1 AGREEMENT WITH CANNON CORPORATION TO PROVIDE CONSTRUCTION
MANAGEMENT AND INSPECTION SERVICES FOR BRISTOL STREET
IMPROVEMENTS PROJECT
THIS AGREEMENT is made and entered into this 4th day of March, 2025 by and between orporation (“Consultant”), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (“City”).
RECITALS
A. On December 19, 2024, City released a Request for Proposals (RFP) No. 24-139, by which it sought qualified consultants having special skill and knowledge in the field of construction management and inspection services for the Public City’s Works Agency.
B. Consultant submitted a responsive proposal which was selected by City. Consultant represents that it is able and willing to provide the services described in the scope of work included in RFP No. 24-139.
C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall perform the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Exhibit A , attached hereto and incorporated by reference.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit B. The total sum to be expended under the term of this Agreement, including any extension, shall not exceed $1,998,642.
b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures.
City and Consultant agree that all payments due and owing under this Agreement shall be made through Automated Clearing House (ACH) transfers. Consultant agrees to execute the City’s standard ACH Vendor Payment Authorization and EXHIBIT 5
2 provide required documentation. Upon verification of the data provided, the City will be authorized to deposit payments directly into Consultant’s account(s) with financial institutions. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERMThis Agreement shall commence on March 4, 2025 and terminate on March 3, 2027, unlessterminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for an additional one (1) year term period upon a writing executed by the City Manager and City Attorney. 4. PREVAILING WAGESConsultant is aware of the requirements of California Labor Code Section 1720, et seq.,and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and theperformance of other requirements on “public works” and “maintenance” projects. If the services being performed are part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.5. INDEPENDENT CONTRACTORConsultant shall, during the entire term of this Agreement, be construed to be anindependent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALSThis Agreement creates a non-exclusive and perpetual license for City to copy, use,modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and 3 perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. 7. INSURANCEPrior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require any subcontractors to obtain and maintain insurance as described below for the entire Term of this Agreement against claims for injuries to persons or damage to property which may arise from or in connection with services, products and materials supplied to City. Total cost of such insurance shall be borne by Consultant. MINIMUM SCOPE AND LIMIT OF INSURANCE Commercial General Liability (CGL): Insurance Services Office Form CG 00 01covering CGL on an “occurrence” basis, including products and completed operations,property damage, bodily injury and personal & advertising injury with limits no less than$2,000,000 per occurrence and $4,000,000 aggregate. Required policy limits can be metwith primary and umbrella/excess insurance policies.Automobile Liability (AL): Insurance Services Office Form CA 00 01 covering Code 1(any auto), with limits no less than $1,000,000 combined single limits. In the eventConsultant does not maintain commercial automobile liability insurance, City will acceptevidence of personal automobile insurance.Workers’ Compensation (W/C): as required by the State of California, with StatutoryLimits, and Employer’s Liability Insurance with limit of no less than $1,000,000 peraccident, per employee, per policy for bodily injury or disease. Coverage is not required ifConsultant has no employees and signs request to waive such insurance.Professional Liability Insurance:with limits no less than $1,000,000 per occurrence orclaim, and $2,000,000 aggregate.If Consultant maintains broader coverage and/or higher limits than the minimums requirements shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its City Council, its officers, officials, employees, agents, and volunteers are to 4 be covered as additional insureds, under Consultant’s CGL, Professional Liability, and Automobile Liability policies, with respect to any liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, equipment, and personnel furnished in connection with such work or operations. 2. Consultant’s Insurance company(ies) agrees to waive all rights of subrogation againstCity, its City Council, its officers, officials, employees, agents, and volunteers forlosses paid under the terms of any policy which arise from work performed byConsultant under this Agreement.3. For any claims related to this contract, Consultant’s insurance coverage shall beprimary and any insurance maintained by City, its City Council, its officers, officials,employees, agents, or volunteers shall not contribute with it.4. A severability of interest provision must apply for all the additional insureds, ensuringthat Consultant’s insurance shall apply separately to each insured against whom a claimis made or suit is brought, except with respect to the insurer’s limits of liability.5. Insurance policies required herein shall provide that coverage shall not be canceled,suspended, voided, reduced in coverage or in limits, non-renewed by the carrier, ormaterially changed except after thirty (30) days prior written notice has been given toCity. Ten (10) days prior written notice shall be provided to City for policy cancellationor non-renewal due to non-payment of premium.6. Certificate Holder on each Evidence of Insurance certificate shall be: City of SantaAna, Attention: Danny Mai, 20 Civic Center Plaza, M-36, Santa Ana, CA 92701. Thename and location of project must be included in the Description of Operations sectionof each certificate.Self-Insured Retentions Self-insured retentions must be declared to and approved by the City. City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the State of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City. Verification of Coverage Consultant shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Consultant’s obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Special Risks or Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 5 8. INDEMNIFICATIONConsultant agrees to defend, and shall indemnify and hold harmless the City, its officers,agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial orequitable relief is due by reason of the terms of or effects arising from this Agreement. Thisindemnity and hold harmless agreement applies to all claims for damages, just compensation,restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of theevents referred to in this Section or by reason of the terms of, or effects, arising from thisAgreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for thedefense of the City, including fees and costs for special counsel to be selected by the City,regarding any action by a third party challenging the validity of this Agreement, or asserting thatpersonal injury, damages, just compensation, restitution, judicial or equitable relief due to personalor property rights arises by reason of the terms of, or effects arising from this Agreement. Citymay make all reasonable decisions with respect to its representation in any legal proceeding.Notwithstanding the foregoing, to the extent Consultant’s services are subject to Civil CodeSection 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willfulmisconduct of the Consultant.9. INTELLECTUAL PROPERTY INDEMNIFICATIONConsultant shall defend, indemnify and hold harmless the City, its officers, agents,representatives, and employees against any and all liability, including costs, and attorney’s fees, for infringement of any United States’ letters patent, trademark, or copyright contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 10. RECORDSConsultant shall keep records and invoices in connection with the work to be performedunder this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement.11. CONFIDENTIALITY 6 If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. “Confidential Information” shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSEConsultant covenants that it presently has no interest and shall not have interests, direct orindirect, which would conflict in any manner with performance of services specified under this Agreement.13. NON-DISCRIMINATIONConsultant shall not discriminate because of race, color, creed, relation, sex, marital status,sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. EXCLUSIVITY AND AMENDMENTThis Agreement represents the complete and exclusive statement between the City andConsultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT 7 Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City’s prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City’s ability to have any of the services which are the subject to this Agreement performed by City personnel or by other contractors retained by City.16. WAIVERNo waiver of breach, failure of any condition, or any right or remedy contained in orgranted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATIONThis Agreement may be terminated by the City upon thirty (30) days written notice oftermination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant todeliver to the City all work product completed as of such date, and in such casesuch work product shall be the property of the City unless prohibited by law, andConsultant consents to the City's use thereof for such purposes as the City deemsappropriate.b. Payment need not be made for work which fails to meet the standard ofperformance specified in the Recitals of this Agreement.18. JURISDICTION-VENUEThis Agreement has been executed and delivered in the State of California and the validity,interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 19. PROFESSIONAL LICENSESConsultant shall, throughout the term of this Agreement, maintain all necessary licenses,permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and 8 exemptions. Said inability shall be cause for termination of this Agreement. 20. NOTICEAny notice, tender, demand, delivery, or other communication pursuant to this Agreementshall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: City Clerk City of Santa Ana20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 With courtesy copies to: Executive Director, Public Works Agency City of Santa Ana20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 To Consultant: Cannon Corporation 16842 Von Karman Ave., Suite 150 Irvine, CA 92606 Attn: Patrick Riddell, PE, CPII, QSD A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these timeframes, weekends, federal, state, County or City holidays shall be excluded. 21. MISCELLANEOUS PROVISIONSa. Each undersigned represents and warrants that its signature herein below has thepower, authority and right to bind their respective parties to each of the terms ofthis Agreement, and shall indemnify City fully, including reasonable costs andattorney’s fees, for any injuries or damages to City in the event that such authorityor power is not, in fact, held by the signatory or is withdrawn. 9 b. All exhibits referenced herein and attached hereto shall be incorporated as if fullyset forth in the body of this Agreement.IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA________________________ _________________________ Jennifer L. Hall Alvaro Nuñez City Clerk City ManagerAPPROVED AS TO FORM CANNON CORPORATION SONIA R. CARVALHO City AttorneyBy: _____________________ ____________________________ Kyle Nellesen By: Assistant City Attorney Title:RECOMMENDED FOR APPROVAL: ____________________________ Nabil Saba, P.E. Executive DirectorPublic Works Agency
10 EXHIBIT A
11 EXHIBIT B