PROFESSIONAL SERVICES AGREEMENT Template 2023.pdf

PROFESSIONAL SERVICES AGREEMENT BETWEEN MOJAVE WATER AGENCY AND «VENDOR_LEGAL_NAME» THIS AGREEMENT is made this «Contract_Start_Date» (hereinafter referred to as the "Effective Date"), by and between the MOJAVE WATER AGENCY, a public agency organized and operating pursuant to California Water Code Appendix Section 97-1 et seq.(hereinafter referred to as the "AGENCY"), and «Vendor_Legal_Name» (hereinafter referred to as "CONTRACTOR"). AGENCY and CONTRACTOR may individually be referred to as "Party" or collectively as "Parties" in this Agreement. RECITALS WHEREAS, the AGENCY desires to contract with CONTRACTOR for «Description_of_Contract_Services» (hereinafter referred to as “Project”) for the AGENCY. WHEREAS, CONTRACTOR is willing to contract with the AGENCY to provide such services for the Project; and WHEREAS, CONTRACTOR holds itself as duly licensed, qualified, and capable of performing said services for the Project, and that the CONTRACTOR is customarily engaged in an independently established trade, occupation, and/or business of the same nature as the work to be performed herein; and WHEREAS, this Agreement establishes the terms and conditions for the AGENCY to retain CONTRACTOR to provide the services described herein for the Project. COVENANTS NOW, THEREFORE, in consideration of the faithful performance of the terms and conditions set forth herein, the Parties hereto agree as follows: ARTICLE I. ENGAGEMENT OF THE CONTRACTOR AND AUTHORIZATION TO PROCEED Section 1.01 : ENGAGEMENT The AGENCY hereby engages CONTRACTOR, and CONTRACTOR hereby accepts the engagement, to perform certain services described in Section 2.01 of this Agreement for the term set forth in Section 5.01 of this Agreement. Section 1.02 : AUTHORIZATION TO PROCEED Template   Professional Services Agreement     2    Authorization for CONTRACTOR to proceed with all or a portion of the work described in Section 2.01 of this Agreement will be granted in writing by the AGENCY as soon as both Parties sign the Agreement and all applicable insurance and other security documents required pursuant to Section 6.03 and Exhibit B of this Agreement are received and approved by the AGENCY. CONTRACTOR shall not proceed with said work until so authorized by the AGENCY and shall commence work immediately upon receipt of the Notice to Proceed. Section 1.03 : NO EMPLOYEE RELATIONSHIP The Project services to be provided by CONTRACTOR are outside the usual course of the AGENCY’s business. CONTRACTOR shall perform the services provided for herein as an independent contractor, and not as an employee of the AGENCY. The AGENCY shall have ultimate control over the work performed for the Project, but not over the means or methods used by CONTRACTOR in the performance of such work. CONTRACTOR is not to be considered an agent or employee of the AGENCY for any purpose and shall not be entitled to participate in any pension plans, insurance coverage, bonus, stock, or similar benefits that the AGENCY provides for its employees. CONTRACTOR shall indemnify the AGENCY for any tax, retirement contribution, social security, overtime payment, or workers' compensation payment which the AGENCY may be required to make on behalf of CONTRACTOR or any agent or employee of CONTRACTOR for work performed under this agreement. Article II. SERVICES OF CONTRACTOR Section 2.01 : SCOPE OF SERVICES The scope of services to be performed by the CONTRACTOR under this Agreement are described in the scope of work attached hereto as Exhibit "A" and incorporated herein by this reference (hereinafter referred to as the "Scope of Work"), and shall, where not specifically addressed, include all related services ordinarily provided by the CONTRACTOR under same or similar circumstances and/or otherwise necessary to satisfy the requirements of Section 3.03 of this Agreement. In case of conflict between the terms of this Agreement and the provisions of the Scope of Work, this Agreement shall govern. Section 2.02 : PREVAILING WAGES In accordance with the provisions of the California Labor Code, CONTRACTOR shall secure the payment of compensation to employees. To the extent required by the California Labor Code, CONTRACTOR shall pay not less than the prevailing rate of per Template   Professional Services Agreement     3    diem wages as determined by the Director, Department of Industrial Relations, State of California. Copies of such prevailing rate of per diem wages are on file at the AGENCY's office, which copies will be made available to any interested party upon request. CONTRACTOR shall post a copy of such determination at each job site. If applicable, CONTRACTOR shall forfeit to the AGENCY the amount of the penalty set forth in California Labor Code Section 1777.7(b) and 1813, or any subsequent amendments thereto, for each calendar day, or portion thereof, for each worker paid less than the specified prevailing rates for such work or craft in which such worker is employed, whether paid by CONTRACTOR or by any subcontractor. Section 2.03 : HOURS AND WORKING CONDITIONS The AGENCY is a public entity in the State of California and is subject to the provisions of the Government Code and the Labor Code of the State. It is stipulated and agreed that all provisions of law applicable to public contracts are a part of this Agreement to the same extent as though set forth herein and will be complied with by CONTRACTOR. CONTRACTOR shall comply with all applicable provisions of the California Labor Code relating to working hours and the employment of apprentices on public works projects and shall be solely liable and responsible for any violation of the California Labor Code. CONTRACTOR shall, as a penalty to the AGENCY, forfeit $25.00 for each worker employed in the execution of this Agreement by CONTRACTOR or by any subcontractor, for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week, unless such worker received compensation for all hours worked in excess of 8 hours at not less than 1 ½ times the basic rate of pay. (a) No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. (b) No contractor or subcontractor may be awarded a contract for public work on a public works project, unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Contractors MUST be a registered “public works contractor” with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for maintenance work or less than $25,000 for construction alteration, demolition or repair work, registration is not required. (c) This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (d) The Agency shall withhold any portion of a payment; including the entire payment amount, until certified payroll forms and related documentation are properly submitted and reviewed and found to be in full compliance. If certified payroll forms do not comply with the requirements of Labor Code Section 1720 et seq., the Agency may continue to hold sufficient funds to cover estimated wages and penalties under the contract. Template   Professional Services Agreement     4    (e) If Davis-Bacon funds are used for this project, the CONTRACTOR shall pay the applicable wage rates and be responsible for complying with all Davis-Bacon requirements (See Exhibit C). Article III. RESPONSIBILITIES OF THE AGENCY AND OF THE CONTRACTOR Section 3.01 : DUTIES OF THE AGENCY The AGENCY, without cost to CONTRACTOR, will provide all pertinent information necessary for CONTRACTOR's performance of its obligations under this Agreement that is reasonably available to the AGENCY unless otherwise specified in the Scope of Work, in which case the CONTRACTOR is to acquire such information. The AGENCY does not guarantee or ensure the accuracy of any reports, information, and/or data so provided. To the extent that any reports, information, and/or other data so provided was supplied to the AGENCY by persons who are not employees of the AGENCY, any liability resulting from inaccuracies and/or omissions contained in said information shall be limited to liability on behalf of the party who prepared the information for the AGENCY. Section 3.02 : REPRESENTATIVE OF THE AGENCY The AGENCY designates «Assigned_to» as the person to act as the AGENCY's representative with respect to the work to be performed under this Agreement. Such person will have complete authority to transmit instructions, receive information and interpret and define the AGENCY’s policies pertinent to the work, although such person will not control or direct CONTRACTOR’s work. In the event the AGENCY wishes to make a change in the AGENCY’s representative, the AGENCY shall notify the CONTRACTOR of the change in writing. Section 3.03 : DUTIES OF THE CONTRACTOR CONTRACTOR shall perform all services for the Project work in such a manner as to fully comply with all applicable professional standards of care, including professional quality, technical accuracy, timely completion, and other services furnished and/or work undertaken by CONTRACTOR pursuant to this Agreement. The CONTRACTOR shall cause all work and deliverables to conform to all applicable federal, state, and local laws and regulations. Section 3.04 : APPROVAL OF WORK The AGENCY's approval of work or materials furnished hereunder shall not in any way relieve CONTRACTOR of responsibility for the technical adequacy of its work. Neither the AGENCY's review, approval, or acceptance of, nor payment for any of the services Template   Professional Services Agreement     5    shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. Where approval by the AGENCY is indicated in this Agreement, it is understood to be conceptual approval only and does not relieve the CONTRACTOR of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the CONTRACTOR or its subcontractors. CONTRACTOR's obligation to defend, indemnify, and hold harmless the AGENCY, and its directors, officers, employees, and agents as set forth in Section 6.09 of this Agreement also applies to the actions or omissions of the CONTRACTOR or its subcontractors as set forth above in this paragraph. Article IV. PAYMENTS TO CONTRACTOR Section 4.01 : PAYMENT During the Term of this Agreement, the AGENCY will pay CONTRATOR for services performed in accordance with the rates and estimated hours and costs set forth in the Scope of Work. The amounts set forth in the Scope of Work constitute the maximum compensation to which CONTRACTOR may be entitled for the performance of services for the Project, unless this Agreement and/or the Scope of Work are changed in writing by the AGENCY in advance of the services to be performed hereunder. Adjustments in the payment amount shall only be allowed pursuant to Section 6.4 of this Agreement. Section 4.02 : PAYMENT TO CONTRACTOR Payment will be made by the AGENCY within thirty (30) calendar days after receipt of an invoice from CONTRACTOR, provided that all invoices are complete and CONTRACTOR’s work product and services are provided and performed in compliance with the terms and conditions of this Agreement. CONTRACTOR shall invoice AGENCY monthly for services performed under this Agreement. In the event that a payment dispute arises between the Parties, CONTRACTOR shall provide to the AGENCY full and complete access to CONTRACTOR’s labor cost records and other direct cost data, and copies thereof if requested by the AGENCY. Section 4.03 : COST FOR REWORK CONTRACTOR shall, at no cost to the AGENCY, prepare and perform any necessary rework occasioned by CONTRACTOR's negligent act or omission or otherwise due substantially to CONTRACTOR's fault. Template   Professional Services Agreement     6    Article V. COMPLETION SCHEDULE Section 5.01 : TERM The Term of this Agreement shall begin on the Effective Date of this Agreement and shall continue until «Contract_end_date» unless this Agreement is earlier terminated pursuant to the provisions of Section 6.08 below. Notwithstanding the above, the provisions of Section 1.03,Section 2.02, Section 2.03, Section 3.043, Section 3.04 Article IV, Article V, Article VI herein shall survive the expiration and/or termination of this Agreement. Section 5.02 : TASK SCHEDULE The services to be performed by CONTRACTOR under this Agreement shall be completed in accordance with the timeframe set forth in the Scope of Work and/or Task Orders. Section 5.03 : TIME OF ESSENCE CONTRACTOR shall perform all services required by this Agreement in a prompt, timely, and professional manner in accordance with the timeframe set forth in the Scope of Work and/or Task Orders. Time is of the essence in this Agreement. Article VI. GENERAL PROVISIONS Section 6.01 : COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS CONTRACTOR shall at all times observe all applicable provisions of Federal, State, and Local laws and regulations including, but not limited to, those related to Equal Opportunity Employment. Section 6.02 : SUBCONTRACTORS AND OUTSIDE CONSULTANTS No subcontract shall be awarded by CONTRACTOR unless prior written approval thereof is obtained from the AGENCY. CONTRACTOR shall be responsible for payment to subcontractors used by them to perform the services under this Agreement. If CONTRACTOR subcontracts any of the work to be performed, CONTRACTOR shall be as fully responsible to the AGENCY for the performance of the work, including errors and omissions of CONTRACTOR's subcontractors and of the persons employed by the subcontractor, as CONTRACTOR is for the acts and omissions of persons directly employed by the CONTRACTOR. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor of CONTRACTOR and the AGENCY. CONTRACTOR shall bind every subcontractor and every subcontractor of a Template   Professional Services Agreement     7    subcontractor to the terms of this Agreement that are applicable to CONTRACTOR's work unless specifically noted to the contrary in the subcontract in question and approved in writing by the AGENCY. Section 6.03 : INSURANCE CONTRACTOR shall secure and maintain in full force and effect, until the satisfactory completion and acceptance of the Project by AGENCY, such insurance as will protect it and the AGENCY in such a manner and in such amounts as set forth below. The premiums for said insurance coverage shall be paid by the CONTRACTOR. The failure to comply with these insurance requirements may constitute a material breach of this Agreement, at the sole discretion of the AGENCY. (a) CERTIFICATES OF INSURANCE: Prior to commencing services under this Agreement, and in any event no later than ten (10) calendar days after execution of this Agreement, CONTRACTOR shall furnish AGENCY with Certificates of Insurance and endorsements verifying the insurance coverage required by this Agreement is in full force and effect. The AGENCY reserves the right to require complete and accurate copies of all insurance policies required under this Agreement. (b) REQUIRED PROVISIONS: The insurance policies required by this Agreement shall include the following provisions or have them incorporated by endorsement(s): (i) PRIMARY CONVERAGE: The insurance policies provided by CONTRACTOR shall be primary insurance and any self-insured retention and/or insurance carried by or available to the AGENCY or its employees shall be excess and non-contributory coverage so that any self-insured retention and/or insurance carried by or available to the AGENCY shall not contribute to any loss or expense under CONTRACTOR's insurance. (ii) ADDITIONAL INSURED: The policies of insurance provided by CONTRACTOR, except Workers’ Compensation and Professional Liability, shall include as additional insured: the AGENCY, its directors, officers, employees, and agents when acting in their capacity as such in conjunction with the performance of this Agreement. Such policies shall contain a “severability of interests” provision, also known as “cross liability” or “separation of insured”. (iii) CANCELLATION: Each certificate of insurance and insurance policy shall provide that the policy may not be non-renewed, canceled (for reasons other than non-payment o f premium) or materially changed without first giving thirty (30) days advance written notice to the AGENCY, or ten (10) days advance written notice in the event of cancellation due to non-payment of premium. (iv) WAIVER OF SUBROGTAION: The insurance policies provided by CONTRACTOR shall contain a waiver of subrogation against AGENCY, its Template   Professional Services Agreement     8    directors, officers, employees, and agents for any claims arising out of the services performed under this Agreement by CONTRACTOR. (v) CLAIM REPORTING: CONTRACTOR shall not fail to comply with the claim reporting provisions or cause any breach of a policy condition or warranty of the insurance policies required by this Agreement that would affect the coverage afforded under the policies to the AGENCY. (vi) DEDUCTIBLE/RETENTION: If the insurance policies provided by CONTRACTOR contain deductibles or self-insured retentions, any such deductible or self-insured retention shall not be applicable with respect to the coverage provided to AGENCY under such policies. CONTRACTOR shall be solely responsible for any such deductible or self-insured retention and the AGENCY, in its sole discretion, may require CONTRACTOR to secure the payment of any such deductible or self-insured retention by a surety bond or an irrevocable and unconditional letter of credit. (vii) SUBCONTRATORS: CONTRACTOR shall include all sub-contractors as additional insureds under the insurance policies required by this Agreement to the same extent as the AGENCY or shall furnish separate certificates of insurance and policy endorsements for each sub-contractor verifying that the insurance for each sub- contractor complies with the same insurance requirements applicable to CONTRACTOR under this Agreement. (c) INSURANCE COMPANY REQUIREMENTS: CONTRACTOR shall provide insurance coverage through insurers that have at least an "A" Financial Strength Rating and a "VII" Financial Size Category in accordance with the current ratings by the A. M. Best Company, Inc. as published in Best's Key Rating Guide or on said company's web site. In addition, any and all insurers must be admitted and authorized to conduct business in the State of California and be a participant in the California Insurance Guaranty Association, as evidenced by a listing in the appropriate publication of the California Department of Insurance. (d) POLICY REQUIREMENTS: The insurance required under this Agreement shall meet or exceed the minimum requirements as set forth in Exhibit B. Section 6.04 CHANGES IN SCOPE OR TIME If the AGENCY requests a change in the Scope of Work or time of completion by either adding to or deleting from the original scope or time of completion, an equitable adjustment shall be made, a n d t h i s Agreement shall be modified in writing accordingly. CONTRACTOR must assert any claim for adjustment under this clause in writing within thirty (30) calendar days from the date of receipt from CONTRACTOR of the notification of change unless the AGENCY grants a further period before the date of final payment under this Agreement. Template   Professional Services Agreement     9    Section 6.05 : NOTICES All notices to either Party by the other shall be made in writing and delivered or mailed to such Party at their respective addresses as follows, or to other such address as either Party may designate and said notices shall be deemed to have been made when delivered or, if mailed, five (5) days after mailing. To AGENCY Mojave Water Agency 13846 Conference Center Drive Apple Valley, CA 92307 Attn: «Assigned_to» CC: mwafinance@mojavewater.org To CONTRACTOR «Vendor_Legal_Name» «Contractor_Street_Address» «Contractor_City», «Contractor_State» «Contractor_Zip_Code» CC: «Contractor_Email» Section 6.06 : CONTRACTOR’S ASSIGNED PERSONNEL CONTRACTOR designates «Vendor_Project_Manager_Name» to have immediate responsibility for the performance of the work for the Project and for all matters relating to performance under this Agreement. Substitution of any assigned personnel shall require the prior written approval of the AGENCY. If the AGENCY determines that a proposed substitution is not acceptable, then, at the request of the AGENCY, CONTRACTOR shall substitute with a person acceptable to the AGENCY. Section 6.07 : CONFIDENTIALITY (a) PRIVILIEGED INFORMATION: The CONTRACTOR shall not use for personal gain or make other improper use of privileged or confidential information which is acquired in connection with this Agreement. The term "privileged or confidential information" includes but is not limited to: unpublished or sensitive technological or scientific information; medical, personnel, or security records; anticipated material requirements or pricing/purchasing actions; AGENCY information or data which is not subject to public disclosure; AGENCY operational procedures; and knowledge of selection of contractors, subcontractors or suppliers in advance of official announcement. (b) NON-DISCLOSURE: The CONTRACTOR shall protect from unauthorized disclosure any and all sensitive or confidential information, names, and other identifying information, except for general statistical information not identifying any person. The CONTRACTOR shall not use such information for any purpose Template   Professional Services Agreement     10    other than carrying out CONTRACTOR's obligations under this Agreement. The CONTRACTOR shall promptly transmit to the AGENCY all third- p a r t y requests for disclosure of such information. The CONTRACTOR shall not disclose, except as otherwise specifically permitted by this Agreement or authorized in advance in writing by the AGENCY, any such information to anyone other than the AGENCY. For purposes of this paragraph, identity shall include, but not be limited to, name, identifying number, symbol, or other identifying assigned to the individual, such as finger or voice print or a photograph. Section 6.08 : TERMINATION (a) If the engagement of the CONTRACTOR is not extended by mutual written consent of the AGENCY and the CONTRACTOR, then this Agreement shall expire on the date set forth in Section 5.01. (b) Notwithstanding the above, the AGENCY may terminate this Agreement or abandon any portion of the Project, with or without cause, by giving ten (10) days written notice thereof to CONTRACTOR. C ONTRACTOR may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days written notice only in the event of substantial failure by the AGENCY to perform in accordance with the terms of this Agreement through no fault of the CONTRACTOR. (c) In the event of termination of this Agreement or abandonment of any portion of the Project by the AGENCY, the AGENCY shall be immediately given title to all original drawings and other documents developed for the Project, and the sole right and remedy of CONTRACTOR shall be to receive payment for all amounts due and not previously paid to CONTRACTOR for services completed or in progress in accordance with the Agreement prior to such date of termination. If termination occurs prior to completion of any task for which payment has not been made, the fee for services performed during such task shall be based on an amount mutually agreed to by the AGENCY and CONTRACTOR. Such payments available to the CONTRACTOR under this paragraph shall not include costs related to lost profit associated with the expected completion of the work or other such payments relating to the benefit of this Agreement. Section 6.09 : ATTORNEY’S FEES In the event that either the AGENCY or CONTRACTOR brings an action or proceeding for damages for an alleged breach of any provision of this Agreement, to interpret this Agreement or determine the rights of and duties of either Party in relation thereto, the prevailing Party shall be entitled to recover as part of such action or proceeding all litigation, arbitration, mediation and collection expenses, including witness fees, court costs, and reasonable attorneys' fees. Such fees shall be determined by the Court in such litigation or in a separate action brought for that purpose. Mediation will be attempted if both Parties mutually agree before, during, or after any such action or proceeding has begun. Template   Professional Services Agreement     11    Section 6.10 : INDEMNITY (a) CONTRACTOR shall defend, indemnify and hold AGENCY, including its directors, officers, employees and agents, harmless from and against any and all claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, with respect to or arising out of the work to be performed under this Agreement, including without limitation, any and all such claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, arising by reason of death or bodily injury to one or more persons, including the employees of CONTRACTOR; injury to property of any kind, including loss of use; or economic damages of any kind, caused by, or arising out of, any alleged or actual act or omission, regardless of whether such act or omission is active or passive, by CONTRACTOR, any of CONTRACTOR's sub- contractors or AGENCY, including their respective directors, officers, employees, agents and assigns, excepting only such matters arising from the sole negligence or willful misconduct of the AGENCY. (b) CONTRACTOR shall defend, indemnify and hold AGENCY, including its directors, officers, employees and agents, harmless from and against any and all claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, with respect to or arising out of any infringement or alleged infringement of any patent, copyright or trademark and arising out of the use of any equipment or materials furnished under this Agreement by the CONTRACTOR or CONTRACTOR’S sub- contractors, including their respective directors, officers, employees, agents and assigns, or out of the processes or actions employed by, or on behalf of, the CONTRACTOR or CONTRACTOR's sub-contractors, including their respective directors, officers, employees, agents and assigns, in connection with the performance of services under this Agreement. CONTRACTOR shall have the right, in order to avoid such claims or actions, to substitute at its expense non-infringing equipment, materials or processes, or to modify at its expense such infringing equipment, materials, and processes so they become non-infringing, provided that such substituted and modified equipment, materials, and processes shall meet all the requirements and be subject to all the provisions of this Agreement. (c) CONTRACTOR shall defend, indemnify and hold AGENCY, including its directors, officers, employees and agents, harmless from and against any and all claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, with respect to or arising out of any breach by CONTRACTOR or CONTRACTOR's sub- contractors, including their respective directors, officers, employees, agents and Template   Professional Services Agreement     12    assigns, of the aforesaid obligations and covenants, and any other provision or covenant of this Agreement. (d) It is the intent of the Parties to this Agreement that the defense, indemnity and hold harmless obligation of CONTRACTOR under this Agreement shall be as broad and inclusive as may be allowed under California Civil Code §§ 2778 through 2784.5, or other similar state or federal law. Section 6.11 : SAFETY   CONTRACTOR shall perform the work in full compliance with applicable State and Federal safety requirements including, but not limited to, Occupational Safety and Health Administration requirements. (a) CONTRACTOR shall take all precautions necessary for the safety of, and prevention of damage to, property on or adjacent to the Project site, and for the safety of, and prevention of injury to, persons, including AGENCY's employees, CONTRACTOR's employees, and third persons. All work shall be performed entirely at CONTRACTOR's risk. CONTRACTOR shall comply with the insurance requirements set forth in Section 6.3 of this Agreement. (b) CONTRACTOR shall also furnish the AGENCY with a copy of any injury prevention program established for the CONTRACTOR's employees pursuant to Labor Code Section 6401.7, including any necessary documentation regarding implementation of the program. CONTRACTOR hereby certifies that its employees have been trained in the program, and procedures are in place to train employees whenever new substances, processes, procedures, or equipment are introduced. CONTRACTOR shall demonstrate compliance with Labor Code Section 6401.7 by maintaining a copy of its Injury and Illness Prevention Plan at the Project site and making it available to the AGENCY. Section 6.12 : EXAMINATION OF RECORDS All original drawings, specifications, reports, calculations, and other documents or electronic data developed by CONTRACTOR for the Project shall be furnished to and become the property of the AGENCY. CONTRACTOR agrees that the AGENCY will have access to and the right to examine any directly pertinent books, documents, papers, and records of all of the transactions relating to this Agreement. Section 6.13 : OWNERSHIP OF SOFTWARE (a) Subject to payment of all compensation due under this Agreement and all other terms and conditions herein, CONTRACTOR hereby grants AGENCY a non-exclusive, transferable, royalty-free license to use the Software furnished to AGENCY by CONTRACTOR under this Agreement. The license granted herein shall authorize AGENCY to: (i) Install the Software on computer systems owned, leased or otherwise controlled by AGENCY; (ii) Utilize the Software for its internal data-processing purposes; and Template   Professional Services Agreement     13    (iii) Copy the Software and distribute as desired to exercise the rights granted herein. (b) CONTRACTOR retains its entire right, title and interest in the Software developed under this Agreement. AGENCY acknowledges that CONTRACTOR owns or holds a license to use and sublicense various pre-existing development tools, routines, subroutines and other programs, data and materials that CONTRACTOR may include in the Software developed under this Agreement. This material shall be referred to hereafter as "Background Technology." (c) AGENCY agrees that CONTRACTOR shall retain any and all rights CONTRACTOR may have in the Background Technology. CONTRACTOR grants AGENCY an unrestricted, nonexclusive, perpetual, fully paid-up worldwide license to use the Background Technology in the Software developed and delivered to AGENCY under this Agreement, and all updates and revisions thereto. However, AGENCY shall make no other commercial use of the Background Technology without CONTRACTOR's written consent. Section 6.14 : INTEGRATION AND AMENDMENT This Agreement contains the entire understanding between the AGENCY and CONTRACTOR as to those matters contained herein. No other representations, covenants, undertakings or other prior or contemporaneous agreements, oral or written, respecting those matters, which are not specifically incorporated herein, may be deemed in any way to exist or to bind any of the Parties hereto. Each Party acknowledges that it has not executed this Agreement in reliance on any promise, representation or warranty not set forth herein. This Agreement may not be amended except by a writing signed by all Parties hereto. Section 6.15 : ASSIGNMENT Neither Party shall sign or transfer its interest in this Agreement without written consent of the other Party. All terms, conditions, and provisions of this Agreement shall inure to and shall bind each of the Parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. Section 6.16 : GOVERNING LAW This Agreement shall be construed as if it was jointly prepared by both Parties hereto, and any uncertainty or ambiguity contained herein shall not be interpreted against the Party drafting same. In the event of a conflict between the provisions of this Agreement and the Scope of Work, the provisions of this Agreement shall control. This Agreement shall be enforced and governed by the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state court situated in the County of San Bernardino, State of California, or in a federal court within jurisdiction over the Project. Template   Professional Services Agreement     14    Section 6.17 : HEADINGS Article and Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, and conditions of this Agreement. Section 6.18 : PARTIAL INVALIDITY If any term, covenant, condition, or provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated thereby. Section 6.19 : EFFECT OF AGENCY'S WAIVER Any failure by the AGENCY to enforce any provision of this Agreement, or any waiver thereof by the AGENCY, shall not constitute a waiver of its right to enforce subsequent violations of the same or any other terms or conditions herein. Section 6.20 : ELECTRONIC SIGNATURE The AGENCY and the CONTRACTOR agree that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement, or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. Section 6.21 : AUTHORITY The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to sign this Agreement on behalf of and to so bind their respective legal entities. Template   Professional Services Agreement     15    IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. CONTRACTO R AGENCY By: By: Contractor Name Contractor Title, Legal Name of Contracto r Adnan Anabtawi, General Manager Mojave Water Agency Enclosures: Exhibit A Scope of Work Exhibit B Insurance Provisions Exhibit C Davis Bacon Template