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HomeMy WebLinkAboutSANTA ANA CHAMBER OF COMMERCEjHANCE ON FILE N-2019-182 WORK MAY PROCEED VIL INSU JCE EX5RES 1L� CONSULTANT AGREEMENT -LEAK OFCOUNCILSLF 2 5 2019 W TF THIS AGREEMENT is made and entered into this �_ day of Sf�/k� b�� 2019, by and between the Santa Ana Chamber of Commerce ("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 ("City"). ©,CDAco) RECITALS A. The City desires to retain certain services by the Consultant as part of the City's ongoing effort to encourage the retention and expansion of existing businesses in the City. 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: 1. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations, including all labor, materials, tools, equipment, and incidental customary work, required to fully and adequately complete the services described and set forth in Scope of Work - Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION A. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed twenty-five thousand dollars ($25,000.00) during the term of this Agreement. B. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals, which may reasonably be expected by Authority. 3. TERM This Agreement shall commence on the date first written above and terminate on September 4, 2020, unless terminated earlier in accordance with Section 15, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. 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, 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 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. 5. OWNERSHIP OF MATERIALS 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"). 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 provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising fiom bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, and in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. B, Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non - owned automobiles. C. Worker's Compensation Insurance. In accordance with California state law, 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 tinder this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. D. The following requirements apply to the insurance to be provided by Consultant pursuant to this section, (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in forum by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. E. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. INDEMNIFICATION To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively, the "indemnified parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a claim; collectively, "claims"), which may arise from or in any manner related (directly or indirectly) to any work performed or services provided under this Agreement (including, without limitation, defects in workmanship and/or materials) or Consultant's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the indemnified parties from any claim arising from the sole negligence or willful misconduct of the indemnified parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 10. 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 non-public information. Confidential information includes not only written information, but also information transferred orally, visually, electronically; or by other means. Confidential infomnation 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. 11. 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 Linder this Agreement. 12. NON-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, 13. 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, that terns 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. 14. 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 mill 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. 15. 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, Consultant may be required 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 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. 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. 18. PROFESSIONAL LICENSES Consultant shall, throughout the tern 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 his inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. 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 facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: City Cleric City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Facsimile: (714) 647-6956 With courtesy copies to: City of Santa Ana Economic Development Division 20 Civic Center Plaza (M-25) Santa Ana, CA 92702 Facsimile: (714) 647-6549 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile: (714) 647-6515 To Consultant: Santa Ana Chamber of Commerce 1631 W. Sunflower Ave., #C-35 Santa Ana, CA 92704 Facsimile: (714) 541-2238 Telephone: (714) 541-5353 A party may change its address by giving notice in writing to the other party. Thereafter any notice, tender, demand, delivery, or other 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. I£ sent by facsimile, 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. 20. MISCELLANEOUS PROVISIONS A. Each undersigned represents and warrants that its signature herein below 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. (Signatures on folloiving page) IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. APPROVED AS TO FORM Sonia R. Carvalho Cit] M RECOMMENDED FOF APPROVAL Steven A. Mendoza Executive Director Community Development Agency CITY OF SANTA ANA tine Ridge City Manager CONSULTANT David L. Elliott, President & CEO Santa Ana Chamber of Commerce EXHIBIT A SCOPE OF WORK (2019-2020) City/Chamber Business Retention Program Scope of Work (2019-2020) In an effort to encourage the retention and expansion of existing businesses in the City of Santa Ana, the City established a cooperative business retention program with the Santa Ana Chamber of Commerce in 2016, The intent of this program is to outreach to local businesses and provide local contacts in the City and Chamber and gather pertinent data on their immediate needs, future plans and opportunities for continued growth in the City. This City would like to continue this partnership with the chamber for 2019-2020. This program fulfills the City's Strategic Plan Initiative Economic Development, Goal 1d of ensuring a healthy, vibrant and friendly business environment. Program: To ensure the City is proactively reaching out to Santa Ana businesses, the City of Santa Ana would like to contract with the Santa Ana Chamber of Commerce to conduct co-op business retention site visits. City Obligations: • The City will provide a business List to provide to retention team members for outreach. • The City will, to its best ability, be available to attend with Chamber members during business outreach meetings. • The City will follow-up with all issues that were discussed at the retention visits. The City will input survey data into its Executive Pulse business database. Chamber Obligations: • Chamber will provide the City a list of Chamber representatives that will be going out on retention visits. • Chamber will schedule all meetings with businesses and host business retention monthly meetings. • Chamber will conduct business retention visits (in -person and via phone/email) and will complete the City's approved retention survey with that business. • The City will pay the Chamber an upfront $25,000 fee for this service. • Chamber shall submit completed surveys on the 101h day of the following month. #7784v1 • Chamber representatives must administer the business retention survey and receive responses to a majority of the questions posed. • The Chamber must participate in a monthly meeting to discuss survey information received. Payment Schedule Upfront payment of $25,000 Chamber Contact: David Elliott CEO Santa Ana Chamber of Commerce 1631 W. Sunflower, C-35 Santa Ana, CA 92704 #7784v1 IIIII n® CERTIFICATE OF LIABILITY INSURANCE 091'16i2o s I THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPUK IAJ4I: It the Cel'titiCate holder !San ADDITIONAL INSURED, the policy(ies) must be endorsed, If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER Eddie Quillares Jr. State Farm Agency NAME: EddieQuiliares Jr.PH _ 415 N. Broadway WC fie. EML.71-4,017 7154. iovc,.Ito 714-017.7150_ EMAIL Santa Ana, CA 92701 AoDREss eddleQeddleginsuranceCom_ INSURERS) AFFORDING COVERAGE I NAIL Y + i INSURER A: $foie Farm Fife and Casualty Company_ INSURED Santa Ana Chamber of Commerce INSURER B: Stale Farm General Insurance CDmpsny 1631 W. Sunflower Ave STE C35 INSURER c: Santa Ana, CA 92704 INSURER D __ _ ATTN: Marty Perterson INSURERS, INSURER F : COVERAGES CERTIFICATE NUMBER'9R-nAsn RFVISInM NIIMRFu• THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR T TYPEOFINSURANCE ADDL SUB POLICY NUMBER POLICY EFF MMiti POLICY EXP IMMIDDIYYYYILIMITS A GENERAL LIABILITY Y 92-CM-E499-2 03101/2019 03/01/2020 EACH OCCURRENCE E_ 3,000,000 DAMAGE TORENTEO- -- - MERCIAL GENERAL LIABILITY PREMISES(Ed pm,mence) S 300,000 1_7 CLAIMS -MADE OCCUR MEO EXP (Any one oerson) I E 10,000 PERSONAL 8 ADV INJURY $ 3.000,OD0 C _ GENERAL AGGREGATE E 6,000,000 GENI AGGREGATE LIMIT APPLIES PER: I PRODUCTS - COMPIOP AGO $ 6.000,000 POLICY I I PRP LOC $ B AUTOMOBILE LIABILITY _ 1 431 6546•COt•75 09/01/2019 09/01/2020 COMBINED SINGLE LIMIT (Enecridenl) $ ANY AUTO BODILY INJURY (Per person) 1,000 AO- SCHEDULED AUTOS ALTOSAUTOS BODILY INJURY (Perauieeny�'E S 1,000 _) HIRED AUTOS J( iAUTOSNON-OWNED AUTOS _ PROPERTY DAMAGE E 1.000 1P v,eprrp _ S I UMBRELLA LIAR _ OCCUR EACH OCCURRENCE E E%CES3 LIAR CLAIMS -MADE AGGREGATE S OED I I RETENTIONS WOBTATU- L OTH-- E A WORKERS COMPENSATION _ "aEMPLOYERS' LIABILITY YIN 92-GA-D121-9 02/0112019 02/01/2020 TORY_LBATS —Eft_ ANYPROPRIETOWPARTNEWEXECUTIVE I EL EACH ACCIDENT S 1,000,000 Y OFFlOEIMEMBER EXCLUDED,, Y❑ N/A _ - (MantletmyleNH) EI DISEASE -EA EMPLOYE S 1.0.00,000 EL DISEASE -POLICY LIMIT I _.— S 1,000,000 eye;de TION under APPROVED MCADNAGIE�JMENTDIVISION DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(ANaph ACORD 101, Addlllenal Remarks Schedule, it mare epaco ie reeuired) By RISkANEL • �RA FFVILLAREALL City of Santa Ana Risk Management Division 20 Civic Center Plaza, 4th Floor Santa Ana, CA 92702 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE A'a&& W ACORD 25 (201 D/05) The ACORD name and logo are registered marks of ACORD 1001486 132849.7 03-01-2012 Exhibit B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company: State Farm Insurance This endorsement modifies such insurance as is afforded by the provisions of Policy Number: 92-CM-E499-2 relating to the following: 1) The City of Santa Ana, its City Council, boards and commissions, officers, agents, volunteers and employees are to be named as "additional insured" with regard to liability and defense of suits arising from operations and uses performed by or on behalf of the named insured. 2) With respect to claims arising out of the operations and uses performed by or on behalf of the names insured, such insurance as is afforded by this policy is primary and is not additional to or to contributing with any other insurance carried by or for the benefit of the additional insured. 3) This insurance applies separately to each insured against whom claim is or suit is brought except with respect to the company's limit of liability. This inclusion of any person or organization as an insured shall not affect any right which is such person or organization would have as claimant if not so included. 4) With respect to the additional insured, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) written notice has been given to The City of City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92702. Effective September 16th, 2019 this endorsement form as a part of Policy Number: 92-CM-E499-2. Issued to Santa Ana Chamber of Commerce. Countersigned by /l �` e� i1 BPX4�T REVIEWED & APPROVED Authorized Representative By Risk MANAGEMENT DIVISION SF 7 19 FRANCINE R. VILLAREAL