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HomeMy WebLinkAboutKAKU ASSOCIATES 3.G 200b AGREEMENT TERMINATION Please complete this form when the attached agreement is no longer in effect.(�� Return form to the Deputy Clerk of the Council (M -30). Call 647 -5237 if you 1( y„questions.ANA CL QA --------------------------------------------------------- OF- - The agreement with No. /ll> eooe- Q9'"f was completed on and, final payment has been made. Wen ygm. ~20pb-Ogl- ®0o Department: � ' Signature: / Date:: 71,113 City of Santa Ana Revised 08 -28 -06 Clerk of the Council INSURANCE NOT ON FILE N- 2006 -097 WORK MAY NOT PROCEED CLERK OF COUNCIL DATE: 9- "2'04 O: P +B C* (T. zerba) CONSULTANT ACRF.F.MF.NT THIS AGREEMENT, made and entered into this / day of SwkmLer 2006 by and between Kaku Associates, Inc., a California corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing trader 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 traffic, parking and circulation issues. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the periomrance 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: SCOPE OF SERVICES Consultant shall provide consulting services regarding traffic, parking, and circulation related to projects being reviewed by the City. Said services shall be on -call basis provided upon the written request of the Executive Director of the Planning and Building Agency, which will request any specific Scope of Services and fee schedules(s) for each project. 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 510,000.00 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. 'PERM This Agreement commences on the date first written above and will tenninate upon expenditure of allocated funds, unless terminated earlier in accordance with Section 12, below. The teem of this Agreement may be extended upon a writing executed by the Executive Director of the Planning & Building Agency 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 perfomtance 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 arising 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 performance of this 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 S1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. 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. 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 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. 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. 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. E II 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: (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 1 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 of the 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 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 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 the Planning and Building Agency City of Santa Ana 20 Civic Center Plaza (M -20) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6956 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: Kaku Associates, Inc. Patrick Gibson 201 Santa Monica Blvd., Ste 500 Santa Monica, CA 90401 'I'elefacsimile 310- 394 -7663 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 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 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 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. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hercinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indenntify 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 fidly 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: CITY OF ANTA ANA le�C — PATRICIA k HEALY DAVI N. RE Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney i i By Lau a STicedy Assistant City Attorney RECOMMENDED FOR APPROVAL: A– \ JA M. TREVINO xecutive Director of the Planning and Ruilding Agency CONSULTANT �V r A�-� PATRICK GIBSO Vice President Tax ID # 95- 4295753 EXHIBIT A SCOPE OF SERVICES Consultant will provide expertise regarding traffic, parking and circulation issues to the City's Planning and Building Agency in relation to projects being considered by the City. Said services include review of projects and proposals, recommendations regarding traffic, parking and circulation issues regarding those projects, attending meetings to discuss and review, and other services as requested, in writing, by the City. Consultant, in coordination with the Project Manager, shall develop the definition of work product based on the specific work assignment for each project. Products may include, but are not limited to, memorandum, reports, diagrams and illustrations. Consultant shall deliver to City all work product which results from the services provided. Said work shall be submitted in a hard copy and produced in a form compatible with the City's computer system as agreed between the Project Manager and Consultant. COMPENSATION Principal I $275.00/hr Principal II 250.00 /hr Principal 111 200.00 /hr Associate I 175.00 /lrr Associate fI 150.00/hr Associate III 125.00/hr Associate IV 100.00/hr Technician 75.00 /hr Administrative 75.00 /hr ARD CERTIFICATE OF LIABILITY INSURANCE CO 09/126/20 61 PRODUCER (626) 795 -7059 FAX (626)792 -2321 FIA Insurance Services, Inc. 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 99 South Lake Avenue, #300 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # Pasadena, CA 91101 INSURED Kau Associates Inc INSURERA: Mitsui Sumitomo Ins Co of Amer . .SENTATIVES. AUTHORIZED NTATIVE' ` INSURER 9 Mitsui Sumitomo Ins USA Inc. GENERAL LIABILITY 201 Santa Monica Blvd INSURERC ACE American Ins. Co 08/01/2007 Suite 500 �I INSURER D. DAMAGE TO RENTEU Santa Monica, CA 90401 NSIT E. X COMMERCIAL GENERAL LIABILITY 4TH, POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAME[) ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REM ICED BY PAID CLAIMS. INSR kqn. TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE IMMA POLICY EXPIRATON LIMITS . .SENTATIVES. AUTHORIZED NTATIVE' ` Santa Ana, CA 92702 GENERAL LIABILITY PKG3122178 08/01/2006 08/01/2007 EACH OCCURRENCE $ 1,000,00 DAMAGE TO RENTEU $ 100,00 X COMMERCIAL GENERAL LIABILITY CLAIMS MADF EDOCCUR MED EXP(Any one PBROn) $ 10,00 PERSONAL B ADV INJURY S 1,000,00 A GENERALAGGREGATE $ 2,000,00 GENL AGGREGATE LIMIT APPLIES PER PRODUCTS - COMDOP AGO $ 1,000,00 POLICY .PIECT LOC AUTOMOBILE LIABILITY PKG3122178 08/01/2006 08/01/2007 COMBINED SINGLE LIMIT $ ANY AUTO (Ea w.dAnl) 11000,000 BODILY INJURY $ ALL OWNED AUTOS SCHEDULED AUTOS A HIRED AUTOS NDN -OWNED AUTOS � X BODILY INJURY IPer ac0l0enf) $ X PROPERTY DAMAGE $ -- (Per acotlenll GARAGE LIABILITY - ^'r. 11 ..1 '1C) ALTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO $ AD ONLY AGO EXCESSAIMBRELLA LIABILITY UMB5400432 08/01/2006 08/01/2007 EACH OCCURRENCE $ 1,000,00 AGGREGATE $ 11000,00 OCCUR 0 CLAIMS MAUL $ A $ D,DUCnRLE $ RETENTION $ WORKERS COMPENSATION AND WCP8S22212 08/01/2006 08/01/2007 WC BTATU E. L. EAD I ACCIDENT $ 1,000,00 EMPLOYERS. LIABILITY B ANYPROPRIETORIPARTNERrEXLCUTIVE OFFICERIMEMBER EXCLUDED' EL DISEASE EA EMPLOY C E 1,000,00 s,decrnbeuntler If yeCIAL PROVISIONS elow SPE O EL D6EASF- P(111CY LIMIT $ 1,000,00 DTN EONG21998278001 08/09/2006 08/09/2007 $ 1,000,000 Per Claim C roiessional Liability $ 1,000,000 Policy Aggregate $ 50,000 Deductible DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Certificate Holder* is named as an Additional Insured as its interest may appear, but only as respects lability arising out of the operations of the Named Insured within the scope of the policy terms and conditions. aku Ref #1962 (Traffic, Parking and Circulation Consulting for the City of Santa Ana) rEXcept ten (10) days notice of cancellation for non payment of premium. CANCFI I ATICIN CERTIFICATE HOLDER SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 130 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, City of Santa Ana Attn MS Tonia Zerba 20 Civic Center Plaza BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, US AGENTS BE . .SENTATIVES. AUTHORIZED NTATIVE' ` Santa Ana, CA 92702 ACORD25(2001108) FAX: (714)973 -1461 V [JACUKU CORPORATION 1968 ---City of Santa Ana Certificate issued to City of Santa Ana 09/26/2006 FIA Insurance Services, Inc. 09/26/2006 'The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insured, as their interest may appear. 1/ 11 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108)