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HomeMy WebLinkAboutPARTNERWERKS 1 - 2002 r\ 0) ,NSURANCE ON FilE WORK MAY PROCEED UNTil INSURANCE EXPIRES . J-l~t1 ~ CLERK OF COUNCIL DATE: ij-II-() 7- N'.2002-086 ()7- STANDARD CONSULTANT AGREEMENT Z,/Y'J THIS AGREEMENT, made and entered into this _ day of August, 2002 by and between Partnerwerks, a 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 .making presentations to groups of staff relating to training in teamwork development. 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 perfomled 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 those services as set forth in Exhibit A to this Agreement. City Manager or designee shall infoml Consultant of City's determination to accept "Option 1" or "Option 2" as those terms are described in Exhibit A. 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 $5,000.00 plus those reasonable incidental expenses explicitly referenced in Exhibit A during the term of this Agreement, and in no event shall exceed $10,000.00 even including expenses. 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, 2002, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the City Manager or designee 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 inj ury, 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. Reserved. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the California 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. 2 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 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: (I) 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 ofthis 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 ofthis Agreement, 3 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, California 92702-1988 telefacsirnile (714) 647-6956 With courtesy copies to: City Manager City of Santa Ana 20 Civic Center Plaza (M-31) P.O. Box 1988 Santa Ana, California 92702-1988 telefacsimile (714) 647-6954 4 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: Partnerwerks P.O. Box 1046 Comfort, Texas 78013 Attn: Dr. Christopher Avery, Ph.D. telefacsimile (830) 995-4854 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 ofa 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. 5 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 constmed 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 oftermination, 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 ofrace, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recmitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an <i.Qual 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 government and constmed 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. IS. 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 6 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 PROVISlOl'IS 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 SA;2 ~ City Manager PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By: Dr. Christ her A very, P President, Partnerwerks .., Employer ID # or Individual SS # 7 Partnerwerks Revised Proposed Keynote for Santa Ana City Managers Conference Situation Analysis The Santa Ana City Manager's Office wishes to promote the philosophy and practices of Teamwork Is An Individual Skill among city middle managers by having Christopher A very provide a 90-minute presentation on September 12, 2002. Objectives The objectives for this presentation include: ,; Rapidly conveying the basics of TeamWisdom to managers. ,; Re-energizing managers to appreciate and adopr the approach to teamwork through Total Quality Service. ,; Inspiring Santa Ana City Managers to collaborate "On Purpose." Measures You will know that your objectives have been met when: ,; Managers report creating more effective and responsible relationships at work. ,; Managers report reading the book and appreciating the concepts. Value The value of this project to Santa Ana City Manager's Office includes the following: ,; More effective middle managers and teams. ,; Continued promotion and extension of the continuous improvement initiative. Timing This project begins on acceptance and ends September 12, 2002. Method and Options The approach we discussed is presented below as Option 1. Option 2 offers additional value to consider. Option 1 I will interview two to four representatives of the City Manager's Office in order to understand your organization and develop specific objectives so I can tailor a presentation for middle managers. I will then work with your designate to plan and deliver a rousing 90-minute presentation to meet the agreed objectives. Additionally, as Christopher's lasting gift, each participant will receive a free subscription to Partnerwerks digital TeamWisdom Tips. EXHIBIT A Client Confidential Page 1 8/12/02 Partnerwerks Revised Proposed Keynote for Santa Ana City Managers Conference Situation Analysis The Santa Ana City Manager's Office wishes to promote the philosophy and practices of Teamwork Is An Individual Skill among city middle managers by having Christopher Avery provide a 90-minute presentation on September 12, 2002. Objectives The objectives for this presentation include: Y Rapidly conveying the basics of Team Wisdom to managers. Y Re-energizing managers to appreciate and adopt the approach to teamwork through Total Quality Service. Y Inspiring Santa Ana City Managers to collaborate "On Purpose." Measures You will know that your objectives have been met when: Y Managers report creating more effective and responsible relationships at work. Y Managers report reading the book and appreciating the concepts. Value The value of this project to Santa Ana City Manager's Office includes the following: Y More effective middle managers and teams. Y Continued promotion and ex7ension of the continuous improvement initiative. Timing This project begins on acceptance and ends September 12, 2002. Method and Options The approach we discussed is presented below as Option I. Option 2 offers additional value to consider. Option 1 I will interview two to four representatives of the City Manager's Office in order to understand your organization and develop specific objectives so I can tailor a presentation for middle managers. I will then work with your designate to plan and deliver a rousing 90-minute presentation to meet the agreed objectives. Additionally, as Christopher's lasting gift, each participant will receive a free subscription to Partnerwerks digital TeamWisdom Tips. Client Confidential Page 1 8112/02 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.) , this endorsement form as a part of Effective Policy # Issued to Named Insured Countersigned by Authorized Representative 8 Option 2 Fees Expenses Cllenl Confidential =-:--......;..:::::;~--~- Partnerwerks In addition to the services in Option I, Partnerwerks will provide 100 copies of Teamwork Is An Individual Skill (at 20% off cover price) to be distributed to participants, and, I will offer a book-signing session following the presentation. Joint Accountabilities Your accountabilities include: I. Providing me with administrative contact and support to assist in the planning for a successful presentation. 2. Providing access to appropriate representatives to brief me on the nature ofthe organization and the specific objectives of the presentation. 3. Providing appropriate facilities to support this presentation. My accountabilities include: I. Managing the preparation and delivering the presentation as agreed. 2. Keeping you informed of progress toward objectives. 3. Supporting the book signing session. Weare each accountable for: I. Collaborating with and supporting one another to design and implement the project successfully. 2. Immediately informing the other if either of us learns of anything that might influence the success of this project. Terms and Conditions The fee for Option I is $3,500. The fee for Option 2 is $5,000 Your deposit of 50% of the fee will reserve the date. The final payment of 50% of the fee will be due on delivery. You may take advantage of a 10% discount on the final payment by paying the entire project fee at the time of the deposit. Note: If your state asks you to withhold taxes from fees paid to out-of state corporations, then our agreed fee is the net amount payable to Partnerwerks. Partnerwerks is a Texas corporation with offices only in Texas. According to the IRS, your purchase of our services is transacted in Texas, not in your state. Partnerwerks does not authorize any other state to withhold taxes from payments for services sold from the state of Texas, regardless of where those services are received. If you wish to pay taxes to your state for this purchase, that amount must be in addition to the agreed net amount payable to Partnerwerks. We will invoice you for actual and necessary expenses incurred in the completion of this project. These may include: Actual travel expenses. Domestic air travel will be coach. Page 2 8/12102 -. ..:....~ -~-- ....-~,;.,.-. ~ Client Confidential - . -'"'-.-"_.~ Partnerwerks Other services, as verbally agreed, required to support the work and deliverables. You will not be charged for our: Long-distance Postage or express document shipping Office copying Personal travel expenses such as laundry, liquor, movies and such Agreement The quality of our work is unconditionally guaranteed. If the quality is not to your satisfaction we will make every effort to make it right, including refunding the fee. To initiate the project, your deposit is as good as your signature. Offered by, 12 August 2002 Date ChristopnetM. Avery, Ph.D. President, Partnerwerks Accepted by, Jennifer M. Cervantez Management Assistant City Manager's Office of Santa Ana Date Page 3 8/12102 ~ ~~ .-~-=-._-=.- . .-., ".- ~-- '-"~~~"-"~-;""",*-'-"- ., , i . DIAMOND STATE INSURANCE COMPANY CERTIFICATE NO.: CERTIFICATE OF INSURANCE SPECIAL EVENT LIABILITY PROGRAM PRODUCER: PUBLIC ENTITY (ADDITIONAL INSURED) Robert F. Driver Company, Inc. City of Santa Ana P. O. Box 28323 20 Civic Center Plaza Santa Ana, CA 92799-8323 M-28 (949) 660-8163 Santa Ana, CA 92702-1988 License No: OC 36861 NAMED INSURED (EVENT HOLDER): EVENT INFORMATION; Christopher Avery TYPE: Self Improvement Partnerwerks, Inc. DATE(S): September 12, 2002 P.O. Box 1046 LOCATION; City Yard 220 S. Daisy Comfort, TX 78013 Santa Ana, CA 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 requirements, terms or conditions 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. INSURANCE CARRIER: Diamond State Insurance Company MASTER POLICY NUMBER: CCL0040170 MASTER POLICY DATES: EFFECTIVE: JANUARY 1,2002 EXPIRATION: JANUARY 1,2003 COMMERCIAL GENERAL LIABILITY OCCURRENCE FORM DEDUCfIBLE: NONE General Aggregate Limit $ 1,000,000 Products & Completed Operations 1,000,000 Personal & Advertising Injury 1,000,000 Each Occurrence Limit 1,000,000 Fire Damage (Any One Fire) 50,000 Medical Payments (Any One Person) 5,000 The limits of insumnce apply separately to each event insured by this policy as if a separate (K)licy of insurance has been issued for that event. "Who is insured" is amended to include, as an insured, the person or organization shown in this schedule. but only with respect to liability arising out afthe ownership, maintenance or use of the premises used by the named insured (event holder). This insurance does DOt apply to: Any "occurrence" which takes place after the event holder ceases to be a tenant in that premises. OTHER ADDITIONAL INSUREDS CANCELLA nON: Should the above described policy to cancel1ed before the expiration date thereof. the issuing company will mail 30 days written notice to the certificate holder and additional insureds listed. AUTHORlZED REPRESENTATIVE: ~n~~ DATE ISSUED: 9/05/02 APPROVED AS TO FORM a;{;', 411....- Q[A; 7- Itaura Sheedy Deputy City Attorney .