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HomeMy WebLinkAboutMILLER & COMPANY P.C.City of Santa Ana Clerk of the Council V AGREEMENT TERMINATION FORM Please complete this form when the attached agreement and all amendments (if any) are no longer in effect. Return form to the Clerk of the Council Office (M-30). Call 647-2520 if you have any questions. The agreement with H COTC Office Use CLEAK ? NCIL No. �— �ZQ3 0S was completed on b IZ fta and final payment has been made. (List all amendments. Use space below if needed.) Department: Phone/Ext.: Signature: Date: Q�)N -�so; �'i a" oa--2 • Revised 07-22-09 INSURANCE NOT REQUIRED A-2008-095 WORK MAY PROCEED CLERK OF COUNCIL DATE:9 )-�-off O : CD A (ai CONSULTANT AGREEMENT Chr s D,�O-rof'fHIS AGREEMENT, made and entered into this 51' day of May, 2008 by and between Miller & Company, P.C., a professional corporation (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 foreign trade procedures and regulations. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance 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 create a basic operation manual for the Santa Ana Foreign Trade Zone and, in concert with City staff, create additional documents necessary for a wider range of foreign trade zone activities, as set forth in Consultant's letter dated April 22, 2008, attached as Exhibit 1 to this Agreement, and incorporated by reference. 2. WARRANTIES - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this letter agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant's performance hereunder, including all suggestions, ideas or other contributions to the Project, and the resulting works that result from the Project, shall be deemed "works made for hire" as defined in the United States Copyright Act, and City will be deemed, as to the creation of such work, the sole and exclusive author thereof. To the extent that any portion of the works from the Project is determined not to be a "work made for hire", then Consultant hereby assigns and transfers to City all worldwide right, title and interest in and to such work and shall execute any and all documents reasonably necessary to effect or evidence such assignment and transfer. 3. 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 $75,000.00 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. 4. TERM This Agreement shall commence on the date first written above and terminate on completion of services and City's acceptance of the deliverables, unless terminated earlier in accordance with Section 12, below. 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, ajoint 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. INDEMNIFICATION 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 1 of this Agreement. 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 Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6956 With courtesy copy to: Community Redevelopment Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6549 To Consultant: Miller & Company P.C. 4929 Main Street Kansas City, MO 64112 telefacsimile (816) 561-5999 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. 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 hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this 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: 114 1�, PA RICI EALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Lau eedy Assistant City Attorney CITY OF SANTA ANA FAR Alf 0 M Tax ID# 4 5 "\,'� t�kl` MILLER & COMPANY P.C. ATTORNEYS AT LAW 4929 MAIN STREET KANSAS CITY, MO 64112 816.561.4999 FAX 816.561.5999 E-MAIL intllaw@millerco.com WEB www.millerro.com April 22, 2008 Ms. Linda Summers Economic Development Director City of Santa Ana, California 20 Civic Center Plaza, M-25 Santa Ana, California 92702 1875 1 STREET N.W., 5" FLOOR WASHINGTON, DC 20006 233 BROADWAY, SUITE 2702 NEW YORK, NEW YORK 10279 Re: Proposal — Foreign -Trade Zone Revitalization Dear Ms. Summers: Scott Taylor and I enjoyed the opportunity of conferring with you last week. This proposal identifies the substance of our discussions. You asked that we assist your organization in structuring all of the basic documentation necessary to activate facilities that have been authorized as general-purpose zone areas within the City of Santa Ana's foreign -trade zone project with U.S. Customs and Border Protection. We would propose to undertake this activity in two stages. Stage 1 is the preparation of an Application for Activation document structure to be completed by individual firms, a basic Foreign -Trade Zone Operations Manual describing exactly how operations would be undertaken, and explanatory information pertaining thereto. The concept is to create a "step-by- step" process or "how-to" for small firms in Santa Ana wishing to initiate foreign - trade zone operations. In this first phase, the structure will be a simple warehousing operation with no assembly, production, manipulation, or other activities that might change the nature of products arriving to or being shipped from the facility. You asked that we prepare the basic documentation and utilize as an example of one firm to validate the basic process. Our second stage effort would be to take the basic documentation package that has been structured and enhance it to provide documentation necessary for a wider range of foreign -trade zone activities. We would create PowerPoints and train City officials in all of the intricacies of marketing and operating foreign -trade zones. Finally, we would restructure your general-purpose foreign -trade zone project. The project, as currently structured, encompasses physical locations that, because of changes, can no longer accommodate zone activity. As a result, it PLEASE REPLY TO THE KANSAS CITY OFFICE Ms. Linda Summers April 22, 2008 Page 2 needs to be reorganized. As we indicated to you, the Foreign -Trade Zones Board is in the process of structuring a new process for establishing general-purpose zone locations in a community. Attached is a PowerPoint of a joint presentation I made with Mr. Andrew McGilvray, the Executive Secretary of the Foreign -Trade Zones Board, on this subject in Washington, D.C. in February 2008. This entirely new approach to zone management will require the concurrence of the Grantee organization of Foreign -Trade Zone No. 50, the Port of Long Beach. We would propose in May of 2008 for you to meet with the Executive Secretary of the Foreign Trade Zones Board along with Scott Taylor when he is in Los Angeles for you to discuss this new approach to zone activity and attempt to secure Santa Ana as the first community in Southern California and in the United States to adopt this entirely new process. We believe that because of the very special nature of Santa Ana, this would make the entire process work much better. We would propose that the activities outlined in this letter be undertaken for a maximum fee including expenses of $75,000.00. Attached as Exhibit A is a list of individuals from our firm with respective hourly billing rates that would work on the documents. Attached as Exhibit B is a list of milestones with estimated completion dates. If you agree with the substance of this proposal, please sign and return at your earliest convenience. Very truly yours, Marshall V. Miller MVM:ksr enclosure Ms. Linda Summers April 22, 2008 Page 3 Signed and accepted this day of 2008. Linda Summers Economic Development Director City of Santa Ana c: Mr. Ray White K8R\DOCU\15812118800) (bdo 412208) LIST OF HOURLY BILLING RATES Scott S. Taylor $230.00 Linda D. King $195.00 Bart D. Ruby $160.00 Brandis D. Oliphant $75.00 Michelle M. Minshall $75.00 Marshall V. Miller $550.00 EXHIBIT A LIST OF MILESTONES 1. Provide detailed activation summary memorandum including: a. Draft Application for Activation b. Draft Operations Manual for Santa Ana Operators Estimated completion date: June 15, 2008 2. SST/LDK to meet with Santa Ana company to prepare and finalize activation documents Completion date: First 3 weeks in June 3. Submit Application for Activation and Operations Manual to LA Customs for Santa Ana company Completion: July 2008 4. Prepare FTZ Reorganization/Expansion Application for the City of Santa Ana Completion: July 2008 5. Secure Grantee sponsorship from the port of Long Beach for Foreign -Trade Zone Reorganization/Expansion Application Completion: July 2008 6. Upon issuance of Resolution from Port of Long Beach, file Foreign - Trade Zone Reorganization/Expansion Application at the Foreign - Trade Zones Board in Washington DC with a representative from the City of Santa Ana — September 2008 Completion: September 2008 7. Secure approval from Foreign -Trade Zones Board of Foreign -Trade Zones Reorganization/Expansion Application Completion: July 1, 2009 8. Secure activation approval from LA Customs for Santa Ana company January 1, 2009 (depending on timing of background checks by LA Customs) Bdoldocull 58598 18800-City of Santa Ana) EXHIBIT B