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HomeMy WebLinkAboutCONTEMPORARY TILE <;;IV AGREEMENT TERMINATION Please complete this form when the attached agreement is no 10n_n.~V AM 9: 20 Return form to the". Deputy Clerk of the Council (M-30). Cal~n32~ if you,'R'jXfJlrY questIOns. elL,,;. e,'JUNCll The agreement with ,No. /f/-oWOG;- 0:7,3 Signature was completed on Department: Date: Revised 8-7-03 City of Santa Ana Clerk of the Council INSURANCE NOT ON FILE WORK MAY OOI PROCEED CLERK OF COUNCIL DATE: 7-,WO. 0: (J.)p. (2),CC,Fwl1efi>f') N-2006-073 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 30th day of June, 2006 by and between Contemporary Tile, a sole proprietorship (hereinafter "Consultant"), and thc City of Santa Ana, a charter city and municipal corporation organized and existing undcr the Constitution and laws of thc State of California (hereinafter "City"). RECITALS A. The City desires lo retain a consultant having special skill and knowledge in the lleld of tile selling. B. Consultant represcnts that Consultant is able and willing to provide such serviccs to the Cily- C. In undertaking the perfom1ance of this Agreemcnt, Consultant represents lhat it is knowledgeable in its lield and that any scrvices performed by Consultant wlder this Agreement will be performcd in compliance with such standards as may reasonably be expected from a professional consulting lirm in the lield. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, thc partics agree as follows: I. SCOPE OF SERVICES Consultant shall perlonn tile repair work on an as-needed basis. When City requests lile repair services, Consultant will respond with a writtcn proposal detailing the materials to be used and the cost of the project. Upon the writtcn authorization of the Deputy City Manager of Development Services, Consultant shall cnmmence work in accordance with the Proposal. 2. COMPENSA nON a. City agrees to pay, and Consultant agrccs to accept as total payment for its services, lhe rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not cxceed $10,000.00 during the term of this Agreement. b. Paymenl by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, snbjcct to City accounting procedures. Payment need not be made for work which fails to meet the standards ofperfonnance 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, 2007, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Deputy City Manager of Development Services 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 perlorms 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 employccs 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. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurancc naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) amI shall include, but not be limited to protcction against claims arising !Tom bodily and personal iojury, including death rcsulting therefrom and damage to property, resulling trom any act or occurrence arising out of Consultant's operations in the performance ofthis Agreement, including, without limitation, acts involving vehicles. The anlOunts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulling therefrom, and property damagc, in thc total amount of $1 ,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attachcd hereto as Exhibit B upon execution of this Agreement and shall be approvcd in form hy the City Attorney. b. I3usiness automobile liahility 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. c. 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 undeliake 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. 2 d. The following requirements apply to the insurancc to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for thc cntire 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) Certilicates and policies shall statc 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 tu the City. e. 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 electiun, to forthwith terminate this Agreement. Such termination shall not effect Cunsultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives thc right to receive compensation and agrees to indemnify the City for any work performcd prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and huld harmless the City, its officers, agcnts, employees, consultants, special connsel, and representatives from liability for pcrsonal injury, damagcs, just compensation, restitution, judicial or equitable relief arising ont of claims for pcrsonal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcuntractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I ofthis Agreemcnt. The Consnltant further agrees to indemnify, hold harmlcss, and pay all costs for thc dcfense of the City, including fees and costs for special counscl to be selected by thc City, regarding any actiun by a third party challenging thc validity of this Agreement, ur a"erting that personal injury, damages, just compensation, restitution, judicial ur equitable relief due tu personal or property rights arises by rcason of the terms of, ur ellects arising from this Agreement. City may makc all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from thc City information which due to the nature of such information is reasonably understood to be cunlidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the pcrformance of this Agreement, and further agrees tu exercise the same degree of carc it uses to protect its own information of like impurtance, but in no event less than rcasonable care. "CunJidentiallnformation" shall include all nonpublic information. Confidential inlormation includes not only writtcn information, but also information translerred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other 3 party is covered by this Agreement. The foregoing obligations of non-use ami nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault ofthe 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 uisclosed by operation of law; or (e) is independently ueveloped 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 conilict in any manner with performance of services specified unuer 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 delivereu 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 telefaesimile (714) 647-6956 With courtesy copies to: Deputy City Manager of Development Services City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 telefacsirnile (714) 647-6736 anu City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefaesimile (714) 647-6515 To Consultant: Contemporary Tile Thomas Roy 15 Purple Sage Irvine, California 92603 telefaesimile (949) 854-3470 4 A party may change its address by giving notice in writing to the other party. Thereafter, communication shall be addressed and transmittcd to the new address. If sent by mail, communication shall be effective or decmcd to have heen given three (3) days after it has bccn deposited in the United Statcs mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission rcport 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 complctc 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 betwcen the terms of this Agreement and any attachments hcrcto, the terms of this Agrccment shall prevail. This Agreement may not be modificd cxcept by written instmment signed by the City and by an authorized representativc of Consultant. The parlies agree that any terms or conditions of any purchase ordcr or other instmment lhat 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 agreemcnts, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are nol embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consoltant, Consultant may not assign, transfer, delegate, or subcontract any intercst 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 performcd by City personnel or by other consultants retained by City. 12. TERMINA nON This Agreement may be terminatcd 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 Deputy City Manager of Development Services 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 prohibitcd by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. 5 b. Payment need not be made for work which faih to meet the standard of performance speeificd in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of racc, 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 has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this i\greement shall be determined and governed by the laws of the State of California. Roth parties further agree that Orangc County, California, shall be the venue for any action or proceeding that may be brought or arise out or, in cormection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agrecment, maintain all necessary licenses, permits, approvals, waiver~, and exemptions necessary for the provision oftlle services hereunder and required by the laws and rcgulations 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 inahility to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned rcpresents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms ofthi, i\greement, and shall indemnify City fully, including reasonable costs and attorncy'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 ofthis Agreement. II II II II 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first ahove written, PATRICIA E. HEAL Clerk of the Council CITY OF SANT A ANA ATTEST: ~..---~/ ~h~/ ii. II.t k DA YID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney , B"./(. . )/ ' ~~ ',; \,~lL;' i,- v', .", 'r.;-/ r .aura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: CONTEMPORARY TILE S~H'HARf)ING Deputy City Manager of Development Services .---J ----- / //. I /2/---- ,,~ T1IOtvrAS ROY . Tax ID# .:),,_, (1,xJ7(i /::;'1 7 05/31/2006 15:53 PAX 9498543470 . . Contemporary Tile Co 141 001 CO TEMPORARY TILE CERA I>1IC 8< STONE CONTRACTORS Uc. NO 525069 1SPUI PLE SAGE .IRVINE,CA92603 TEL: ( 49) 656-1313' FAX: 654-3470 EMAIL: CPNTEMPORARYTlLE@COX.NET Fa Cover Sheet TO: The Depot at anta Ana DATE: May31st2006 ATTN: Carolyn Fu lerton SUBJECT: Pricin Structure Insurance Requirements MESSAGE' I apol ize again or the delay in getting back to you on your propo d work, I' n sending you the response I received from my 'agent long with t~eir standard additional insured endorsement (LG CG 20 10 02 06). The repair work proposed at "The Depol" would be bin on aT & M (time and malerials) basis.. Our hOurly rate for a tile se eT with hel er is $75, A rate of $40 per hour Is charged for obtain; g material (Iile, groul, setting materials, eIC.). A work order would e present d 10 you each day of work for your approval. Thank ou again or Ihis opportunity to quotelhis work for you_ SENDER: Tom NUMBER OF PAGES COVER HEET + 3 PAGE(S) EXHIBIT A EXHIBIT B ADDITIONAL INSURED ENlJORSEMENT FOR COMMERCIAL GENERAL L1AI3ILlTY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the [ollowing: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its omeers, employees, agents, volunteers and representatives arc named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on bchalf of the named insured. 2. With rcspect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or tor the benefit of the 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 ofliability. 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 he cancelled, or materially reduced in coverage or limits except after thirty (30) days written nolice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 l. (Completion of the following, including countersignature, is required to make this endorsement effective.) , this endorsement form as a part of EITective Policy # _ Issued to Named Insured Countersigned by Authorized Representative 8