1 SAMPLE AGREEMENT
PROFESSIONAL ARCHITECTURAL AND ENGINEERING DESIGN SERVICES FOR VISALIA CIVIC CENTER PHASE 3
This Agreement, entered into this ________ day of _ _______________, 2026, by and between the City of Visalia, hereinafter referred to as the “CITY”, and Darden Architects, Inc. hereinafter referred to as the “CONSULTANT”.
W I T N E S S E T H
WHEREAS, the CITY is authorized and empowered to employ cons ultants 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 SCOPE OF WORK, which along with the response submitted by CONSULTANT is attached as Exhibit “A”, and hereinafter referred to as the “PROJECT”; and
WHEREAS, the CONSULTANT represents it is licensed, qualified and willing to provide such services pursuant to terms and conditions of this Agreement.
NOW, THEREFORE, CITY and CONSULTANT agree as follows:
I. SERVICES TO BE PERFORMED BY THE CONSULTANT
A. Authorized Scope of Work: The CONSULTANT agrees to perform all work necessary to complete in a manner satisfactory to the CITY those tasks described in Exhibit “B” - Scope of Work, which shall be the Scope of Work for the project, unless the parties agree in writing to modify the Scope of Work, for the cost identified in Exhibit “C” - Project Fee.
B. Additional Services: Incidental work related to the PROJECT and not provided for in Exhibit “A” and Exhibit “B” may be needed during the performance of this Agreement. The CONSULTANT agrees to provide any and all additional services at the r ates identified in attached Exhibit “D” – Consultan t Schedule of Fees for Professional Services. Such a dditional services shall not be performed by CONSULTANT without the written consent of CITY.
C. In providing services under this Agreement, Cons ultant shall perform, consistent with but limited to, that degree of skill and care used by other reputable members of Consultants profession, practicing in the same or similar locality and under similar c ircumstances. Nothing in this Agreement shall be interpreted to require Consultant to meet any highe r standard of care, and this paragraph shall contro l over any such contrary provision. Consultant makes no warranties, guarantees, express or implied, under this Agreement or otherwise in connection with consultant’s services.
II. TIME OF PERFORMANCE
The CONSULTANT shall commence performance of this A greement within ten (10) days of the effective date on the Consultant’s written Notice t o Proceed and shall complete the work within the timeframes outlined in Exhibit “E” – Proposed Schedule, unless otherwise extended in writing by CITY, in its sole discretion.
2 If the CONSULTANT fails to complete the PROJECT wit hin the time specified, plus any extensions of time which may be granted, the CITY shall determine the percent of each work item completed and shall pay the CONSULTANT on that basis.
CONSULTANT shall not be responsible for delays whic h are due to causes beyond the CONSULTANT’s reasonable control. In the case of an y such delay, the time of completion shall be extended accordingly in a writing signed by both parties.
III. COMPENSATION
A. Total Compensation: For services performed purs uant to this Agreement, the CITY agrees to pay and the CONSULTANT agrees to accept, a lump sum amount of $________________________ as shown in Exhibit “C”. This amount shall constitu te complete compensation, including document production and out-of-pocket expenses for all services for the work and PROJECT identified in Exhibits “A” and “B”. CONSULTANT agrees these amounts, as a uthorized, will constitute complete compensation, including document production and out -of-pocket expenses, for services authorized by CITY for the PROJECT per the Scope of Work, Project Fees, and Schedule identified in Exhibit “A”, “B”, and “E”, respectively. No other compensation is authorized by this Agreement without separate written amendment.
B. Payment of Compensation: The CONSULTANT shall b e compensated no more than monthly, based on percentage of work of each noted phase com pleted to date. The CONSULTANT shall be paid no later than thirty (30) days following submi ssion of a written, verified billing to the CITY. S aid billing shall include the percentage of each task completed to date and since the date of the preceding billing, if any.
IV. AUTHORIZED REPRESENTATIVE
A. CITY: The City Manager shall represent the CITY in all matters pertaining to the services to be rendered under this Agreement, except where approva l of the City Council of the City of Visalia is specifically required.
B. CONSULTANT: Robert L. Petithomme shall represen t and act as principle for CONSULTANT in all matters pertaining to the services to be rendered by it under this Agreement.
V. 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 CONSULTANT may terminate this Agreement at any time by giving written notice to t he 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 m ay by written notice to the CONSULTANT specifying the effective date thereof, at least fif teen (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 CONSULTANT fails to perform the services called for by this Agreement within time(s) specified herein or any extension thereof; or
3 2. If the CONSULTANT fails to make progress under t his Agreement as to endanger performance of this Agreement in accordance with its terms, and does not correct such failure within a period of Thirty (30) 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 sub-consultan ts, the CONSULTANT shall not be liable for any excess costs if the failure to perform this Agreeme nt arises out of causes beyond the control and without the fault or negligence of the CONSULTANT. Such causes include, but are not limited to, acts of God or of the public enemy, floods, epidemi cs, quarantine restrictions, strikes, and unusually severe weather; but in the event the failure to perform is caused by the default of a sub- consultant, the CONSULTANT shall not be liable for failure to perform, unless the services to be furnished by the sub-consultant were obtainable fro m other sources in sufficient time and within budgeted resources to permit the CONSULTANT to meet the required delivery schedule or other performance requirements.
3. Should the Agreement be terminated with or with out cause, the CONSULTANT shall provide the CITY with all finished and unfinished documents, data, studies, services, drawings, maps, models, photographs, reports, etc., prepared by the CONSULT ANT pursuant to this Agreement.
4. Upon termination, with or without cause, CONSULT ANT 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 CONSULTANT exceed the total compensation agreed to herein.
5. If, after notice of termination of this Agreemen t, as provided for in this article, it is determine d for any reason that the CONSULTANT 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.
6. Termination of this Agreement shall not terminat e 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.
VI. INTEREST OF OFFICIALS AND THE CONSULTANT
A. No officer, member, or employee of the CITY who exercises any functions or responsibilities in the review or approval of this Agreement shall:
1. Participate in any decision relating to this Agr eement which effects his personal interest or the interest of any corporation, partnership, or association in which he has, directly or indirectly, any interest; or
2. Have any interest, direct or indirect, in this A greement or the proceeds thereof during his tenure or for one year thereafter.
4 B. The CONSULTANT hereby covenants that he has, at the time of the execution of this Agreement, no interest, and that he shall not acquire any interest in the future, direct or indirect, which would conflict in any manner or degree with the performance of ser vices required to be performed pursuant to this Agreement. The CONSULTANT further covenants that i n the performance of this work, no person having any such interest shall be employed.
VII DEPARTMENT OF INDUSTRIAL RELATIONS REQUIREMENTS , PUBLIC WORKS CONTRACTOR REGISTRATION PROGRAM AND PROJECT LABOR A GREEMENTS Notice is hereby given that this is a Public Works Project. A ll contractors and subcontractors bidding and performing work on Public Works Projects (including Consultants and Sub-Consultants who employ or subcontract workers to perform any trade that has a prevailing wage designation such as surveyor) must:
A. Register on an annual basis with the California Department of Industrial Relations (DIR) B. Furnish electronic payroll records for new proje cts to the Labor Commissioner.
All contractors and consultants are to be registere d at time of bid/proposal submittal and remain registered with the California Department of Indust rial Relations (DIR) throughout the duration of thi s Agreement.
If a project labor agreement (the term “project lab or agreement” is defined in Public Contract Code 2500(b)(1) as a pre-hire collective bargaining agre ement that establishes terms and conditions of employment for a specific construction project or p rojects and is an agreement described in Section 158(f) of Title 29 of the United States Code) is us ed, then it must comply with the taxpayer protectio n provisions set forth in Public Contract Code section 2500(a). City of Visalia has no ordinances requiring or prohibiting such agreements.
VIII CITY OF VISALIA LABOR COMPLIANCE MANUAL
Consultant shall comply with the City of Visalia Labor Compliance Manual which is attached to this Agreement as Exhibit “F” and available at visaliapurchasing.org .
IX NO PERSONNEL, AGENCY, OR COMMISSION
The CONSULTANT warrants, by execution of this Agree ment, that no personnel agency has been employed or retained to solicit or secure this cont ract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide established commercial or selling agencies maintained by the CONSULTANT for t he 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, brokera ge fee, gift, or contingent fee.
X. SUBCONTRACTING
A. The CONSULTANT shall not subcontract or otherwis e assign any portion of the work to be performed under this Agreement without the prior wr itten approval of the CITY.
B. In no event shall the CONSULTANT subcontract wor k in excess of 50% of the contract amount, excluding specialized services. Specialized servic es are those items not ordinarily furnished by a consultant performing the particular type of project.
5 XI. INDEPENDENT CONTRACTOR
In the performance of the services herein provided for, the CONSULTANT shall be, and is, an independent contractor and is not an agent or employee of the CITY. The CONSULTANT has and shall retain the right to exercise full control and supervision of all persons assisting the CONSULTANT in the performance of said services hereunder. The CONSULTANT 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., eithe r 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 modi fied in writing to incorporate such changes.
XIII. DOCUMENTS/DATA
A. Ownership of Documents: All original papers an d 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, including drawings and specifications, p repared by CONSULTANT pursuant to this Agreement, are not intended or represented to be su itable for reuse by CITY or others on extensions of the PROJECT or on any other project. Any use of the completed documents for other projects and any use of incomplete documents without the specific written authorization from CONSULTANT will be at CITY’s sole risk and without liability to CONSUL TANT. Further, any and all liability arising out o f changes made to CONSULTANT’s deliverables under thi s Agreement by CITY or persons other than CONSULTANT is waived as against CONSULTANT, and the CITY assumes full responsibility for such changes unless the CITY has given CONSULTANT prior notice and has received from CONSULTANT written consent for such changes.
B. Publication: No report, information, or other data given or prepared or assembled by the CONSULTANT pursuant to this Agreement, shall be mad e available to any individual or organization by the CONSULTANT without the prior written approva l of the CITY. Notwithstanding the foregoing, however, the CONSULTANT shall not be required to pr otect or hold in confidence and confidential information which (1) is or becomes available to th e public with the prior written consent of the CITY ; (2) must be disclosed to comply with law; or (3) mu st be disclosed in connection with any legal proceedings.
C. Copyrights: The CONSULTANT shall be free to cop yright material developed under this Agreement with the provision that the CITY be given a nonexcl usive and irrevocable license to reproduce, publish or otherwise use, and to authorize others t o use the material for government or public purposes. Should CONSULTANT place a copyright noti ce on documents it must state, “City of Visalia holds a nonexclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use the material for government or public purposes.”
6 XIV. INDEMNIFICATION AND INSURANCE
As respects acts, errors, or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless CITY, its elected and appointed officers, and employees from and against any and all claims, demands, losses, reasonable defense costs including attorney fees incurred by CITY, or liability, whether actual, alleged, or threatened, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT 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. In no event shall the reasonable defense costs requ ired to be paid by the CONSULTANT under this provision exce ed the CONSULTANT’S proportion percentage of fault.
A. CITY agrees to indemnify and hold harmless CONSU LTANT, its officers, employees, and designated volunteers from and against any and all losses, defense costs, or liability to the extent arising out of CITY’S negligent acts, errors or omissions in the performance of this Agreement.
B. As respects all acts or omissions which do not a rise directly out of the performance of services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, CONSULTANT agrees to indemnify, but not defend (at CITY’s option), and hold harmless CITY, its elected and appointed officers, and employees from and against any and all claims, demands, reasonable defense costs, or liability of any kind or nature but only to the extent actually arising o ut of or in connection with CONSULTANT’s (or CONSULTANT’s subcontractors, if any) performance or failure to perform, under the terms of this Agreeme nt; except to the extent those which arise out of the negligence of CITY.
C. Notwithstanding any other provision of this Agre ement, and to the fullest extent permitted by law, neither the CITY nor the CONSULTANT, their respecti ve officers, directors, partners, employees, contractors or subconsultants shall be liable to th e other or shall make any claim for any remote or speculative breach of contract damages that the bre aching party could not have reasonably foreseen when entering into this Agreement. To the extent t his Agreement is considered a “Construction Contract” as defined by California Civil Code secti on 2783, CONSULTANT’s duty to indemnify CITY under this or any other provision of the Agreement shall not apply when to do so would be prohibited by California Civil Code section 2782.
D. Without limiting CITY’s right to indemnification , it is agreed that CONSULTANT shall secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage as follows:
1. Workers’ compensation insurance as required by C alifornia statues.
2. Commercial general liability insurance with a co mbined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insuranc e shall include coverage for Premises and Operations, Contractual Liability for non-professio nal services, Personal Injury Liability, Products and Completed Operations Liability, Broad Form Prop erty Damage (if applicable), Independent Contractor’s Liability (if applicable).
3. Professional liability insurance coverage, in an amount not less than One Million Dollars ($1,000,000).
7 4. 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 provi ded by a business automobile policy.
E. CITY’S Risk Manager is hereby authorized to redu ce the requirements set forth above in the event he/she determines that such reduction is in the CITY’S best interest.
F. CONSULTANT agrees to provide thirty (30) days wr itten notice of any policy cancellation, or non- renewal. Such notice shall be provided to the, City of Visalia, 707 W. Acequia, Visalia, CA 93291.
In addition, the commercial general liability and comprehensive automobile liability policies required by this Agreement shall contain the following clauses:
“It is agreed that any insurance maintained by the City of Visalia shall apply in excess of and not contribute with insurance provided by this policy.”
“The City of Visalia, its officers, agents, employe es, representatives and volunteers are added as additional insureds as respects operations and acti vities of, or on behalf of the named insured, performed under contract with the City of Visalia.”
G. Prior to commencing any work under this Agreemen t, CONSULTANT 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, CONSULTANT shall provide to CITY endorse ments 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 compa ny and shall include the signatory’s company affiliation and title. Should it be deemed necessary by CITY, it shall be CONSULTANT’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 per iod, copies of any insurance policies required under this Agreement.
H. In addition to any other remedies CITY may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to th e 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 CONSULTANT to stop work under this Agreeme nt and/or withhold any payment(s) which become due to CONSULTANT hereunder until CONSULTANT 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 CONSULTANT’s failure to maintain insurance or secure appropriate endorsements.
XV. NON-DISCRIMINATION
8 CONSULTANT and all subcontractors shall not discrim inate against any employee or applicant for employment on the basis of race, color, national or igin, or sex in the performance of this Agreement.
The CONSULTANT shall carry out applicable requireme nts of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements i s a material breach of this Agreement, which may result in the termination of this Agreement.
XVI. MISCELLANEOUS PROVISIONS
A. Asbestos and Hazardous Materials: In providing its services hereunder, CONSULTANT shall not be responsible for identification, handling, containment, abatement, or in any other respect, for any asbestos or hazardous material if such is present i n connection with the PROJECT. In the event the CITY becomes aware of the presence of asbestos or hazardous material at the jobsite, CITY shall be responsible for complying with all applica ble federal and state rules and regulations, and shall immediately notify CONSULTANT, who shall then be entitled to cease any of its services that may be affected by such presence, without liability to CONSULTANT arising therefrom.
B. Firearms Prohibited: Guns may not be carried by contractors/vendors/consultants while working on City of Visalia premises without the expressed writ ten approval of a City of Visalia Department Head, or an exemption in the contract. If a contrac tor/vendor/consultant is caught carrying a gun, without City permission, their contract will be terminated.
C. Successors and Assigns: This Agreement shall be binding upon and shall inure to the benefit of any successors to or assigns of the parties.
D. Prohibition of Assignment: Neither the CITY nor CONSULTANT shall assign, delegate or transfer their rights and duties in this Agreement without the written consent of the other party.
E. Dispute/Governing Law:
In the event of any dispute between the Parties related to this Agreement or this Project, the Parties agree to first negotiate in good faith toward a resolution with participation by representatives of each Party holding sufficient authority to resolve the dispute. If such dispute cannot be resolved in this manner, before any action or litigation is initiated other than as required to secure lien rights, the dispute shall be submitt ed to mediation using the American Arbitration Association or another mediator as mutually selecte d by the Parties. Such mediation shall be completed within a reasonable period of time follow ing either Party’s written demand with each Party to bear an equal share of the mediation fees and its own respective attorney and consultant fees and costs. Any dispute not resolvable by infor mal arbitration between the parties to this Agreement shall be adjudicated in a Court of Law under the laws of the State of California.
F. Notices: Notice shall be sufficient hereunder i f personally served upon the City Clerk of the CITY or an officer or principal of the CONSULTANT, or if sent via the United States Postal Service, postage prepaid, addressed as follows:
CITY OF VISALIA
707 W. Acequia Ave.
Visalia, CA 93291
Attention: City Clerk
CONSULTANT
DARDEN ARCHITECTS
6790 N. West Ave
Fresno, CA 93711
Attention: Robert Petithomme
Phone: (559) 448-8051
Email:
[email protected]
9 G. Jurisdiction/Venue/Waiver of Removal: This Agre ement shall be administered and interpreted under the laws of the State of California. Jurisdic tion of litigation arising from this Agreement shal l 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 Count y, California. The CONSULTANT 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.
H. Integration/Modification: This Agreement and ea ch of the exhibits referenced herein, which are incorporated by reference, represents the entire understanding of the CITY and the CONSULTANT 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 CONSULTANT.
I. Conflict With Law: If any part of this Agreemen t 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.
J. Attorney’s Fees: In the event either party comm ences 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 fee s and court costs incurred in the action brought thereon.
K. 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.
L. Authority: Each signatory to this Agreement rep resents that it is authorized to enter into this Agreement and to bind the party to which its signature represents.
M. Headings: Section headings are provided for org anizational purposes only and do not in any manner affect the scope or intent of the provisions thereunder.
IN WITNESS WHEREOF , this Agreement is executed on the day and year first above written.
CITY OF VISALIA CONSULTANT
___________________________ _______________________ ____ City Manager
APPROVED AS TO FORM
__________________________________
City Attorney
_________________________________
Risk Manager
_________________________________
Project Manager
10 Attachments:
Exhibit A: Project
Exhibit B: Scope of Work
Exhibit C: Project Fee
Exhibit D: Consultant Schedule of Fees
Exhibit E: Proposed Schedule
Exhibit F: Visalia Labor Compliance Manual