HomeMy WebLinkAboutESI ACUISITIONS 1~.r ~
AGREEMENT TERMINATION
Please complete this form when the attached agreement is no longer in effect.
Return form to the Sr. Deputy Clerk of the Council (M-30). Ca11647-5238 if you have any
questions.
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was completed on __~s~' / 7,~~1 ~' ~ , end final payment has been made.
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City of Santa Ana
Revised 8-7-03 Clerk of the Council
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CLΒ\ CCUNCIL CONSULTANT AGREEMENT
DATE: ~/14105 fit
THIS AGREEMENT, made and entered into this 9 day of Æ¡(¿{I} '¿ 'I ,2005 by
and between ESI Acquisition, Inc" a Georgia corporation (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"),
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RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
designing and managing Emergency Operations Centers,
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 trom 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 a facility assessment of the current Emergency Management
processes, facilities and systems available to City and, based on that assessment and currently
available information and equipment, provide a written evaluation and recommendations to
upgrade the facility and processes of the City, as set forth in the "Overview and Scope of Work
for EOC Facility Assessment, dated February 6, 2005, attached as Exhibit A to this Agreement
2.
COMPENSATION
a, City agrees to pay, and Consultant agrees to accept as total payment for its services,
including travel, the rates and charges identified in Exhibit B, attached hereto, The total sum to
be expended under this Agreement shall not exceed $10,000,00 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.
WORK PRODUCT
Consultant shall deliver to City all work product which results from the services
provided, Said work product shall be submitted in a hard copy and produced in a form
compatible with City's computer system, as agreed between the Fire Chief and Consultant
In regard to all copyrightable material produced as a deliverable under this Agreement,
including but not limited to books, reports, plans, photographs, drawings and computer
programs, the Consultant agrees and shall ensure that all of Consultant's affected officers,
employees, agents, contractors, and volunteer workers also agree that (a) such material may not
be copyrighted without prior review by the City, and (b) the authors of all such material, whether
copyrighted or not, award to the City, and to its officers, agents and employees acting within the
scope of their official duties, as a condition of payment to the Consultant, a royalty-free,
nonexclusive, irrevocable license throughout the world for governmental purposes to disclose,
publish, translate, reproduce, and use such materials,
4.
TERM
This Agreement shall commence on the date first written above and terminate on
December 31, 2005, unless terminated earlier in accordance with Section 12, below, The term of
this Agreement may be extended upon a writing executed by the Fire Chief and the City
Attorney,
5.
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.
6.
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. Business automobile liability insurance, or equivalent form, with a combined single
limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for
owned, hired and non-owned automobiles,
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b. 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
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 canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior 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
terminate 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,
7.
INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability 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
8.
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
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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 oflaw; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
9.
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
10.
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 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 copies to:
Fire Chief
City of Santa Ana
20 Civic Center Plaza (M-80)
P,O, Box 1988
Santa Ana, California 92702
telefacsimile (714)647-5779
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:
ESI Acquisition, Inc.
699 Broad Street, Suite 1100
Augusta, Georgia 30901-1400
Telefacsimile 706-826-9911
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A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address, If sent by mail, any
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 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,
11.
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,
12. 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,
13.
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,
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.
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b, Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement
14.
DISCRIMINATION
Consultant shall not discriminate because ofrace, 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.
15.
JURISDICTION - VENUE
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
16.
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
17.
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
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,
b, All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
CITY OF SANTA ANA
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PATRICIA E. HEALY
Clerk of the Council
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DAVID N, REAM
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
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By:. ' <1A~~1
LaU a Sheedy V
Assistant City Attorney
(Name) tI.} QfEf.?
(Title)
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~uez, Patricia
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From:
Sent:
To:
Cc:
Subject:
Sheedy, Laura
Wednesday, February 16, 20052:46 PM
Snyder, Steve
Jacquez, Patricia
ESI Acquisitions
Hi Steve
I received your call regarding the processing of this Agreement with the "Insurance not on File" stamp and what to do with
the golden termination of agreement forms.
This agreement should not require insurance as the work to be done is all off-site, Pat, will you note that insurance is not
required.
The termination forms are for you to send to the Clerk when the services have been completed.
Thank you
Laura Sheedy
Assistant City Attorney
(714) 647-5201
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