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HomeMy WebLinkAboutLILLEY PLANNING GROUP 1City of Santa Ana Clerk of the Council AGREEMENT TERMINATION c, 7n$ 3M3 AUG -7 A 12 Please complete this form when the attached agreement is no longer r�effect Return form to the Clerk of the Council Office (M -30). Li I f SANTA ANA Call 647 -6520 if you have any questions. CLERK OF ' ' The agreement with No. AIA- 2008 - OS ( was completed on and final payment has been made. ^ . qL Department: (� Y-1 Phone /Ext.: 7-3-1 Signature: Date: �,ea,zu7nr era �,, PMM DEPT we required if consultant INSURANCE ON FILl: has employees. WORK MAY PROCF:' UNTIL INSURANCE EXPIRES 9-/9'0 ? CLERK OF COUNCIL DATE: O' peA (z.') IonIC Z. N-200S-051 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 8th day of April, 2008 by and between Lilley Planning Group, 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 planning, including but not limited to expertise in limitations on the police power inherent in the First Amendment, to assist staff in researching and preparing an proposed ordinance amendment, if necessary and advisable, related to Vehicle Mounted Banner Signs. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the perfonnance 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 perform those services as set forth in Exhibit A to this Agreement. 2. DELIVERY OF WORK PRODUCT Consultant shall deliver to City any work product which results from the services provided Said work product shall be submitted in hard copy and produced in a form compatible with City's computer system, as agreed between the Project Manager and Consultant. In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings, films, recordings, videotapes, and computer programs, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 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 A. The total sum to be expended under this Agreement shall not exceed $18,000.00 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, unless terminated earlier in accordance with Section 13, below. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee ofthe 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. 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 B upon execution of this Agreement and shall be approved in form by the City Attorney. 2 b. Business automobile liability insurance. or equivalent form, with a combined single limit of not less than $1.000.000 per occurrence. Such insurance shall include coverage for owned. hired and non-owned automobiles. c. 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 d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance. with a combined single limit of not less than $1.000.000 per claim. 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. (Hi) 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. 7. 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 1 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 3 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. 8. 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. 9. 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. 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: 4 Executive Director of the Planning and Building Agency City of Santa Ana 20 Civic Center Plaza (M-20) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 973-1461 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: Lilley Planning Group 440 South Brea Boulevard, Ste. E Brea, California 92821 telefacsimile (714) 672-9908 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. 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 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 5 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 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. 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 its 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 6 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 tenns 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 ~M;~ City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney f By: I .; v RECOMMENDED FOR APPROVAL: CONSULTANT ~~o Executive Director of the Planning and Building Agency Tax ID# ;~n - I S5<::)oY-1 7 EXHIBIT A SCOPE OF SERVICES The City of Santa Ana is looking for assistance with the Completion of a Zoning Ordinance Update to address vehicle mounted banner signs. Zoning Ordinance Update for Vehicle Mounted Banner Sign Duration: Late February through Mid May 2008 Deliverables: Vehicle Mounted Banner Sign Inventory, Draft Zoning Ordinance Update, Staff Report for Planning Commission, Revised Ordinance and City Council Staff Report. The City of Santa Ana wants to ensure that it has the tools in place to manage and create a process by which to deal with Vehide Mounted Banner Signs. Consultant will meet with City staff to better understand the existing conditions and the expectations of the project. Consultant will do field work to acquire information regarding types of banners, locations, number, etc. existing in the City. Consultant will assist City staff in conducting an ordinance comparison to determine which cities have ordinances regarding vehide mounted banners and their validity or lack thereof. Staff Meeting 1 - Introductions and Review of Process - Refine Scope Discuss Project Parameters/Constraints Collect Materials/Maps/Existing Ordinances Compensation $ 920.00 Reconnaissance - Field Studies/Photo Collection/Map Inventory City Ordinance Comparison Compensation $6,150.00 After completion of the recon phase of work Consultant will consult with City staff to determine the need for an ordinance and, if determined such an ordinance is necessary and advisable, will assist City Attorney's officein drafting such an ordinance. Consultant will take direction from City Attorney staff utilizing the information collected during the fieldwork to develop a new ordinance. Staff Meeting 2 - Meeting with Other Affected Agencies (public works, police, traffic engineer, etc.) Compensation $ 400.00 Ordinance Preparation At staff direction, assist City Attorney's Office in Draft Ordinance Preparation Assist in preparing Draft Staff Report Compensation $5,500.00 Staff Meeting 3 - Review Ordinance and Staff Report with City Staff Compensation $ 400.00 The next step is anticipated to be the Public Hearings phase. Consultant staff will present the 8 information discovered during the fieldwork phase and recon work to the Planning Commission to introduce the discussion of Vehicle Mounted Banners in the City of Santa Ana. Next Consultant will present the staff report and proposed recommended Ordinance, if any, to address the new standards for this program. Compensation $ 500.00 If a second Planning Commission hearing is held and revisions to the proposed draft ordinance are required, Consultant shall assist staff in revising ordinance and/or preparing Planning Commission staff report. Compensation up to $2,800.00 Finally, Consultant will assist in presenting the proposed ordinance, if any, to the City Council, including preparing the staff report. Compensation up to $1,300.00 Total Not to Exceed Amount for All Tasks Listed Above: 17,950.00 Jennifer Lilley, Principal, will be managing this contract. Ms. Lilley will oversee the contract, ensure effective transition of our staff and selVe as a resource to City staff regarding quality and productivity. 9