 is the Scope of Services.
ATTACHMENT 2 is the Certificate of Insurance.
ATTACHMENT 3 is the Facilities Rules and Maintenance.
ATTACHMENT 1
SCOPE OF SERVICES
ATTACHMENT 2
CERTIFICATE OF INSURANCE
ATTACHMENT 3
FACILITIES RULES AND MAINTENANCE
12 ATTACHMENT 1