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HomeMy WebLinkAboutINSTITUTE OF RISK AND SAFETY ANALYSES-2015INSURAta ON FILE woRlf MAY PROCEED UNTIL INSURANCE EXPIRES CLERK OF DATE C 205 CONSULTANT AGREEMENT G CAO (o) THIS AGREEMENT is made and entered into this 19TH day of October 2015 by and &A?C a between Institute of Risk and Safety Analyses ("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 ("City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of bio mechanics, human factors, risk management and safety analysis for the purposes of providing expert opinion. 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 his 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 provide expert testimony in regards to accident reconstruction, biomechanics, and human factors, including, but not limited to, analyses, consultation, file review, depositions, trial testimony and travel. Consultant's CV is attached hereto as Exhibit A and incorporated by reference to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept total payments for its services. (i) $250 an hour for analyses, consultation, file review and travel. (ii) $500 an hour for depositions and trial (iii) The total suin to be expended under this Agreement, shalt not exceed $25,000.00 annually during the term of this Agreement, b. Payment by City shall be made within thirty (30) days following receipt of prosper invoice evidencing work performed along with receipts for expenses incurred, subject to City Page 1 of 7 accolmting 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 October 16, 2015 and terminate on October 14, 2016, unless terminated earlier pursuant to Section 12, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney for up to one (1) year. 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 its 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 which 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 and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); and (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City. b. Worker's Compensation Insurance. In accordance with California State law, 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. Page 2 of 7 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. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (ii) 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 terminate this Agreement. Such termination shall not affect 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, defend 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 death, and claims for property damage, which may arise from the negligent 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, to the extent that the injury, damages, just compensation, restitution, judicial or equitable relief is caused by the negligence of the Consultant. 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. City may make all reasonable decisions with respect to its representation in any legal proceeding. In no case will Consultant be required to indemnify or hold harmless the City from injury, damages, just compensation, restitution, judicial or equitable relief caused by the negligence of the City. CONFIDENTIALITY If Consultant received 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 Page 3 of 7 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 and disclosed 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 interest 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 facsimile 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 (",enter Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6956 Copies to: Executive Director of Personnel Services City of Santa Ana 20 Civic Center Plaza (M-24) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6930 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-651.5 Page 4 of 7 To Consultant: Kenneth Alvin Solomon, Ph.D 5324 Canoga Avenue Woodland Hills, CA 91364 kennethsolomonamac.com 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 facsimile, 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 regarding the subject matter herein, 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 and will serve to fully supersede existing Agreement. 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, that terms or 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 with thirty (30) days written notice of termination to the Consultant. a. As a condition of such payment, the City may require Consultant to deliver to the City all the work product completed as of such date, and in such case such work product shall be the Page 5 of 7 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 that fails to meet the standard of performance specified in the Recitals of this Agreement. 13. NON DISCRIMINATION Consultant shall not discriminate because of race, color, creed, relation, 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 or any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICITON - 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 Sates, 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. [CONTINUED ON NEXT PAGE] Page 6 of 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. CITY OF SANTA ANA AJ' PEST: MA IA A�DiIUC—R-7,Ar Clerk of the Council APPROVED AS TO FORM: Sonia R. City Att( KA M. SCHWARZMA� Assistant. City Attorney CONSULTANT: KENNETH ALVIN SOLOMON, Ph.D. A - DAVID CAVAZOS City Manager Page 7 of 7 ACbJZ ® CERTIFICATE OF LIABILITY INSURANCE '1 F DATE(MMIDDIYYYY) 1 10/21/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER LEW Insurance & Financial Services, Inc. 28055 Smyth Drive y N-2015165 Valencia CA 91355 CONTACT Doreen Adelman NAME: PHONE E (661)702-6000 NC (661) 702-6060 -MAIL dor.ena@lbwinsurance.com ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A:Sentinel Ins. Co. LTD 11000 INSURED INSTITUTE OF RISK & SAFETY ANALYSES LAERATORY OF RISK & SAFETY ANALYSES, INC. 5329 CANOGA AVE WOODLAND HILLS CA 91369 INSURER B: Hartford Accident & Indemnity 22357 INSURER C: INSURER D: INSURER E: 1 INSURER F: COVERAGES CERTIFICATE NUMBER:15-16 CERT GL+AUTO+WC REVISION NUMBER: 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 REQUIREMENT, TERM OR CONDITION 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. ILTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS AUTHORIZED REPRESENTATIVE X COMMERCIAL GENERAL LIABILITY P APD AS TO FORM Doreen Adelman/DOREEN EACH OCCURRENCE $ 2,000,000 A CLAIMS -MADE ❑X OCCUR ERENTED PREMISESS Ea occurrence $ 1,000,000 PREMI MED EXP (Any one person) $ 10,000 72SBALX0745 9/25/2015 9/25/2016 PERSONAL &ADV INJURY $ 2,000,000 GEHL AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 9,000,000 X POLICY JjE� r7 LOC PRODUCTS - COMPIOP AGO $ 9,000,000 Policy Fee $ OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ Ea accident 1,000,000 BODILY INJURY (Per person) $ E ANY AUTO ALL OWNED SCHEDULED AUTOS 'Y AUTOS 720ECPX9333 10/27/2015 10/27/2016 BODILY INJURY (Per accident) $ PROPERTY DAMAGE $ Peraccident NON -OWNED HIRED AUTOS AUTOS - Metlical P.ment. $ 5,000 UMBRELLA UAB HOCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DED RETENTION $ A WORKERS COMPENSATION ANDEMPLOYERS' LIASILITV YIN ANY PROPRIETORIPARTNERIEXECUTIVE ❑ OFFICERIMEMBER EXCLUDED? (Mandatory in NH) NIA 72w CXN5282 8/16/2015 8/16/2016 PER OTH- STATUTE ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYE $ 1,000,000 If yes, describe antler DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORO 101, Additional Remarks Schedule, may be attached if more space Is required) The City of Santa Ana, 20 Civic Center Plaza, Zanta Ana, CA. 92701; It's officers, employees, agents, volunteers and representatives are named as additional insured, but only as respects to the liability arising out of their interest in property occupied by the named insured. Provisions for additional insured are outlined in the above referenced general liability policy and only apply when required by written contract. *10 day notice of cancellation for non-payment of policy premium. CERTIFICATE HOLDER CANCELLATION ` � , ` © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014101) S )aIMPWFSX&vMara�9 @66%re registered marks of ACORD INS025 (?mn nio anr Assistant City Attorney SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE The City of Santa Ana THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 20 Civic Center Plaza ACCORDANCE WITH THE POLICY PROVISIONS. Santa Ana, CA 92701 AUTHORIZED REPRESENTATIVE P APD AS TO FORM Doreen Adelman/DOREEN ` � , ` © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014101) S )aIMPWFSX&vMara�9 @66%re registered marks of ACORD INS025 (?mn nio anr Assistant City Attorney ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL, LIABILITY POLICY Insurance Company Sentinel Insurance Company LTD This endorsement modifies such insurance as is afforded by the provisions of Policy # 72SBALX0745 relating to the following: 1. The City of Santa Ana, 20 Civic Center PIaza, 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 ha§ 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.) Effective September 25, 2015 this endorsement form as a part of Policy # 72SBALX0745 Issued to Institute of Risk and Safety Analysis A Named Insured 11 Countersigned by APN D AS TO FOItNI S dra M. Sc warzmann Senior Assistant City Attorney