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HomeMy WebLinkAboutROBERT CHARLES LESSER & CO. - 2007 INSURANCE ON FILE N-2007 -094 WORK MAY PROCEED UNTIL INSURANCE EXPIRES /-1' of CLERK OF COUNCIL DATfAUG 3 1 2007 CONSULTANT AGREEMENT o:COA (2) IA.Acy F"fE!.) THIS AGREEMENT, made and entered into this 1 st day of July, 2007 by and between Robert Charles Lesser & Co., a limited liability company (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"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of Market Opinion Research. 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 has provided independent response and reaction to the Santa Ana Renaissance Specific Plan (hereinafter "the Plan") in terms of market feasibility for the Santa Ana Community Redevelopment Agency. The initial response to the Plan caused further study and response. , 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 B. 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. DELIVERY OF WORK PRODUCT 1 Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's computer system, as agreed between the Project Manager and Consultant. In regard to any copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings, films, recordings, videotapes, and computer programs, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers that (a) other 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 September 30, 2007, unless terminated earlier in accordance with Section 13, below. The parties acknowledge that services provided on or after October I, 2006 shall be included within the Scope of Services of this Agreement. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Agency and the Agency General Counsel. 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. 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. 7. INDEMNIFICATION 2 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 I of 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 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. 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 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. 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 3 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Deputy City Manager for Development Services City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6736 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: Robert Charles Lesser & Company 1880 Century Park East, Suite 250 Los Angeles, California 90067 Telefacsimile (310) 914-1810 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, 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, 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, 4 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. TERMINA TION 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. 14. 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. 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 5 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 ofthe terms ofthis 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: . !~ ~~~ PATRICIA E. HEAL Clerk ofthe Council CITY OF SANTA ANA , (Jj{~~i y~?N. . City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Atton:ey ~~ ..' BfI. . i' A Q /' / (' (/ V (i ,(. Ut6ra Sheedy . 7 Assistant City Attorney . ROBERT CHARLES LESSER & CO. RECOMMENDED FOR APPROVAL d/ )jly STEPHEN ~. HARDING Deputy City Manager for Development Services 6 EXHIBIT A SCOPE OF SERVICES MARKET OPINION AND FEEDBACK - SANTA ANA RENAISSANCE SPECIFIC PLAN DOWNTOWN SANTA ANA, CALIFORNIA Consultant shall provide an independent review of the Santa Ana Renaissance Specific Plan ("Specific Plan"). Consultant has review the 50% Administrative Draft relating to the Specific Plan and understands that more updated and complete versions will be utilized, as provided. The Specific Plan covers a number of distinct districts in the Downtown area. The Administrative Draft encompasses the following chapters: 1) Introduction - Plan Purpose and Context; 2) Form and Character - Concepts and Programs; 3) Implementation - Finance, Infrastructure and Execution; and 4) Development Code - Standards for Development. Consultant shall provide a third party response and reaction to the Specific Plan in terms of market feasibility foundation, creation of an engaging development concept, and the economic development strategy leading to implementation. In other words, might developers view this plan favorably and likely consider this area for future investment? Consultant will base its comments on site visits and review of Specific Plan materials provided by the City. Consultant will provide no new research and analyses, nor will it address issues concerning urban design and architecture. The work product will be a report, in letter or Powerpoint form. Consultant will provide comment within 30 days of receipt of the more complete Specific Plan. Consultant will be available for additional work, including team meeting, planning and design review work, litigation support work, presentations to investors, lenders and/or public agencies, periodic updating of reports; financial analysis; marketing plan; consumer opinion research; and other activities, as requested, in writing by the Executive Director. Such additional work will be billed at Consultant's normal hourly rates. Proposals for such service, indicating scope of work and time and fee schedule, will be submitted upon request. City will provide full and reliable information about its requirements for this engagement, and shall furnish the information, surveys and reports, if any. City will provide cooperation of its personnel and such additional information as may be required from time to time. City will designate a Project Manager authorized to act on behalf of the City. Consultant can make no guarantee about the recommendations which will result from the services because such recommendations will be based on facts discovered by Consultant during the course of the study and those conditions existing as ofthe date of the report. 7 EXHIBIT B HOURLY BILLING RATES MANAGING DIRECTORS/ CEO VICE PRESIDENTS SENIOR CONSULTANTS ASSOCIATES $350 - $500 $210 - $300 $170 - $190 $90 - $150 8 A CORD_ CERTIFICAT ' OF LIABILITY INSURAN-e OP 10 N~ DATE (MM/DD(yyyy) ROBER01 01/30/07 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Arroyo/Knauf Ins. Services HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P. O. Box 41498 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Los Ange1es CA 90041-0498 Phone: 323-550-7900 Fax: 323-256-0800 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER k. Hartford Insurance Company 22357 #'02007-09<..( INSURER B: Robert Char1es Lesser Co. Inc INSURER C: 7200 Wisconsin Ave., 7th F100r INSURER D: Bethesda Me 20814 INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF AN'( CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE 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 REDUCED BY PAID CLAIMS, LTR NSRI TYPE OF INSURANCE POlICY NUMBER DATE MMlDDIYY) DATE IMM/DDIYY} LIMITS GENERAL LIABILITY EACH OCCURRENCE $1,000,000 - A X X COMMERCIAL GENERAL LlABllIlY 72UUNAH3699 01/01/07 01/01/08 PREMISES (Ea~~l.- $ 300,000 U CLAIMS MADE ~ OCCUR MED EXP (Anyone person) $ 10,000 - PERSONAL & ADV INJURY $1,000,000 t--- GENERAL AGGREGATE $ 2,000,000 t--- GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COM~OPAGG $ 2,000,000 Ii POLICY n ~f2T n LOC Emp Ben. 1,000,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,000 r-- ANY AUTO (Ea accident) r-- ALL OWNED AUTOS BDOIL Y INJURY t--- $ SCHEDULED AUTOS (Per person) r-- 01/01/07 01/01/08 A X HIRED AUTOS 72UUNAH3699 BODILY INJURY r-- $ X NON-OWNED AUTOS " (Per accident) t--- - PROPERlY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY. EA ACCIDENT $ 1 ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESSlUMBRELLA LIABIlITY EACH OCCURRENCE $5,000,000 A o OCCUR D CLAIMS MADE 72RHUAH4444 01/01/07 01/01/08 AGGREGATE $ 5,000,000 $ fx DEDUCTIBLE $ X RETENTION $10,000 $ WORKERS COMPE..,SATlON AND X I TORY L1Mm; I !U~~- A EMPLOYERS' UABIUTY 72WERL2961 01/01/07 01/01/08 $1,000,000 ANY PROPRIETORJPARTNERlEXECUTIVE E.L EACH ACCIDENT OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYEE $1,000,000 [~~M.L"~~~s below E,L DISEASE - POLICY LIMIT $1,000,000 OTHER DESCRIPTION OF OPERATIONS I L0CA11OHS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS City of Santa Ana, its Officers, Agents, Emp10yees & Vo1unteers are named as Additiona1 Insured as respects their interest in connection with the Named Insured. J\I::J'~R" () AS TO FORM #2~/t~ CERTIFICATE HOLDER // .'~"-'" ,~t ,-:c;-/.., J" l;ANl;ELLA TlON L~Ll ~r'-' A5~lSt&.1t Cit /. SHOULD ANY OF THE ABOVE DESCRIBED POlICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL QqlCiI"JI~MAIL ~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT ~SHALL City Of Santa Ana-CDBG M-25 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KINO UPON THE INSURER, ITS AGENTS OR Community Deve10pment Aqency P.O. Box 1988 M-25 REPRESENTATIVES. Santa Ana CA 92702 AUTHOF~. .:c. 1/. .' _ /;~ ./~4:? . ACORD 25 (2001/08) @ ACORD CORPORATION 1988