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Home My WebLink AboutKELLY ASSOCIATES MANAGEMENT GROUP LLC (KAMG) 2 (2)MAYOR Miguel A. Pulido MAYORPROTEM Vicente Sarmiento Angelica Awezoua P. David Benavides Michele MadilICZ Roman Reyna Sal Tianajera May 30, 2016 CITY OF SANTA ANA OFFICE OF THE CITY ATTORNEY 20 Civic Center Plaza, M-29 . P.O. Box 1988 Santa Ana, California 92702 (714) 647.5201 . Fax (714) 647.6515 www Santa-ana.oi Kelly Associates Management Group LLC 1440 North Harbor Boulevard, Suite 900 Fullerton, CA 92835 Dear Mr. Kelly: Letter Agreement for Mediation Services N-2016-146 CITY MANAGER David Cavazos CITY ATTORNEY Sonia R Carvalho CLERK OF THE COUNCIL Maria D. Heim This letter shall be our Agreement ("Letter Agreement') regarding the mediation services ("Services") to be provided by Kelly Associates ("Consultant') as an independent contractor to the City of Santa Ana (the "City") in relation to existing litigation among the City, Tustin Unified School District ("Tustin") and Lyon Communities ("Lyon") ("Project'). City, Tustin and Consultant are sometimes referred to herein as 'Party" or collectively as "Parties." The Services to be provided include the review and analysis of the facts and circumstances giving rise to the existing litigation. Consultant shall review documents and prepare to serve as a mediator while the Parties discuss and consider a resolution of the litigation. The term of this Letter Agreement shall be from May 30, 2016 to June 30, 2016, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services. Consultant shall perform all Services under this Letter Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California, and consistent with all applicable laws. Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and shall be maintained throughoutthe term of this Letter Agreement. SANTA ANA CITY COUNCIL bli=uel A. Pulidn Mame Sarmiemo Mi<Aele Nucinez Angelica Ameznm P. nevid ae1wcides Rea,., aerie Snl TlnaJem W" Mayor Pm'1'em. Word I Wmd2 N'erdb Wd4 WON5 W.W6 aye{do��xng{s.�na a� v5mima-42,4"mnoru y�qi=er rvSamn-_xmg,Nlb' -nnS 'uv �gannla_wmnw dlm dv-um-a,n ,xcymaiwnta sn AWIM:AWN't4;_anyprd Kelly Associates Management Group LLC Page 2 of 4 May 30, 2016 Compensation shall be based on the actual amount of time spent in adequately performing the Services, and shall be billed at the hourly rate of $250 per hour. The total compensation shall not exceed seven thousand five hundred dollars ($7,500) without written approval of the City Manager. Consultant's invoices shall include a detailed description of the Services performed. Invoices shall be submitted to the City Attorney's office as performance of the Services progresses. The City shall review and pay the approved charges on such invoices in a timely manner. The City may terminate this Letter Agreement at any time with or without cause. If the City finds it necessary to terminate this Letter Agreement without cause before Project completion, Consultant shall be entitled to be paid in full for those Services adequately completed prior to the notification of termination. Consultant may terminate this Letter Agreement only upon 30 calendar days' written notice to the City only in the event of City's failure to perform in accordance with the terms of this Letter Agreement through no fault of Consultant. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. Finally, Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment in violation of state or federal law. As provided for in the indemnity obligations of this Letter Agreement, Consultant shall indemnify City against any alleged violations of this paragraph, including, but not limited to, any fines or penalties imposed by any governmental agency. This Letter Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Letter Agreement, the action shall be brought in a state or federal court situated in Orange County, State of California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Letter Agreement, the prevailing Kelly Associates Management Group LLC Page 3 of 4 May 30, 2016 Party shall be entitled to recover all reasonable fees and costs incurred, including reasonable attorney's fees, as determined by the court. Consultant shall not assign, sublet, or transfer this Letter Agreement or any rights under or interest in this Letter Agreement without the written consent of the City, which may be withheld for any reason. This Letter Agreement may not be modified or altered except in writing signed by both parties. Except to the extent expressly provided for in the termination paragraph, there are no intended third party beneficiaries of any right or obligation of the Parties. This is an integrated Letter Agreement representing the entire understanding of the parties as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Letter Agreement, the language of this Letter Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Letter Agreement. Consultant warrants that the individual who has signed this Letter Agreement has the legal power, right and authority to make this Letter Agreement and bind the Consultant hereto. If you agree with the terms of this Letter Agreement, please indicate by signing and dating two originals where indicated below and return both to the undersigned. Once the documents are fully executed, one original will be returned to you for your records. [SIGNATURES ON NEXT PAGE] Kelly Associates Management Group LLC Page 4 of 4 May 30, 20'16 CITY OF SANTA ANA Approved by: David CS, City anager Attest: Maria D. Huizar Clerk of the Council Approved as to Form: Sonia R. Carvalho, City Attorney KELLY ASSOCIATES MANAGEMENT GROUP LLC Reviewed Accepted by Consultant: q William K ll Print: President/CEO Date !0,1.10