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HomeMy WebLinkAboutFIRESTATS LLC; 2011-06-16; (2) AGREEMENT FOR ANALYSIS AND CONSULTING RELATED TO FIRE SERVICE OPERATIONS WITH FIRESTATS, LLC THIS AGREEMENT is made and entered into as of the /£ day of 2011, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and FIRESTATS, LLC, a limited liability company ("Contractor"). RECITALS A. City requires the professional services of a fire service operations analyst that is experienced in analyzing fire service operations. B. Contractor has the necessary experience in providing professional services and advice related to statistical and geospatial analysis of municipal fire service and Emergency Medical Services (EMS) operations. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of 24 months from the date first above written. The City Manager may amend the Agreement to extend it for two additional one-year periods or parts thereof in an amount not to exceed ten thousand dollars ($10,000) per One Year Agreement Period. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable per Agreement year for the Services to be performed during the initial Agreement term and any subsequent extension term(s) including reasonable and pre-approved travel expenses shall not exceed ten thousand dollars ($10,000) per One Year Agreement Period, at a Contractor rate of one hundred and twenty-five ($125.00 per hour). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) City Attorney Approved Version 2.18.11 1 retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will notify the City of the subcontracting of any portion of the Services. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8- OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. City acknowledges that Consultant makes its best professional efforts at understanding and interpreting the data available, that not all data may necessarily be available, that not all possible analyses are likely to be performed in the pursuit of understanding City's resource deployment and performance, and that alternative interpretations of the data and analyses may exist. City further acknowledges that any deployment decisions made by City with information provided through FireStats' tools or consulting are made with multiple considerations and not solely with FireStats' tools or consulting. City therefore shall indemnify, defend and hold Consultant harmless from any and all suits, claims or liabilities, including attorneys' fees, costs or expenses incurred or arising under this Agreement and not arising from any illegal act by Consultant in the performance of this Agreement. City Attorney Approved Version 2.18.11 Each party hereby, to the extent and limit permitted by State law, but without obligation to provide insurance of any nature of the other party, shall hold harmless and indemnify the other party from and against any and all liability, assertions, loss, claims, damages, costs, attorney's fees, judgments and expenses of whatsoever kind or nature which the other party may sustain, suffer or incur or be required to pay by reason of a loss resulting from the negligent acts or omissions of the party. To the extent and limit permitted by State law, in the event that any action, suit or proceeding is brought against a party upon any alleged liability arising out of this Agreement asserted to have resulted from the negligence of the other party, the party against whom the action, suit or proceeding is brought shall promptly provide notice in writing thereof to the other party by registered or certified mail addressed to the party against whom the action, suit or proceeding is brought at the address herein provided. Upon receiving such notice, the party receiving notice, at its own expense, shall diligently defend the party against whom the action, suit or proceeding is brought against such assertions, actions, lawsuits, or proceedings and take any and all appropriate actions to prevent the obtaining of a judgment against the party against whom the action, suit or proceeding is brought and to otherwise protect the interests of the party against whom the action, suit or proceeding is brought. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VH". OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance $1,000,000 combined single- limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. City Attorney Approved Version 2.18.11 10.1.4 Professional Liability Errors and omissions liability that is appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. If box is checked, Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 10.2. Additional Provisions Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered to City the City within 30 days. Contractor will have the right to make one (1) copy of the work product for Contractor's records. Nothing herein shall be construed to establish any ownership by City over any of the programming used by Contractor City Attorney Approved Version 2.18.11 4 and made available to City pursuant to this Agreement. All programming is entirely owned by Contractor and City's usage of that programming is contingent on this Agreement being current. 14. COPYRIGHTS No copyrightable materials are contemplated to be developed pursuant to this Agreement. However, some documents and analyses will be developed through Contractor's standard formats and software applications. These will be specific to City but substantially the same as those developed for other jurisdictions. City shall have no copyrights over any such works. Contractor and City agree to consider each written work created under this Agreement and to vest with the City any copyrights not reserved by Contractor. 15. NOTICES The names of the persons who are authorized to give and receive written notices under this Agreement are: For City For Contractor Name Kevin Crawford Name Paul Rottenberg Title Fire Chief Title Owner Department Carlsbad Fire Department Address 10366 Hawke Lane City of Carlsbad Nevada City, California 95959 Address 2560 Orion Way Phone No. (530) 478-0657 Carlsbad, California 92010 Phone No. (760)931-2141 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with City Attorney Approved Version 2.18.11 these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services, the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. Any third party adjudication of disputes subsequent to the above-described process shall be through arbitration under the rules of the American Bar Association. 20. TERMINATION Within the first year of this Agreement, termination by City may be only for substantial failure to perform by Consultant. A written notice of cure must be provided by City and a 30-day cure period allowed for resolution of the breach. Within the first year, the Agreement may be terminated by Consultant for failure of City to make payment due Consultant. Invoices 30 days past due will be noticed to City. Invoices 60 days past due will receive a second notice. At 75 days past due, Consultant shall notify City of material default for non-payment and services may be terminated by Consultant at 90 days past due unless agreed by the parties otherwise. Termination by Consultant for non-payment within the first year shall accelerate all remaining payments for the year. After the first year, this Agreement may be terminated by either party at any time with or without cause. All amounts outstanding shall be due net 30 days from final invoice. Upon notification of termination, Contractor has thirty (30) business days to deliver any documents owned by City and all work in progress to City at the address contained in this Agreement. The parties shall work in good faith to determine what percentage of the outstanding work is compensable. Failure by the parties to reach an agreement shall be dealt with in accordance with Section 19, Dispute Resolution. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration City Attorney Approved Version 2.18.11 6 contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.. the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version 2. 18. 11 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) Paul J. Rottenberg, Owner (print name/title) Notary Acknowledgement Attached *By: (sign here)LORRAINE M. WOOD City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. "Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD Aisfstant/pepoty City Attorney City Attorney Approved Version 2.18.11 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of On J_ (Here inser/name and title of the officer) before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person^s) whose name(s) is/a*e subscribed to the within instrument and acknowledged to me that he/She/they executed the same in his/her/their authorized capacity(ie^), and that by his/Eef/tfeeir signature^ on the instrument the person(s), or the entity upon behalf of which the person(s). acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNES DONA M. BERGTHOLD Commission * 1903924 Notary Public - California Nevada County My Comre. Expires Oct 10.2014 Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT f(Title or description of attached document) (Title or description/of attached document continued) Number of Pages /Ls Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ^2£ Individual (s) D Corporate Officer (Title) D Partner(s) D Attorney-in-Fact D Trustee(s) D Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. be/she/thoy, is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. * Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. * Indicate title or type of attached document, number of pages and date. •S* Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v 12.10.07 800-873-9865 www.NotaryClasses.com EXHIBIT "A" SCOPE OF SERVICES ANAYLSIS AND CONSULTING SERVICES • Contractor shall provide consulting services in the analysis of fire department operations and deployment on an as-requested basis. This may include, but not be limited to, the creation of periodic reports on department operations, development of software applications for the department, attendance at meetings, writing and editing, database design, development and testing, work with data relevant to Emergency Medical Services (EMS) quality control and fire prevention, and any other analysis-related tasks within the scope of Contractor's expertise. • Contractor shall provide 30-day invoicing and City shall provide net payment within 30 days of invoice receipt. Reasonable and appropriate pre-approved expenses shall be paid by City. City Attorney Approved Version 2.18.11 SOLE OWNER I, Paul J. Rottenberg, am the sole owner of FireStats, LLC., a single-member LLC. Should FireStats, LLC., become jointly owned by adding members or changing its corporate structure during the term of the Agreement with the City of Carlsbad for management consulting and software-related services, then I shall notify the City promptly. Executed on this 26th day of May, 2011, at Nevada City, California. Jaul J. Rottenberg Owner of FireStats, LLC. ATTYWWPV APPROVPn VFRSIOM OO ftS 01