Attachment_B_-_Tustin_Consultant_Services_Agreement.pdf

CONSULTANT SERVICES AGREEMENT

This Agreement for Consultant Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation ("City"), and ____________________________ ("Consultant").

WHEREAS, City is in need of qualified services to [BRIEFLY DESCRIBE NEEDED SERVICES]; and

WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide such services; and

WHEREAS, Consultant submitted to City a proposal, dated ______________, a copy of which is attached hereto as Exhibit "A" (referred to herein as the “Proposal”.)

NOW, THEREFORE, in consideration of the mutual agreements contained herein, City agrees to retain the services of Consultant, and Consultant agrees to provide consulting services as follows:

1. SERVICES OF CONSULTANT

1.1 Proposal and Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the Proposal (the "services" or the "work"). Consultant warrants that all services shall be performed in a competent, professional, and satisfactory manner in accordance with all standards prevalent in the industry.

1.1.1 Resolution of Inconsistencies Between Agreement and

Proposal. In the event of any inconsistency between the terms contained in the Proposal and specific terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern.

1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all applicable Federal, state and local laws, ordinances, resolutions, statutes, rules, and regulations (collectively, the “Applicable Law”.)

1.3 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by Applicable Law.

1.4 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (a) has thoroughly investigated and considered the work to be performed, (b) has investigated the site of the work and become fully acquainted with the conditions there existing, (c) has carefully considered how the work should be performed, and (d) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, Consultant shall immediately inform City of such fact and shall not proceed with any work except at Consultant's risk until written instructions are received from the Contract Officer.

1.5 Care of Work. Consultant shall adopt and follow reasonable procedures and methods during the term of the Agreement to prevent loss or damage to materials, papers or other components of the work, and shall be responsible for all such damage until acceptance of the work by City.

1.6 Additional Services. Consultant shall perform services in addition to those specified in the Proposal when directed to do so in writing by the Contract Officer, provided that Consultant shall not be required to perform any additional services without compensation. Any additional compensation not exceeding ten percent (10%) of the original contract sum must be approved in writing by the Contract Officer. Any greater increase must be approved in writing by the City Manager.

2. COMPENSATION

2.1 Compensation of Consultant. For the services rendered

pursuant to this Agreement, the Consultant shall be compensated and reimbursed only for such services and such amounts as are expressly prescribed in Exhibit “A”, in amounts that cumulatively shall not to exceed [INSERT NOT-TO-EXCEED DOLLAR AMOUNT]. Notwithstanding any provision to the contrary in Exhibit A, the City will not compensate or reimburse Consultant for travel expenses or travel time except specific travel time and expenses approved in advance in writing by the Contract Officer.

THE MAXIMUM AMOUNT OF CITY’S OBLIGATION UNDER THIS

AGREEMENT IS THE AMOUNT SPECIFIED IN THIS SECTION. IF THE

CITY’S MAXIMUM OBLIGATION IS REACHED BEFORE THE CONSULTANT’S

SERVICES UNDER THIS AGREEMENT ARE COMPLETED, CONSULTANT

WILL NEVERTHELESS COMPLETE THE SERVICES WITHOUT LIABILITY ON

THE CITY’S PART FOR FURTHER PAYMENT BEYOND THE MAXIMUM

AMOUNT.

2.2 Method of Payment. In any month in which Consultant wishes to receive payment, Consultant shall, no later than the first working day of such month, submit to City in the form approved by City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City will pay Consultant for all undisputed expenses stated thereon which are approved by City consistent with this Agreement, within thirty (30) days of receipt by the Director of Finance of the invoice.

2.3 Changes. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional Consultant's fees. Addenda may be entered into:

2.3.1 To provide for revisions or modifications to documents

or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work;

2.3.2 To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession.

2.4 Payment for Changes. Changes approved pursuant to an

Addendum shall be compensated at the personnel hourly rates prescribed in Exhibit "A" hereto.

3. PERFORMANCE SCHEDULE

3.1 Time of Essence. Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto. The extension of any time period specified in the Schedule of Performance must be approved in writing by the Contract Officer.

3.3 Force Majeure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather, if the Consultant shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement.

3.4 Term. Unless earlier terminated in accordance with Section 7.5, 7.6, or 7,7 of this Agreement, the term of this Agreement shall be the shorter of:

(a) the period of time described in the Schedule of Performance as the same may be extended pursuant to section 3.2, or (b) until satisfactory completion of the services.

4. COORDINATION OF WORK

4.1 Representative of Consultant. The following principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: [INSERT THE NAME OF THE INDIVIDUAL PRINCIPAL OF THE CONSULTANT] (“Principal”)

It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of Contract Officer.

4.2 Contract Officer. The Contract Officer shall be [INSERT THE

TITLE OF POSITION THAT WILL BE CONTRACT OFFICER, NOT THE NAME

OF AN INDIVIDUAL CITY EMPLOYEE]. It shall be the Consultant's responsibility to keep the Contract Officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer.

4.3 Prohibition Against Subcontracting or Assignment. The

experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement.

Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the Contract Officer. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of Contract Officer.

4.4 Independent Contractor. Neither the City nor any of its

employees shall have any control over the manner, mode or means by which Consultant, its agents or employees perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role.

Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Consultant shall be solely responsible for compliance with State and Federal Law with respect to the wages, hours, benefits, and working conditions of its employees, including requirement for payroll deductions for taxes. Employees or independent contractors of Consultant are not City employees.

5. INSURANCE / INDEMNIFICATION

5.1 Insurance.

5.1.1. Consultant shall maintain in full force and effect during the term of these Agreement policies of commercial general liability and automobile liability insurance (each of which shall include property damage and bodily injury) and each with limits of at least $2,000,000 combined single limit coverage per occurrence.

5.1.2. [INCLUDE THIS SUBSECTION WHEN RETAINING

PROFESSIONAL SERVICES] Consultant shall maintain in full force and effect during the term of this Agreement a policy of professional liability insurance coverage with limits of at least $2,000,000 [CONFIRM WITH CITY’S RISK MANAGER] combined single limit coverage per claim or per occurrence. If Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement or to cover claims made within five (5) years of the completion of Consultant’s service under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least five (5) years after completion of Consultant’s services under this Agreement with “prior acts” coverage covering all dates during the performance of the services under this Agreement. Consultant shall also provide evidence to the City of the purchase of the required tail insurance or continuation of the professional liability policy.

5.1.3. Consultant shall carry and pay for such workers’

compensation insurance as is required to fully protect Consultant and its employees under California Worker’s Compensation Insurance Law. The insurance company shall by endorsement waive all rights of subrogation against the City for losses paid under the policy. Consultant on its own behalf and on behalf of all those it may lawfully bind hereby also waives all rights of subrogation for losses or paid on behalf of others in connection with the performance of services under this Agreement.

5.1.4. Consultant shall, at no cost to the City, cause its

insurer(s) to meet the following insurance requirements prior to the commencement of services.

5.1.4.1 By endorsement, name the City and its elected

and appointed officials and employees as additional insureds on the commercial general and automobile liability policies.

5.1.4.2 The insurance shall be issued by a company

authorized by the Insurance Department of the State of California and rated A, VII or better (if an admitted carrier) or A-, X (if offered, by a surplus line broker), by the latest edition of Best’s Key Rating Guide, except that the City will accept workers’ compensation insurance rated B-VIII or better or from the State Compensation Fund.

5.1.4.3 By endorsement, the insurer shall confirm that

the Insurance shall not be cancelled except after thirty (30) days prior written notice from the insurer to the City, except in the case of non-payment of premium, in which case at least ten (10) calendar days prior written notice shall be provided from the insurer to the City.

5.1.4.4 The commercial general and automobile liability

insurance shall each be primary as respects the City, and any other insurance maintained by the City shall be in excess of this insurance and not contribute to it.

5.1.4.5 The insurance payable by each insurance

policy carried by the Consultant shall be the limits stated herein or the actual limits of the policy, whichever is greater.

5.1.5. Upon execution of this Agreement, Consultant shall

provide to City certificates of insurance and insurer endorsements evidencing the required insurance. Insurer endorsements (or a copy of the policy binder if applicable) shall be provided as evidence of meeting the requirements of Subsections 5.1.4.1, and 5.1.4.3, and 5.1.4.4 above and the waiver of subrogation requirement in Section 5.1.3 above. If self-insured for worker’s compensation, Consultant shall submit to City a copy of its certification of self-insurance issued by the Department of Industrial Relations.

5.2 Indemnification. The Consultant shall defend, indemnify and hold harmless the City, its elected and appointed officers, employees, volunteers, and agents, and for any project pursued jointly with one or more other public agencies, the joint agency(ies) (collectively the “Indemnitees”) from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person or persons, for damage to property, including property owned by City (collectively “Claims”) arising from errors, omissions or willful acts of Consultant, its officers, employees, subcontractors, subconsultants, and agents, and arising out of or related to Consultant's performance under this Agreement, except for such loss as may be caused by City's sole active negligence or willful misconduct, or that of one or more Indemnitees.

5.2.1 The Consultant shall also defend, indemnify and hold

the City harmless from any claims or liability for City health and welfare, retirement benefits, or any other benefits of part-time or fulltime City employment sought by Consultant’s officers, employees, or independent contractors, whether sought by legal action, administrative proceeding or pursuant to State statute.

5.2.2 If the Consultant is a “design professional” (as defined in California Civil Code section 2782.8) performing design professional services, then sections 5.2 and 5.2.1 above shall not apply, and Consultant shall instead indemnify and defend the Indemnitiees against all Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant or its employees or subconsultants, if any. When this section 5.2.2 applies, Consultant’s cost to defend shall not exceed the proportionate percentage of fault of Consultant and its employees and subconsultants as determined by final judgment.

6. RECORDS AND REPORTS

6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require.

6.2 Records. Consultant shall keep such books and records as

shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to document and evaluate the performance of such services. The Contract Officer 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.

6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of this Agreement shall be the property of City, including all rights arising under Copyright and other intellectual property laws, and shall be delivered to City upon request of the Contract Officer or upon the expiration or termination of this Agreement, and Consultant shall have no claim for additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Consultant may retain a copy of such documents for its own reference, but no additional copy shall be made without the written consent from City.

6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.

7. ENFORCEMENT OF AGREEMENT

7.1 California Law. This Agreement shall be construed and

interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in the Count of Orange, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

7.2 Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

7.3 Rights and Remedies are Cumulative. 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 or any other default by the other party.

7.4 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement.

7.5 Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon written notice to Consultant. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved in writing by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized in writing by the Contract Officer thereafter.

7.6 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated, provided that the City shall use reasonable efforts to mitigate damages, and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed to City.

7.7 Non-Appropriation of Funds. City’s financial obligations

under this Agreement beyond the initial fiscal year, if any, are contingent upon the Tustin City Council’s appropriation of funds for such purpose. If the Tustin City Council does not appropriate the necessary funds for the subsequent fiscal year, this Agreement shall terminate at the end of the then-most recent fiscal year for which funds were appropriated. The City shall provide Consultant with written notice of such non-appropriation at the earliest possible opportunity, but no later than thirty (30) days prior to the commencement of the new fiscal year, or as soon as the City Council’s budget decision is finalized. In the event of termination under this section, City shall not be liable for any further payments, penalties, or damages (including loss of anticipated profits) for the periods following the date of termination.

7.8 Attorneys’ Fees. If either party commences a legal action against the other party arising out of or in connection with this Agreement or its subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the other party. “Reasonable attorney fees” refers to the reasonable number of hours actually spent by the prevailing party’s attorneys in pursuing or defending against the legal action, including appeals if any, multiplied by the hourly rate actually charged to the prevailing party by its attorneys, but not to exceed $300 per hour. No “lodestar multiplier” shall be applied.

8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION

8.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any other party, in the event of any default or breach by the City or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry. Consultant shall take affirmative action to ensure that applicants and employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry.

9. MISCELLANEOUS PROVISIONS

9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section.

To City: To Consultant:

CITY OF TUSTIN

300 Centennial Way Tustin, CA 92780 Attention: [INSERT TITLE OF CONTRACT

OFFICER, NOT INDIVIDUAL’S NAME]

Attention:

9.2 Integrated Agreement. This Agreement contains all of the

agreements of the parties, supersedes all prior written and verbal discussions preceding it.

9.3 Amendment. This Agreement may be amended by mutual

written consent of the parties by an instrument in writing signed by both parties.

9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder.

9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below.

Dated:

"City"

CITY OF TUSTIN

By:

APPROVED AS TO FORM:

WOODRUFF & SMART, APC.

City Attorney

"Consultant"

[NAME]

By:

EXHIBIT "A"

PROPOSAL

Attached hereto is the Proposal, including:

Scope of Services

Schedule of Performance

Hourly rates (or other specified manner of calculating compensation for the agreed-upon services).