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Home My WebLink AboutMACK BARCLAY, INC. 1 - 2005 INSURANCE NOT ON FILE WORK MAY llill PROCEED CLERK OF COUNCIL DATE: 1-.20~5 N-2005-005 CONSULTANT AGREEMENT C: PO hSUij.. THIS AGREEMENT, made and entered into this 13th day of January, 2005, by and between Mack I Barclay, Inc., (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 performing forensic accounting in an administrative matter. 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 forensic accounting, financial analysis and related investigation as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $9,999.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of 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 January 18, 2005 and terminate on June 30, 2005, unless the review is either completed or terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Chief of Police 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: 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. 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 I 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 ofthe events referred to in this Section or by reason ofthe 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 ofthis Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of 2 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: To City: Clerk ofthe 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 copies to: Chief of Police 60 Civic Center Plaza (M-97) P.O. Box 1988 Santa Ana, California 92702 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: 3 Mack/Barclay, Inc. 600 Anton Blvd., Suite 1350 Costa Mesa, CA 92626 Telefacsimile (714) 662-0801 Attn: Gary Morley, CFE 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. 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 4 compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 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 the 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. 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 ofthis 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 her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination ofthis Agreement. 16. MISCELLANEOUS PROVISIONS a. 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 indemuify 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. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA ~~i<~ALiA Clerk of the Council ~2S~- City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney BY:~CO~v~- Paula Coleman Assistant City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT PAUL WALTERS Chief of Police ~~ 6 EXHIBIT A SCOPE OF SERVICES Mack I Barclay, Inc. will perform forensic accounting, financial analysis and related investigation in an administrative matter scheduled to commence on January 18, 2005. Any findings or reports arising out ofthis review shall be delivered confidentially to the Chief of Police. Contacts between SAPD employees and consultant shall be determined and arranged by the Chief of Police or his designee. Compensation for services shall be as follows: Consulting fees $ per hour ( see below) Shareholder $ 200.00 - $325.00 per hour $ 175.00 - $195.00 per hour $ 85.00 - $170.00 per hour Director Analyst Expenses Reasonable expenses incurred completing the services Fees for the work commencing under this agreement shall in no event exceed $9,999.00. 7 ACORD. CERTIFICA TE OF LIABILITY INSURANCE DATE (MMlDDlYYVY) OP 10 AH MAr.T<"R-1 n1 ?.1 n~ THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PRODUCER G. S. Levine Insurance Services, Inc. 3377 Carmel MOuntain Road San Diego CA 92121 Phone: 858-481-8692 Fax: 858-481-7953 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A INSURERS tV -,;j DOS. 005 8MB Mack/Barclay dba: Mack/Barclay, Inc. 402 West Broadway Ninth Floor San Diego CA 92101 St. P.,ul. Pire And M.Iorin. In.. INSURERC INSURER 0 "'GU"~" ~ COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICA TED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PFRTAIN, THF IN!=:IJRANr.F AI"FC1ROFf'l FlY THF POIIr.IF!=: nF!=:r.RIFlFn HFRFIN I!=: !=:I JFl.IFC:T TO All THF TFRM!=:, FXr.III!=:ION!=: ANn C:ONnITION~ 01" ~11r.H POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAlO CLAIMS. POUCYNUMBER POUCYEFFECTIVE Pg~i/,~:O~~~" UMITS em NSRD TYPE OF INSURANCE DATE MMtODlYY ~NERALLIABIUTY EACHOCCUPRENCE , e- D~ERClALGENERALWA8IUTY PPEMISES(EaOCCurence) , CLAIMS MADE DOCStR ... e- MEO EXP (A"fone per'D~J , .. e- PERSONAL&A::N'NLURY , e- 0~"~"ALA0"'''~'''AT~ , nLAGGREGAr:-.~l'~ APPLlESn ,PRCDUCTS CCMPIQPAGG , POLICY ,~Fi-:OT toe , ~MOBILE U.llIIUTY CO"''''''~D ~''"ou: UM" , ANY AuTO iEa acc'oe~t) e- ~ ALL OWNED AUTOS 80DILYINJURY , - SCHEDULED AUTOS (Per person) - HIRED AUTOS EOD'lYINJURY , - NO>/.OWNEDAIJTOS (Pe'atC,oent) .. I I _",,,, !A<: TO P( RM PROPERTYDMlAGE , I (rhow"cn') ORACElJ.tdIlUTY f\l:"'r"-v I AUT,:C ONLY. EAACCIDENT , i , /:(2t '.."J, .. ANY AUTO lJIHERTHAN EAACC , , AUTO ONLY AGG , OESStUMBRl5LULIABIUTY Laura titt Sheedyl EACI-lOCCUPRENCE , ..-- OCCUR DCLAIMSMADE ... Assistant City Attorne I AGGREGATE , , ROEoueT's~ , RETENTION , , WORKERS COMPENSATION AND i X I T~~yS~~iT~ 1 lO~~ A "M~LOY"R8'L,^II'UTY BW01990779 12/01/04 12/01/05 $ 1000000 ANYPROPRIETORIPARTNHVEXECU-IVE ELEAC"ACCIDE"T OFFICERlMEMSERHCLUDEO? E.LOISEASE. EAEMPLCYEE $ 1000000.._ 11yes, aescrlce un~er --.- SPEClA,LPROYI510NSceIOW EL DIS~~E- POLICY LIMIT $ 1000000 i OT",~R i DESCRIPTION OF OPERATlONB I LOCATIONS I VEHICLES f EXCWSIONS ADDED BY ENDORSEME~ I SPECIAL PROVISIONS Proof of Insurance CERTIFICATE HOLDER CANCELLATION FORYOUR S",OULDANYOFTMEABOVEDUCRIBEDPOUCIESBECAHCELLEDBEFORETltEEXPIRATION DATE TltERl50F. THE ISSUING INSURER WILL ENDEAVOR TO MJUL 30* DAYS WRITTEN "FOR YOU INFORMATION ONLY" NOTICETOTltEC~RTIFICATEHOLDERNAMEDTOTllELEFT,BUTFJULURETODOSOI",AU. 'M..oee NO OIlUC"'T'ON OR UAII'UTY O~ "'NY K'NO U~O.. T"," '..e..,....R. '" ...,,,.." OR ACORD 25 (2001108) @ACORDCORPORATION 1988