HomeMy WebLinkAboutSCANTRON, INC. 3 - 2005
,
INSUi. ,ill. UN 'ilL
WO~~ MW NQL PflOCEED
CLERK OF COUNCIL
DATE: 5 ;;<3 -DS
N-2005-058
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CONSULTANT AGREEMENT
THIS AGREEMENT, made and entered into this ~ day of M ~, 2005 by
and between Scantron, 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
transferring electronic data.
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 ofthe 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 transfer existing NT Server information to a new machine and make the
new machine operational, and provide 41 hours of technical support.
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 the date first written above and terminate on
February 28, 2006, 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 Public
Works 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. 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.
b. Professional liability (errors and omissions) insurance, with a combined single limit of
not less than $1,000,000 per claim.
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.
(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.
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.
2
6. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability 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. 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:
3
'.
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:
Public Works Agency
City of Santa Ana
220 S. Daisy Avenue (M-85)
Santa Ana, California 92703
Telefacsimile (714) 647-3345
Attn: Armando Fernandez
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:
Scantron
34 Parker
Irvine, California 92618
Attn: Janet Woo
A party may change its address by giving notice in writing to the other party. Thereafter,
any 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. If sent by telefacsimile, 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 ofthis 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
4
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.
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 of this Agreement.
5
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 its 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
CITY OF SANTA ANA
~
AVID N. REA
City Manager
PATR.ICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
. .:/ (
By: /l;'';(&<I( ,'j" ul ,
Laura'Sheedy /
Assistant City Attorney
RECO.MMEN.DE(2. APPROVAL:
/ 11. .
~LLtJ;l /7-.
JAMES G. ROSS
Executive Director of the
../ublic Works Agency
CONSULTANT
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seA N T .t9"..N
City of Santa Ana
Pricing Overview
Pricinl{
Description of Services
1 Day to transfer existing NT Server configuration over to a new
machine and making it operational.
41 hour block of Tecbnical Mentoring at $] 75/hr
Extended Price
$2,500.00
$7,175.00
Total: $'1,675.00
Above ,quot~tions do. not include.fax and shipoina charo~s unless otherwise stated. Prices are gcod for 60 Days. TERMS - Net 30. on
approved credit
Services must be scheduled within 5 months of invoice date. Any unused time will be forfeited, Scantron shall notify dient of unused time 1
month prior to expiration date.
n is understood and agreed that each party should have no. liability for any indireGl, incidental, special or consequential damages (including
loss of business, revenue, profits, use, data or other economic advantage) suffered by the other parly or any third party. even if that party
has been previously advised of the possibilities of such damages. liability for damages for any claim whatsoever shall be limited to the
amount paid by the Customer to Scanlron for the Services, which are the subject matter of the claim in the one-year period prior to the event
giving rise to such damages.
Estimated Above Total: $
Please fax PO and this proposal to Janel Woo - New FAX will be 949-271-2332, attn: Janet Woo
Signature
Date
Scantron Federal Tax ID# is 95-2767912
$cantron Education Proposal
2124/2005
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Marsh, Inc,
5/9/2005 11:21 AM
PAGE
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Fax Server
Attn: Brenda Yaung-Epps
(404)995-3074
.".;;.;__",.,?;i.,;;
CERTIFICATE NlJrttSER
A TL.()00791163-20
THIS CERTFICATE IS ISSUED AS A. ~lATTT::R OF INFOR-MATION ON.t.y ~o CONFERS
NO RIGHTS UPON THE CERTIFICA.TE HOLDER OTHER TH~ THOSE PROVIOED IN TfoIE
POlleY. TI-lIS CERTFICATE DOES NaT AAlEND, EXTEND OR PJ.. TER THE COVERAGE
AFFORDED BY THE POUCESOESCRI8EO HEREItI.
COMPANIES AFFORDING COVERAGE
PRODUCER
Marsh
3475 Piedmont Road N.E., Ste 1200
Atlanta, GA 30305
75142-CAS.
CO.;J'~l'Ny
A FEDERAL INSURANCE CO
Scantron Corporation
34 Parker
lrvine, CA 92618
COtl.Cl1NY
B AMERICAN INTL SOUTH INS. CO.
INSURED
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NOf\I'iTHsrA.\lDING AAYREQUlREMENT, TER,-."OR. CClNOn1CN OF mYCQNTRjI,Cf OR OTHS QOCdv1E~T'WiTH RES'EC1TO'l\+1iCH THE a:~:nFiCATE MAY 31" 1S3....'ED OR IJ,AY
P<:RrAlN, THE IN3.JRANCE .AFFORDED BY T....;E POUOESOrSCRISED HEREIN ISSU8JECT TO 1<LL THE TEF<MS; CONDITIONS AND EXD-USON5 CF SUCH POLlOe'S AGGREGATO':
LiM!TS9-10v.N MAY HAVE SrEN REDUCED BYPAD C~AlMS
co TYPE OF INSURANCE pOliCY NUIIIIBER POLICY EFFECTIVE POLICY EXPIRATION
LTR DATE (NIIIIIDDIVY) DATE4MMIDOrvY) LIMITS
A GENERAL UABILJTf 35381324 03/01105 03101106 GF'IER.A~ ,4,o.,G'1.EGA'=' $ 2,000,000
X COVlMERO.oll GENERAL LI AgiLITY PROJUCf5- Co.'PiOP AGG $ 2,000,000
l a...AiIlt5\o1AC1E o OCOJR P'::::;;S)N.IIL & ;.nVINJUR" $ 1 ,000,000
ON'_ER'S I!. CalTRI\ClGR'SPROT E,o.D"i OCCURRE1'><CE $ 1,000,000
X RINTERS J::"R.n F RE :I,oMAGE (My O"Ie~reJ $ 1 ,000,000
,,"'EJEXP Ma'l9:8'l'C1 $ 10,000
A AUimlOBILE LIABILITY '73260213 (ADS) '03/01/05 03101/06 1,000,000
CG.1B,!'<ED S\G~= L:MIT $
A X />NY A:JTO 73260209 (TX) 03(01/05 03101/06
A i'lL OM'iED AUTOS 73260210 (VA) 03101/05 03101/06 BOJiLVINJURY $
A 9:HEDULED AUTOS 73501034 (MA) 03101/05 03101106 ('::er ~I'r,n'\;
A HIRED JlJ.JTOS 73260212 (PR) 03/01105 03101/06 80DLV:NJJRY
("eraccdo,'t) $
r-..'~_OWNED AUTOS
OMPREHENSIVE - $1 ,000 PRO~;:I.T'f OH-M.G~ $
OLLlS10N ~ $1,000 Oed
A.;TQ QNl" -:Ai\COOENT $
~ ,"v '.JTO GTfiER THA.\ !\L'TO o.'lL y
~.lCri "COD:;",T $
AGGR:GATE $
'. B ~CESSLlA8ILlT'r' [BE298831 B $ 5,000,000
03/01/05 03/01106 "ACH OCCl:R"\;:I>CE
'1 U~8RELLAFCRM ,',GGR;::'GATE $ 5,000,000
i" OThER THAN LiMBR:' lA-FORM $
A I WORKERS COMP,"SATI'" AND 35381324 03/01/05 03101/06 ' OT~
EMPLOYERS'LIABILIT'( ER
I $
T,-fE PROPRIETOR; H"iCL EL DISEASE;o...lC'" L1'~IT $ 1,000,000
I PARTNER5'EXECUTI'.I': ! I f'L DISEilSE-2."C"'I =Iv1PLOY:;::E $ 1,OCO,000
CFflCERS ARt': : EXQ I
DESCRIPTIO~ Of OPERA TIONSILOCATIONSIVEHICLESISPECLAL ITEIIIS
The City of Santa Ana, its officers, employees, agents, and representative are induded as additional Insured as their interest may appear per written contract.
City of Santa Ana
20 CiVIC Center Plaza
P_O. Box 1988
Santa Ana, CA 92702
~~ "'NY OF Tl-E !'o...ICIES OESC~:BE'D ....,~= ~ BE O'.NCELLE,) !~FO~~ 11-1" ~;<.~IRA1l0N O-,lE TH""ECF,
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ISSl.ERClFTHlSc;e:RTIFICAT<:
MARSH USA lie.
BY: MIchael Dennis
Jf4J #-
Marsh, Inc,
5/9/2005 11:21 AM
Fax Server
PAGE
2/002
PRODUCER
Marsh
3475 Piedmont Road N.E., Ste 1200
Atlanta, GA 30305
CERTIFICATE NUMBER
A TL..IJOQ7911 63-20
THIS CERTFlCATE: IS ISSUED AS A.~'ATTER OF INFORMATION ONLY AHD CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE
POLICY. nus c.ERTFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE
PfFORDED BY TItE POLICES DESCRIBED HEREIH_
Attn: Brenda Young-Epps
COMPANIES AFFORDING COVERAGE
(404)995-3074
CCl'<P A'N
75142-CAS-
A
FEDERAL INSURANCE CO
INSURED
CaW'A'N
B AMERICAN INTL SOUTH INS. CO
Scantron Corporation
34 Parker
Irvine, CA 92618
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N~Tl-'srA.\lDING ANY REqUIREMENT. TER.'o1 OR CONDITlCN OF my CONTRACT OR OTHER DOOJMENTWlTH RES'ECTTO~\rHICH THE CERllFICATE MAv 80: iss...;o:O OR 'JAY
~RTAlN, THO: IN9J,'i!ANCE AFFORDED BY THE POLlOES ClESCRIBED HEREIN ISSlJBJECT TO M..:" THE TERMS, CONDITIO\IS ^\lD EXo..USONS OF SUCH POlIOES "~REGATE
LIMITS g.;0~ MAY HAVE BEEN REDUCED BY P/1lD O-AlMS
co lYPE OF INSURANCE POLlGVNUIlElER POLICY EFFECTIVE POLICY EXPIRATION LiMns
LTR DATE (NMIDDIYY) DATE tMMIDDtYVj
i
A GENERAL LIABILITY 135381324 103/01/05 03101/06 G:NERAL AG~EGATE $
~~~~I'.1ERaPL GE';NERAL LIABiliTY PRODUCTS. CCMP!OP AGG $
bmj : QAlMS,'vIKJE [K] OCruR i I PE:;;roNti. & AnV ,,\I.l':;:<v $
J ONNER.S&CC><TRACTOR.SPROT I I EA01 OCCURRENCE $
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X !PR!NTFR~ FR.O , $
I FIRE DJ\'tlAGE (Any C<"Ie~reJ
i I MED EXP An rn9~!J'&n) $
A I AllTO.1OBILE L1ABIUT'( 73260213 (ADS) 03/01/05 03101/06 CO'I'BI,\;EQ SNGl;;:: L1M'T $
A R ~v ~TO 73260209 (TX) 03101/05 03101106
A JILL Ov'INEO AUTOS 73260210 (VA) 03/01105 03101106 BOOIL y IN~URY $
A a "'HEDULED AJTOS 73501034 (MA) 03/01/05 03/01106 ("erwOOl)
A HiREOPJ.JTOS 73260212 (PR) 03/01/05 03101/06 BODilY INJU'<:V
i r.,a.;.O\NNED AUTOS i\,<:; ,r, (::>era.xidclnl) $
F RM
~ OMPREHENSIVE - $1 ,000 FROPERTY 0,.,...,A8E $
X ~OLLlSION -$1,000 Oed
RAG' LIABILITY ~TOONLY .EAACOD?NT $
"NY!UTO or,,;::R THAN M.;TO ON. Y
U',. '\i lilr:1CY $
EAC.., AceD!::" T
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. I AGGR::GATE
" B EXCESS LlABILllY iBE298831 B 103/01105 $
03/01106 EAC-, OCOiR.:;:ENCE
X : ".Ji\IBi'ELLA=CRM I AGGREGATE $
: OTHE,:;; r"AN IJMa.'i:EL'-A f'OR'o1 I $
A i WORKERS COMPENSATION ANO 135381324 103101/05 03101/06 OT"
: EMPLOYERS'LIABILlTY EO
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, T..,E PRO;;:RIETORI i $
PAi'<TNERSoF.XEc.JTIVE R'''~ I EL DISEASE-Po..:cy LI'u1IT
CFF:c::!3iSA!'<t' i 8<0..1 EL DISEASE-2..I(;1-l EMF'_OV=E $
2,000,000
2,000,000
1,000,000
1,000,000
1,000,000
10,000
1,000,000
5,000,000
5,000,000
1,000,000
1,000,000
1,000,000
OESCRIF'TION OF OPERATIONSILOCAllONSIVEHICLESlSPEClolIl.lTE.1S
The City of Santa Ana, its officers, employees, agents, and representative are induded as additional insured as their interest may appear per written contract.
9-IOl.li) I1.NV OF l'e POLICES DESC;tIEl"ED i-'EREIN !IE CANCEOLLIOU !li':m;t.'" T/-E EX?' ~~.TON [JoT:' THE~ErF,
THE IN.<ul.ER "'F~C1;DING C()>JE_~"'a::: '.'011.1.- E~ ......'L ----3..0. ClAYS ',\'!<TT:'N NeTCE TO nE
City of Santa Ana
20 Civic Center Plaza
P,O. Box 1988
Santa Ana, CA 92702
ISSUE,~ OFTl-1ISCERTIF'CIon:
CE'l.TlF;CATE HO...:JER N',t.EIlI-EREIN. BUT FAILU'lE TO M"IL SUCH NOTICE SH"L'_ tt.PD:oE NO C~.;G'oTiCt-l G<
L1AaILrTYOF ANV,INQ UFONTHE IHSJ'l.ER AFFOFlUlNG CC/Ji':;:tAGE, ITS"'.Gi':NTSO~ RE~R=s;orn~_~""'s OR 11-'1"
r.lARSH USA INC.
BY: Mid1ael Dennis
ft4J #-