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Home My WebLink About80B - JT CONSULTING AGMTREQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: MAY 5, 2008 TITLE: CONSULTING SERVICES AGREEMENT WITH MILLER & COMPANY P.C. AND COOPERATIVE AGREEMENT } >-~.-- ~ ~ y~ CITY MANAGER ECUTIVE DIRECTOR RECOMMENDED ACTION CITY COUNCIL CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1st Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and the Clerk of the Council to execute an agreement with Miller & Company P. C. in an amount not to exceed $75,000 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and the Clerk of the Council to execute a Cooperative Agreement with the Community Redevelopment Agency of the City of Santa Ana (Agency} to use an amount not to exceed $75,000 of Agency funds for the creation of a basic operation manual for the Santa Ana Foreign Trade Zone and, in concert with City staff, create additional documents necessary for a wider range of foreign trade zone activities. COMMUNITY REDEVELOPMENT AGENCY Authorize the Executive Director and the Agency Secretary to execute a Cooperative Agreement with the City of Santa Ana to supply an amount not to exceed $75,000 for use in creating a basic operation manual for the Santa Ana Foreign Trade Zone and, in concert with City staff, create additional documents necessary for a wider range of foreign trade zone activities. 80B-1 Consulting Services Agreement with Miller & Company P. C. May 5, 2008 Page 2 DISCUSSION A Foreign Trade Zone (FTZ) is a duty free secured area within the United States, where merchandise can be admitted without the immediate payment of U.S. Customs duties. Benefits include greater control of cash flow since no duties are levied until goods leave the FTZ. If merchandise is re-exported, no duties are ever levied. Goods may be repackaged, relabeled, tested, modified or repaired within the FTZ. The Santa Ana Foreign Trade Zone consists of 92 acres of commercial and industrial land within the Santa Ana city limits. The location of the 92 acres can be modified to better serve local businesses through an application process to the Federal Foreign Trade Zones Board and U.S. Customs and Border Protection. Miller & Company will assist the City of Santa Ana with the creation of a step by step process to simplify the utilization of Foreign Trade Zone benefits available to Santa Ana businesses. Miller & Company will also restructure the existing Foreign Trade Zone area for the purpose of allowing additional businesses to take advantage of the program and assist with marketing efforts. By improving the FTZ marketing strategy and by simplifying the utilization process for businesses, Santa Ana will be in better position to retain and attract companies to the city. Staff is requesting approval of the contract with Miller and Associates to begin the work for better utilization of the City's Foreign Trade Zone. FISCAL IMPACT Funds are available in the Merged Economic Development Account (account no. 570-932-6291). APPROVED AS TO FUNDS AND ACCOUNTS: ~` Francisco Gutierrez ~, Executive Director ~~~ Finance and Management Services Agency SGH/LS/RW/mlr H:\ACTION ITEMS\COUNCIL\2007 CC\JT CC-CRA ConsultingSrvsAgreeMillerCo OS-05-08.doc 80B-2 Economic Development Manager Community Development Agency CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 5`" day of May, 2008 by and between Miller & Company, P.C., a professional 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 foreign trade procedures and regulations. 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 incompliance 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 create a basic operation manual for the Santa Ana Foreign Trade Zone and, in concert with City staff, create additional documents necessary for a wider range of foreign trade zone activities, as set forth in Consultant's letter dated April 22, 2008, attached as Exhibit 1 to this Agreement, and incorporated by reference. 2. WARRANTIES -OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this letter agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant's performance hereunder, including all suggestions, ideas or other contributions to the Project, and the resulting works that result from the Project, shall be deemed "works made for hire" as defined in the United States Copyright Act, and City will be deemed, as to the creation of such work, the sole and exclusive author thereof. To the extent that any portion of the works from the Project is determined not to be a "work made for hire", then Consultant hereby assigns and transfers to City all worldwide right, title and interest in and to such work and shall execute any and all documents reasonably necessary to effect or evidence such assignment and transfer. 80B-3 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement shall not exceed $75,000.00 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. 4. TERM This Agreement shall commence on the date first written above and terminate on completion of services and City's acceptance of the deliverables, unless terminated earlier in accordance with Section 12, below. 5. 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. 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 1 of this Agreement. 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 80B-4 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 Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6956 With courtesy copy to: Community Redevelopment Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6549 To Consultant: Miller & Company P.C. 4929 Main Street Kansas City, MO 64112 telefacsimile (816) 561-5999 A parry 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 80B-5 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 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. 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. ~:~i 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. 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. // // // // // 806'7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager MILLER & COMPANY P.C. MARSHALL V. MILLER President Tax ID# ~:~1 ~ ,~