HomeMy WebLinkAboutEMERGENCY MANAGEMENT SERVICES 1AGREEMENT TERMINATION
Please complete this form when the attached agreement is no longer in effect.
Return form to the Sr. Deputy Clerk of the Council (M-30). Call 647-5238 if you have any
questions.
---------------------------,{-/-/~------------------------------------
The agreement with ~~~~LOJ`/~U~y(Q/t7~d-(~ITLi.CP_,P,6L.No.I~-t~~-f3'S~Jr
was completed on ~ ~~~-~, ~ ,and final payment has been made.
Department: ~(~ C"
Signature: /~]~~c~--/-'/u~
Date: /~ ~-~ / d'~88
City of Santa Ana
Revised 8-7-03 Clerk of the Council
N-2005-045
INSIJRUI ""0' ''''
t'.'.''<,/!.:. L~ ..i vill ~":lLE
NORI\ Mid NUL PROCEED
CLERK OF COUNCIL
DATE, ^IdS-US
CONSULTANT AGREEMENT
C'PD
(8,w<<lsoFt)
THIS AGREEMENT made and entered into this 23rd day of February, 2005 by and
between Emergency Management Services, a California corporation (hereinafter "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 (hereinafter "City"),
RECITALS
A, The City desires to retain a consultant having special skill and knowledge in the field of
hazard mitigation planning to prepare a Hazard Mitigation Plan for the City,
R 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 prepare a Hazard Mitigation Plan, endorsed by and compliant with the
guidelines and requirements of the California Office of Emergency Services and the Federal
Emergency Management Agency, 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 $10,000,00 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 July I, 2004 and terminate on June 30, 2005, unless
terminated earlier in accordance with Section 12, below, The parties intend that all services
provided pursuant to this Agreement commencing July 1,2004 shall be included within the
Scope of Services of this Agreement.
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. 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.
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 ofthis 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
2
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 ofthis 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. 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:
Fire Chief
City of Santa Ana
1439 S. Broadway
Santa Ana, California 92702
telefacsimile (714) 647-5779
3
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: Emergency Management Services
5957 Arrowhead Lake Road
Hesperia, California 92345
Telefacsimile (760) 949-7572
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, the 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 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.
4
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 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 ofthis Agreement.
15. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS
Consultant shall carry out all services pursuant to this Agreement in substantial
conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and
decrees ofthe United States, the State of California, the County of Orange, the City, and of any
other political subdivision, agency, or instrumentality exercising jurisdiction over the City,
including all applicable federal, state, and local occupation, safety and health laws, rules,
regulations and standards, applicable state and F ederallabor standards, prevailing wage
requirements, City zoning and development standards, City permits and approvals, building,
plumbing, mechanical and electrical codes, as they map apply, and all other provisions of the
City and its Municipal Code, and all applicable disabled and handicapped access requirements.
5
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
PATRICIA E. HEALY
Clerk of the Council
CITY OF SANTA ANA
ATTEST:
-c:::-.:::;
AVID N. REAM
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City AttoIT,ley
By:XCi.-1f; 5 t"-Lktkl
Laurt'l Sheedy /
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
,
CONSULTANT
c~ t>. ~
CARL B. HEINTZ
Vice President
Tax ID# ~o - 0 '20 2SLJ S{
6
EXHIBIT A
EMERGENCY MANAGEMENT SERVICES
5957 Arrowhead Lake Road
Hesperia, California 92345-9501
(760) 559-7682 - (909) 234-3344 - (909) 205-5920
FAX (760) 949-7572
email >EMS@akamail.com<
f.'
1'.1-1:<,:;'.>.\<.'"''''''''''
PROPOSAL TO THE CITY OF SANTA ANA
Hazard Mitiaation Plan:
Emergency Management Services (EMS), a Private Consulting Company, will provide to the City of Santa Ana a
comprehensive Hazard Mitigation Plan, endorsed by, and compliant with the guidelines and requirements of the
State of California's Office of Emergency Services and the Federal Emergency Management Agency. Emergency
Management Services also herein certifies that the plan, when completed and upon acceptance by the City of Santa
Ana, will meet all applicable requirements of State and Federal law for a local city hazard mitigation plan.
Seope of Work:
Representatives of Emergency Management Services will meet with employees, agents and/or representatives of
The City of Santa Ana, and others, as may be required to construct a base of information to complete the plan. A
completed plan will be prepared and submitted to the City of Santa Ana for consideration and approval in
compliance with State and FEMA requirements.
The finished plan will be provided to the City of Santa Ana in "hard copy" and a "searchable" compact disk (CD) in
Microsoft Word format. Additionally, at a time and place chosen by the City, EMS Staff will provide an orientation
& and overview of the plan to the City of Santa Ana's staff members, and others, as may be directed. Additionally,
as condition of this proposal, the City of Santa Ana acknowledges and agrees to conduct the "public input" portion
of this project by hosting public meetings, as deemed appropriate by the city, and making the city operated Internet
Website responsive to "public comments" on the Hazard Mitigation Planning process.
EMS is aware of the FEMA November 1" due date of this project and it is our earnest intention to comply with such
guidelines, however it is not possible to guarantee our compliance, given the time frame available to us as of this
date. We are currently under contract agreement for Hazard Mitigation Plans with several cities within Los Angeles
County, with a guaranteed delivery of a finished product to each ofthose cities by mid August, 2004.
Our assertion to the City of Santa Ana is that, although we commit ourselves to a diligent effort, we can not commit
to a November 1, 2004 due date at this time; December I, 2004 is the delivery date.
Costs to the City of Santa Ana:
Emergency Management Services agrees to provide all necessary and related services to produce the hazard
mitigation plan, for the sum of $1 0,000.00, due and payable after acceptance of the plan by the City of Santa Ana
and upon receipt of an invoice by Emergency Management Services
All costs including personnel work hours, travel and necessary materials are included.
Authorized agent for Emergency Management Services, certifying this Proposal:
Carl B. Heintz
Dated: July 14,2004
7