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HomeMy WebLinkAboutLA CART'S MFG., INC. - 2006 INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DATE: ~-8'-oG, CONTRACTOR AGREEMENT N-2006-076 THIS AGREEMENT, made and entered into this ~day ofrff~ ,2006 by and between LA Cart's Mfg., Inc., (hereinafter "Contractor"), and the City of Santa Ana, a charter cily and municipal corporation organized ami existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the field of providing burgundy umbrellas lor the downtown vendor carts. B. Contractor represents that Contractor is able and willing to provide such services/materials to the City. C. In undertaking the performance ofthis Agreement, Contractor represents that it is knowledgeable in its fleld and that any services performed or materials provided by Contractor under this Agreement will be performed and provided in compliance with such standards as may reasonably be expected from a professional fim1 in such field. NOW THEREFORE, in consideration ofthe mutual and respective promises, and subject to the tcrms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall provide the City with at least twenty-two (22) burgundy colored umbrellas for the downtown cart vendors. 2. COMPENSATION a. City agrccs to pay, and Contractor agrees to accept as total payment for its serviccs, the ratcs and charges identified in Exhibit A. The total sum to be expended undcr 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 lollowing receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment nccd not bc 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 tcrminate npon expenditure of all funds hereunder, unless terminated earlicr in accordance with Section 12, below. The term of this Agreement may be extcnded upon a writing executed by the Deputy City Manager of Developmcnt Services and the City Allomey. 4. INDEPRNDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee ofthe City. This Agreement is not intended nor shall it be constnlcd to create an employer-employee relationship, ajoint venture relationship, or to allow thc City to exercise discretion or control over the professional manner in which Contractor performs the services which arc the suhject matter ofthis Agreement; howcvcr, the services to be provided by Contractor shall he provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall he responsible for all applicable withholding taxes. 5. INSURANCE Not required due to nature of Agreement. 6. INDEMNIFICATION Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Contractors, 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 Contractor or its contractorti, 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 suCCered, 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 Contractor further agrees to indcmnify, hold harmless, and pay all costs for the defense of the City, including fecs and costs for special counsel to be selected by the City, regarding any action by a third party asserting that personal injury, damages, just compensation, rcstitution, judicial or equitable relieC 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 procccding. 7. CONFIDRNTIALlTY If Contractor receives from thc City information which due to the nature of such infonnation is reasonably understood to he confidential and/or proprietary, Contractor agrccs that it shall not use or disclose such information except in the performance of this Agrcement, and furthcr 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 infonnation. 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 ofthc other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) hao been disclosed in publicly available suurces; (b) is, through no fault of the Contractor dioclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be discloscd by operation of law; or (e) is independently developed by the Contractor withont refcrcnce to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance ofscrvices specified under this Agreemcnt. 9. NOTICE Any noticc, tender, demand, delivery, or other communication pursuant to this Agrccment shall be in writing and shall be deemed to be properly given if delivered in person or mailed by fiTOt class or certified mail, postage prepaid, or sent by te1efaesimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: City Clerk City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courleoy copies to: Community Development Agcney City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 565-4020 and 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 Contractor: LA Cart's Mfg., Inc. 12549 Washington Boulevard Whittier, CA 90602 Telefacsimile (562) 696-5962 3 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, dclivery, or other communication shall bc addressed and tran,mitted to the new address. If sent by mail, communication shall be effcetive 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, communication shall be effective or dccmed to have been given twenty-four (24) hours after the time ,et forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekcnds, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement bctween the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agrcement and any attachments hereto, the terms oflhis Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. Thc parties agree that any terms or conditions of any purchase order or other instrumcnt that are inconsistent with, or in addition to, that ternlS and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this Agreement acknowledges that no representation" inducements, promi,es or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which arc not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure thc specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent ofthe City and any such assignment, transfer, <.lelegation or subcontract without the City's prior writtcn consent shall be con,i<.lered null and void. Nothing in this Agrccmcnt 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 Contractors retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to rcceive and the City shall pay Contractor compen,ation lor all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Deputy City Manager ofDevelopmcnt Services require Contractor 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 unIess prohihited by law, an<.l Contractor consents to the City's use thereof for such purposes as tbe City deems appropriate. b. Payment need not be madc for work which fails to meet the standard of performancc specified in the Recitals ofthis Agreement. 4 13. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, agc, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, tem1ination or other employmcnt related activities. Contractor 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 delivercd in the State of California and the validity, interpretation, perfonnance, and enforccment of any of the clauses of this Agreemcnt shall be determined and governed by thc laws of the State ofCalifomia. Both partics further agree that Orange County, Califomia, shall be the venue for any action or proceeding that may be brought or arise out of, in cOill1ection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all ncccssary 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 Califomia, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of her inability to ohtain or maintain such pennits, 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 ofthe terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fccs, for any injuries or danlages 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 ami year first above written. ATTEST: CITY OF SANTA ANA ~~4i?:> PATRICIA E. HEALY City Clerk Q~ JkZ~ DAVIDN.REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By: M~ '- (. /J}.:~v( LISA E. STORCK Assistant City Attorney APPROVED AS TO CONTENT: C~N\ ST~/~. HARDING Deputy City Manager of Development Services ARENAS Gel eral anager 6 #_otOO,-or~ Mitre-Ramirez, Norma From: Sent: To: Subject: Mercado, Danell Thursday, August 03, 2006 2:23 PM Mitre-Ramirez, Norma; Storck, Lisa RE: LA Cart's Mfg. Please date the agreement February 24, 2006. Thanks. ---- Original Messagenm From: Mitre-RamIrez, Norma Sent: Thursday, August 03,20061:58 PM To: Storck, Lisa; Mercado, Danel\ Subject: lA Cart's Mfg. Hello Lisa, The above agreement does not Indicate the begining of the term (missing the month and day). Thank you, Norma Mitre-R. Deputy Clerk of the Council City of Santa Ana (714)647-5237 1