Attachment C
1 Consultant/Professional Services Provider Agreement/Willdan Financial Services/Project ESC25- 079
CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
BY AND BETWEEN
THE CITY OF VICTORVILLE
AND
WILLDAN FINANCIAL SERVICES
FOR
ASSESSMENT ENGINEERING SERVICES TO THE CITY OF
VICTORVILLE FOR LMADS 1-4, PROJECT ESC25-079
THIS CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT (hereinafter “Agreement”), dated this _____ day of ______________, 2024, for reference purpose only, is made and entered into by and between THE CITY OF VICTORVILLE, a municipal corporation located in the County of San Bernardino, State of California, hereinafter referred to as the “City” , and Willdan Financial Services, a California Corporation, hereinafter referred to as “Consultant.” City and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties.”
RECITALS:
WHEREAS, the City requires Consultant/Professional Services for Assessment Engineering Services to the City of Victorville for LMADS 1-4, Project ESC25-079; and
WHEREAS, Consultant represents that it is fully qualified to perform the consulting and/or professional services required for performance under this Agreement by virtue of its experience and the training, education and expertise of its principals and its employees; and
WHEREAS, in light of the facts set forth above, the City desires to retain the services of a qualified Consultant to provide, on an independent contractor basis, assistance in consulting services related to the 1972 Act District and Public Outreach for the City’s Landscape Maintenance Assessment Districts Mos. 1-4; and
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS, CONDITIONS, AND
PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth fully herein.
Section 2. SCOPE OF SERVICES
Consultant shall provide to the City those services set forth in the Scope of Services , attached hereto as Exhibit “A”, and incorporated as part of this Agreement by this reference.
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Section 3. COMPENSATION
The City shall pay to Consultant for faithful performance of the services to be rendered under Section 2 of this Agreement, at a sum not to exceed Forty-five Thousand Eight Hundred and 00/100 Dollars ($45,800.00) , subject to the Payment Schedul e provisions of Section 4, below. No expense reimbursements, including, but not limited to, reimbursements for travel, parking, lodging, and/or meals shall be paid to Consultant unless such expense reimbursements:
(i) are specifically provided for and described by nature and type in Exhibit “B”, below; (ii) appear on Consultant’s monthly invoices to City; (iii) are supported by the appropriate receipts and other such documentation as the City shall require; and (iv) are directly related to the Scope of Services to be performed under this Agreement. In addition, any and all reimbursements shall be made in accordance with any City policy governing same.
Section 4. PAYMENT SCHEDULE
The City shall pay Consultant as provided in the Payment Schedule, attached hereto as Exhibit “B”, and incorporated as part of this Agreement by this reference. The provisions of Exhibit “B” notwithstanding, in order to receive payments, Consultant shall be required to submit to the City detailed monthly invoices which include, if applicable, a description of all services/tasks performed, the number of hours expended on each service/task, the name of the person performing the service/task, and expense reimbursement information, if any, as required by Section 3, above. Provided that services have been satisfactorily rendered, invoices shall be paid by the City approximately thirty (30) working days following receipt of Consultant’s invoice.
Section 5. RESERVED
Section 6. TERM OF AGREEMENT
This Agreement shall be for an Initial Term commencing on the date of full execution of the Agreement (the “Commencement Date”) and expiring on June 30, 202 6 (the “Termination Date”) (the “Term”), unless terminated earlier pursuant to Section 21 of this Agreement. From and after the Termination Date, and upon subsequent agreement by the Parties, this Agreement may continue on a month-to-month basis until terminated pursuant to Section 21 below.
Section 7. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the Parties that Consultant is an independent contractor and not an employee, agent, joint venturer, or partner of the City. Nothing in this agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the City and Consultant or any employee or agent of Consultant . Both P arties acknowledge that Consultant is not an employee for state or federal tax purposes or any other purpose. Consultant shall retain the right to perform services for others during the term of this agreement.
Section 8. REPRESENTATIONS AND ACKNOWLEDGMENTS
REGARDING INDEPENDENT CONTRACTOR’S STATUS OF
CONSULTANT
a. Consultant represents and acknowledges the following:
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(1) The City is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement.
(2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City.
(3) The services described in this Agreement can be performed without the use of City equipment, materials, tools, or facilities, unless otherwise provided under a separate agreement.
(4) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement.
(5) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage, or other such compensati on to any person employed by Consultant to perform the services described in this Agreement.
(6) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are employees of the City.
b. The City represents and acknowledges the following:
(1) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement.
(2) The City will not hire, supervise, or pay any em ployees or assistants working for Consultant pursuant to this Agreement.
(3) Nothing in this Agreement shall be interpreted to imply that Consultant must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement.
(4) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement.
(5) Consultant is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement.
(6) Unless deemed necessary under certain circumstances, Consultant is not required to perform the services set forth in this Agreement at City Hall or on City-owned property. (7) Other than attendance at required public meetings and public hearings, and complying with the provisions of the Scope of Services set forth in Exhibit A and any procedural requirements set forth by law, Consultant is not required to perform the services set forth in this Agreement in any particular order or sequence.
(8) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest.
Section 9. NOT AGENT OF THE CITY
a. Nothing contained in this Agreement shall be deemed, construed, or represented by the City or Consultant or by any third person to create the relationship of principal and agent. 4 Consultant/Professional Services Provider Agreement/Willdan Financial Services/Project ESC25- 079
b. Consultant shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind the City to any obligation whatsoever.
Section 10. LICENSES AND PERMITS
Consultant represents that it has obtained and will maintain at all times during the I nitial Term (and during the Option Period, if applicable) of this Agreement all business licenses, including but not limited to a City of Victorville business license, professional licenses or certifications, or permits necessary for performing the services described in this Agreement.
Section 11. STANDARD OF PERFORMANCE; WARRANTY
a. Consultant agrees to perform all services required by this Agreement in a professional and competent manner, in accordance with the degree of skill and diligence which is normally employed by reputable professionals performing similar services under similar conditions in the same or similar locality. Such services shall also be performed in a manner which is reasonably satisfactory to Fredy A. Bonilla, P.E., City Engineer, or his designee.
b. By executing this Agreement, Consultant warrants that it:
(1) Has thoroughly investigated and considered the services and work to be performed;
(2) Has investigated the issues regarding the scope of services to be provided;
(3) Has carefully considered how the services and related work should be performed; and
(4) Fully understands the facilities, difficulties and restrictions associated with performance of the services required by this Agreement.
Section 12. FAMILIARITY WITH WORK
Should Consultant discover any latent or unknown conditions materially differi ng from those inherent in the services or as represented by the City, Consultant shall immediately inform the City of such fact and shall not provide any services, except at Consultant 's risk, until written instructions are received from Fredy A. Bonilla, P.E., City Engineer, or his designee.
Section 13. CONFLICTS OF INTEREST
Consultant covenants that it does not have any interest, nor shall it acquire any interest, directly or in directly, which would conflict in any manner with the performance of Consultant’s services under this Agreement. Consultant further covenants that in the performance of services under this Agreement, no officer, employee or agent of Consultant having such interest shall be employed by it. In the event the City determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Consultant shall file such Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the City Clerk. Acquisition or maint enance of a conflicting interest by Consultant may result in termination of this Agreement by the City.
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Section 14. COMPLIANCE WITH LAWS
Consultant shall comply with all local, state, and federal laws and regulations applicable to the services to be ren dered hereunder, including any rule, regulation, or bylaw governing the conduct or performance of Consultant or its employees, officers, or board members.
Section 15. COMMERCIAL GENERAL AND AUTOMOBILE LIABILITY
INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement (and during the Option Period, if applicable) , Commercial General Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by Consultant or its officers, employees, servants, volunteers, and agents and independent contractors.
b. Consultant shall further procure and maintain, at its own expense, during the Initial Term of this Agreement, (and during the Option Period, if applicable), Commercial Vehicle Liability Insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit, covering any vehicle utilized by Consultant or its officers, employees, servants, volunteers, agents and independent contractors in performing the services required by this Agreement.
Section 16. WORKERS' COMPENSATION INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement (and during the Option Period, if applicable), Workers' Compensation Insurance, providing coverage as required by the California State Workers' Compensation Law.
b. If any class of employees employed by the Consultant pursuant to this Agreement is not protected by the Californi a State Workers' Compensation Law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the City.
Section 17. PROFESSIONAL LIABILITY INSURANCE
Professional Liability Insurance or Errors and Omissions insurance as appropriate to Consultant’s profession shall be required and written on a policy form specifically designed to provide coverage for and protect against the negligent acts, errors and omissions of the Consultant in the performance of the services required by this Agreement. A minimum limit of $1,000,000 per claim and in the aggregate must be provided.
Section 18. ADDITIONAL INSURED
Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, all insurance policies, except for the Workers' Compensation and Professional Liability , shall be endorsed to name the City and its officers, employees, servants, volunteers, agents and independent contractors, including, without limitation, the City Attorney, as Additional Insureds.
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Section 19. WAIVER OF SUBROGATION RIGHTS
Consultant shall require the carriers of all required insurance policies , with exception to Professional Liability, to waive all rights of subrogation against the City and its officers, employees, servants, volunteers, agents, and independent contractors and subcontractors. Each policy of insurance shall be endorsed to reflect such waiver.
Section 20. PROOF OF INSURANCE COVERAGE; REQUIRED
ENDORSEMENTS
a. Consultant shall secure from a good and responsible company or companies authorized to transact insurance business in the State of California, the policies of insurance required by this Agreement and furnish to the City Clerk certificates of insurance evidencing the required coverage, and policy endorsements at least one (1) business day prior to the commencement of any services to be performed under this Agreement.
b. The policies and certificates of insurance shall be endorsed to provide that in the event of cancellation or amendment of any required insurance policy for any reason whatsoever, the City shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. In the case of cancellation for non-payment, ten (10) days advance written notice shall be given.
c. Each policy and certificate of insurance shall be endorsed to provide that the policy shall not be terminated or expire without first providing thirty (30) days written notice to the City of such termination or expiration.
d. Each policy and certificate of insurance shall be endorsed to provide that the policy will be maintained throughout the Initial Term (and during the Option Period, if applicable), of this Agreement.
e. The Commercial General Liability and Vehicle Liability policies shall be endorsed to contain the following provision: “For any claims related to this Agreement, Consultant ’s coverage shall be primary with respect to the City. Any insurance maintained by the City shall be in excess of Consultant’s insurance and shall not contribute with it.”
Section 21. TERMINATION OR SUSPENSION
a. This Agreement may be terminated or suspended without cause by either Party at any time, provided that the Party initiating the termination provides the other Party at least thirty (30) days advance written notice of such termination or suspension. In the event of such termination, the City shall only be liable for payment under the payment provi sions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
b. This Agreement may be terminated or suspended with cause by either Party at any time, provided that the Party initiating termination provides the other Party at least ten (10) days advance written notice of such termination or suspension. In the event of such termination, the City shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
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Section 22. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
Section 23. INDEMNIFICATION
a. Except as set forth in Subsection b of this Section 23, and to the fullest extent permitted by law, Consultant shall immediately defend, indemnify, and hold harmless the City, its officers, employees, representatives, and agents (the “City Indemnitees”), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and reasonable attorneys’ fees, for any personal injuries, deaths, or property damage, including property owned by the City (collectively “Claims”) which may arise out of Consultant's negligence or willful misconduct in the performance of the services described in this Agreement, unless such Claims are proven to be caused by the negligence or willful misconduct of the City Indemnitees.
b. The provisions of this Subsection b apply only in the event that Consultant is a design professional within the meaning of California Civil Code section 2782.8 (“Design Professional”). The term Design Professional, as defined in said section, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
(1) Notwithstanding the provisions of Subsection a above, to the extent that the services to be provided under this Agreement are those of a Design Professional, Consultant's duty to indemnify, hold harmless, and defend the City Indemnitees shall be limited to the extent that any Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its officers, agents, employees or subconsultants in the performance of the services described in this Agreement.
(2) In no event shall the costs of defense charged to Consultant exceed the Consultant’s proportionate percentage of fault, except as otherwise set forth in said Civil Code section 2782.8, the provisions of which are incorporated into this Agreement by this referenc e.
Nothing in this Subsection b shall be construed to require Consultant to provide indemnification for Claims caused by the active negligence or willful misconduct of the City Indemnitees.
c. The City does not and shall not waive any rights that it may have against Consultant under this Section, because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions of this Section 23 shall apply regardless of whether said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense described herein.
d. The obligation to indemnify and defend, as set forth in this Section 23, is bi nding on the successors, assigns, or heirs of Consultant and shall survive the expiration or any early termination of this Agreement.
Section 24. REPORTS
Upon request by Fredy A. Bonilla, P.E., City Engineer, or his designee, or as otherwise required by this Agreement, including but not limited to, the Scope of Services set forth in Exhibit 8 Consultant/Professional Services Provider Agreement/Willdan Financial Services/Project ESC25- 079
“A”, Consultant shall prepare and submit reports to the City concerning Consultant's performance of the services required by this Agreement.
Section 25. RECORDS
a. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable Fredy A. Bonilla, P.E., City Engineer, or his designee, to evaluate the cost and the performance of such services.
b. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles.
c. Fredy A. Bonilla, P.E., City Engineer, or his designee, shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
d. Records and supporting documents pertaining to the use of funds paid to Consultant hereunder shall be retained by Consultant and made available to Fredy A. Bonilla, P.E., City Engineer, or his designee, for purposes of performing an audit for a period of five (5) years from the date of termination of this Agreement.
Section 26. RESERVED
Section 27. CONFIDENTIALITY; OWNERSHIP OF WORK
a. Any and all documents and information obtained from the City or prepared by Consultant for the City shall be kept strictly confidential unless otherwise provided by applicable law. All City data, documents and information shall be returned to the City upon termination of the Agreement.
b. Any drawings, specifications, reports, records, documents, or other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of Fredy A. Bonilla, P.E., City Engineer, or his designee, or as required by applicable law.
c. Consultant shall not disclose to any other entity or person any information regarding the activities of the City, except with the prior written approval of Fredy A. Bonilla, P.E., City Engineer, or his designee, or as required by applicable law.
d. All original documents, reports, designs, computer files and all other materials prepared by Consultant in the course of performing the services pursuant to t his Agreement, whether completed or in progress, are the property of the City and shall be surrendered to the City upon the completion of Consultant’s services or when requested by Fredy A. Bonilla, P.E., City Engineer, or his designee. Such materials may be used, reused or otherwise disposed of by the City without the permission of Consultant.
e. Consultant’s covenants under this Section 28 shall survive the termination of thi s Agreement.
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Section 28. PRINCIPAL REPRESENTATIVES
a. Stacee Reynolds, Principal Consultant , is designated as the principal representative of Consultant for purposes of communicating with the City on any matter associated with the performance of the services set forth in this Agreement.
b. Fredy A. Bonilla, P.E., City Engineer, or his designee, shall be the principal representative of the City for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement.
c. Either Party may designate another individual as its principal representative by giving written notice of such designation to the other Party.
Section 29. MODIFICATIONS AND AMENDMENTS; EXTRA SERVICES
a. This Agreement may be modified or amended only by a written instrument signed by both Parties.
b. During the I nitial Term, the City may request that the Consultant perform Extra Services. As used herein, "Extra Services" means any services, which are determined by the City to be necessary for the proper completion of Assessment Engineering Services to the City of Victorville for LMAD S 1-4 Consultant/Professional Services for, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. A written instrument signed by both Parties shall be required to authorize performance of and payment for Extra Services.
Section 30. ENTIRE AGREEMENT
a. This Agreement supersedes any and all prior or contemporaneous agreements, either oral or written, between the City and Consultant with respect to the subject matter of this Agreement.
b. This Agreement contains all of the covenants and agreements between the Parties with respect to the subject matter of this Agreement, and each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any Party, except those covenants and agreements in this Agreement.
c. No agreement, statement, or promise with respect to the subject matter of this Agreement, which is not contained in this Agreement, or in a valid modification or amendment to this Agreement, shall be valid or binding on either Party.
Section 31. AMBIGUITIES
This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them.
Except as expressly limited by this paragraph, all of the applicable rules of inte rpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
Notwithstanding the foregoing, the Parties agree that Exhibits “A” and “B” are attached hereto for reference purposes and to the extent there are any ambiguities, inconsistencies or 10 Consultant/Professional Services Provider Agreement/Willdan Financial Services/Project ESC25- 079
conflicts between the terms of this Consultant/Professional Services Standard Provider Agreement and Exhibit s “A” and “B” the terms of this Consultant/P rofessional Services Standard Provider Agreement shall control and nothing set forth in Exhibit s “A” and “B” shall be deemed to supersede any of the provisions of this Consultant/Professional Services Standard Provider Agreement.
Section 32. NOTICES
a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:
To the City: Fredy A. Bonilla, P.E., City Engineer
Engineering Department
City of Victorville
14343 Civic Drive
Victorville, CA 92392
To Consultant: Stacee Reynolds, Principal Consultant
Willdan Financial Services
27368 Via Industria, Suite 200
Temecula, CA 92590
b. Notices, payments, and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.
Section 33. NON-LIABILITY OF CITY OFFICERS AND
EMPLOYEES
No officer or employee of the City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to Consultant or to its successor(s), or for any breach of any obligation of the terms of this Agreement.
Section 34. REVIEW BY ATTORNEYS
Each Party hereto has had its attorney(s) review this Agreement and all related documents. Each Party hereto has consulted with its attorney(s) and has negotiated the terms of this Agreement based on such consultation.
Section 35. WAIVER
a. No waiver shall be binding unless executed in writing by the Party making the waiver.
b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision.
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c. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of such provision or any of the remaining provisions of this Agreement.
Section 36. ASSIGNMENT
This Agreement shall not be assigned by either Party without prior written consent of the other Party.
Section 37. CARE OF WORK
The performance of services by Consultant or the payment of money by the City shall not relieve Consultant from any obligation to correct any incomplete, inaccurate, or defective work at no further cost to the City, when such incomplete, inaccurate or defective work is due to the negligence of Consultant.
Section 38. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 39. SUCCESSORS, HEIRS, AND ASSIGNS
Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties.
Section 40. GENDER
In this Agreement, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another.
Section 41. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs, or sections contained herein is declared invalid, void, or unenforceabl e by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair, or invalidate any of the remaining sentences, clauses, paragraphs, or sections contained herein.
Section 42. GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.
Section 43. DEFAULT
a. Failure or delay by any Party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, 12 Consultant/Professional Services Provider Agreement/Willdan Financial Services/Project ESC25- 079
that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct, or remedy the alleged default within fifteen (15) days after receipt of written notice specifying such default and shall diligently complete such cure, correction, or remedy, such Party shall not be deemed to be in default hereunder.
b. The Party claiming that a default has occurred shall give written notice of default to the Party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured Party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein.
c. Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
d. In the event that a default by any Party to this Agreement may remain uncured for more than fifteen (15) days following written notice, as provided above, the injured Party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings.
Section 44. CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
Section 45. VENUE
All proceedings involving disputes over the terms, provisions, covenants, or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in San Bernardino County, California.
Section 46. ATTORNEYS’ FEES
In the event any action, suit, or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement, or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, fr om the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
Section 47. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the City, until signed by the authorized representative(s) of Co nsultant, approved by the City ’s Risk Manager, and executed by the authorized City personnel or Mayor.
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Section 48. REPRESENTATIONS OF PARTIES AND PERSONS EXECUTING
AGREEMENT
a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.
b. The persons executing this Agreem ent warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.
Section 49. COUNTERPARTS
This Agreement may be executed by the Parties in counterparts, and when executed by each of the Parties, each counterpart shall be deemed to be a part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
THE CITY OF VICTORVILLE WILLDAN FINANCIAL SERVICES
By: ______________________________ By: __________________________ Elizabeth Becerra, Mark J. Risco,
Mayor President
Dated: ___________________________ Dated: _______________________
ATTEST
By: ______________________________
Jennifer Thompson,
City Clerk
Dated: ___________________________
By: ______________________________
Sandra Bostick,
Risk Manager
Dated: ___________________________
APPROVED AS TO STANDARD FORM:
By: ______________________________
Andre de Bortnowsky,
City Attorney
Dated: ___________________________
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EXHIBIT A
SCOPE OF SERVICE
See Attachment
T 951 .587 .3500 ▪ 800.755.6864 | F 888 .326 .6864 | 27368 Via Industria, Suite 200, Temecula, CA 92590 | www.willdan.com 1 December 5, 2024
Ms. Mel Krejckant
Public Works & Water Administrative Manager
City of Victorville
14343 Civic Drive
Victorville, CA 92393
Re: Proposal to Provide Assessment Engineering Services to the City of Victorville Dear Ms. Krejckant:
As requested, we are submitting this proposal for Assessment Engineering Services to the City of Victorville (“City”). It is our understanding that the City would like to ballot for an increased assessment to all property owners/ Assessor Parcel Numbers within the existing boundaries of the deficient districts (LMADs 1-4), that requires the noticing and balloting of all affected property owners. It is further anticipated that this engagement may include public outreach. A property owner workshop is proposed in order to gauge the interest of affected property owners , which will help determine the option to pursue.
Scope of Services
Below is our proposed scope of services for a new/increased assessment for existing LMADs 1-4. Our scope of services contains a single work plan with notations delineating steps that are relevant to this project.
We want to ensure the following is responsive to the City’s needs and circumstances. We will work with the City to revise our proposed scope based on input prior to approval of a task order, and as needed during the course of the project.
Assessment Engineering Services
Phase I: 1972 Act District Balloting
The following tasks are specific to the formation of a 1972 Act District or establishment of a new/increased assessments for LMADs 1-4.
Task 1.A: Update Assessment Database and Diagrams
Objective: Establish updated electronic parcel assessment database s and assessment diagrams utilizing Fiscal Year 2024/2025 data.
Description: Using updated parcel information from the current County Assessor's Office secured roll, Willdan will update the district assessment database s, as needed, which are currently utilized for annual administration. The databases will ultimately contain all benefiting properties within LMADs 1-4 and will identify each parcel's specific land use, assigned benefit units, modified benefit units, current and proposed assessments, related property characteristics used in the updated method of apportionment, and property ownership information (owner name[s] and mailing address).
This base data will serve as the master databases for the proposed new/increased assessments to be outlined in the Engineer's Report. The information contained in these databases will be enhanced and updated, as needed, through parcel research and specific information provided by the City and will be utilized as the basis for the mailing of notices and ballots.
Task 1.B: Review Improvement Matrix
Objective: Review improvement matrix for the existing LMADs 1-4 that will be balloted and update if needed Description: An accurate and comprehensive improvement list and the ability to quantify the extent and type of improvements being maintained is critical to the development of an appropriate and defensible benefit nexus, corresponding budgets, and benefit allocation (special and general).
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City of Victorville, CA
In addition to verifying the location, type and extent of the improvements necessary to develop accurate and proportional budgets, this matrix will allow us to adjust the budgets and potential assessments per the service level needs based on input from the City . Willdan team members will utilize our budget modeling software to identify cost based upon square footage and improvement type.
Meetings: As needed, conference calls and e -mails with City staff to discuss and refine specific improvement information.
Task 1.C: Benefit and Assessment Methodology Analysis
Objective: Review the existing assessment documentation, improvements , and specifications for LMADs 1-4.
Evaluate various factors that must be considered for compliance and application of special/general benefit pursuant to the provisions of the California Constitution (Proposition 218), the 1972 Act and current case law to develop an appropriate and defensible assessment methodology and district structure (benefit zones).
Description: Utilizing parcel data, budget information , improvement descriptions and specifications , related diagrams and maps, and other supporting documentation, we will evaluate and develop an appropriate and proportional special benefit assessment methodology that is consistent with the California Constitution, specifically focusing on the identification of special and general benefit as it relates to recent court decisions. The relationship between the improvements and properties within the districts will be closely evaluated as well as any benefits that may be attributable to other properties or the public at large. We will also review the existing benefit nexus between the improvements provided and the properties within the LMADs 1-4.
Deliverables: Any new findings from this task will be incorporated into the Engineer’s Report, Task 1.E.
Task 1.D: Develop Proposed Budget and Assessments
Objective: Prepare comprehensive budgets and corresponding assessment rates for the districts’ new/increased assessments. The purpose of this step is to achieve maximum cost-to-benefit equity for each property, as well as ensure the long-term financial stability of the maintenance and improvements.
Description: Work with City staff to develop appropriate and comprehensive annual budgets for the maintenance and servicing of the various improvements. The budgets will be developed utilizing the City’s current budget information and Willdan’s budget modeling software that utilizes standard per unit costs for calculating annual and long -term maintenance expenses associated with the improvements. The development of the budgets will incorporate specific cost estimates provided by the City, including:
▪ Estimates of periodic maintenance expenditures;
▪ Long-term cost recovery (inflationary adjustments and rehabilitation programs) ; ▪ Any known capital improvement repairs or rehabilitation expenditures needed in the near future; ▪ Administration expenses; and
▪ Any other funding deemed appropriate to provide the improvements.
The proposed budgets prepared will be comprehensive and identify the full cost of providing the improvements. In addition, the budgets will also identify costs considered to be general benefit (if any), current assessment revenues, available fund balances, and current City subsidies, as well as funding needs that may not be currently addressed or funded.
The goal of these budgets is to accurately depict the true funding requirements to provide the improvements and demonstrate the need for new or increased assessments (revenue shortfall) or potential reductions in levels of service if the proposed assessments are not approved.
Deliverables: The updated budgets will be incorporated into the Engineer’s Report, Task 1.E.
Task 1.E: Prepare Consolidated Balloting Engineer’s Report Objective: Prepare the Consolidated Balloting Engineer’s Report.
Description: In accordance with the applicable legislative statute and Article XIIID of the California Constitution (Proposition 218), Willdan will prepare, or update, the Engineer’s Report outlining the proposed assessments and potential modifications to be presented to City Council.
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City of Victorville, CA
The Engineer’s Report will include the following items for each district. ▪ Plans and specifications that describe the ongoi ng maintenance and improvements to be maintained and serviced.
▪ Method of apportionment that outlines the special benefit conferred on properties from the improvements, as well as calculations used to establish each parcel’s proportional special benefit assessment. As well as a description of the assessment range formula and Consumer Price Index (CPI), if applicable, establishing the maximum assessment rate in subsequent fiscal years. ▪ Budget that outlines the costs and expenses to provide , service and maintain the improvements, including incidental expenses authorized by the legislative statute. ▪ Assessment diagram that identifies the boundaries of the district. ▪ Assessment roll which contains each Assessor Parcel Number that comprise the district and their proportional maximum assessment.
▪ Affidavit stating the report has been prepared by a professional engineer.
Deliverables: One (1) electronic copy of the draft Engineer’s Report will be provided to the City for review and comment prior to submittal of a final Report for the City Council’s consideration and approval at the Intent Meeting. When finalized with City staff, a final electronic version and two har d copies of the Report will be provided to the City that the City Clerk may incorporate into the Council agenda package.
The proposed assessment roll that is typically incorporated into the Engineer’s Report may be provided to the City as a separate document or electronic file.
Task 1.F: Prepare Resolutions
Objective: Prepare consolidated resolutions for the Intent Meeting and Public Hearing, utilizing the City’s existing document format.
Description: Prepare drafts of the resolutions for the City’s review and finalization, which will be adopted by Council, in connection with the formation of a 1972 Act district or the establishment of a new /increased assessment. We anticipate the following resolutions will be necessary.
Intent Meeting (two [2] resolutions):
▪ Resolution Initiating Proceeding, which calls for the Engineer’s Report to be prepared; and ▪ Resolution of Intention, confirms the proposed assessments outlined in the Engineer’s Report on file, declares the Council’s intent to levy and collect such assessments, and sets the Public Hearing date.
Public Hearing (two [2] resolutions):
▪ Resolution Declaring the balloting results; and
▪ Resolution Approving the Engineer’s Report and Assessment Diagram; confirms the proposed district assessments and orders the levy and collection of those assessments for the current fiscal year.
Willdan will also assist in the preparation of staff reports, as necessary.
Deliverables: It is anticipated that there will be a total of four resolutions for the City Council’s approval.
Task 1.G: Prepare Notices and Ballots
Objective: Prepare the required Notice of Public Hearing and assessment ballots consistent with Proposition 218.
Description: Prepare the Notices of Public Hearing and the accompanying assessment ballots to be mailed to each affected property owner. Draft copies will be sent to the City for r eview and comment by City staff and the City Attorney. Based on written comments and edits received, a final sample of the documents will be prepared and provided to the City, prior to the actual printing of the documents.
It is anticipated that the text of the Notice s will be the same for each parcel being balloted and the ballots will be tailored (mail merged), so as to spec ifically address the assessment and related parcel information for each property.
Deliverables: Drafts of the notice and ballot will be delivered to City staff for review and comment prior to the final versions being printed and processed for mailing.
EXHIBIT A, SCOPE OF SERVICES, PROJECT ESC25-079
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City of Victorville, CA
Task 1.H: Print and Mail Notices and Ballots
Objective: Print and mail the required notices and assessment ballots.
Description: Upon adoption of the Resolution of Intention, coordinate the printing and assembly of the notices and ballots for mailing. Notices and ballots will be printed double -sided, so as to save on postage costs. A return #9 envelope addressed to the City Clerk will be included for the convenience of the property owner to mail back the assessment ballot.
Mailing of the notices and ballots will be completed at least 45 days prior to the Public Hearing date as required by law.
Deliverables: Notices and ballots mailed to the property owners of record subject to the new/increased assessment.
Task 1.I: Public Hearing and Ballot Tabulation
Objective: Attend the Public Hearing to answer questions and assist in the tabulation of returned ballots.
Description: Attend the Public Hearing to be available to answer any questions posed by the City Council. Ballots may be opened and tallied by the City Clerk or their designees. It is anticipated that Willdan will be asked to assist the City Clerk with the ballot tabulation. Willdan has developed ballot tabulation software that uses barcode scanning to electronically tabulate the ballots quickly. This software provides a summary of the weighted ballot results as well as a record of each ballot tabulated.
Upon the close of the Public Hearing, the City Clerk or designee will be directed to open and tabulate the ballots received. Upon completion of the tally the Clerk will announce the results by dollar amount cast in favor and against, and the City Council will adopt the appropriate resolutions.
Meetings: One (1) City Council Public Hearing to be available to answer questions and tabulate the ballots at City Hall.
Deliverables: Ballot tabulation results.
Phase II: Optional Public Outreach
Public education and outreach efforts can involve a variety of approaches and tools. Willdan has proven experience with various outreach efforts, including the preparation and mailing of a basic informational piece and assisting with property owner workshops and/or community meetings. When noticing and balloting property owners within an existing district, it is generally important to communicate the issues and educate the property owners with the facts before they are asked to cast their ballot regarding an assessment increase.
Willdan can assist with specific elements of a public outreach effort focused on informing property owners of the issues and aspects of the proposed new/increased assessment. Our assistance in these efforts may include the development and mailing of a basic informational piece to property owners and assisting with a property owner workshop to be conducted in conjunction with the balloting period (see tasks outlined below). At present it is difficult to estimate exactly the level of effort and resources that may be appropriate or required for public education and outreach efforts. We anticipate having a detailed discussion of the need and/or extent of any public education and outreach efforts the City may require. We will discuss the available options and our recommendations, as well as discuss amending our scope accordingly, but generally Willdan can provide the following services to enhance the chances of the District’s increased assessments, as deemed necessary by City staff.
Task 2.A: Develop Informational Mailer
Objective: Develop and mail an informational piece that provides background and information to property owners regarding the district and proposed increased assessment.
Description: Prepare an informational piece for property owners as part of an overall education effort specific to the proposed assessments. This informational piece typically is in the form of a frequently asked questions (FAQ) guide and includes ways to obtain additi onal information about the district and assessments.
This document may also include an invitation to a property owner workshop. We propose that the informational piece be mailed to property owners prior to the mailing of the required notices and ballots.
This document would be a straightforward information piece that will convey the significance and reasons for the proposed increased assessment in an easy -to-understand format. This mailing could be in a single tri -fold format, double -sided, in one color, but can be more elaborate incorporating pictures or other graphics and using multiple colors.
Deliverables: Informational Mailer
EXHIBIT A, SCOPE OF SERVICES, PROJECT ESC25-079
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City of Victorville, CA
Task 2.B: Public Outreach and Property Owner Workshop(s) Objective: Provide the public with information to help them make informed decisions regarding the increased assessments.
Description: If determined to be a valuable tool, we will coordinate with City staff to schedule the time and place to conduct property owner informational meetings/workshops. A senior member of the Willdan Team will attend and assist the City representative(s) with these meetings, acting as technical support to answer questions and provide information related to the calculation of the proposed assessment and the balloting process. Generally, an effective communication tool is to conduct property owner work shops prior to the notices and ballots being mailed, but workshops may also be scheduled during the required 45-day period between the mailing of ballots and the Public Hearing.
Meetings: To be determined.
Legal Opinions. In preparing the resolutions, notices and ballots, Willdan will provide our professional expertise. Since we do not practice law, we ask that the C ity’s legal counsel review the documents. We will assist your attorney in identifying any pertinent legal issues.
Project Disclaimer
The City of Victorville further represents, acknowledges, and agrees that:
(i) The City uses, or may use, the services of one or more municipal advisors registered with the U.S. Securities and Exchange Commission (“SEC”) to advise it in connection with municipal financial products and the issuance of municipal securities;
(ii) The City is not looking to Willdan to provide, and City shall not otherwise request or require Willdan to provide, any advice or recommendations with respect to municipal financial products or the issuance of municipal securities (including any advice or recommendations with respect to the structure, timing, terms, and other similar matters concerning such financial products or issues); (iii) The provisions of this proposal and the services to be provided hereunder as outlined in the scope of services are not intended (and shall not be construed) to constitute or include any municipal advisory services within the meaning of Section 15B of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations adopted thereunder;
(iv) For the avoidance of doubt and without limiting the foregoing, in connection with any revenue projections, cash- flow analyses, feasibility studies and/or other analyses Willdan may provide the City with respect to financial, economic or other matters relating to a prospective, new or existing issuance of municipal securities of the City, (A) any such projections, studies and analyses shall be based upon assumptions, opinions or views (including, without limitation, any assumptions related to revenue growth) established by the City, in conjunction with such of its municipal, financial, legal and other advisers as it deems appropriate; and (B) under no circumstances shall Willdan be asked to provide, nor shall it provide, any advice or recommendations or subjective assumptions, opinions or views with respect to the actual or proposed structure, terms, timing, pricing or other similar matters with respect to any municipal financial products or municipal securities issuances, including any revisions or amendments thereto; and
(v) Notwithstanding all of the foregoing, the City recognizes that interpretive guidance regarding municipal advisory activities is currently quite limited and is likely to evolve and develop during the term of the potential engagement and, to that end, th e City will work with Willdan throughout the term of the potential Agreement to ensure that the Agreement and the services to be provided by Willdan hereunder, is interpreted by the parties, and if necessary amended, in a manner intended to ensure that the City is not asking Willdan to provide, and Willdan is not in fact providing or required to provide, any municipal advisory services.
The City of Victorville acknowledges that Willdan shall be relying upon the accuracy and validity of the information provided by the City or their designees and that Willdan shall not be liable for any inaccuracies contained therein.
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EXHIBIT B
P
AYMENT SCHEDULE
S
ee Attachment
Assessment Engineering Services 6
City of Victorville, CA
Fee for Services
Willdan proposes to perform the Assessment Engineering Services outlined herein for the fixed fees identified in the table below. Based on the size of the districts, the mailing of the FAQ, ballots and notices will be outsourced to a mailing house.
City of Victorville
Assessment Engineering Services
Fee for Services
Phase I: Assessment Engineering Services
Establishment of New/Increased LMAD’S 1-4 Assessments $10,500 Public Hearing Meeting Attendance and Ballot Tabulation $1,750 Printing and Mailing of Notices and Ballots (black & white) $13,800 Phase II: Public Outreach (Optional)
Develop Informational Mailer $1,500
Public Outreach/Property Owner Workshops $1,750 per meeting Printing and Mailing of Informational Mailer (four-color) $12,000 Note:
▪ Telephone conference calls are not considered “meetings” for the purpose of our proposal and are not limited by our Scope of Services (virtual council do not fall under this category). ▪ We will invoice the City based on percentage of project completion.
Reimbursable Expenses
Willdan will be reimbursed for out -of-pocket expenses. Examples of reimbursable expenses include, but are not limited to:
▪ Postage;
▪ Travel expenses;
▪ Mileage (current federal prevailing rate);
▪ Maps;
▪ Electronic data furnished from the County and/or
other applicable resources;
▪ Construction cost periodicals; and
▪ Copying (currently 6¢ per copy).
Any additional expense for reports or from outside services will be billed to the City plus a fifteen -percent mark-up.
Charges for meeting and consulting with counsel, the City, or other parties regarding services not listed in the scope of work above will be at our current hourly rates.
City shall reimburse Willdan for any costs Willdan incurs, including without limitation, copying costs, digitizing costs, travel expenses, employee time and attorneys ’ fees, to respond to the legal process of any governmental agency relating to the City or relating to the project proposed herein. Reimbursement shall be at Willdan's rates in effect at the time of such response.
EXHIBIT B, PAYMENT SCHEDULE, PROJECT ESC25-079
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City of Victorville, CA
Hourly Rates
Our current hourly rates are listed below. These rates will remain in effect throughout this engagement.
Willdan Financial Services
Hourly Rate Schedule
Position Hourly Rate
Group Director $250
Principal Engineer $249
Assistant Director $240
Principal Consultant $210
Senior Project Manager $185
Project Manager / Program Director $165
Senior Project Analyst $135
Senior Analyst $125
Analyst II $110
Analyst $100
Assistant Analyst $75
We appreciate this opportunity to assist the City of Victorville. Please feel free to contact me directly with any questions or concerns at [email protected] or via Tel #: (951) 587-3500.
Sincerely,
Willdan Financial Services
Stacee Reynolds
Principal Consultant
EXHIBIT B, PAYMENT SCHEDULE, PROJECT ESC25-079
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