CONSULTANT AGREEMENT WITH BERG & ASSOCIATES, INC. TO PROVIDE
CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES FOR THE SANTA
ANA ZOO EDUCATION HUB PROJECT
THIS AGREEMENT is made and entered into on this 16th day of September, 2025 by and between Berg & Associates, Inc., (“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
June 5, 2025, the City issued Request for Proposal (“RFP”) No. 25-077, by which it sought qualified consultants to provide construction management and inspection services for the Santa Ana Zoo Education Hub Project.
B.
Consultant submitted a responsive proposal that was selected by the City. Consultant represents that it is able and willing to provide the services described in the scope of work which was included in RFP 25-077.
C. I
n 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 consulting firm in the field.
NO
W 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. S
COPE OF SERVICES
C
onsultant shall perform during the term of this Agreement, 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 the Scope of Services which was included with RFP 25-077, attached hereto as Exhibit A and incorporated by reference, as well as Consultant’s Proposal Response, which is attached as Exhibit B and incorporated by reference.
2. CO
MPENSATION
a. C
ity agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Compensation - Exhibit C. The total amount to be expended during the term of this Agreement shall not exceed $374,315, including any extension periods.
b. P
ayment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. 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.
EXHIBIT 4
3. TERM
This Agreement shall commence on the 16 th of September, 2025 for a three-year term, unless terminated earlier in accordance with Section 16, below. The term of this Agreement may be extended for two additional one-year periods upon a writing executed by the City Manager and the City Attorney.
4. PREVAILING WAGES
Consultant 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 the performance 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. C onsultant 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 CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a j oint 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 sh all be responsible for all applicable withholding taxes.
6. OWNERSHIP OF MATERIALS
This 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 prope rty 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 perpetual license for any Documents & Data the sub contractor 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 wh ich 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. I
NSURANCE
P
rior 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, and for 5 years thereafter, 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.
M
INIMUM SCOPE AND LIMIT OF INSURANCE
1. C
ommercial G eneral Liability (CGL) : Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence and $2,000,000 aggregate. Required policy limits can be met with primary and umbrella/excess insurance policies.
2. A
utomobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), with limits no less than $1,000,000 combined single limits.
3. W
orkers’ 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, policy or employee, for bodily injury or disease.
4. P
rofessional Liability Insurance: with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate.
T
hese insurance requirements shall not in any way act to reduce coverage that is broader or includes higher limits than the minimums shown above. If Consultant maintains broader coverage and/or higher limits than the minimums 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 spe cified minimum limits of insurance and coverage shall be available to City. Insurance provided under this Agreement shall not contain any restrictions or limitations which are inconsistent with City’s rights under this Agreement.
O
ther Insurance Provisions
T
he above required 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 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 Instructor 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 against City, its City Council, its officers, officials, employees, agents, and volunteers for
losses paid under the terms of any policy which arise from work performed by Consultant under this Agreement.
3. For any claims related to this contract, Consultant’s insurance coverage shall be primary 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, ensuring that Consultant’s insurance shall apply separately to each insured against whom a claim is 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, or materially changed except after thirty (30) days prio r written notice has been given to City. Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment of premium.
6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Sant a Ana, Attention: Ed Torres, 20 Civic Center Plaza., M -22, Santa Ana, CA 92701. The name and location of project must be included in the Description of Operations section of each certificate.
Claims Made Policies
If any coverage required is written on a claims-made coverage form:
1. The retroactive date must be shown, and this date must be before the execution date of the contract.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of work.
3. If coverage is cancelled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective, or start of work date, Consultant must purchase extended reporting period coverage for a minimum of five (5) years after completion of work.
4. A copy of the claims reporting requirements must be submitted to City.
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.
Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Contractor, its employees, agents and sub-contractors.
Verification of Coverage
Consultant shall furnish City with original Certificates of Insurance including all require d 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.
Sub-Contractors
Consultant shall require and verify that all sub- contractors maintain insurance meeting all requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required fr om sub- contractors. For CGL coverage, sub- contractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. City, at its sole option, may terminate this Agreement at any time and obtain damages from Consultant resulting from said breach.
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.
8. INDEMNIFICATION
Consultant 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 Contractor , its subcontractors, agents, employees, or other persons acting on its 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 or equitable relief is due by reason of the terms of or effects arising from this Agreement. Th is indemnity 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 the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense 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 that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractor’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.
9. INTELLECTUAL PROPERTY INDEMNIFICATION
C
onsultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement.
10. RE
CORDS
C
onsultant shall keep records and invoices in connection with the work to be performed under 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. CO
NFIDENTIALITY
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 dis closed by the City.
12. CO
NFLICT OF INTEREST CLAUSE
a. C
onsultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement.
b. No
immediate family members of either the Mayor, City Council Member, or any appointed City Official, including appointed board and commission members, as defined under the City’s Municipal Code, whose position with the City shall award or influence the award of this Agreement, or any competing contract or amendment
thereof, shall be employed in any capacity by the Consultant or have any other direct or indirect financial benefit or interest in this Agreement. c. T
he section also prohibits the awarding of any agreement, contract, grant, or any amendment to those awards, to any former full -time employee for one-year from date of employee separation except for any CalPERS retiree as authorized by City Council resolution
d. T
he Consultant must comply with all conflict of interest laws, ordinances, and regulations now in effect or hereafter to be enacted during the term of this (Contract, Agreement, or Grant). The Consultant warrants that it is not now aware of any facts which conflict with the prohibitions defined above. If the Consultant hereafter becomes aware of any facts that might reasonably be expected to create a conflict of interest, it must immediately make full written disclosure of such facts to the City. Full written disclosure must include, but is not limited to, identification of all persons implicated and a complete description of all relevant circumstances. Failure to comply with the provisions of this paragraph will be a material breach of this Agreement. e. C
onsultant covenants that none of its di rectors, officers, employees, or agents shall participate in selecting or administrating any subcontract supported (in whole or in part) by City funds stemming from the Agreement where the awarding of the subcontract has any direct or indirect financial benefit or interest to any individual, as defined in subsections (b) and (c) above.
13. NO
N-DISCRIMINATION
C
onsultant shall not discriminate because of race, color, creed, religion, 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, teaching, training, utilization, promotion, termination or other employment related activities or any services provided 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. E
XCLUSIVITY AND AMENDMENT
T
his Agreement represents the complete and exclusive statement between the City and Contractor, 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 Contractor . 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 is not embodied herein.
15. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor , 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. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination. 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 to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.
17. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or granted 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.
18. JURISDICTION - VENUE
This 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 LICENSES
Consultant shall, throughout the term of t his 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 exemptions. Said inability shall be cause for termination of this Agreement.
20. NO
TICE
A
ny notice, tender, demand, delivery, or other communication pursuant to this Agreement shall 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:
C
lerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
W
ith courtesy copies to:
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
To Contractor:
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 time frames, weekends, federal, state, County or City holidays shall be excluded.
Berg & Associates, Inc.
Attn: Alicia Berg, Vice President
302 W. 5th Street, Suite 210
San Pedro, CA 90731
21. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney’s fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. The Agreement is the final and complete agreement and any prior or contemporaneous agreements for similar services between the parties is superseded by this Agreement. This shall not apply where the Parties are currently engaged and Consultant is providing services not contemplated by this Agreement. c. A ll Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement.
I
N WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
A
TTEST: CITY OF SANTA ANA
Jennifer L. Hall Alvaro Nuñez
City Clerk City Manager
AP
PROVED AS TO FORM:
S
ONIA R. CARVALHO CONSULTANT:
City Attorney
B
y:
Kyle Nellesen
Assistant City Attorney (title)
Tax ID #
R
ECOMMENDED FOR APPROVAL:
Rodolfo Rosas, P.E.
Acting Executive Director
Public Works Agency
By:
Title:
Alicia M. Berg
Vice President
Rodolfo
Rosas
Digitally signed by
Rodolfo Rosas
Date: 2025.08.28
11:31:20 -07'00'