HomeMy WebLinkAboutXONOVIA TECHNOLOGIES LLC 2 -2007
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D~ JAN 1 ~ ~OQ8 CONSULTANT AGREEMENT
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THIS AGREEMENT, made and entered mto thIS 3 day of December, 2007 by and
between XONOVIA Technologies, a California corporation (hereinafter "XONOVIA"), 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").
A-2007 -272
RECITALS
A. City and XONOVIA entered into Agreement A-2006-287, by which XONOVIA
agreed to assist the Finance & Management Services department in evaluating the
City's IT infrastructure, security processes, and organizational structure in order to
promote the proper protection and deployment of resources, with a goal of assisting
the City with the identification of Information Technology critical assets and critical
information, security needs and implementation of a plan to meet those needs.
B. The City desires-that XONOVIA provide additional IT infrastructure evaluation services
arising out of the findings and recommendations from the prior services.
C. XONOVIA represents that XONOVIA is able and willing to provide such services to
the City.
D. In undertaking the performance of this Agreement, XONOVIA represents that it is
knowledgeable in its field and that any services performed by XONOVIA 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
XONOVIA shall provide additional study, review and recommendations, including
implementation of security issues, addressed in the initial study undertaken pursuant to
Agreement A-2006-287, as requested, in writing by the Executive Director of Finance and
Management Services. This is a joint project agreement and Customer agrees to make key
Customer staff members available and provide access to Customer's technical and development
environment on a timely basis.
2. DELIVERY OF WORK PRODUCT
Except as may otherwise be agreed to by the parties in an Addendum, with respect to any
software or other work product identified therein, City shall own all rights in and to all software
and other work produce (collectively "Work Product") developed by XONOVIA for City,
including all intellectual property and proprietary rights thereto. To the extent any Work Product
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is not considered a "work for hire", XONOVIA agrees to assign and will assign and transfer, and
will cause its personnel, as defined below, to so assign and transfer to the City, all of its and their
rights in and to such Work Product. To the extend applicable, City hereby grants to XONOVIA
a nonexclusive, royalty free license to use the Work Product in performing services during the
term of this Agreement. Further, to the extent required by XONOVIA to perform the services,
City will be responsible for obtaining all required consents (including paying license, transfer or
upgrade fees) for XONOVIA and its personnel to access and use City's equipment and software,
including any leased equipment and third party software, during the term of this Agreement. If
XONOVIA is requested by City to provide any XONOVIA proprietary software or other work
product developed by XONOVIA either prior to or independent ofthis Agreement, the parties
will negotiate in good faith for a license for City to use such software or other work product.
Without limiting the foregoing, nothing contained in this Agreement shall be considered to
restrict XONOVIA from any use of any ideas, concepts, methodologies, processes, technologies
or other know-how relating to the Services hereunder which XONOVIA, individually or with
City, develops under this Agreement.
3. COMPENSATION
a. City agrees to pay, and XONOVIA agrees to accept as total payment for its services
pursuant to this Amendment, at the rate of $1 00.00 per hour. The total sum to be expended
pursuant to this First Amendment shall not exceed $48,000.00, for a total not to exceed amount
of $223,000.00 during the term ofthis 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.
4. TERM
This Agreement shall commence on the date first written above and terminate on June 30,
2008, unless terminated earlier in accordance with Section 13, below. The term of this
Agreement may be extended upon a writing executed by the Executive Director of Finance and
Management Services and the City Attorney.
5. INDEPENDENT CONTRACTOR
XONOVIA 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
XONOVTA performs the services which are the subject matter of this Agreement; however, the
services to be provided by XONOVTA shall be provided in a manner consistent with all
applicable standards and regulations governing such services. XONOVIA 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.
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6. INSURANCE
Prior to undertaking performance of work under this Agreement, XONOVIA shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. XONOVIA 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 ofXONOVIA'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 $1,000,000 per occurrence. XONOVIA shall supply City with a fully executed
additional insured endorsement in substantially the form attached hereto as Exhibit A upon
execution ofthis 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
ofthe Labor Code, XONOVIA, ifXONOVIA 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, XONOVIA agrees to obtain and maintain
any employer's liability insurance with limits not less than $1,000,000 per accident.
d. 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 XONOVIA
pursuant to this section:
(i) XONOVIA 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.
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f. IfXONOVIA 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 XONOVIA's right to be paid for its
time and materials expended prior to notification of termination. XONOVIA waives the right to
receive compensation and agrees to indemnify the City for any work performed prior to approval
of insurance by the City.
7. INDEMNIFICATION
XONOVIA agrees to and shall indemnity 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 XONOVIA 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 ofthe terms
of, or effects, arising from this Agreement. XONOVIA further agrees to indemnity, 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
ofthis 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.
8. CONFIDENTIALITY
IfXONOVIA receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, XONOVIA 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 XONOVIA disclosed in a publicly available source; (c) is in rightful
possession of the XONOVIA without an obligation of confidentiality; (d) is required to be
disclosed by operation oflaw; or (e) is independently developed by the XONOVIA without
reference to information disclosed by the City.
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9. CONFLICT OF INTEREST CLAUSE
XONOVIA 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
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 Finance & Management Services
City of Santa Ana
20 Civic Center Plaza (M-17)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647- 5414
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 XONOVIA:
XONOVIA Technologies
19200 Von Karman Avenue, #6024
4th Floor
Irvine, California 92612
Telefacsimile (949) 878-4884
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
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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
XONOVIA, 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 ofthis Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative ofXONOVIA. 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 XONOVIA 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.
12. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services ofXONOVIA,
XONOVIA may not assign, transfer, delegate, or subcontract any interest herein without the
prior written consent ofthe 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. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, XONOVIA shall be entitled to receive and the City shall pay
XONOVIA compensation for all services performed by XONOVIA 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 XONOVIA 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 XONOVIA 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
XONOVIA shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
6
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. XONOVIA 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 ofthe 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
XONOVIA 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. XONOVIA shall notity 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 of the terms of this Agreement, and shall
indemnity 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
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PATRICIA E. HEALY 0
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By: ~5/(,,/ L /
Laura Sheedy /
Assistant City Atfurney
CITY OF SANTA ANA
~.~~
~DAVIDN.REA .
City Manager
XONOVIA TECHNOLOGIES
L
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Tax ID# 2U -- Lt I P {, 1 L ~
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EXHIBIT A
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
.... . .., r' '~I-\ (,... \,..,)y(.\/() C.Q__
Insurance Company r (\1 ff'/," 'j. .... ,
This, e~dors:mefJt modifies such insurance as is afforded by the provisions of Policy
# t)::l LtI ~ \) :; Lt \ relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; 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 by this policy is primary and
is not additional to or contributing with any other insurance carried by or for the benefit of
the additional insureds.
.
-'it
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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 of liability. 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 PI~za, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this
endorsement effective.)
Effective
Policy #
Issued to
Named
Countersigned by
, this endorsement form as a part of
Authorized Representative
Policy Number: 09421 03 41
Dale Entered: 12/14/2007
ACORD
_.._.m"'w"<~.,,....MM____~ '1M
CERTIFICATE OF LIABILITY INSURANCE
0" TE !MMiOOffYvY)
12/14/2007
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
H01J{ER. THIS CERTIFICATE DOES NOT AMEND, EXTeND OR
AL TER THE COVERAGE AFFOROED BY THE POLICIES BELOW.
PRODUCER
INSURED
XONOVIA TECHNOLOGIES LLC
AFFORDING COVERAGE
NAIC#
19200 VON KARMEN AV #6024
4TH FLOOR
IRVINE, CA 92612
!NSURER F::
COVERAGES
THE POLICIES OF INSURANCE USTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED AIlOVE FOR THE POUCY PERIOD INPtCATED. NOTWITHSTANDING
ANY REQUIREMENT. TERM OR CONDITION OF I_NY CONTRACT OR OTHE'R DOCUMENT WITH RESrE'CT TO VI/HICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED l'lY THE POLICIES OESCRIBED HEREIN IS SUBJECT TO ALL THE TEEMS. EXCLUSIONS AND CONDITIONS OF SUCH
POUCIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID Cl.AIMS
A
03 41
2!1412008
PERSONAL & AOV INJURY
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ALL OWNED AUTOS
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DESCRIPTION or GPERATfONS t lOCAnONS IVEHfCLES f eXCLUSIONS Aot)t;O BY ENOORSEMENT j SPEq,.'\l. PRQVlSiONS
THE CITY OF SANTA ANA, ITS OFFICERS, EMPLOYEES, AGENTS AND VOLUNTEERS ARE NAMED THEREIN AS ADDITIONAL
INSURED. THIS INSURANCE IS PRIMARY AND NON CONTI.<I:eDTORY TO ANY INSURANCE HELD BY THE CITY OF SANTA ANA,
ITS OFFICERS, EMPLOYEES, AGENTS, VOLUNTEERS, AND SUBSIDIARIES.
CERTIFICATE HOLDER
CANCELLATION
THE CITY OF SANTA ANA
20 CIVIC CENTER PLAZA
SA}IAT ANA. CA 92701
$14()U~D ANY OF THE ABOVE DESCRIBeD POLICIES aE CANCE~LED IlEH>flE THE ExpmA nON
OATE THEREOF., THE ISSUING 'NSUllER WI~L ENVEAVOR TO MAIL DAYS WRITTEN
NOTICE TO mE CERTIFICATE HO~DER NAMEO TO THE LEFT, BUT fAILURE TO 00 so $14AI.~
IMPOSE NO OBl.IGATION OR UA LHY or ANY KIND UPON THE INSURER, 'T$ AGENTS DR
REPRESENT ATlVES.
AUniORIZED REPRESENTATIVE
@ ACORO CORPORATION 1988
ACORD 25 (2001/08)
IS I " , '\}
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P<:>liC'f Number: 0"42'1 03 41
(jate Enterw: 12/1/2006
ACORD
_.........-.._.__...~
CERTIFICATE OF LIABILITY INSURANCE
DAn. tlllM/l)O/Y'NYI
.ROllUCER
Rijhwani Insurance Agency
Farmers Insurance
16700 Valley View #140
La Mirada, CA 90638
12/1./2006
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTifiCATE
HOLDER. THIS CERTIFICATE DOES MOT AMEND. EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
NAle.
INSURED
XONOVIA TECI'lNOLOGIES LLC
'N&\JRf:"<'>F.~? ..1.!!~',!~!~..5~~9Y.!'_._..
19200 ~)H ~ffiN AV 16024
4TH FLOOR 0 '1
IPSIlU:, CA nU2 A -~ 0 -J72.
iNSJRE? ()
~ iNSUi;:F._~ r::
COVERAGES
THE POLiCIES or INSUI~ANCE LISTED BELOW HAVE aEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICA,E!). NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONOrTlON OF ANY CONTRACT O~ OlHER DOCUMENT WITH RESPECT TO WHICH THIS C:ER'T1~IC"" Tlo MAV Be ISSUED OR
MA't PERTAIN. THE INSURANCE AFFOI~DEl) BY THE POLICIES DESCRiBeD HEREIN IS SUBJEC.T TO ALL THE TERMS. EXClUSIOI'4S AND CONomCJ/'lS OF SUCH
POL.lelloS. AGGREGATE LIMITS SHOWN MAY H......e seEN REDUCEO BY PAro CLAIMS
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THE C IT).' OF SJ\UTA i\ltA, ITS OFl!'lCERS, EMPLOYEES, ,AGENTS >>11) VOLOO'l'EEP.S AF.E NAI-iED THEFE m AS ;'.DDITIONAL
INSlJFED. THIS IHSTJ}>.ANCE 1$ PEU41l.l'.l ;,Nt) HOU CC;1tITRIBtJ't'Oltl TO .~N.t INSUF~CE HELD BY THE CrT1 OF SAHTJI.. Jl.NA,
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CERTIFICATE HOLDER
CANCELLATION
APFR ~j
SHOuLD "NT 0' THE ABO"" oueAIUD PO~""U' IE CAIllCEU..EQ BE'OAE ,.- UP'N"no"
OUl THEREO.. nlE 'UuINO 'ItSUNER Wll~ ENQLAV()~ TO IIIU.. ~.Q___. OAYS WRITT'''''
""TICE TO 'HI: Ct;;'HlprJC....Tf: tfOL1U" It;UK:D YO THE:' t..Lfl. 8VT fAf\.I.HlE TO DO &0 4",-'1.L
IMPosE )to O.l.jGATION OR: llAfHLlt'-f OF" IUh' ....MO UPO~ THE IHtU'UIt:, tf:S "GlII.NT$ OR
RE"U&E"TATIYU. .. ", I
,,, A\lT~q.R!fEO U.RUUlTATIVE ,i) {i .' (
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THE CITY OF Sl'-I-1-rJ.. MIA
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