HomeMy WebLinkAbout25M - AGMT - TRANSLATION SRVSREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JUNE 17, 2014
TITLE:
AGREEMENT WITH CESAR VARGAS AND
ASSOCIATES FOR TRANSLATION
SERVICES
CITY MANAGE
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on I' Reading
❑ Ordinance on 2ntl Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute an agreement with Cesar Vargas
and Associates for a three -year period in the total amount not to exceed $90,000 subject to non -
substantive changes approved by the City Manager and City Attorney.
DISCUSSION
Since 2005, the City has had an agreement with Cesar Vargas and Associates for interpretation
and translation services at City Council meetings and other official meetings. The consultant has
agreed to renew their agreement at the current rate for the next three years. The rate is very
competitive and will allow for continuity. The agreement will also allow for a one -time expense of
$11,400 to translate the Five -Year Strategic Plan into Spanish and Vietnamese; the translation of
said document will be completed within two weeks.
STRATEGIC PLAN
Approval of this agreement allows us to meet Goal #5. Community Health, Livability, Engagement
& Sustainability, Priority #1, Establish a comprehensive community engagement initiative to
expand access to information and create opportunities for stakeholders to play an active role in
discussing public policy and setting priorities.
FISCAL IMPACT
Funds are available in the Clerk of the Council Office fund (account no. 01107031 - 62300).
vVV �
Maria D. Huizar,
Clerk of the Council
Attachment: Agreement
APPROVED AS TO FUNDS AND ACCOUNT:
�; �l \Rt � s� P A� ,.
Francisco Gutierrez '
Executive Director Finance & Mgmt.
Services Agency
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CITY OF SANTA ANA
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 17th day of June, 2014 by and
between the City of Santa Ana, a charter city and municipal corporation organized
under the laws of the State of California with its principal place of business at 20 Civic
Center Plaza, Santa Ana, California 92701 ( "City ") and Cesar Vargas and Associates
with its principal place of business at 8502 E. Chapman Ave. #302, Orange, California
92869 ( "Consultant'). City and Consultant are sometimes individually referred to herein
as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the City on the terms and conditions set forth
in this Agreement. Consultant represents that it is experienced in providing translation
services to public clients, is licensed in the State of California, and is familiar with the
plans of City.
2.2 Project.
City desires to engage Consultant to render such services for all departments as
set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to
furnish to the City all labor and customary work necessary to fully and adequately
supply the professional translation services necessary. The Services are more
particularly described in Exhibit "A" attached hereto and incorporated herein by
reference. All Services shall be subject to, and performed in accordance with, this
Agreement, the exhibits attached hereto and incorporated herein by reference, and all
applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from June 17, 2014 to
June 30, 2017, or until funds are exhausted or unless earlier terminated as provided
herein. Consultant shall complete the Services within the term of this Agreement, and
shall meet any other established schedules and deadlines. The Parties may, by mutual
written consent, extend the term of this Agreement if necessary to complete the
Services.
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3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates: Independent Contractor.
The Services shall be performed by Consultant or under its supervision. Consultant will
determine the means, methods and details of performing the Services subject to the
requirements of this Agreement. City retains Consultant on an independent contractor
basis and not as an employee. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall also not be
employees of City and shall at all times be under Consultant's exclusive direction and
control. Consultant shall pay all wages, salaries, and other amounts due such
personnel in connection with their performance of Services under this Agreement and
as required by law. Consultant shall be responsible for all reports and obligations
respecting such additional personnel, including, but not limited to: social security taxes,
income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 [Intentionally left blank]
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City
that certain key personnel will perform and coordinate the Services under this
Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon written approval of
City. In the event that City and Consultant cannot agree as to the substitution of key
personnel, City shall be entitled to terminate this Agreement for cause. As discussed
below, any personnel who fail or refuse to perform the Services in a manner acceptable
to the City, or who are determined by the City to be uncooperative, incompetent, a
threat to the adequate or timely completion of the Project or a threat to the safety of
persons or property, shall be promptly removed from the Project by the Consultant at
the request of the City. The key personnel for performance of this Agreement are Cesar
Vargas and any consultants on contract with his firm.
3.2.5 City's Representative. The City hereby designates Maria D. Huizar,
Clerk of the Council, or her designee, to act as its representative for the performance of
this Agreement ( "City's Representative "). City's Representative shall have the power to
act on behalf of the City for all purposes under this Contract. Consultant shall not
accept direction or orders from any person other than the City's Representative or his or
her designee.
3.2.6 Consultant's Representative. Consultant hereby designates Cesar
Vargas, or his designee, to act as its representative for the performance of this
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Agreement ( "Consultant's Representative "). Consultant's Representative shall have full
authority to represent and act on behalf of the Consultant for all purposes under this
Agreement. The Consultant's Representative shall supervise and direct the Services,
using his /her best skill and attention, and shall be responsible for all means, methods,
techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with
City staff in the performance of Services and shall be available to City's staff,
consultants and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall
perform all Services under this Agreement in a skillful and competent manner,
consistent with the standards generally recognized as being employed by professionals
in the same discipline in the State of California. Consultant represents and maintains
that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subcontractors shall have sufficient skill and
experience to perform the Services assigned to them. Finally, Consultant represents
that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services, including
a City Business License, and that such licenses and approvals shall be maintained
throughout the term of this Agreement. As provided for in the indemnification provisions
of this Agreement, Consultant shall perform, at its own cost and expense and without
reimbursement from the City, any services necessary to correct errors or omissions
which are caused by the Consultant's failure to comply with the standard of care
provided for herein. Any employee of the Consultant or its sub - consultants who is
determined by the City to be uncooperative, incompetent, a threat to the adequate or
timely completion of the Project, a threat to the safety of persons or property, or any
employee who fails or refuses to perform the Services in a manner acceptable to the
City, shall be promptly removed from the Project by the Consultant and shall not be
re- employed to perform any of the Services or to work on the Project.
3.2.9 Period of Performance. Consultant shall perform and complete all
Services under this Agreement within the term set forth in Section 3.1.2 above
( "Performance Time "). Consultant shall also perform the Services in strict accordance
with any completion schedule or Project milestones described in Exhibit "A" attached
hereto, or which may be separately agreed upon in writing by the City and Consultant
( "Performance Milestones "). Consultant agrees that if the Services are not completed
within the aforementioned Performance Time and/or pursuant to any such Project
Milestones developed pursuant to provisions of this Agreement, it is understood,
acknowledged and agreed that the City will suffer damage.
3.2.10 Laws and Regulations: Employee /Labor Certifications. Consultant
shall keep itself fully informed of and in compliance with all local, state and federal laws,
rules and regulations in any manner affecting the performance of the Project or the
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Services, including all Cal /OSHA requirements, and shall give all notices required by
law. Consultant shall be liable for all violations of such laws and regulations in
connection with Services. If the Consultant performs any work knowing it to be contrary
to such laws, rules and regulations and without giving written notice to the City,
Consultant shall be solely responsible for all costs arising therefrom. Consultant shall
defend, indemnify and hold City, its officials, directors, officers, employees and agents
free and harmless, pursuant to the indemnification provisions of this Agreement, from
any claim or liability arising out of any failure or alleged failure to comply with such laws,
rules or regulations.
3.2.10.1 Employment Eligibility: Consultant. By executing this
Agreement, Consultant verifies that it fully complies with all requirements and
restrictions of state and federal law respecting the employment of undocumented aliens,
including, but not limited to, the Immigration Reform and Control Act of 1986, as may be
amended from time to time.
3.2.10.2 [Intentionally left blank]
3.2.10.3 [Intentionally left blank]
3.2.10.4 Labor Certification. By its signature hereunder,
Consultant certifies that it is aware of the provisions of Section 3700 of the California
Labor Code which require every employer to be insured against liability for Workers'
Compensation or to undertake self- insurance in accordance with the provisions of that
Code, and agrees to comply with such provisions before commencing the performance
of the Services.
3.2.10.5 Equal Opportunity Employment. Consultant
represents that it is an equal opportunity employer and it shall not discriminate against
any subconsultant, employee or applicant for employment because of race, religion,
color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall
include, but not be limited to, all activities related to initial employment, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines
currently in effect or hereinafter enacted.
(B) Liability for Non - compliance. Failure to comply with
the laws, regulations and policies described in this Section is a violation of law that may
subject Consultant or City to penalties, fines, or additional regulatory requirements.
Consultant shall defend, indemnify and hold the City, its directors, officials, officers,
employees, volunteers and agents free and harmless, pursuant to the indemnification
provisions of this Agreement, from and against any and all fines, penalties, claims or
other regulatory requirements imposed as a result of Consultant's non - compliance with
the laws, regulations and policies described in this Section, unless such non - compliance
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is the result of the sole established negligence, willful misconduct or active negligence
of the City, its officials, officers, agents, employees or authorized volunteers.
(C) Training. In addition to any other standard of care
requirements set forth in this Agreement, Consultant warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Services
assigned to them without impacting water quality in violation of the laws, regulations and
policies described in this Section. Consultant further warrants that it, its employees and
subcontractors will receive adequate training, as determined by City, regarding the
requirements of the laws, regulations and policies described in this Section as they may
relate to the Services provided under this Agreement. Upon request, City will provide
Consultant with a list of training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Consultant shall not
commence Services under this Agreement until it has provided evidence satisfactory to
the City that it has secured all insurance required under this section. In addition,
Consultant shall not allow any subcontractor to commence work on any subcontract
until it has provided evidence satisfactory to the City that the subcontractor has secured
all insurance required under this section.
3.2.11.2 Minimum Requirements. Consultant shall, at its
expense, procure and maintain for the duration of the Agreement insurance against
claims for injuries to persons or damages to property which may arise from or in
connection with the performance of the Agreement by the Consultant, its agents,
representatives, employees or subcontractors. Consultant shall also require all of its
subcontractors to procure and maintain the same insurance for the duration of the
Agreement. Such insurance shall meet at least the following minimum levels of
coverage:
(A) Minimum Scope of Insurance. Coverage shall be at
least as broad as the latest version of the following: (1) General Liability: Insurance
Services Office Commercial General Liability coverage (occurrence form CG 0001); (2)
Automobile Liability: Insurance Services Office Business Auto Coverage form number
CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability:
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance. The policy shall not contain any exclusion contrary to the
Agreement, including but not limited to endorsements or provisions limiting coverage for
(1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross
liability for claims or suits by one insured against another.
(B) Minimum Limits of Insurance. Consultant shall
maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily
injury, personal injury and property damage. If Commercial General Liability Insurance
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or other form with general aggregate limit is used including, but not limited to, form CG
2503, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and
property damage; and (3) Workers' Compensation and Employer's Liability: Workers'
Compensation limits as required by the Labor Code of the State of California.
Employer's Liability limits of $1,000,000 per accident for bodily injury or disease.
Defense costs shall be paid in addition to the limits.
(C) Notices: Cancellation or Reduction of Coverage. At
least fifteen (15) days prior to the expiration of any such policy, evidence showing that
such insurance coverage has been renewed or extended shall be filed with the City. If
such coverage is cancelled or materially reduced, Consultant shall, within ten (10) days
after receipt of written notice of such cancellation or reduction of coverage, file with the
City evidence of insurance showing that the required insurance has been reinstated or
has been provided through another insurance company or companies. In the event any
policy of insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, the City has the right but not the duty to
obtain the insurance it deems necessary and any premium paid by the City will be
promptly reimbursed by Consultant or the City may withhold amounts sufficient to pay
premium from Consultant payments. In the alternative, the City may suspend or
terminate this Agreement.
3.2.11.4 Insurance Endorsements. The insurance policies
shall contain the following provisions, or Consultant shall provide endorsements on
forms supplied or approved by the City to add the following provisions to the insurance
policies:
(A) General Liability. The general liability policy shall
include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20
37, or endorsements providing the exact same coverage, the City of Santa Ana, its
directors, officials, officers, employees, agents and volunteers shall be covered as
additional insured with respect to the Services or ongoing and complete operations
performed by or on behalf of the Consultant, including materials, parts or equipment
fumished in connection with such work; and (2) using ISO form 20 01, or endorsements
providing the exact same coverage, the insurance coverage shall be primary insurance
as respects the City, its directors, officials, officers, employees, agents and volunteers,
or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's
scheduled underlying coverage. Any excess insurance shall contain a provision that
such coverage shall also apply on a primary and noncontributory basis for the benefit of
the City, before the City's own primary insurance or self- insurance shall be called upon
to protect it as a named insured. Any insurance or self- insurance maintained by the
City, its directors, officials, officers, employees, agents and volunteers shall be excess
of the Consultant's insurance and shall not be called upon to contribute with it in any
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way. Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available
insurance proceeds in excess of the specified minimum limits of coverage shall be
available to the parties required to be named as additional insureds pursuant to this
Section 3.2.11.4(A).
(B) Automobile Liability. The automobile liability policy
shall include or be endorsed (amended) to state that: (1) the City, its directors, officials,
officers, employees, agents and volunteers shall be covered as additional insureds with
respect to the ownership, operation, maintenance, use, loading or unloading of any auto
owned, leased, hired or borrowed by the Consultant or for which the Consultant is
responsible; and (2) the insurance coverage shall be primary insurance as respects the
City, its directors, officials, officers, employees, agents and volunteers, or if excess,
shall stand in an unbroken chain of coverage excess of the Consultant's scheduled
underlying coverage. Any insurance or self - insurance maintained by the City, its
directors, officials, officers, employees, agents and volunteers shall be excess of the
Consultant's insurance and shall not be called upon to contribute with it in any way.
Notwithstanding the minimum limits set forth in Section 3.2.11.2(6), any available
insurance proceeds in excess of the specified minimum limits of coverage shall be
available to the parties required to be named as additional insureds pursuant to this
Section 3.2.11.4(B).
(C) Workers' Compensation and Employers' Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, employees, agents and volunteers for losses paid under the
terms of the insurance policy which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be suspended,
voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of
premium) prior written notice by certified mail, return receipt requested, has been given
to the City; and (B) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the City,
its directors, officials, officers, employees, agents and volunteers. Any failure to comply
with reporting or other provisions of the policies including breaches of warranties shall
not affect coverage provided to the City, its officials, officers, employees, agents and
volunteers, or any other additional insureds.
3.2.11.5 Separation of Insureds: No Special Limitations;
Waiver of Subrogation. All insurance required by this Section shall contain standard
separation of insureds provisions. In addition, such insurance shall not contain any
special limitations on the scope of protection afforded to the City, its directors, officials,
officers, employees, agents and volunteers. All policies shall waive any right of
subrogation of the insurer against the City, its officials, officers, employees, agents, and
volunteers, or any other additional insureds, or shall specifically allow Consultant or
others providing insurance evidence in compliance with these specifications to waive
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their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, its officials, officers, employees, agents, and volunteers, or any other
additional insureds, and shall require similar written express waivers and insurance
clauses from each of its subconsultants.
3.2.11.6 Deductibles and Self- Insurance Retentions. Any
deductibles or self- insured retentions must be declared to and approved by the City.
Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self- insured retentions as respects the City, its
directors, officials, officers, employees, agents and volunteers; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expenses.
3.2.11.7 Subconsultant Insurance Requirements. Consultant
shall not allow any subconsultants to commence work on any subcontract relating to the
work under the Agreement until they have provided evidence satisfactory to the City that
they have secured all insurance required under this Section. If requested by
Consultant, the City may approve different scopes or minimum limits of insurance for
particular subconsultants. The Consultant and the City shall be named as additional
insureds on all subconsultants' policies of Commercial General Liability using ISO form
20 38, or coverage at least as broad.
3.2.11.8 Acceptability of Insurers. Insurance is to be placed
with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do
business in California, and satisfactory to the City.
3.2.11.9 Verification of Coverage. Consultant shall furnish City
with original certificates of insurance and endorsements effecting coverage required by
this Agreement on forms satisfactory to the City. The certificates and endorsements for
each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf, and shall be on forms provided by the City if requested. All
certificates and endorsements must be received and approved by the City before work
commences. The City reserves the right to require complete, certified copies of all
required insurance policies, at any time.
3.2.11.9 Reporting of Claims. Consultant shall report to the
City, in addition to Consultant's insurer, any and all insurance claims submitted by
Consultant in connection with the Services under this Agreement.
3.2.12 Safety. Consultant shall execute and maintain its work so as to
avoid injury or damage to any person or property. In carrying out its Services, the
Consultant shall at all times be in compliance with all applicable local, state and federal
laws, rules and regulations, and shall exercise all necessary precautions for the safety
of employees appropriate to the nature of the work and the conditions under which the
work is to be performed. Safety precautions as applicable shall include, but shall not be
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limited to: (A) adequate life protection and life saving equipment and procedures; (B)
instructions in accident prevention for all employees and subcontractors, such as safe
walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space
procedures, trenching and shoring, equipment and other safety devices, equipment and
wearing apparel as are necessary or lawfully required to prevent accidents or injuries;
and (C) adequate facilities for the proper inspection and maintenance of all safety
measures.
3.2.13 Accounting Records. Consultant shall maintain complete and
accurate records with respect to all costs and expenses incurred under this Agreement.
All such records shall be clearly identifiable. Consultant shall allow a representative of
City during normal business hours to examine, audit, and make transcripts or copies of
such records and any other documents created pursuant to this Agreement. Consultant
shall allow inspection of all work, data, documents, proceedings, and activities related to
the Agreement for a period of three (3) years from the date of final payment under this
Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates
set forth in Exhibit B attached hereto and incorporated herein by reference. The total
compensation shall not exceed $90,000. Extra Work may be authorized, as described
below, and if authorized, will be compensated at the rates and manner set forth in this
Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a
monthly itemized statement which indicates work completed and hours of Services
rendered by Consultant. The statement shall describe the amount of Services and
supplies provided since the initial commencement date, or since the start of the
subsequent billing periods, as appropriate, through the date of the statement. City shall,
within 45 days of receiving such statement, review the statement and pay all approved
charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed
for any expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City
may request that Consultant perform Extra Work. As used herein, "Extra Work' means
any work which is determined by City to be necessary for the proper completion of the
Project, but which the parties did not reasonably anticipate would be necessary at the
execution of this Agreement. Consultant shall not perform, nor be compensated for,
Extra Work without written authorization from City's Representative.
3.4 Termination of Agreement.
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3.4.1 Grounds for Termination. City may, by written notice to Consultant,
terminate the whole or any part of this Agreement at any time and without cause by
giving written notice to Consultant of such termination, and specifying the effective date
thereof, at least seven (7) days before the effective date of such termination. Upon
termination, Consultant shall be compensated only for those services which have been
adequately rendered to City, and Consultant shall be entitled to no further
compensation. Consultant may not terminate this Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided
herein, City may require Consultant to provide all finished or unfinished Documents and
Data and other information of any kind prepared by Consultant in connection with the
performance of Services under this Agreement. Consultant shall be required to provide
such document and other information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in
whole or in part as provided herein, City may procure, upon such terms and in such
manner as it may determine appropriate, services similar to those terminated.
3.5 Ownership of Materials and Confidentiality.
3.5.1 Documents & Data: Licensing of Intellectual Propert v. This
Agreement creates a non - exclusive and perpetual license for City to copy, use, modify,
reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or
works of authorship fixed in any tangible medium of expression, including but not limited
to, physical drawings or data magnetically or otherwise recorded on computer diskettes,
which are prepared or caused to be prepared by Consultant under this Agreement
( "Documents & Data "). All Documents & Data shall be and remain the property of City,
and shall not be used in whole or in substantial part by Consultant on other projects
without the City's express written permission. Within thirty (30) days following the
completion, suspension, abandonment or termination of this Agreement, Consultant
shall provide to City reproducible copies of all Documents & Data, in a form and amount
required by City. City reserves the right to select the method of document reproduction
and to establish where the reproduction will be accomplished. The reproduction
expense shall be bome by City at the actual cost of duplication. In the event of a
dispute regarding the amount of compensation to which the Consultant is entitled under
the termination provisions of this Agreement, Consultant shall provide all Documents &
Data to City upon payment of the undisputed amount. Consultant shall have no right to
retain or fail to provide to City any such documents pending resolution of the dispute. In
addition, Consultant shall retain copies of all Documents & Data on file for a minimum of
fifteen (15) years following completion of the Project, and shall make copies available to
City upon the payment of actual reasonable duplication costs. Before destroying the
Documents & Data following this retention period, Consultant shall make a reasonable
effort to notify City and provide City with the opportunity to obtain the documents.
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3.5.2 Subcontractors. Consultant shall require all subcontractors to
agree in writing that City is granted a non - exclusive and perpetual license for any
Documents & Data the subcontractor prepares under this Agreement. Consultant
represents and warrants that Consultant has the legal right to license any and all
Documents & Data. Consultant makes no such representation and warranty in regard
to Documents & Data which were prepared by design professionals other than
Consultant or its subcontractors, or those provided to Consultant by the City.
3.5.3 Right to Use. City shall not be limited in any way in its use or reuse
of the Documents and Data or any part of them at any time for purposes of this Project
or another project, provided that any such use not within the purposes intended by this
Agreement or on a project other than this Project without employing the services of
Consultant shall be at City's sole risk. If City uses or reuses the Documents & Data on
any project other than this Project, it shall remove the Consultant's seal from the
Documents & Data and indemnify and hold harmless Consultant and its officers,
directors, agents and employees from claims arising out of the negligent use or re -use
of the Documents & Data on such other project. Consultant shall be responsible and
liable for its Documents & Data, pursuant to the terms of this Agreement, only with
respect to the condition of the Documents & Data at the time they are provided to the
City upon completion, suspension, abandonment or termination. Consultant shall not
be responsible or liable for any revisions to the Documents & Data made by any party
other than Consultant, a party for whom the Consultant is legally responsible or liable,
or anyone approved by the Consultant.
3.5.4 Indemnification. Consultant shall defend, indemnify and hold the
City, its directors, officials, officers, employees, volunteers and agents free and
harmless, pursuant to the indemnification provisions of this Agreement, for any alleged
infringement of any patent, copyright, trade secret, trade name, trademark, or any other
proprietary right of any person or entity in consequence of the use on the Project by City
of the Documents & Data, including any method, process, product, or concept specified
or depicted.
3.5.5 Confidentiality. All Documents & Data either created by or
provided to Consultant in connection with the performance of this Agreement shall be
held confidential by Consultant. All Documents & Data shall not, without the prior
written consent of City, be used or reproduced by Consultant for any purposes other
than the performance of the Services. Consultant shall not disclose, cause or facilitate
the disclosure of the Documents & Data to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the
related industry shall be deemed confidential. Consultant shall not use City's name or
insignia, photographs of the Project, or any publicity pertaining to the Services or the
Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
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3.6 General Provisions.
3.6.1 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
Consultant:
City:
Cesar Vargas
8502 E. Chapman Ave. #302
Orange, California 92869
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
Attn: Maria D. Huizar, Clerk of the Council
Such notice shall be deemed made when personally delivered or when
mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid
and addressed to the party at its applicable address. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of service.
3.6.2 Indemnification.
3.6.2.1 Scope of Indemnity. To the fullest extent permitted by
law, Consultant shall defend, indemnify and hold the City, its directors, officials, officers,
employees, volunteers and agents free and harmless from any and all claims, demands,
causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or
equity, to property or persons, including wrongful death, in any manner arising out of,
pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its
officials, officers, employees, subcontractors, consultants or agents in connection with
the performance of the Consultant's Services, the Project or this Agreement, including
without limitation the payment of all consequential damages, expert witness fees and
attorneys fees and other related costs and expenses. Notwithstanding the foregoing, to
the extent Consultant's Services are subject to Civil Code Section 2782.8, the above
indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims
that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant.
3.6.2.2 Additional Indemnity Obligations. Consultant shall
defend, with legal counsel chosen by City, at Consultant's own cost, expense and risk,
any and all claims, actions or other proceedings of every kind covered by Section
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3.6.2.1 that may be brought or instituted against City or its directors, officials, officers,
employees, volunteers and agents. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against City or its directors, officials, officers,
employees, volunteers and agents as party of any such claim, suit, action or other
proceeding. Consultant shall also reimburse City for the cost of any settlement paid by
City or its directors, officials, officers, employees, agents, or volunteers as part of any
such claim, suit, action or other proceeding. Such reimbursement shall include payment
for City's attorneys' fees and costs, including expert witness fees. Consultant shall
reimburse City and its directors, officials, officers, employees, agents, and /or volunteers,
for any and all legal expenses and costs incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Consultant's obligation to
indemnify shall survive expiration or termination of this Agreement and shall not be
restricted to insurance proceeds, if any, received by the City, its directors, officials
officers, employees, agents, or volunteers.
3.6.3 Governing Law: Government Code Claim Compliance. This
Agreement shall be governed by the laws of the State of California. Venue shall be in
Orange County. In addition to any and all contract requirements pertaining to notices of
and requests for compensation or payment for extra work, disputed work, claims and /or
changed conditions, Consultant must comply with the claim procedures set forth in
Government Code sections 900 et seg. prior to filing any lawsuit against the City. Such
Government Code claims and any subsequent lawsuit based upon the Government
Code claims shall be limited to those matters that remain unresolved after all
procedures pertaining to extra work, disputed work, claims, and /or changed conditions
have been followed by Consultant. If no such Government Code claim is submitted, or
if any prerequisite contractual requirements are not otherwise satisfied as specified
herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against
the City.
3.6.4 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.6.5 City's Right to Employ Other Consultants. City reserves right to
employ other consultants in connection with this Project.
3.6.6 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.6.7 Assignment or Transfer. Consultant shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
3.6.8 Construction: References; Captions. Since the Parties or their
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agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for
or against any Party. Any term referencing time, days or period for performance shall
be deemed calendar days and not work days. All references to Consultant include all
personnel, employees, agents, and subcontractors of Consultant, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this Agreement.
The captions of the various articles and paragraphs are for convenience and ease of
reference only, and do not define, limit, augment, or describe the scope, content, or
intent of this Agreement.
3.6.9 Amendment: Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.6.10 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual rights by custom, estoppel, or otherwise.
3.6.11 No Third Party Beneficiaries. Except to the extent expressly
provided for in Section 3.6.7, there are no intended third party beneficiaries of any right
or obligation assumed by the Parties.
3.6.12 Invalidity: Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.6.13 Prohibited Interests. Consultant maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Consultant, to solicit or secure this Agreement. Further, Consultant
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. Consultant further agrees to file, or shall cause its
employees or subconsultants to file, a Statement of Economic Interest with the City's
Filing Officer as required under state law in the performance of the Services. For
breach or violation of this warranty, City shall have the right to rescind this Agreement
without liability. For the term of this Agreement, no member, officer or employee of City,
during the term of his or her service with City, shall have any direct interest in this
Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.14 Cooperation: Further Acts. The Parties shall fully cooperate with
one another, and shall take any additional acts or sign any additional documents as
may be necessary, appropriate or convenient to attain the purposes of this Agreement.
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3.6.15 Attorney's Fees. If either party commences an action against the
other party, either legal, administrative or otherwise, arising out of or in connection with
this Agreement, the prevailing party in such litigation shall be entitled to have and
recover from the losing party reasonable attorney's fees and all other costs of such
action.
3.6.16 Authority to Enter Agreement. Consultant has all requisite power
and authority to conduct its business and to execute, deliver, and perform the
Agreement. Each Party warrants that the individuals who have signed this Agreement
have the legal power, right, and authority to make this Agreement and bind each
respective Party.
3.6.17 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original.
3.6.18 Entire Agreement. This Agreement contains the entire Agreement
of the parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Agreement may only be modified by
a writing signed by both parties.
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CITY OF SANTA ANA CESAR VARGAS AND ASSOCIATES
David Cavazos,
City Manager
Attest:
Maria D. Huizar
Clerk of the Council
Approved as to Form:
Jose Sandoval
Chief Assistant City Attorney
Date:
Name:
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Cesar Vargas & Associates
EXHIBIT A
SCOPE OF SERVICES
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
a. Consultant shall provide English - Spanish translation /interpretation of the City
Council meeting on an ongoing basis, as requested by City and subject to the
availability of Consultant(s).
b. The City shall provide Consultant sufficient preparatory and background
materials (such as meeting agendas and pertinent memos and reports) no later than 48
hours prior to an assignment so that Consultant may be familiarized and kept abreast of
the possible items, terminology, concepts, and direction to be discussed, which may be
broached during said assignment. As these assignments are meant to be public, live
meetings, the City cannot guarantee that items not presented, implied or hinted to in
these preparatory materials will not be brought up during said assignment.
C. The City shall do its best to provide a working environment conducive to
simultaneous interpretation, which includes, but is not limited to, interpretation
equipment, sound booth with full visual access to Chambers or other meeting venue (as
available), and other items that may be applicable, reasonable and feasible for each
interpreting assignment.
d. The City shall set up the interpretation equipment, video /audio feeds to the
booth, hand out and retrieve interpretation receivers to members of the public, and
provide other services incidental and necessary to the interpretation services provided
by Consultant.
e. Consultant shall translate the Five -Year Strategic Plan in Spanish and
Vietnamese and complete project in a two week period.
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.
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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.
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.
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EXHIBIT B
COMPENSATION
COMPENSATION
City agrees to pay, and Consultant agrees to accept as total payment for its services,
the hourly rate of $95.00, with a two -hour minimum, which includes up to thirty (30)
minutes of preparation, familiarization and review time, as referenced in Section I b. The
total compensation to be paid pursuant to this Agreement shall not exceed $90,000.00
during the term of this Agreement.
Consultant will translate the Five -Year Strategic Plan in Spanish and Vietnamese in an
amount not to exceed $11,400.
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.
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