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Home My WebLink AboutDEMSEY, FILLIGER & ASSOCIATES 3 - 2004 . IN.>uRAj'iCE uii tiLt ..,-,fOrtI< 'MAì PkOCEED . úÑm Ik;;UKANCE EXPIRES .1::1.5 .-o§ 'SlÉRK Of COUNCIL. bAtt: 10 - J ð'-{)~ N-2004-130 CONSUL T ANT AGREEMENT THIS AGREEMENT made and entered into this 19 day of b ' 2004 by and between Demsey, Filliger & Associates, LLC (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of actuarial consulting. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform an actuarial valuation of the retiree health subsidy plan (Fund 84) for the Firemen's Benevolent Association (FBA) eIJ1ployees of the City of Santa Ana and shall compile a report of findings regarding said study. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, five thousand dollars ($5,000.00). b. Payment by City shall be made within thirty (30) days following receipt of the actuarial evaluation and proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2005, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. " 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. b. Professional liability (errors and omissions) insurance with a combined single limit of not less than $1,000,000.00 per claim. c. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant Shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect without thirty (30) days written notice to the City. (ii) (iii) d. If Consultant fails or refuses to produce or maintain the insurance required by this section, or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminated this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 2 , 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: 3 , To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copy to: Personnel Services Agency City of Santa Ana 20 Civic Center Plaza (M-24) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6930 Attn: Louis Filliger @ ~JF~ J(/hsq:.lk dJ/oo6 /)eA/~ ~ / CU~, CA- 9/3/1 Attn: Kathie Romero To Consultant: A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 4 .. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 5 ,- 16. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. PATRICIA E. HEALY Clerk of the Council CITY OF SANTA ANA ~~ City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHE~ City Attorney By,/,V . {. ' (>. LatIÍa; Sheedy Assistant City Attorney APPROVED AS TO CONTENT: CONSULTANT n2~ ~ Tax ID # /'1- -/RVI2R~ þEMsEX FILJ-/t,€/2 dl4-ss~. lL.C 6 F,c:'::lí"l : PHONE "H R~9. 30 2004 08:54RM P3 .. ßCORQ.. CERTfFICA TE OF LIABILITY INSURANCE r CATE (MWDClYHY) Ol(14jflOQ4 P'!ODUCER (949) 348 - 7400 FAX (949)348-2373 THIS CE;RTlFICATE IS 1$~;uED AS A MATTER Of INI"ORMATION Insur.nçe Solutions ONLY AND CON~ERS NO RIGHTS UPON THE CfRTlf'ICATë I HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXiEND OR Ljçen$e #0746539 ¡ ALTER THE COVERAGf; AFfORDED BY THE ÞOUCIES BELOW. ~6S~2 La Alameda, Suite 190 Mission Viejo, CA 92691 INSURERS AFFORDING COVERAGE NAlc# I~UReo DEMSEY, FIlllŒR & ASSOCIATES '.^ Hartfonf'Ca5ua1 ty Ins CQ '- .... II~SURER A 29424 21006 DEVONSHIRE *Z05 Ll~yd~s Underwr;ter$ .. INSUI<£R 6. - . """'- ' CHATSWORTH, CA 91311 INSURG~ c. .....- INSU""R O. IN5IJRER E COVERAGES THE POliCIES OF INSURANCE: LlSTEO BELOW ~"\IE ,!oeM I$SU!oD TO TH! INSURED NAMED ABOVE FOR THE POLICY P~RIOD INDICATED. NOTWITHSTANDING AI-« REQUIREMENT, TERM OR CONDITION OF ANY CONiMCr OR OTHeR DOCUMENT WITH RESPECT TO WHICH TIiIS CERTIFICATE MAY BE ISSUED 01'1. MAY F>eRTAIN, THE INSURANCE AFFORDED BY THE POLICiES DESCRIBEO HEREIN 15 SUBJECT TO ALL THE TERMS, EXCWSIONS .I\IIID CONDITIONS OF SUCH POLICIES. A<3GREGATE LIMITS SHOWN MA'( HAVE BEEN REDUCED BY PAID CU;IMS, INSR Li.00'i: TYPii OF INSI,JRAllCii POLICY N\J MBE/! I PO~IC'l EffECTIVE PQlICY I!X~IU. 110N "MITS QENERAl LlAðlllTY 72SBAAC4041 04/25/2003 04/25/2004 EACH OÇÇURRGNC~ ; 1,000,000 I-- DAMAGE TO RGNTGD 300,p~ DMERCi~.l GENERAL LIABILITY I 5 I P 1-- ~ CLAIMS MADE OOOCIJR MEO VO:P IAny on. poreon) S 10,000 A P5R50NAL & ArN INJURY S '"¡-; 000, OD(! ~ENERAlAGGREGAT. S 2,OOO,QOO h'L AGGREGATE LIMIT AÞpLlE~ ~I!: PRCOUOT~ ' OOMPIOP H3G S Z.OOO.OOO ,nPAO. n POLICY J¡;CT lOC ~TOIAOBIL. LIABILITY W"''''NEO SINGLE LIMIT " ANY A.UTO (E. ..,.i~nt) - All OWNED AUTOg 6001l'( IN,JURY - $ SCHEDUL£D AUTo,¡ (Po' 1>«<;01\1 - i1IREO "lr1'0.5 BC()L y JNJ~T ,.- (per ~idont) $ ~ NO~-OWNED AUTOS t--.. "----.....----....." "ROPeRTY DAMAGE' $ IP~r aççlo$l1~ RRAGE llABlUTY "UTO O"l y. "''' ACCIDENT S -j ANY ...urc - ',' F"', "':-~. - EAAœ S O~'HÊR THA.N AUTO ONLY' AGi; ~ :=J~BItE~U\ ~\oI,SII.1TY 'iCJ.J; ,11 d.. -./ EACH OCc;UOtRENCE ~ =UR 0 C\.A1M$ MA~ii ( ~ AGGREGATE $ ./Ç; ~-- ~,_.,~-".,.~ li\ ': .f $ ==i D~DUCnBLE $ , . RETBmON $ ..-.1.- ',..- . ~ . WORKERS COMPENMTIOH A~O I WO $'1'i\'Fu. IOJ~' -'-_...._----- EMPLOYI:RS' lIABILITY ~..., I;AÇI- ACÇDENT $ At-I"I ~PRIEroPtllOAIfrN~I!CUTIVE OFFICER/MEMBER E)(CLUDED? IH, DISEASE, EP. EMPlOYE $ ~.1f~~Ja?~~S bek>w e.l. DlS¡;:ASk . POlICY lIMJT S pO~Vessional Liability MEOOZ304600 01/15/2004 Ol/lS/Z00S limit: $ 1,000,000 B Deductibl e: $ 5,000 œ.scRIPTION 01' O~FU. TiONS I LOCATIONS I VEHlClE~ I EXClUSIONS ADDeo iii" ENOORSENENT /8I"1iC1AL PROVISIONS CERTIFICATE HOLDER CANCELLATION S~OVLo ANY Of' TH~ A.1roVf: Dl!SC"l8l!C> I'OllOlIZ$ liE OAIICELlEð BEFORE THE EXPIRATION DATI! THERC:OP. THE IS$UING IN$lJF:ER 'MLl ~DEAVO" to !IIAll ~ OA "5 WRITTEN NOTICE TO THE ClfRTIFICATe HOLOER NAMeD TO THE lEFT. BUT fAilURE TO MAIL SUCH NOTlC!! SHAll IMPOSIõ NO OIlL~ATON OJ! lIABILITY <:IF A~~ KIND UPON THe INSURER. ITS AGENTS OR REP~TATVItS. Proof of ín$ur.nc:e AUTI-IOF:IZEO "~ESENT.ATIVE ~ a...-..l.- Tony Alessand~a/E~IC ACORD n (ZOO1/08) <OACORD CORPORATION 1988