AGREEMENT FOR SERVICES
THIS AGREEMENT (“Agreement”) is made and entered into this _______ day of__________, ___________, by and between the CITY OF MANTECA, a municipal corporation of the State of California (hereinafter referred to as "CITY"), and Consultant
MAILING ADDRESS
CITY
STATE
ZIP
a ____________________ ___________ (business structure) STATE LICENSE CLASSIFICATION & NUMBER (if required)
hereinafter referred to as “Consultant”.
WITNESSETH:
A. WHEREAS, CITY desires to enter into this Agreement for services for Project.
B. WHEREAS, CITY desires to retain CONSULTANT to provide these services by reason of its qualifications, applicable license(s), and experience for performing such services, and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows:
AGREEMENT
1. SCOPE OF SERVICES:
Consultant shall do all work, attend all meetings, produce all reports and carry out all activities necessary to complete the services described in Exhibit “A”. This Agreement and its exhibits shall be known as the “Agreement Documents”. Terms set forth in any Agreement Document shall be deemed to be incorporated in all Agreement Documents as if set forth in full herein. In the event of conflict between terms contained in these Agreement Documents, the more specific term shall govern. If any portion of the Agreement Documents is in conflict with any other portion or provisions contained in the AGREEMENT, the Agreement shall govern over the conflicting provisions contained in the exhibits to the Agreement. To eliminate doubt, in the case of conflict between Consultant's proposal or Consultant's attachments and the City's Agreement and attachments, the City's Agreement and attachments shall take precedence over Consultant's proposal and attachments.
Consultant enters into this Agreement as an independent contractor and not as an employee of the City. The Consultant shall have no power or authority by this Agreement to bind the City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Consultant are employees, agents, contractors or subcontractors of the Consultant and not of the City. The City shall not be obligated in any way to pay any wage claims or other claims made against Consultant by any such employees, agents, contractors or subcontractors, or any other person resulting from performance of this Agreement.
The Consultant agrees it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this Agreement is based on such independent investigation and research.
2. TERM OF Agreement
A. The services of Consultant are to commence upon execution of this Agreement and shall be completed and this Agreement terminated on June 30th 2028, unless otherwise extended in writing by the mutual agreement of both parties.
B. The City Manager or designee may, by written instrument signed by the Parties, extend the duration of this Agreement in the manner provided in Section 5, provided that the extension does not require the payment of compensation in excess of the maximum compensation set forth in Section 3, Compensation.
C. The Agreement Milestones are as follows:
Deliverables
Date
Payment for services shall be made upon City’s approval of deliverables.
3. COMPENSATION:
A. The Consultant shall be paid in accordance to the attached Fee Schedule in Exhibit “C”. Consultant charges separately for certain costs incurred in the representation, as well as for any disbursements to third parties made on City's behalf. Such costs and disbursements include, for example, the following: mileage (at the IRS rate in effect at the time the travel occurs), overnight delivery and messenger services. Consultant shall be reimbursed for expenses related to travel, for example (flights, hotels, meals). However, Consultant shall not make travel arrangements or incur costs on behalf of City without prior written authorization to incur said expenses and in no event shall total compensation under this Agreement exceed DOLLARS ($) without City’s prior written approval.
B. Said amount shall be paid upon submittal of monthly billings showing completion of the tasks that month. Consultant shall furnish City with invoices for all expenses as well as for all materials authorized by this Agreement. The invoices shall be submitted with the monthly billings.
C. If the work is temporarily suspended at the request of the City, compensation shall be based upon the portion of work completed as of the date of the suspension , subject to Section 4.
4. TERMINATION:
This Agreement may be terminated by either party, provided that the other party is given not less than thirty (30) calendar days’ written notice (delivered by registered mail) of intent to terminate.
The City may temporarily suspend this Agreement, at no additional cost to City, provided that the Consultant is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If City gives such notice of temporary suspension, Consultant shall immediately suspend its activities under this Agreement.
Notwithstanding any provisions of this Agreement, Consultant shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Agreement by Consultant, and the City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due the City from Consultant is determined.
In the event of termination, the Consultant shall be compensated as provided for in this Agreement, except as provided in Section 4C. Upon termination, the City shall be entitled to all final work and draft work, including but not limited to, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date in accordance with Section 7 herein.
5. AMENDMENTS, CHANGES OR MODIFICATIONS:
Amendments, changes or modifications in the terms of this Agreement may be made at any time by mutual written agreement between the parties hereto and shall be signed by the persons authorized to bind the parties hereto.
6. EXTENSIONS OF TIME:
Consultant may, for good cause, request extensions of time to perform the services required herein. Such extensions shall be authorized in advance by the City in writing and shall be incorporated in written amendments to this Agreement in the manner provided in Section 5.
7. PROPERTY OF CITY:
It is mutually agreed that all draft and final materials prepared by the Consultant under this Agreement shall become the property of the City, and the Consultant shall have no property right therein whatsoever. Immediately upon termination, the City shall be entitled to, and the Consultant shall deliver to the City, all data, drawings, specifications, reports, estimates, summaries and other such materials as may have been prepared or accumulated to date by the Consultant in performing this Agreement which is not Consultant’s privileged information, as defined by law, or Consultant’s personnel information, along with all other property belonging exclusively to the City which is in the Consultant’s possession.
Additionally, it is agreed that the parties intend this to be an Agreement for services and each considers the products and results of the services to be rendered by Consultant herein (the “Work”) to be a work made for hire. Consultant acknowledges and agrees that the Work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of the City.
8. COMPLIANCE WITH ALL LAWS:
Consultant shall comply with all applicable laws, ordinances, and codes of federal, State and local governments, and shall commit no trespass on any public or private property in performing any of the work authorized by this Agreement. It shall be City’s responsibility to obtain all rights of way and easements to enable Consultant to perform its services herein. Consultant shall assist City in providing the same.
Consultant warrants to the City that it is licensed by all applicable governmental bodies to perform this Agreement and will remain so licensed throughout the progress of the Work, and that it has, and will have, throughout the progress of the Work, the necessary experience, skill and financial resources to enable it to perform this Agreement.
9. WARRANTIES AND RESPONSIBILITIES - CONSULTANT:
Consultant agrees and represents that it is qualified to properly provide the services set forth in Exhibit “A” in a manner which is consistent with the generally accepted standards of Consultant’s profession.
Consultant agrees and represents that the work performed under this Agreement shall be in accordance with applicable federal, State and local law in accordance with Section 17A hereof.
Consultant shall designate a project manager who at all times shall represent the Consultant before the City on all matters relating to this Agreement. The project manager shall continue in such capacity unless and until he or she is removed at the request of the City, is no longer employed by Consultant, or is replaced with the written approval of the City, which approval shall not be unreasonably withheld.
Consultant shall provide corrective services without charge to the City for services which fail to meet the above professional and legal standards and which are reported to Consultant in writing within sixty (60) days of discovery. Should Consultant fail or refuse to perform promptly its obligations, the City may render or undertake performance thereof and the Consultant shall be liable for any expenses thereby incurred.
10. SUBCONTRACTING:
None of the services covered by this Agreement shall be subcontracted without the prior written consent of the City., which will not be unreasonably withheld. Consultant shall be fully responsible to the City for the negligent acts and omissions of its contractors and subcontractors, and of persons either directly or indirectly employed by them, as it is for the negligent acts and omissions of persons directly employed by Consultant.
11. ASSIGNABILITY:
Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City. However, claims for money due or to become due to Consultant from the City under this Agreement may be assigned to a financial institution, or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the City.
12. INTEREST IN Agreement:
Consultant covenants that neither it, nor any of its employees, agents, contractors, subcontractors has any interest, nor shall they acquire any interest, direct or indirect, in the subject of the Agreement, nor any other interest which would conflict in any manner or degree with the performance of its services hereunder. Consultant shall make all disclosures required by the City’s conflict of interest code in accordance with the category designated by the City, unless the City Manager determines in writing that Consultant’s duties are more limited in scope than is warranted by the category designated by the City code and that a narrower disclosure category should apply. Consultant also agrees to make disclosure in compliance with the City conflict of interest code if, at any time after the execution of this Agreement, City determines and notifies Consultant in writing that Consultant’s duties under this Agreement warrant greater disclosure by Consultant than was originally contemplated. Consultant shall make disclosures in the time, place and manner set forth in the conflict of interest code and as directed by the City.
13. MATERIALS CONFIDENTIAL:
All of the materials prepared or assembled by Consultant pursuant to performance of this Agreement are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of the City, except by court order.
14. LIABILITY OF CONSULTANT-NEGLIGENCE:
Consultant shall be responsible for performing the work under this Agreement in a manner which is consistent with the generally-accepted standards of the Consultant’s profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The City shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to Consultant or its employees, agents, contractors or subcontractors.
15. INDEMNITY AND LITIGATION COSTS:
To the fullest extent permitted by law, Consultant shall indemnify, defend, and hold harmless the City, its officers, officials, agents, and employees against all claims, damages, demands, liability, costs, losses and expenses, including without limitation court costs and reasonable attorneys’ fees, arising from Consultant's negligent acts or negligent failure to act, errors, omissions or willful misconduct incident to the performance of this Agreement except such loss or damage caused solely by the active negligence, sole negligence, or willful misconduct of the City. The provisions of this paragraph shall survive termination or suspension of this Agreement.
16. CONSULTANT TO PROVIDE INSURANCE:
Consultant shall not commence any work before obtaining, and shall maintain in full force at all times during the duration and performance of this Agreement, the policies of insurance specified in this Section. Such insurance must have the approval of the City as to limit, form, and amount, and shall be placed with insurers with a current A.M. Best’s rating of no less than “A” in Class VII (an NR rating is acceptable for Worker’s Compensation insurance written with the State Compensation Insurance Fund of California).
Prior to execution of this Agreement and prior to commencement of any work, the Consultant shall furnish the City with certificates of insurance and copies of endorsements providing evidence of coverage for all policies required by the Agreement. The Consultant and its contractors and subcontractors shall, at their expense, maintain in effect at all times during the performance of work under the Agreement not less than the following coverage and limits of insurance, which shall be maintained with insurers and under forms of policy satisfactory to the City. The maintenance by Consultant and its contractors and subcontractors of the following coverage and limits of insurance is a material element of this Agreement. The failure of Consultant or of any of its contractors or subcontractors to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of this Agreement. Approval of the insurance by the City shall not relieve or decrease any liability of Consultant.
Commercial General Liability Insurance.
Commercial General Liability Insurance with $2,000,000 minimum limit for each occurrence and $4,000,000 minimum limit for general aggregate.
If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Commercial General Liability Additional Insured Endorsement naming the following as insured on 2001 or earlier issued endorsement forms: “City of Manteca, its officers, officials, employees, agents, and volunteers”.
Automobile Liability: If the vehicles are brought onto city facilities, covering any auto, or of Contractor has no owned autos, hired, and non-owned autos, the Contractor shall maintain automobile liability with limits no less than:
Automobile Liability Insurance with $1,000,000 minimum limit per accident for bodily injury and property damage.
Automobile Liability Additional Insured Endorsement naming the following as additional insured: “City of Manteca, its officers, officials, employees, agents, and volunteers”.
Workers’ Compensation: As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
Professional Liability (Errors and Omissions): Insurance appropriates to the Contractor’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
Other Insurance Provisions: The insurance policies are to contain, or be endorsed to contain, the following provisions:
The City of Manteca, its officers, officials, employees, agents and volunteers are to be covered as insured’s as respect to: liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance at least as broad as CG 20 10 and CG 20 37 if completed operations coverage is required.
For any claims related to this contract, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers, shall be excess of the Consultant’s insurance and shall not contribute with it.
The applicant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City of Manteca.
Verification of Coverage: Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the Entity before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City of Manteca reserves the right to require complete, certified copes of all required insurance policies, including endorsements required by these specifications, at any time.
Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the Entity.
Acceptability of Insurers: Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII, unless otherwise acceptable to the City of Manteca.
Waiver of Subrogation: Consultant hereby grants to The City of Manteca a waiver of any right to subrogation which any insurer of said Consultant may acquire against the Entity by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer.
Subcontractors: Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that The City of Manteca is an additional insured on insurance required from subcontractors.
SPECIAL RISKS OR CIRCUMSTANCES: The City of Manteca reserves the right to modify these requirements based on the nature of the risk, prior events, insurance coverage, or other special circumstances.
Consultant shall sign the Certificate of Compliance with labor Code 3700 (Exhibit B).
No other provision of this Agreement or any attachment thereto shall reduce the insurance or indemnity obligations imposed under this Section.
In addition to any other remedy the City may have, if Consultant fails to maintain the insurance coverage as required in this Section, the City may obtain such insurance coverage that is not being maintained, in the form and amount substantially the same as is required herein, and the City may deduct the cost of such insurance from any amounts due or which may become due to Consultant under this Agreement.
No policy required by this Agreement shall be suspended, cancelled, terminated by either party, or reduced in coverage or in limits unless written approval is obtained by Consultant from the City.
Any deductibles or self-insured retentions in excess of $10,000 must be declared to, and approved by, the City.
The requirement as to types, limits, and the City’s approval of insurance coverage to be maintained by Consultant are not intended to, and shall not in any manner, limit or qualify the liabilities and obligations assumed by Consultant under the Agreement.
17. MISCELLANEOUS PROVISIONS:
A. Compliance with Laws. Consultant shall keep itself fully informed of, shall observe and comply with, and shall cause any and all persons, firms or corporations employed by it or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which in any manner affect those engaged or employed on the work described by this Agreement or the materials used or which in any way affect the conduct of the work.
B. Unlawful Acts. Consultant shall not engage in unlawful employment discrimination. Such unlawful employment discrimination includes, but is not limited to, employment discrimination based upon a person’s race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, citizenship, or sexual orientation.
C. Record Retention. Consultant shall maintain and make available for inspection by the City and its auditors accurate records of all of its costs, disbursements and receipts with respect to any work under this Agreement. Such inspections may be made during regular office hours at any time until six (6) months after the final payments under this Agreement are made to the Consultant.
D. Notice. All notices that are required to be given by one party to the other under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a United States Post Office for delivery by registered or certified mail addressed to the parties at the following addresses:
City:
Consultant:
Somporn Boonsalat
Deputy Director of Engineering
City of Manteca
1001 W. Center St.
Manteca, CA 95337
E. Governing Law and Venue. This Agreement shall be interpreted and 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.
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.
Mediation. In the event of any controversy or claim arising out of or relating to this Agreement or the Services provided by Consultant (each referred to as a “Dispute” and all collectively referred to as the “Disputes”), the Parties shall try to resolve all Disputes through good faith, direct discussions involving the representatives of each Party who possess the necessary authority to resolve such Dispute. If direct discussions are unsuccessful in resolving a Dispute, the Parties shall endeavor to resolve the matter by mediation through and administered by JAMS or its successor in interest. JAMS shall provide the parties with the name of five (5) 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.
Costs and Attorney' Fees. If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
Entire Agreement. This Agreement constitutes the entire agreement between the parties relative to the services specified herein and no modification hereof shall be effective unless and until such modification is evidenced by a writing signed by both parties to this Agreement. There are no understandings, agreements, conditions, representations, warranties or promises, with respect to this Agreement, except those contained in or referred to in writing.
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 signature to this Agreement have the legal power, right, and authority to enter into this Agreement and to bind each party.
California Prevailing Wage Requirement Pursuant to California Labor Code sections 1720 through 1861, the Consultant, its Contractor and all subcontractors shall ensure that all workers who perform work under this Agreement are paid not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations (DIR), if applicable. This includes work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction, including but not limited to inspection and land surveying work, regardless of whether any further construction work is conducted, and work performed during the post-construction phases of construction, including but not limited to all cleanup work at the jobsite. The most current prevailing wage determination can be found at https://www.dir.ca.gov/OPRL/DPreWageDetermination.htm.
TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth in the introductory paragraph on page 1 above.
CITY OF MANTECA: CONSULTANT:
_________________________________ ___________________________________ Toni Lundgren (Type name of Consultant/form of organization)* City Manager
ATTEST: By: ___________________________________
(Signature)
_________________________________ ___________________________________ Cassandra Candini-Tilton, (Type name and title)
Director of Legislative Services
COUNTERSIGNED: By: ___________________________________ (Signature)
_________________________________ ___________________________________ Matt Boring (Type name and title)
Director of Finance
COUNTERSIGNED: Address: ____________________________ _________________________________ ____________________________ Stephanie Van Steyn,
Director of Human Resources Telephone: ____________________________ APPROVED AS TO FORM:
Riana E Daniel, City Attorney
By:_________________________________
Kousha Mckeenejad, Deputy City Attorney
EXHIBIT A
Consultant Proposal/Scope of Work
EXHIBIT B
CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700
[Labor Code § 1861]
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Agreement.
CONSULTANTS
By:
[Title]
EXHIBIT C
Fee Schedule
6 Agreement for Services