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HomeMy WebLinkAboutREAM, DAVID N. (March-May 2011)INSURANCE NOT REQUIRED _ N-2011-028 WORK MAY PROCEED CLERK OF CAUHgL WITE. MAR 2 Y 2011 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 9th day of March, 2011 by and between DAVID N. REAM, an individual (hereinafter "Ream"), 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. Ream had been employed as the long term City Manager for City until his voluntary retirement from said position effective March 8, 201 1 . City desires to retain Ream through this PROFESSIONAL SERVICES AGREEMENT as an independent contractor to perform professional services related to the duties of a city manager for City and to assist City in transitioning to a new City Manager. B. Ream represents that he is able and willing to provide such services to the City. C. Ream is an independent contractor who, in rendering services, is to exercise his independent judgment and represents the City only as to the results of his work and not as to the means whereby the work is to be accomplished. 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: ARTICLE 1. SCOPE OF SERVICES A. Ream shall perform the duties commonly associated with the position of a city manager for a city comparable to the City of Santa Ana. Such duties shall include, but are not limited to, those duties as identified in Santa Ana Charter sections 501 and 502; B Ream shall assist the City as requested in transitioning to a new occupant of the Gity Manager position; C. During the term of this Agreement Ream shall be an independent contractor and not an employee of the City D. Ream shall devote such time and effort to performing said services hereunder as he shall deem necessary for the successful completion thereof. ARTICLE 2. COMPENSATION A. City agrees to pay, and Ream agrees to accept as total monetary payment for his services, in the amount of $8,000.00 per month. Said $8,000.00 shall be paid in a pro-rated share for any portion of a full month wherein services are provided by Ream hereunder. The payment shall be paid on the first day of each month following the services provided. No invoice for the services rendered need be provided to the City by Ream. No payments will be paid for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City; B. City will provide at its cost and expense office space, computer, telephone and staff support that is normally provided to a City Manager of the City which_is reasonably necessary in performance of this Agreement. C. Ream shall not be entitled to the rights or employment benefits afforded to an employee of the City, including but not limited to medical insurance, disability or unemployment insurance, workers' compensation coverage, sick leave, vacation leave, or any contributions to any pension plan. Ream shall not be provided a City owned vehicle to be used for his exclusive use during the term of this Agreement. ARTICLE 3. TERM OF AGREEMENT A. This Agreement shall commence March 9, 2011 and terminate as of close of business on May 31 , 201 1 , unless terminated earlier pursuant to Article 12 herein. ARTICLE 4. INDEPENDENT CONTRACTOR A. Ream 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 Ream performs the services which are the subject matter of this Agreement; however, the services to be provided by Ream shall be provided in a manner consistent with all applicable standards and regulations governing such services. B. Ream shall not during the term of this agreement engage the services of any employees, agents or representatives of Ream to perform the services to be provided. C. Ream shall be provided a 1099 Miscellaneous Tax reporting form for the year 2011 by the City for the compensation paid to Ream by the City. Ream shall be responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by the City to Ream for the services to be provided under this agreement. Ream shall indemnify the City for any claims, costs, losses, fees, penalties, interest, or damages suffered by the City resulting from Ream's failure to comply with this provision. D. Ream shall not be an agent or representative of the City while commuting to and from his place of residence to city hall. ARTICLE 5. INSURANCE A. Due to the nature of the services to be provided by Ream to the City, Ream is not required to provide any insurance coverage for the City. B. Ream shall be covered under any insurance policy issued to the City for any liability that may exist in the future for any acts performed by Ream or omissions caused by Ream in the performance of the services rendered pursuant to the terms of this Agreement by Ream. ARTICLE 6 .INDEMNIFICATION A. Ream shall not be liable to the City, or to any third person or entity who may assert a claim based upon the relationship entered into between Ream and the City or for any acts or omissions in the performance of services by Ream under the terms of this Agreement. The City shall indemnify and hold Ream free and harmless from any claims, demands, obligations, costs, judgments, attorneys' fees, and attachments arising from, growing out of, or in any way connected with the services rendered by Ream to the City under the terms of this Agreement. In the event of any claim or lawsuit being filed against Ream the City shall select and/or approve the counsel for Ream including any independent counsel in the event there would be a conflict of interest in having either the City Attorney's office or counsel for the City represent both the Ream and the City. B. Ream shall indemnify and hold the City harmless from any acts or omissions that are caused by Ream while commuting to and from his residence to city hall and for any intentional act or omission or by the gross negligence of Ream which results in physical injury to a third person who is not an employee, agent or representative of the City. C. Excluded from the indemnification by Ream to the City set forth in Article 6, paragraph B is any acts or omissions that are caused by Ream while performing the duties of City Manager of the City or in the implementation of any instructions of the Mayor of the City, the City Council of the City, the Redevelopment Agency of the City or any other agency or board of the City or the performance or implementation of any provision of an ordinance or city code of the City, a state or federal statutory provision(s) or a city, state or federal administrative regulation(s). ARTICLE 7. CONFIDENTIALITY A. If Ream receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Ream agrees that he 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 Ream disclosed in a publicly available source; (c) is in rightful possession of the Ream without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by Ream without reference to information disclosed by the City. ARTICLE 8. CONFLICT OF INTEREST CLAUSE A. Ream covenants that he 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. ARTICLE 9. NOTICE A .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: City Clerk City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 (714-647-6956) telefacsimile To Ream: David N. Ream C/O Office of the City Manager City of Santa Ana 20 Civic Center Plaza (M-31) Santa Ana, California 92702-1988 (714-972-4926) telefacsimile With a Copy to: Wolf Law Firm Attn: Gerald A. Wolf 2677 N. Main Street, Suite 930 Santa Ana CA 92705 (714-972-4926) telefacsimile B. A party may change its address by giving notice in writing to the other party. 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. ARTICLE 10. EXCLUSIVITY AND AMENDMENT A. This Agreement represents the complete and exclusive statement between the City and Ream, 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 Ream or an authorized representative thereof. ARTICLE 11.ASSIGNMENT A. Inasmuch as this Agreement is intended to secure the specialized services of Ream, he 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. ARTICLE 12.TERMINATION A. This Agreement may be terminated by either party upon five (5) days written notice of termination. In such event, Ream shall be entitled to receive and the City shall pay Ream compensation for all services performed by Ream prior to receipt of such notice of termination. ARTICLE 13.JURISDICTION -VENUE A. 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. (Terms of Agreement and Signature Continues on Page 6) XXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXXXXX ARTICLE 14. AUTHORIZATION FOR SIGNING AGREEMENT A. The Mayor of the City and the Clerk of the City are authorized to sign this Agreement on behalf of the City and by said signature on this Agreement the City is obligated to perform the terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council CITY OF SAN A ANA ` ,.i ,? ,,? ?l, el Pulido ayor of the City of Santa Ana DAVID N. REAM CI'L-«- David N. Ream APPROVED AS TO FORM: Joseph Straka Interim City Attorney ? r By: Joseph Straka Gerald A. Wolf Attorney for David N. Ream ?--..., l Gerald A. Wolf