Standard_-_Department_-_Professional_Services_Agreement.pdf

1253025.1

PROFESSIONAL SERVICES AGREEMENT

This Agreement for Professional Services (herein "Agreement"), is made and entered into this DATE ("Effective Date"), by and between the CITY OF TUSTIN, a municipal corporation ("City"), and CONTRACTOR, a California Corporation ("Contractor").

WHEREAS, the City desires to retain CONTRACTOR as a consultant to

INSERT PROJECT;

WHEREAS, Contractor submitted to City a proposal, dated DATE, a copy of which is attached hereto as Exhibit "A" (“Proposal”), and which is incorporated herein by this reference;

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

WHEREAS, City desires to retain Contractor to provide the necessary services subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Contractor agree as follows:

1. SERVICES OF CONTRACTOR

1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide those services specified in the Proposal (the "Services" or the "Work"). Contractor warrants that all Services shall be performed in a competent, professional, and satisfactory manner in accordance with all standards prevalent in the industry. In the event of any inconsistency between the terms contained in 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 laws, ordinances, resolutions, statutes, rules, and regulations of the City of Tustin and of any federal, state or local governmental agency of competent jurisdiction.

1.3 Licenses and Permits. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the Services required by this Agreement.

1.4 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (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 Contractor discover any latent or unknown conditions materially differing from those inherent in the Work or as represented by the City, Contractor shall immediately inform City of such fact and shall not proceed with any Work except at Contractor's risk until written instructions are received from the Contract Officer.

1.5 Care of Work. Contractor 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, except such loss or damages as may be caused by City's own negligence.

1.6 Additional Services. Contractor shall perform services in addition to those specified in the Proposal when directed to do so in writing by the Contract Officer, provided that Contractor 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 Contractor. For the Services rendered

pursuant to this Agreement, the Contractor shall be compensated and reimbursed only for such Services and such amounts as are expressly prescribed in the Proposal, in an amount not to exceed AMOUNT (AMOUNT).

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 CONTRACTOR’S SERVICES

UNDER THIS AGREEMENT ARE COMPLETED, CONTRACTOR 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 Contractor wishes to receive payment, Contractor 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 shall pay Contractor for all expenses stated thereon which are approved by City consistent with this Agreement, no later than the last working day of said month.

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 Contractor's fees. Addenda may be entered into:

A. 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;

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

2.4 Payment for Changes. Changes approved pursuant to an

Addendum shall be compensated at the personnel hourly rates prescribed in the Proposal.

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 the Proposal.

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 Contractor, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Contractor 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 Sections

7.6 or 7.7 of this Agreement, this Agreement shall continue in full force and effect until satisfactory completion of the services but not exceeding AMOUNT from the date hereof for one year, unless extended by mutual written agreement of the parties.

4. COORDINATION OF WORK

4.1 Representative of Contractor. The following Principal of the Contractor is hereby designated as being the principal and representative of Contractor authorized to act in its behalf with respect to the Work specified herein and make all decisions in connection therewith: NAME

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 Contractor and devoting sufficient time to personally supervise the Services hereunder. The foregoing Principal may not be changed by Contractor without the express written approval of City.

4.2 Contract Officer. The Contract Officer shall be the Director of Department. The Co-Contract Officer shall be the Assistant Director of Department.

It shall be the Contractor's responsibility to keep the Contract Officer, or the Co- Contract Officer in the Contract Officer's absence, fully informed of the progress of the performance of the Services and Contractor 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 or the Co-Contract Officer.

4.3 Prohibition Against Subcontracting or Assignment. The

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

Therefore, Contractor 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 City. 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 City.

4.4 Independent Contractor. Neither the City nor any of its

employees shall have any control over the manner, mode or means by which Contractor, its agents or employees perform the Services required herein, except as otherwise set forth herein. Contractor 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.

Contractor 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. Contractor 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 Contractor are not City employees.

5. INSURANCE / INDEMNIFICATION

5.1 Insurance Requirements

A. Types of Required Coverages. Contractor shall maintain in full force and effect during the term of this Agreement the following insurance policies:

(1) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 00 01, with minimum limits of at least $5,000,000 each occurrence, and if written with an aggregate, the aggregate shall be double the each occurrence limit.

(2) Products-Completed Operations: Contractor shall procure and submit to City evidence of insurance for a period of at least three (3) years from the time that all Work under this contract is completed.

(3) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Code 1) with minimum limits of $1,000,000 each accident.

(4) Professional Liability: Professional Liability insurance with minimum limits of $3,000,000 each claim. Covered Professional Services shall specifically include all Work to be performed under the contract and delete any exclusion that may potentially affect the Work to be performed.

(5) Workers’ Compensation: Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease.

B. Endorsements

Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval.

(1) The insurance coverages required by Section (1)

Commercial General Liability; and (3) Automobile Liability Insurance shall contain the following provisions or be endorsed to provide the following:

(a) Additional Insured: The City, its elected officials, officers, employees, volunteers, boards, agents and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Contract.

Additional Insured Endorsements shall not:

i. Exclude “Contractual Liability”

ii. Restrict coverage to the “Sole” liability of contractor

iii. Exclude “Third-Party-Over Action”

iv. Contain any other exclusion contrary to the

Contract

(b) Primary Insurance: This insurance shall be primary and any other insurance whether primary, excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement shall be in excess of and shall not contribute with this insurance.

(c) The policy or policies of insurance required by Section (5) Workers’ Compensation shall be endorsed, as follows:

i. Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties.

C. Notice of Cancellation

Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.

D. Evidence of Insurance

The Contractor, concurrently with the execution of this

Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

E. Deductible or Self-Insured Retention

Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.

F. Contractual Liability

The coverage provided shall apply to the obligations assumed by the Contractor under the indemnity provisions of this contract.

G. Failure to Maintain Coverage

Contractor agrees to suspend and cease all operations hereunder during such period of time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Contractor until Contractor has fully complied with the insurance provisions of this Contract.

In the event that the Contractor’s operations are suspended for failure to maintain required insurance coverage, the Contractor shall not be entitled to an extension of time for completion of the Work because of production lost during suspension.

H. Acceptability of Insurers

Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Any other rating must be approved in writing in accordance with the City.

I. Claims Made Policies

If coverage is written on a claims-made basis, the retroactive date on such insurance and all subsequent insurance shall coincide or precede the Effective Date of the initial Contractor’s Contract with the City and continuous coverage shall be maintained or an extended reporting period shall be exercised for a period of at least three (3) years from termination or expiration of this Contract.

Upon expiration or termination of coverage of required insurance, Contractor shall procure and submit to City evidence of “tail” coverage or an extended reporting coverage period endorsement for the period of at least three (3) years from the time that all Work under this contract is completed.

J. Insurance for Subcontractors

Contractor shall be responsible for causing Subcontractors to purchase the same types and limits of insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured to the Subcontractor’s policies.

K. Insurance Obligations of Contractor

The insurance obligations under this Agreement shall be: (1) all the insurance coverage and/or limits carried by or available to the Contractor;

or (2) the minimum insurance coverage requirements and/or limits shown in this Agreement; whichever is greater. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits, which are applicable to a given loss, shall be available to the City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the Contractor under this contract.

5.2 Indemnification. The Contractor shall defend, indemnify and hold harmless the City, its officers and employees, 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, arising from errors and omissions of Contractor, its officers, employees and agents, or arising out of or related to Contractor's performance under this Agreement, except for such loss as may be caused by City's sole negligence.

The Contractor 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 Contractor’s officers, employees, or independent contractors, whether legal action, administrative proceeding or pursuant to State statue.

Such indemnity shall extend, but not be limited to, claims, damages and liabilities arising from injuries or damages to persons or property and to workers' compensation claims and award of attorney's fees. Such indemnity shall not apply to any injuries to persons or property, which result in the sole negligence of Contractor.

6. RECORDS AND REPORTS

6.1 Reports. Contractor 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. Contractor 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 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 Contractor in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials hereunder. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein.

6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor 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 such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

7.2 Disputes. In the event of any dispute arising under this

Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default within ninety

(90) days after service of the notice, or if the cure of the default is commenced within thirty (30) days after service of said notice and is cured within a reasonable time after commencement; provided that if the default is an immediate danger to the health, safety and general welfare, the City may take immediate action under Section 7.6 of this Agreement. Compliance with the provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured.

7.3 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 Contractor. 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.

7.4 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.

7.5 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.

7.6 Termination Prior to Expiration of Term. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor, except that where termination is due to the fault of the Contractor and constitutes an immediate danger to health, safety and general welfare, the period of notice shall be such shorter time as the City’s Contract Manager in his or her sole discretion determines is appropriate. Upon receipt of the notice of termination, Contractor shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer thereafter.

7.7 Termination for Default of Contractor. If termination is due to the failure of the Contractor 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 Contractor 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 Contractor for the purpose of set-off or partial payment of the amounts owed to City.

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 Contractor, 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 the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Covenant Against Discrimination. Contractor 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, gender, sexual orientation, marital status, national origin, or ancestry. Contractor shall take affirmative action to insure that applicants and employees are treated without regard to their race, color, creed, religion, sex, gender, sexual orientation, 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 Contractor:

CITY OF TUSTIN NAME

300 Centennial Way ADDRESS Tustin, CA 92780 ADDRESS Attention: City Manager Attention: NAME

9.2 Integrated Agreement. This Agreement contains all of the

agreements of the parties and cannot be amended or modified except by written agreement.

9.3 Amendment. This Agreement may be amended at any time by

the mutual consent of the parties by an instrument in writing.

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 date first written above.

"City"

Dated: CITY OF TUSTIN, a municipal corporation

By:

Aldo E. Schindler City Manager

"Contractor"

NAME

COMPANY NAME

ADDRESS

ADDRESS

By:

Exhibit A

Proposal