HomeMy WebLinkAboutMIKE LINARES, INC. 2 - 2003
~ INSURANCE ON FiLE
WORK MAY PROCEED
UNTIL INSURANCE EXPIRES
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CLERK OF coul~on. CONSULTANT AGREEMENT
DATE, )..- /1-01
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C-: C!:¡I THIS AGREEMENT, A 2003-248, made and entered into this ~ day of JaV\lJO Y'J,
Ifl.t~ 2004 by and between Mike Linares, Inc., a California corporation (hereinafter "Consultant"), ahd
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").
A-2003-248
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
technical consulting services for federal grant programs.
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 provide services including, but not limited to, design of programs funded
by federal grants such as Community Development Block Grant Program (CDBG), the
Emergency Shelter Grant Program (ESG) and the Home Investment Partnership Act Program
(HOME); preparation of periodic reports and utilization ofHUD's electronic system for
committing and disbursing grant funds.
Consultant shall be compensated at an hourly rate of$70.00.
Additional materials and supplies required to complete assigned tasks, or as requested by City,
will be billed at cost plus ten percent.
2.
COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
the rates and charges identified in Section I, above. The total sum to be expended under this
Agreement, shall not exceed $ 45,000 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 January 1,2004 and terminate on December 31,
2004, 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 the
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, ajoint 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, employees, agents, volunteers and
representatives 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 A upon
execution of this Agreement and shall be approved in form by the City Attorney.
b. Worker's Compensation Insurance. In accordance with the provisions of Section
3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured
against liability for worker's compensation or to undertake self-insurance. Prior to commencing
the performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
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c. 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.
Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
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.
(ii)
(iii)
d. 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 effect 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 I 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 ofthe 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.
CERTIFICATION
Consultant acknowledges that the funds for the programs have been granted to City by
the federal government pursuant to various grant programs. Consultant agrees to be bound by
and comply with all of the terms and conditions of City's Grant Agreements, including but not
limited to:
a. Audit Report Requirements. Consultant agrees that if Consultant receives Three
Hundred Thousand Dollars ($300,000.00) or more in federal funds. Consultant shall
have an annual audit conducted by a certified public accountant in accordance with the
standards as set forth and published by the United States Office of Management and
Budget - OMB Circular A-133.
b. Record Keeping/Reporting. Consultant shall keep and maintain complete and adequate
records to assist City in meeting and maintaining its record keeping responsibilities
under the Act. City and the United States Government and/or their representatives shall
have access for purposes of monitoring, auditing and examining Consultant's activities
and performance, to books, documents and papers, and the right to examine records of
Consultant's subcontractors, bookkeepers and accountants, employees and participants
in regard to said program. Nothing herein shall be construed to require access to any
privileged or confidential information as set forth in federal or state law.
c. Consultant certifies and agrees that it will not use funds provided through this
Agreement to pay for entertainment, meals or gifts.
d. Lobbying. Consultant certifies that it will comply with federal law and regulations
found at 24 CFR Part 87, which provide that no appropriated funds may be expended
by the recipient of a federal contract, grant, loan or cooperative agreement to pay any
person for influencing or attempting to influence an officer or employee of any agency,
4
Member of Congress, or an officer or employee of a Member of Congress in connection
with awarding of any federal contract, the making of any federal grant or loan, entering
into any cooperative agreement and the extension, renewal, amendment or modification
of any federal contract, grant, loan or cooperative agreement.
e. Drug Free Workplace. Consultant certifies that it has established a drug-free
workplace policy which includes the following provisions:
I. The unlawful manufacture, distribution, dispensing, possession or use of a
controlled substance is prohibited in the workplace for any employee involved in a
federally funded program.
2. As an employee working in conjunction with a federally funded program, the
employees of Consultant will be required to:
.
Abide by the terms above in statement I.
Notify appropriate officials of Consultant and City officials of any criminal drug
statute conviction for a violation occurring in the workplace not later than five
days after such conviction.
The United State Department of Housing and Urban Development will be notified
within ten days after receiving notice of any such violation.
Within 30 days of receiving such notice, appropriate personnel action will be
taken against such employee, up to and including termination.
Each such employee shall be required to participate satisfactorily in a drug abuse
assistance or rehabilitation program approved for such purposes by a federal, state
or local health, law enforcement, or other appropriate agency.
.
.
.
.
f. Consultant assures and certifies that it will not use any funds appropriated under this
Agreement for religious activity or anti-religious activity, or to promote or oppose any
political candidate, party or belief.
g. Consultant assures and certifies that where applicable classroom training instructors are
properly credentialed, and training curriculums comply with State Education Codes.
h. Consultant assures and certifies that it is in good standing with the California Secretary
of State, Franchise Tax Board and Internal Revenue Service."
10.
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 the Community Development Agency
City of Santa Ana
20 Civic Center Plaza (M-37)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 667-2225
and,
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant:
Mike Linares
P.O. Box 3913
San Clemente, CA 92672
Telefacsimilie (949) 369-1517
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.
11.
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, the terms and conditions hereof, shall not bind or obligate Consultant nor
6
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.
12. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
13.
TERMINATION
This Agreement may be terminated by 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.
14.
DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
15.
JURISDICTION - VENUE
This Agreement 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.
7
16.
PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of his inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability shall be cause for termination of this
Agreement.
17.
MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnifY City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
ATTEST:
/rbo
-t~~~~L Y " ,
Clerk of the Council
CITY OF SANTA ANA
, .
, /
I V /Ú~~/j~---
DAVID N. REALM
City Manager
APPROVED AS TO FORM:
\,/ ~ !
. ""/1, (}-<-{A..{; , ", ' ~/..(¿/
,,{¡M)SEPH W. FL CHEw'
City Attorney
CONSULTANT
~
Owner
Tax ID# 33-0886359
EXHIBIT A
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:
I. 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
"'H' "" aJ""" 10'.0<1 r~ ""'c~ ,,~~~ D~U~~~"
7«J ,",0. ..."D'" I U ",o~....u
1"'."'1/"'"
, r
. .. ,ACORD..
CERTIFICA ÎI:: OF LIABILITY INSURANCk..
""",UCER
¡au - Robert Bell Brokers
1010 Calle cordillera. ste lOB
Sou> Clemente CA 92673
Phone: 949-366-7938
'"s.....
Mike Linares
P.O. Box 3913
San Cl....""te CA 92674
INSURERS AFFORDING COVERAGE NAIC II
n'.'-..... .,...
".SURERA, Zurich ADler1can ~,I1~urance C .1653?.._-
INSURER B'
'~S""R C,
INSUAER D
INS"""RE'
COVERAGES
TWE POLICIES OF INSVRANCE USTED ""lOW ,,^VE OEEN ISSVED TO TI« tNSURED"""D A.""" FOIl THE /'OLiCY PERIOD INDICATED, NOT'MTWSTIIND'NO
ANY ""au,"EMENT. TERN OR COND"""" OF A'" CONTRACT"" OTWER DOCVMENTW"" RESPEc-r TO "",0>< TWIS CERTlFlCATI! MAY eElSSVED OR
,,^Y PERTAIN, THE ""URANCE AFFOROED BY THE POlICIES OEOCRIOED WEREIN IS SVBJECT TO ALL THE YER"S. "ClVSIONS AND CONDITIONS OF sue"
""LOCIES, AGGREGATE LIMiTS SHOWN MAY ,,^VE .EON REDUC,D BY P..D CLAI"S,
TYPEOFtN.ulWlce I'OLICYNU"'ER OA.JY~c1iVi OATE "MJDlJ{YY UM""
CEN"""L VA"""" ElICH DCCIJRRB<CE
X C",,",ERCUlLGtNE""'-LIAOILIT'I PAS 36068105 02/2B/03 02/28/04 """"rulE........"",
CLA..s MADE [i] OCCUR "ED EXP """ - ,.-)
PERS"""-' Þ.J:N 'NJURy
A
'1000000.,
, 1000000
, 10000
GE"""""AGe",,"" '2000000
PRODUCTS.COMP/DPACG '2000000
LDC
ANY AVTD
ALL DWNED AllTOS
SCÆD\JtED AUTOS
COMBINED SINGlE LlM"
(E._I)
BOOILYIN.!\fflY
(""""",)
WIRED AUTOS
NON-DWNED AU1'DS
BODILY INJURY
(PM""""')
"'" Avrn
PROI'EFUY DAMAOE
"",,-,
AUTO ONLY .EAACCIOEN!.. '
"'ACC .
AGG ,
,
.
AOGOECATE
EXCEmu""'EU.AI.IABIUTY
oeC,," 0 ClAIMS MADE
""'ER THAN
AUTDONlY,
EACH OCCURRENCE
DEDVCTlOLE
RETENTlDN
TORY . ,E~..
E.':; EACH ACC'DENT
E.L DI""" . '" E"PlOYEE ,
e,L, <><SEAS. ./'OLlCYl'"" ,
WDtUĊRS COItIPeNSA noN AND
B""'O"'" ~
AI<'! PROPIOETOM'_""""CVTlVE
OFFlCE_..R EXCLVDED?
~~~~"S1'~~s ,....
DrnER
DESCRlPT"" OF OfoERATlONS / LDCATJDHS/..."CU;S I EXCLUSIONS ADDEO OY ""'ORSEM"T / SPECIAL """"""'"
The City of Santa Ana . COWlty of Orange and its elected and appointed
officer..- agent... employ......, boards. representatives and volunteers are
named as addi Hond insureds. The insurance sf forded by this pol1cy shall
be primary ou>d any insurance _intained by the additional inusred shall be
excs....
***revised 5/14****
CERTIFICATE HOLDER
CANCELLArlON
C~TYSAN
"",,VLD ANY OF THE ABOVE """""OE. POUCI.. B' CANCeu<D OEFORE mE EXPIRATION
CAnTIIER.OF. THEISSU'NGINSUREAWlLL_MA<L ~ DAVS-
NCncnOTHECERTI..CATEHOLDER DTOTHElHT.OUT..AI _ü'ä*
*-1J~~M.""W,M4I.~...&/JIt
City of Santa Ana and the
CODmIunity Redevelopment Agency
of the City of Santa Ana
20 Civic Center Plaza M25
Sana!:a Ana CJI. 92702
_¡:øRf'ORATION 1988
ACORD 25 (2001108)
-- un -- -
,
POLICY NUMBER: PAS360681UJ
Cc.
JERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREfULLY.
ADDITIONAL INSURED--DESIGNA TED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Name of Person or Organization:
City of Santa Ana æ1d the
Çamunity Redevelo¡:nrent Agency
of the City of Sòata 1\na
20 Civic Center Plaza 1>125
(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 as an insured but only with respect to liability arising out of your operations or premises owned by or
rented to you,
Jldditional Insureds Continued: 'Ihe City of Santa 1\na. romty of orang~ and its
elected and'appoÐJted officers, agents, enployees, boards, represe1'ltat1.ves and
'\IOlunteers are naIÆrl as aðditi.onal insureds
PRIMARY CLAUSE: THE INSURANCE AFFORDED BY THIS POLICY SHALL BE PRIMARY AND ANY
INSURANCE MAINTAINED BY THE ADDITIÓNAL INSUREDS SHAtL BE EXCESS
APPROVED AS TO FORM
1:~17
Deputy City Attorney
Copyright, Insurance Services Office. Inc. 1984
** TOTAL PAGE.02 **