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HomeMy WebLinkAboutMARK COMPANY, INC. 2 - 2003 INSURA;qCE ON FILE WORK MAY pROGgED UNTIL INSL~RA~IOE EXPIRES ~/I/-a ~ , N-2003-064 · ., ~.A- ,_. ~LERK OF COUNCIL ~ (," ~t),,~. -J DATE /.~[?' ~0~ CONSULTANT AGREEMENT~ ~ (~37t~' THIS AGREEMENT, made and entered into this ~_ day of ~(o~ , 2003 by f and between Mark Company, Inc., a California Corporatio~ (hereinafter "Cor~ultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in installing tim puncture mechanism and warning signage. B. Consultant represents that Consultant is able and willing to provide such services to the City. 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 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 those services 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, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement, shall not exceed $ 9,800.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2003, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of Community Development Agency 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. 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. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) and shall include, but not be limited to protection against claims arising from 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. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. 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 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. d. (reserved) e. 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 form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. 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 forthwith 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. 6. 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. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or 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, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6549 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: Mike DeSalvo Mark Company 2288 N. Batavia Orange, CA 92865 Telefacsimile 714-685-3474 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, any notice, tender, demand, delivery, or other 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, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may' not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior ~vritten consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 17. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS Consultant shall perform all services in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the consultant or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, prevailing wage requirements, City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, and all other provisions of the City and its Municipal Code, and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"). IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA "PT~TRICIA E. HEALY Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney Lahra Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: Jo~P//.' R-eekstin Executive Director of the Community Development Agency CONSULTANT TITLE O&~ r,~ic,* ( Sc,:t c'%~,'9 Tax ID# /s ~Clo~i ~,~ The Depot at Sama Aha 1000 £. Sama Aua Blvd. Suite 108 SI{I~ A{ma, CA 92701 Phone (714) $6~-2690 Fax: (714) $65-2693 A~emion: Ca.rol~ Fuller~on Bid Log: 13030122 Date: 1/21/03 Proie~: {PaTking Su'ucu~re Eauy City:. Sa,ula Aha Tract No: Tire i'unct~rcr5 THE FOLLOWING PROPO$AL h~CLUDE~ LABOR, EQUIPMENT, MATERIAL~, FREIt~I-[[ AND TAXES. PRICES ARE BIO AT OPEN SHOP, NON-PReVAILING WAGE RATES. PROPOSAl. 1S VAJ, JO POR ~0 DAYS FROM ABOVE DATE. ~ ATTACHED NOTES AR~ PART OF OUR pROPOSAL AND WILL BE IHCORPORATSO INTO ANY ~UBSEGUENT CONll~ACT. MARK ~ NOT RESPONSmLE FOR OAMAG~S OR D~LAYS RESUL'~NG FROM UTILITY INTERRUPTIONS AND/OR MATERIAL DELAYS. Item No. Description Quantity UIM UnltPrlee Total PHc® ENTRY, MODIFICATIONS: ' I I Demo & Install 9' Tire Punctumrs Encased In PCC 1 2 Install Non-Aluminated Warning Signs WI Posts Tolat for ENTRy MODIFICATIONS-' 2 EA 4,100.00 8,200.00 2 EA $00.00 1,600.00 Total Proposal Pdce: SS,BO0.OO I Conditions: 1. Proposal is based on 2 moves far access purposses to construct like items Gf work. 2. Proposal is valid for 30 days only. Conditions and exclusions are a material part of our propasal and any contract. 3. Prior to any materia~ being ordered or any work being startled, we require a signed agreement and copies of permits petteining to our work. 4. Comp{eted won~ is due and payable in full 30 days ~ invoice date. 5.. Concrete is bid as 4000p$i mix des'~n with Broom Finish. 6. TEe puncturer$ were bid per specs included with this bid. PriCe includes removing & replace existing slab sett, Jng new lire pl. mCturers in*placE. MARl( COIK~Ah'Y, Colttrtc~or's License 26618/ Mike De~alvo Accepted By:. E{~88 N. BATAVIA * (~=~GE · CA 9E865. TEL: [714}~685-346~ · FAX: [714) 885-3474 EXHIBIT EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the 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 named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to , this endorsement form as a part of Named Insured Countersigned by Authorized Representative Client#: 28330 MARKCOMP ACORD CERTIFIC/ IE OF LIABILITY INSU .NCE DATE MM,DB YYYI 05/08/03 PRODUCER ~' THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION USI of Southern California ~'~ ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Li~:# 0351162 *** 818 906-3350 · ~/~t~ HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PO Box 9004 '~ .n Nays, CA 91409'[,~ / ~/~;'~ INSURERS AFFORDING COVERAGE NAIL # iNSURED INSURERA: Lexington Insurance Company LEMAC Santa Ana Creek Development Company INSURER a: The Hartford Dba Mark Company, Inc. INSURERC: Ins CO of the State of PA 2288 Batavia ~NSURER D: State Compensation Insurance Fund Orange, CA 92665 ~NSURER E: *Except 10 days non-pay COVERAGES 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NSR DD'L POLICY EFFECTIVE POLICY EXPIRATION GE~NERAL LIABILITY 1070309 05/01/03 05/01/04 EACH OCCURRENCE $110001000 I CLAIMS MADE ~] OCCUR MED EXP (Any one person) $5,000 X~ BFPD/XCU PERSONAL & ADV INJURY $110001000 X~ Contractual GENERAL AGGREGATE $21000~000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/DP AGG $2~000~000 B AUTOMOBILE LIABILITY 72UENUR1645X 05/28103 05/28/04 COMBINED SINGLE LIMIT ~-- ANY AUTO (La accide.t) si,000,000 C EXCESS/UMBRELLA LIABILITY 42034340 05/01/03 05/01/04 EACH OCCURRENCE $1,000~000 X~ OCCUR [] CLAIMS MADE AGGREGATE $1~000,000 $ RETENTION $ 10000 $ D WORKERS COMPENSATION AND 046310738 01101/03 01101104 X I TORY LIMITS I I ER ANY PROPRIETOR/PARTNER/EXECUTIVE EL. EACH ACCIDENT $1 ~000,000 OFFICER/MEMBER EXCLUDED? E L DISEASE - EA EMPLOYE[ $1~000,000 SPECIAL PROVISIONS below E L DISEASE - POLICY LIMIT $1~000~000 !CITY OF SANTA ANA, ITS OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES /~,~ / ARE INCLUDED AS ADDITIONAL INSUREDS AS EVIDENCED BY ATTACHED ENDORSEMENT"~'-.~/?~. PRIMARY) '~'ailr,, ,~',~- * / CERTIFICATE HOLDER CANCELLATION The Depot at Santa Ana 1000 E. Santa Ana Blvd., #108 Santa Ana, CA 92701 SHOOLD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DA~ THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL *~N DAYS WRITTEN NOTICE TO THE CERTIFICAIF~ HOLDER NAMED TO THE LEFT, ~L ACORD 25 (2001/08) I of 2 #M183601 JXF ® ACORDCORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(les)must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 2S-S (2001/08) 2 of 2 #M183601 POLICY NUMBER: 1070309 COMMERCIAL GENERAL LIABILITY NAMED INSURED: Santa Ana Creek Development Company CG 20 10 10 93 DBA Mark Company Inc. THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS FORM B This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: The Depot at Santa Ana, City of Santa Ana, its officers, employees, agents and representatives (If no entry appears above information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured. Primary Clause Endorsement: It is further agreed that such insurance as is afforded by this policy for the benefit of the Additional Insured shown shall be primary insurance, but only as respects to any claim, loss or liability arising out of the operations of the Named Insured and any other insurance maintained by said Additional Insured shall be non-contributing. CG 20 10 10 93 Copyright Insurance Services Office, Inc. 1992 APi'i~>. ~ . .~ 'FO FOR: 'L ~'ra 'ghccd. y Deputy City At~'''~ '