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HomeMy WebLinkAboutIMTRAN 1-2001 \"" "".. ;,' 'l'\lt..,... !~r('(':.p"'::._ / : ., ^ , , :-..,T;~S 't -'n-r ..7 ~ I'>' v.".___ "." "~ N-2001-057 c,' t. CONSULTANT AGREEMENT c.; '1~9 -() 'e . I'lv'ft " VIr'" THIS AGREEMENT, made and entered into this fj day of 1110re 11 ,2001 by and between Imtran, a California 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"). J-,I-c)1 C52- RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of Teleform system upgrading. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance ofthis 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 those services 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 $ 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. TERM This Agreement shall conunence on the date first written above and temlinate on JVke.. 3.0, 2001, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of Public Works Agency and the City Attomey. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire tenn 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 perfonns 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 perfonnance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims flrising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the perfonnance ofthis Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $ I ,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the fonn attached hereto as Exhibit B upon execution of this Agreement and shall be approved in fonn by the City Attorney. b. Business automobile liability insurance, or equivalent fonn, with a combined single limit of not less than $ I ,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 ofthe 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 perfonnance 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. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 2 e. 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. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) 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. f. 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (I) 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 of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense ofthe City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 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 3 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 ofIaw; 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 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: Executive Director of Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-85) P.O. Box 1988 Santa Ana, California 92702 and, 4 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: Imtran 20331 Lake Forest Drive, Suite C6 Lake Forest, CA 92630 (949) 457-0852 Attn: Mike Stuhley 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 shaH 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 ofthis 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 5 shall be construed to limit the City's ability to have any ofthe 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, 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 goverrunent 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 ofthe 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 of this Agreement. 6 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 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: ~ d ~-----,- I - -- .t-~;:J~____ . '" PATRICIAE. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attqrney I 1 . (, ! By: I, ,;' Michae Yigliott Deputy City Attorney RECOrMEND~r;R APPROVAL' "LtCl{ ~ /7 J Ji Ross J;!xecutive Director of the Public Works Agency CITY OF SANTA ANA ~-kJj{~ /uL "DAVID N. REAM ! City Manager CONSULTANT ike Stuhley President ")) D -( g-:;-S-Oz' Employer ill # or Individual SS # 7 [RUrRANl 20331 Lake Forest Drive, Suite C6 Lake Forest, CA 92630 Phone: 949-457-0852 Fax: 949-457-0649 WWW.!MTRAN.COM mstuhley@imtran.com To: Ray Burk From: Mike Stuhley Date: 02114/0] Re: Teleform svstem upgrade ThaPk: you for taking the time to meet with me to discuss upgrading your current system and redoing your form. Enclosed please find a quote based on our talk yesterday. Software . Teleform E]ite 7 Upgrade $2,250 Services · Installation, testing and configuration . I day on-site training · Review and change current inspection form definition . ] day on-site production support · Complete form definition for new inspection form $300 $],250 $625 $],250 $],970 Support · Maintenance contract for one year $],080 TOTAL $8,725 Unless otherwise stated above: . Tenns are Net 15 . Pricing does not include sales tax if applicable . Pricing does not include travel expenses if applicable . Pricing is valid for 30 days unless extended in writing by Imtran . If the scope of the project changes Imtran reserves the right, with customer approval, to make price, hardware andlor software changes. "EXHIBIT A I have reviewed the Supplemental Draft EIR for the Centerline Project dated December 2000. My comments relate to impacts on underground water and sewer facilities. Construction of the project wiIl have significant impacts on existing water and sewer infrastructure. The proposed elevated track configuration has a footprint of26 to 32 feet in width. Underground utilities may not be able to remain in this area, since excavation for repairs could be impaired by the overhead track. At the very minimum, the foundations for track supports wiIl require at least a 10 foot wide area down the middle ofthe street. All existing utilities running parallel to the track would need to be relocated from this area. The difficulty will be finding adequate remaining street right of way in which to relocate the utilities. If the project is constructed in Bristol Street, there is an Orange County Sanitation District trunk sewer as well as City water and sewer mains. The 36-inch diameter Metropolitan Water District Orange County Feeder is also located in Bristol Street. If the project proceeds any further into the planning phase, I recommend a utility relocation plan be prepared. Due to the limited available street right of way, utility relocations may be much more difficult and costly than those encountered during the 1-5 widening project. If you have any questions, please call me at X3317. CS J87 FORM C',\VfNOOW5'.TE."rp'AGREEMENT ",'TTI-l IMTRA:\' CHECKLIST doc .- EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 I; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded b} this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit ofthe additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits ofIiability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to , this endorsement form as a part of Named Insured Countersigned by Authorized Representative rl I"" , .I. "- U.. .....c......L ~ r-' M~r 19 01 03:29p ......~Q,'~, ......', '-....c............l ...c:;.... Public (Jorks ~.~ 7146473345 p.2 ,- A CORD CERTIFICATE OF LIABILITY INSURANCE I o...nl~""D~1 ,. 03/07/2001 'fl.OO\JCli:!( (GS'O)341p4484 FAX (650)J41-446\ THIS CERTifiCATE IS ISSUEOAS A MATTER OF INFORMATION Business Professional Ins. Assoc. Inc. ONLY AND CON~ERS NO RIGHTS UPON THE C;ERTl~'CALE HOLDER. THIS CERTIFICATE DOES NOr AMEND, EXTENO OR i519 South B Street Al TE~ TI-fE COVERAGE AFFORDED BY fHE POUCJfS BELOW. Sah Mateo,. CA 94402 INSURERS A~FOR01NG COVERAGf; lHSOR.EO Imtran. Inc fNSU~fR A Hartford Z0331 Lake Forest Or1ve #C6 IHSURfR8 rIG Lake Forest, CA 92630 rNSORt'"ftC' fNS(.'ftfHO I ~ttE. ..- CO\l1:RAGl:.S TH~ POLICIES Qf INSURANCE lISTEO BELOW HAVE BE:EN ISSU€I)TO THE lNSVREO NAMeD Aaov!: Fcm THE POlley PERIOD INDlCA1fC:. NOTWITHSTANDiNG AN)' REQUIREMENT, TERM on CONomo~ OF A.NY CONTRACTOR. OTHIOR OOCUMENTWITH RESPECT TO WJ.lICH THIS CERT1F1CA.TE MboV BE ISSuEll OR. MAY PERTAIN. THE INSURANCE AFfORDED BYlHE POliCIES DESCRl6ED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS Of SuCH POLIClES "-CGREGA.TE lfUlTS SltOWNMAY HAVE SEtH RtDUCEO ey PAlO ClAIMS :llf typE OF INSURANCE I'QlltYNUMIIER 'O;f~T:~~" ok~ LlMtfJi ~ERAL.L1A9I\JT'Y 7 SBA LN1493 C~/IS/'OOl 01/lS/200' E.\C1'f OCClJf';RtNCE . 1.000,000 );: eOMW::FI.CIAt O::UE:RAt U...8lLITV FiRfClAAlAGE(""'1":"'~(.1 . 300 000 ~ ~ CtAlMS 'AADE 00CClJR Ml;DUP(An,Otl.~on} , 10,000 A PE1l,s0N.u,...>\DV.NJtJ11T , 1,000.00 O("'fAAl AC~EGAff , 2,~?~ ~~ACG~r~~~6: Ar:~tlf>t:R PAODucTS . COMPIOP AW . EXClUDE! POliCy ] Jt:CT lOC .-. ~lOMO"tl.f: I..IAlttUrr COlMllNED SrNQ.E llWI . AAYAUm tE"'."">d~lltt 1,000,00 ~ ALL OwNeo AlJtOS BOOtl Y INJ\J~Y . ~ S(,.-m;OlSl(o....uros [PlI/'P9llQ#lI .; HfItEOAlHOS e.o(ll!.VINJ{Jf('f . ~ N~.OWNt:O lI.ulOS \P.'~;~"lj PAOPO\lY OAMA"'" . \PQlACC,,,,,,..lj R":"""'''''''' AlITO OliLY - E.... ACCIOENT . AN'(AtJy() on1f:ltt~ EAACC . AUTOON>kY 'OC . -. p~S$lIA8ILlTY EADlO<;CUJ\RE...CE. , OCCUR: 0 CVU-"lS NADI: AGGIl:ECI\T!: . . l,DfDUC"rlSlC . RETENlIcm . . l'YOkXEItS COMPENSA"1IOH AHO OS9JSH Ol/10/l001 OJ/I0/z00Z X I iOA';liMJ~S liVe';' EMPlOYEAS'UA8lI.ITY fl. E....CHACCIOE~T . l,OOO,OYO B ElOl$I'UlSE ,fA 'E~PlOYU , 1.000.000 H. OlSEASE, POlICY llMfr , l,OOO,DOI l)fHU i tlESCRIPTlfN O~ OPER.\TlIJNSllOC"f~$f\j'EHll:lESfEllCLU$ION:i _DOED IY ENtlOftr....ENT/S"t:<:lAl PROVISIONS ity 0 S~nta Ana. its officers, agents, and emp oyees are to be n~med a. additional insured rith regards to insureds business operations, pdditional Insured only applies to General Liability policy, e. [IG) ~ay notice of cancellation for non-payment of premium ~hal ) apply_ CERTIFICATE HOLOER I I AOOITIONAt INSURt.O; INSUlteR t.fnER; CANCELLATION ~O\ll.OANY o~ THE A!lOV&. DfSCAl.IIliD PO~!1:'ES BE c.......u::Et.lEO &EFORf THE t:: Cit~ of Santa Ana fi.J.f'lFtATlQN o...u: THE:REO" tltE 'SSUlNG C::OMPAN\' Will tj.ItC""l11'1 HI "'All Water Resource Division -12- O....YS WAITt!!:N; ,"oner: TO nU! CEln1l'ICATE 110l0ER NAMED H) ntElEFT4' Public Works Agency Attn: Ray Burk . H. 'ill . . . . r 2205. Daisy Avenue , 1. 5 !l r.I',IT& liE 1&.., nfP'1ES! /; T ~!, Sa.ta Ana, CA 9270J AUTWORQ:!!:O lUP1teseNTAnVE ~,~- Debbie Upland22/SA.NOEE T N 1 88 ~rvJ t,1rk! 711,,';'1 ACQRO 2S.S 17191) fQACORD CORPORA 10 9 APPROVED AS . '0 FORM MIchael Vigliot1a Deputy City Attorney So.nt SX' SP:A, Inc.; .. .' ~ 16SJ34144<lS; Mer-S - J1 11: S9AM; P.go 212 /f)1lteA~ ~ EXHIBIT B ADDITIONAL INSURED ~~~~ FOR. COMMERCIAL GENBRALi 0 lex Insuran<:c Company ~~~. C/ Thi. endorsemcnt ~odifles sueh inaurallCC a8 if afforded by the provisions of Polley fI ~~ LN 1"f?3 ~18lins: to the (ollowing: 1. Thc City ofSlllltaAna, 20 Civic CentorPlaza, Santa Ana, California 92701; its oftlcers, employees, agents, volunteersllld repruentatives ilO named as additionallllSureds ("additionallnsureds") with regard to liability lIIId defense of suits arising &om the operations and uses ))el'f'onned by or On behalf of thc named insured. 2. With respect to cWms arising olll of tho operatiollS and USes pcrformed by or on behalf of the named insured, such illllurance lIS is Ilfforded by this policy is primary lIlld is not additional 10 or contributing with any other insurance carried by or tbr the benefit of1he additional insureds. 3. This iusurance applies separately to each illsurcd aga/ust whom claim is made or suit is brought except with respcct to the company's limits o.('liability. The inclusion or any person or organization as an insured shall not afi'cct any right which such person or orglllllzation would have as a claimant if not so included 4. With I'C$pect to the additional insureds, this insurance shal! not be cancelled. or materiaIly reduced in coverase or limits except after thirty (30) days written notice has been given to the City of Santa A.'la, 20 Civic Center P!aza, Santa Ana, California 9270l. (Completion oftoe following, inoluding eountenlgnature, Is required to nW<e this endorsement cffClltive.) Effective Policy # Issued to :~;!/ -txJ - ~ j<.~_, this endorslllDent form lIS Ilpart of ,?:'] $1SJ!J ~~ P-/9,8 ~ . . LfY1 +-1> IJ.M TN a.- . Named In ured ' Counterslaned by FORM Michael Vigliotta Deputy City Attorney