HomeMy WebLinkAboutBRIAN WHITLEY dba SYSTEMIC SOLUTIONS - 200840 1 AGREEMENT TERMINATION
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Please complete this form when the attached agreement is no Ion ]r'11ey?. S,4 N TA ANA
Return form to the Deputy Clerk of the Council (M-30). Call 647-521I At. QW?N
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No. N --z-,,O O R- 15t-T y was completed on Qr ?t (ZV IO
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Date:
City of Santa Ana
Clerk of the Council
Revised 05-22-08
INSURANCE NOT REQUIRED N-2008-154
WORK MAY PROCEED
CLERK OF COUNCIL
DATE: 1 I - ~ 1- C ~5 CONSULTANT AGREEMENT
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~ ~ Pr~Y~HIS AGREEMENT, made and entered into this tN day of November, 2008 by and between
Lor , Bao~o,~ Brian Whitley dba Systemic Solutions (hereinafter "Consultant"), and the City of Santa Ana, a charter
city and municipal corporation organized and exisfing under the Constitution and laws of the State of
California (hereinafter "City").
RECTI'ALS
A. The City desires to retain a consultant having special skill and knowledge in the field of UASI
grant provisions to provide emergency management and preparedness services for the Santa
Ana Police Department
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 Consulant 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 shall provide Homeland Security emergency management and preparedness services
to the Santa Ana Police Department (SAPD), 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, an hourly
rate of $80.00. The total sum to be expended under this Agreement shall not exceed $25,000.00 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 standazds of performance set forth in the Recitals which may reasonably be
expected by City.
3. DELIVERY OF WORK PRODUCT
Consultant shall deliver to City all 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 all 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 from the
City, and (b) the authors of all such material, whether copyrighted or not, awazd to the City, and to its
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officers, agents and employees acting within the scope of their official duties, as a condition of payment
to the Consultant, aroyalty-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 set forth above and terminate upon expenditure
of allocated funds, unless terminated eazlier in accordance with Section 13, below. The term of this
Agreement may be extended upon a writing executed by the Chief of Police and the City Attorney.
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 anemployer-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 standazds 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 Ageement, Consultant shall maintain and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Due to the nature of services provided, Commercial General Liability coverage will not be
required.
b. 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
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. 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, regazding any action by a thud party asserting that personal injury, damages, just
compensation, restitution, judicial or equitable relief due to personal or property rights azises by reason of
effects azising from this Agreement. City may make all reasonable decisions with respect to its
representation in any legal proceeding.
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8. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such information is
reasonably understood to be wnfidential and/or proprietary, Consultant agrees that it shall not use or
disclose such information except in the performance of this Ageement, and further agees to exercise the
same degee of caze 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 pazty by any subsidiary
and/or agent of the other party is covered by this Ageement. 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
Ageement.
10. NOTICE
Any notice, tender, demand, delivery, or other communicafion pursuant to this Ageement 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 telegaphic communication in the manner
provided in this Section, to the following persons:
To City: Clerk of the City Council To Consultant: Systemic Solutions
City of Santa Ana Brian Whitley
20 Civic Center Plaza (M-30) 20801 Aquatic Lane
P.O. Box 1988 Huntington Beach, CA 92646
Santa Ana, CA 92702-1988
telefacsimile (714) 647-6956
With courtesy copies to:
Santa Ana Police Department
Atfi: UASI Grant
60 Civic Center Plaza (M-97)
P.O. Box 1981
Santa Ana, California 92702
telefacsimile (714) 245-8007
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
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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. 1f 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 Cif 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 aze 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 aze 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. TERMINATION
This Agreement may be terminated by either party 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 ofthis Agreement.
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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,
Califomia, 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
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 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.
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IN WI"INESS WHEREOF, the parties hereto have executed this Agreement the date and year first above
written.
ATTEST: CITY OF SANTA ANA
PATRICIA E. HEAL DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
sy:
Lau' Sheedy
Assistant City Attorney
RECOMMENDED FOR APPROVAL: SYSTEMIC SOLUTIONS
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PAUL M. WALTERS BRIAN WHI Y
Chief of Police Tax ID# Z 3/-<12-~ ~ 9 ~
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EXHIBIT A
SCOPE OF WORK
Proposal
Brian Whitley doing business as Systemic Solutions proposes to provide consulting services to the Santa
Ana Police Departrnent. These consulting services will include assistance regazding the development and
implementation of homeland security /emergency management and preparedness programs managed by
the Santa Ana Police Departrnent as well as technical assistance as needed in the management and
administration of the Urban Areas Security Initiative (UASI) grant. These services will be provided as
requested by the Santa Ana Police Department and as mutually agreed upon by Systemic Solutions and
the Santa Ana Police Department.
The consulting services provided by Systemic Solutions may be performed at the Santa Ana Police
Station or at an off site location at the discretion of Systemic Solutions. Meetings between Systemic
Solutions and the Santa Ana Police Department will be conducted as needed and at an agreed upon
location in order to provide relevant progress reports and other types of requested documentation to the
Santa Ana Police Department.
Systemic Solutions will be responsible for supplying all necessary office supplies and equipment unless
such office supplies and equipment must be provided by the Santa Ana Police Department in order to
accomplish the work requested by the Santa Ana Police Department.
Compensation:
These services will be provided to the Santa Ana Police Department at an hourly rate of $80 per hour and
will be billed on a monthly basis. Invoices will be prepared listing the number of hours worked each
month and a description of the work performed.
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113~,j~,v tvj~Tl.E_`j Itrreby affirm under penalty afperjury, the
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I certify on beha]fof $~r~tiSC Sa~uT~.,S that during the term of mp
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eunu:na With the S.~Ir~~9 ANA PxIcE 6lEPT, . City of Santa Ana. I n'ill no[
employ any Peron in any manner sa as to become subject to the warkcrs' catnltcusalion
laws of Califontia, and agree that if I should becontc subject to the ~~~itrkcrs'
cumpens;uian provisions of Section 37011 ofthe Labor Code, I shall fonhwlth campiy
kith [itac prae°isions
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LTLAGf~PUL.:1~1D SHALL Sl!B.JECT AN E~IPLOY6R'LO CRINIIVAL PEN.~ILTIES
AiyL) C'IVIr. F[VGS (JP TO ONF. HGn'I)REI) I'iIOUSAVD DOLL'IRS (5100,000)- IN
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IV SECTI(-)V 3706 OF MIL L,16UR ('ODE, INTERF.ST_.ANf) A'fCORK~I"S FGES_
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