PROFESSIONAL SERVICES AGREEMENT
College of the Sequoias Training Resource Center for Visalia Customized Training This Agreement, entered into as of July 1, 2023, by and between the City of Visalia, hereinafter referred to as the “CITY”, and College of the Sequoias Training Resource Center hereinafter referred to as the “TRC”.
W I T N E S S E T H
WHEREAS, CITY is committed to enhancing economic development opportunities and maintaining the CITY’s role as the regional commercial and industrial center for Tulare, Kings and southern Fresno Counties; and WHEREAS, to help achieve economic growth for its citizens, CITY must retain, grow and attract “primary” industries, that is, industry that make products and services that are sold outside of the CITY thereby creating new wealth to be circulated within the CITY; and WHEREAS, a primary source of “primary” industries can be found in, or consider locating to, CITY’s Industrial Park, CITY should focus certain efforts on growing the Industrial Park; and WHEREAS, a consistent need among industrial sector employers in general and in the Industrial Park is a skilled workforce and as such regularly invest their time and resources into training their workforce; and WHEREAS, the TRC provides responsive, short-term, customized training solutions to employers across the region; and WHEREAS, the TRC manages the largest Employment Training Panel (ETP) Multiple Employer Contract in the San Joaquin Valley which provides a valuable incentive to employers to help encourage training investments into their workforce; and WHEREAS, the CITY realizes most job growth comes from the retention and expansion of local industries, the CITY is highly supportive of efforts to provide solutions to local employers’ needs; and WHEREAS, the CITY is authorized and empowered to employ consultants and specialists in the performance of its duties and functions; and WHEREAS, the CITY has the desire to secure certain technical and professional services to assist in the preparation and completion of the items of work described in Section I below, and hereinafter referred to as the “PROJECT”; and WHEREAS, the TRC represents it is qualified and willing to provide such services pursuant to terms and conditions of this Agreement.
NOW, THEREFORE, CITY and TRC agree as follows:
SERVICES TO BE PERFORMED BY THE TRC
Scope of Work: The TRC agrees to perform all work necessary to complete, in a manner satisfactory to the CITY, those tasks described below:
Locate a permanent training center for the term of the service contract in the Visalia Industrial Park (VIP) area Provide Visalia industrial employers convenient and timely access to customized training solutions Services could include allowing participating employers or workforce development and education partners to utilize the training center space to conduct skills assessment testing of hopeful VIP employees or VIP incumbent workers Conduct at least 8 training sessions in the VIP area
Train or conduct skills assessments for at least 80 individuals either currently employed in the VIP or seeking employment in the VIP At least 20 of these individuals should be trained or have skills assessments conducted pertaining to basic electrical skills, maintenance mechanic skills, programmable logic controllers (PLC), automation, or other in demand skills pertaining to manufacturing or maintenance mechanic occupations Assist employers with more information regarding establishment of apprenticeships where feasible Provide the CITY written progress reports in September, December, March and June of the contract term.
II. COORDINATION FROM CITY
CITY will regularly communicate any potentially applicable training requests to TRC staff CITY will assist in marketing the services of the TRC at the Industrial Park training center CITY will assist with outreach to local Visalia employers that could participate in organized trainings III. TIME OF PERFORMANCE
The term of this Agreement shall commence on July 1, 2023 and expire on June 30, 2024, unless earlier terminated by the parties. The contract shall be for a twelve (12) month period. Additionally, this Agreement may be terminated for convenience. In the event of termination or expiration of this Agreement, CONTRACTOR shall transfer to CITY any funds and/or accounts receivable on hand attributable to the use of CITY funds.
IV. PERFORMANCE REVIEW
The CITY shall review the performance and fees of TRC in furnishing the services provided hereunder, and the compensation provisions hereof. The parties may agree to changes or amendments hereto, including, but not necessarily limited to, changes in compensation provisions, which changes or amendments shall be evidenced by written amendment authorized by specific action of the City Council. Nothing in this paragraph shall be deemed to prevent or inhibit more frequent review of performance, compensation, or other matters relating to this Agreement or otherwise inhibit the free and candid exchange of views between the parties hereto, to the end that the legal interests of the CITY shall best be served and TRC shall fairly be compensated for services rendered.
V. COMPENSATION
Total Compensation: For services performed pursuant to this Agreement, the CITY agrees to pay and the TRC agrees to accept, seventy-five thousand dollars ($75,000).
Payment of Compensation: The TRC shall be compensated quarterly per CITY’s receipt of an invoice in September, December, March and June of the contract term.
VI. AUTHORIZED REPRESENTATIVE
CITY: The Economic Development Manager or their designee shall represent the CITY in all matters pertaining to the services to be rendered under this Agreement, except where approval of the City Council of the City of Visalia is specifically required.
TRC: The TRC Executive Director or designee shall represent and act as principle for TRC in all matters pertaining to the services to be rendered by it under this Agreement.
VII. TERMINATION
The right to terminate this Agreement, with or without cause, may be exercised without prejudice to any other right or remedy to which the terminating party may be entitled at law or under this Agreement.
A. Termination By Either Party Without Cause: The CITY or TRC may terminate this Agreement at any time by giving written notice to the other of such termination and specifying the effective date thereof, at least fifteen (15) days before the effective date of such termination.
B. Termination of Agreement for Cause: The CITY may by written notice to the TRC specifying the effective date thereof, at least fifteen (15) days before the effective date of such termination, terminate the whole or any part of this Agreement in any of the following circumstances:
1. If the TRC fails to perform the services called for by this Agreement within time(s) specified herein or any extension thereof; or
2. If the TRC fails to make progress under this Agreement as to endanger performance of this Agreement in accordance with its terms, and does not correct such failure within a period of ten (10) days (or longer period as the CITY may authorize in writing) after receipt of notice from the CITY specifying such failure.
C. Post-Termination:
1. In the event the CITY terminates this Agreement with or without cause, the CITY may procure, upon such terms and such manner as it may determine appropriate, services similar to those terminated.
2. Except with respect to defaults of subcontractors, the TRC shall not be liable for any excess costs if the failure to perform this Agreement arises out of causes beyond the control and without the fault or negligence of the TRC. Such causes include, but are not limited to, acts of God or of the public enemy, floods, epidemics, quarantine restrictions, strikes, and unusually severe weather; but in the event the failure to perform is caused by the default of a subcontractors, the TRC shall not be liable for failure to perform, unless the services to be furnished by the subcontractors were obtainable from other sources in sufficient time and within budgeted resources to permit the TRC to meet the required delivery schedule or other performance requirements.
3. Should the Agreement be terminated with or without cause, the TRC shall provide the CITY with all finished and unfinished documents, data, studies, services, drawings, maps, models, photographs, reports, etc., prepared by the TRC pursuant to this Agreement.
4. Upon termination, with or without cause, TRC will be compensated for the services satisfactorily completed to the date of termination according to compensation provisions contained herein. In no event, shall the total compensation paid TRC exceed the total compensation agreed to herein.
If, after notice of termination of this Agreement, as provided for in this article, it is determined for any reason that the TRC was not in default under the provisions of this article, then the rights and obligations of the parties shall be the same as if the Agreement was terminated without cause.
Termination of this Agreement shall not terminate any obligation to indemnify, to maintain and make available any records pertaining to the Agreement, to cooperate with any audit, to be subject to offset, or to make any reports of pre-termination activities.
VIII. INTEREST OF OFFICIALS AND THE TRC
No officer, member, or employee of the CITY who exercises any functions or responsibilities in the review or approval of this Agreement shall:
Participate in any decision relating to this Agreement which effects his/her personal interest or the interest of any corporation, partnership, or association in which he/she has, directly or indirectly, any interest; or Have any interest, direct or indirect, in this Agreement or the proceeds thereof during his/her tenure or for one year thereafter.
IX. NO PERSONNEL AGENCY OR COMMISSION
The TRC warrants, by execution of this Agreement, that no personnel agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide established commercial or selling agencies maintained by the TRC for the purpose of securing business. For breach or violation of this warranty, the CITY shall have the right to annul this Agreement without liability or, in its discretion, to deduct from this Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.
X. SUBCONTRACTING
The TRC shall not subcontract or otherwise assign any portion of the work to be performed under this Agreement without the prior written approval of the CITY.
In no event shall the TRC subcontract work in excess of 50% of the contract amount, excluding specialized services. Specialized services are those items not ordinarily furnished by a TRC performing the particular type of project.
XI. INDEPENDENT CONTRACTOR
In the performance of the services herein provided for, the TRC shall be, and is, an independent contractor and is not an agent or employee of the CITY. The TRC has and shall retain the right to exercise full control and supervision of all persons assisting the TRC in the performance of said services hereunder. The TRC shall be solely responsible for all matters relating to the payment of its employees including compliance with social security and income tax withholding and all other regulations governing such matters.
XII. SPECIFICATIONS
All specifications, manuals, standards, etc., either attached to this Agreement or incorporated by reference, are binding as to the performance of the work specified in this Agreement unless they are changed by written amendment to this Agreement modified in writing to incorporate such changes.
XIII. DOCUMENTS/DATA
A. Ownership of Documents: All original papers and documents, produced as a result of this Agreement, shall become the property of the CITY. In addition, CITY shall be provided with access and use of any other papers and documents consistent with the purpose and scope of services covered by this Agreement. Any additional copies, not otherwise provided for herein, shall be the responsibility of the CITY.
Documents prepared by TRC pursuant to this Agreement, are not intended or represented to be suitable for reuse by CITY or others. Any use of the completed documents for other projects and any use of incomplete documents without the specific written authorization from TRC will be at CITY’s sole risk and without liability to TRC. Further, any and all liability arising out of changes made to TRC’s deliverables under this Agreement by CITY or persons other than TRC is waived as against TRC, and the CITY assumes full responsibility for such changes unless the CITY has given TRC prior notice and has received from TRC written consent for such changes.
B. Publication: No report, information, or other data given or prepared or assembled by the TRC pursuant to this Agreement, shall be made available to any individual or organization by the TRC without the prior written approval of the CITY. Notwithstanding the foregoing, however, the TRC shall not be required to protect or hold in confidence and confidential information which (1) is or becomes available to the public with the prior written consent of the CITY; (2) must be disclosed to comply with law; or (3) must be disclosed in connection with any legal proceedings.
C. Copyrights: The TRC shall be free to copyright material developed under this Agreement with the provision that the CITY be given a nonexclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use the material for government or public purposes.
XIV. INDEMNIFICATION AND INSURANCE
As respects acts, errors, or omissions in the performance of services, TRC agrees to indemnify and hold harmless CITY, its elected and appointed officers, employees, and CITY designated volunteers from and against any and all claims, demands, losses, defense costs, liability or consequential damages arising directly out of TRC’s negligent acts, errors or omissions in the performance of his/her services under the terms of this Agreement, except to the extent those arise out of the negligence of CITY.
CITY agrees to indemnify and hold harmless TRC, its officers, employees, and designated volunteers from and against any and all losses, defense costs, liability or consequential damages to the extent arising out of CITY’S negligent acts, errors or omissions in the performance of this Agreement.
As respects all acts or omissions which do not arise directly out of the performance of services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, TRC agrees to indemnify, defend (at CITY’s option), and hold harmless CITY, its elected and appointed officers, agents, employees, representatives, and volunteers from and against any and all claims, demands, defense costs, liability, or consequential damages of any kind or nature arising out of or in connection with TRC’s (or TRC’s subcontractors, if any) performance or failure to perform, under the terms of this Agreement; except to the extent those which arise out of the negligence of CITY.
Without limiting CITY’s right to indemnification, it is agreed that TRC shall secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage as follows:
Workers’ compensation insurance as required by California statues.
Professional liability insurance coverage, in an amount not less than One Million Dollars ($1,000,000).
Comprehensive Automobile Liability coverage with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles and shall be provided by a business automobile policy.
CITY’S Risk Manager is hereby authorized to reduce the requirements set forth above in the event he/she determines that such reduction is in the CITY’S best interest.
Each insurance policy required by this Agreement shall contain the following clause:
“This insurance shall not be canceled, limited in scope or coverage, or non-renewed until after thirty (30) days prior written notice has been given to the City Clerk, City of Visalia, 707 W. Acequia, Visalia, CA 93291.” Prior to commencing any work under this Agreement, TRC shall deliver to CITY insurance certificates confirming the existence of the insurance required by this Agreement, and including the applicable clauses referenced above. Within thirty (30) days of the execution date of this Agreement, TRC shall provide to CITY endorsements to the above-required policies, which add to these policies the applicable clauses referenced above. Said endorsements shall be signed by an authorized representative of the insurance company and shall include the signatory’s company affiliation and title. Should it be deemed necessary by CITY, it shall be TRC’s responsibility to see that CITY receives documentation acceptable to CITY which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company. CITY has the right to demand, and to receive within a reasonable time period, copies of any insurance policies required under this Agreement.
In addition to any other remedies CITY may have if TRC fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, CITY may, at its sole option:
1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; or
2. Order TRC to stop work under this Agreement and/or withhold any payment(s) which become due to TRC hereunder until TRC demonstrates compliance with the requirements hereof; or
3. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies CITY may have and is not the exclusive remedy for TRC’s failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to which TRC may be held responsible for payments of damages to persons or property resulting from TRC’s or its subcontractor’s performance of the work covered under this Agreement.
XV. NON-DISCRIMINATION
TRC and all subcontractors shall not discriminate against any employee or applicant for employment on the basis of race, color, national origin, or sex in the performance of this Agreement. The TRC shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement.
XVI. MISCELLANEOUS PROVISIONS
Successors and Assigns: This Agreement shall be binding upon and shall inure to the benefit of any successors to or assigns of the parties.
Prohibition of Assignment: Neither the CITY nor TRC shall assign, delegate or transfer their rights and duties in this Agreement without the written consent of the other party.
Dispute/Governing Law: Any dispute not resolvable by informal arbitration between the parties to this Agreement shall be adjudicated in a Court of Law under the laws of the State of California.
Notices: Notice shall be sufficient hereunder if personally served upon the City Clerk of the CITY or an officer or principal of the TRC, or if sent via the United States Postal Service, postage prepaid, addressed as follows:
CITY OF VISALIA
220 N. Santa Fe St.
Visalia, CA 93292
Attention: City Clerk
COS TRAINING RESOURCE CENTER
4999 E. Bardsley Ave
Tulare, CA 93274
Attention: TRC Executive Director
Jurisdiction/Venue/Waiver Of Removal: This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be in that State. Any action brought to interpret or enforce this Agreement, or any of the terms or conditions hereof, shall be brought in Tulare County, California. The TRC hereby expressly waives any right to remove any action to a county other than Tulare County as permitted pursuant to Section 394 of the California Code of Civil Procedure.
Integration/Modification: This Agreement and each of the exhibits referenced herein, which are incorporated by reference, represents the entire understanding of the CITY and the TRC as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing signed by the CITY and the TRC.
Conflict With Law: If any part of this Agreement is found to be in conflict with applicable laws, such part shall be inoperative, null and void insofar as it is in conflict with said law, but the remainder of the Agreement shall be in full force and effect.
Attorney’s Fees: In the event either party commences any action, arbitration or legal proceedings for the enforcement of this Agreement, the prevailing party, as determined by the court or arbitrator, shall be entitled to recovery of its attorney’s fees and court costs incurred in the action brought thereon.
Construction: This Agreement is the product of negotiation and compromise on the part of each party and the parties agree, notwithstanding Civil Code Section 1654, that in the event of uncertainty the language will not be construed against the party causing the uncertainty to exist.
Authority: Each signatory to this Agreement represents that it is authorized to enter into this Agreement and to bind the party to which its signature represents.
Headings: Section headings are provided for organizational purposes only and do not in any manner affect the scope or intent of the provisions thereunder.
CITY OF VISALIA TRC
__________________________________ __________________________________ City Manager Date Executive Director Date
Approved as to Form
__________________________________
City Attorney Date
__________________________________
Risk Manager Date
TRC - Visalia Customized Training