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2006/06/27 City Council Resolution (5)RESOLUTION NO. 2006 171 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK Approving Agreement between the City of Rohnert Park and Hector Correa for Services as Artistic Director at the Performing Arts Center BE IT RESOLVED by the City Council of the City of Rohnert Park that it does. hereby authorize and approve that certain Agreement by and between the City of Rohnert Park and Hector Correa and that the City Manager is authorized to execute this agreement in substantially similar form to the attached agreement for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED this 27th day of June, 2006 CITY OF ROHNERT PARK .__ ..___.....__ Mayor Tim Smith R .�. \�a fI %/l City Clerk BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIDAK- MARTINEZ: AYE SMITH: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) AGREEMENT FOR SERVICES This Agreement is made and entered into this 27`' day of June, 2006, by and between the City of Rohnert Park, hereinafter referred to as the "City," and Hector Correa, hereinafter referred to as the "Consultant." WHEREAS, the City requires Artistic Director Services; and WHEREAS, the Consultant is qualified and experienced to provide such services. NOW, THEREFORE, said City and said Consultant for the considerations hereinafter set forth, mutually agree as follows: 1. SCOPE OF WORK. Consultant shall perform those services described as Tasks in the Scope of Work and Schedule of Performance attached as Exhibit "A" within the time frames stated therein. 2. COORDINATION. Consultant shall assign Hector Correa to personally participate in said project and to coordinate the activities of the Consultant. 3. COMPENSATION. A. City shall pay Consultant as compensation in full for such services and expenses at the rates set forth in the Compensation Amount and Payment Schedule attached as Exhibit "B," the total sum not to exceed $ 40,000 annually. Progress payments will be tied to completion of tasks so all payments are proportional to the work completed. B. Consultant shall submit itemized bi- monthly status reports describing completed and ongoing activities for the previous two months. C. Payments due and payable to Consultant for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the City. In the event the City has not appropriated sufficient funds for payment of Consultant services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the. current fiscal year; payment for additional work is conditional upon future City appropriation. 4. TERM. The term of this Agreement shall be from the date of its execution and shall continue for a period of five years unless terminated by either the City or the Consultant as provided in Section 7. 5. NOTICES. All notices, bills, and payments shall be made in writing and may be given by personal delivery or by mail. Notices, bills and payments sent by mail should be addressed as follows: TO CITY: Spreckels Performing Arts Center CITY OF ROHNERT PARK 5409 Snyder Lane ROHNERT PARK, CA 94928 843801v5 80078/0012 TO CONSULTANT: Hector Correa 13039 Broadway Terrace Oakland, CA 94611 and when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices, bills and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills and payments are to be given by giving notice pursuant to this Paragraph. 6. AMENDMENT OF SCOPE OF WORK. City shall have the right to amend the Scope of Work within the Agreement by written notification to the Consultant. In such event, the compensation and time of performance shall be subject to renegotiation upon written demand of either party to the Agreement. Failure of the Consultant to secure City's written authorization for extra or changed work shall constitute a waiver of any and all right to adjustment in the contract price or time due, whether by way of compensation, restitution, quantum meruit, etc. for work done without the appropriate City authorization. 7. TERMINATION. At any time and for any or no reason, City or Consultant shall have the right to terminate this Agreement upon 30 days written notice to the other party. If terminated by City, City may take possession of the Consultant's work, e.g., studies, preliminary drawings, computations, specifications, etc., insofar as they are complete and acceptable to the City, and pay the Consultant such equitable proportion of the total remuneration as the work satisfactorily done by the Consultant at the time of such discontinuance bears to the whole of the work required to be done by the Consultant under the terms of this Agreement. 8. CORRECTION OF WORK. The performance of services or acceptance of information furnished by Consultant shall not relieve the Consultant from obligation to correct any defective, inaccurate or incomplete work subsequently discovered and all such work shall be remedied by the Consultant on demand without cost to the City. 9. DELAYS AND EXTENSIONS. The Consultant will be granted time extensions for delays beyond the Consultant's control. Time extensions will be equal to the length of the delay or as otherwise agreed upon between the Consultant and the City. In such event, compensation as set forth in the Scope of Work shall be subject to renegotiation upon written demand of either party to the Agreement. 10. RECORDS OF PERFORMANCE. Consultant shall maintain any ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law make these records available for inspection, audit, and copying by the City. All data, documents, discussions, or other information developed or received by or for Consultant in performance of this Agreement are confidential and not be disclosed to any person except as authorized by City or as required by law. 11. SUBCONTRACTING. None of the services covered by this contract shall be subcontracted without the prior written consent of the City. In accordance with Government Code Section 7550, Consultant agrees to state in a separate section of any filed report the numbers and dollars amounts of all contracts and subcontracts relating to preparation of the report. 2 843801v5 80078/0012 12. ASSIGNMENT. The Agreement shall not be assigned by the Consultant in whole or in part, without the written consent of the City. 13. INDEMNIFICATION. To the full extent permitted by law, Consultant shall indemnify, hold harmless, release and defend City, its officers, employees and agents from and against any and all actions, claims, demands, damages, disability, losses, expenses including attorney's fees and other defense costs and liabilities of any nature that may be asserted by any person or entity including Consultant, in whole or in part, arising out of Consultant's activities hereunder, including the activities of other persons employed or utilized by Consultant in the performance of this Agreement (including design defects and regardless of City's approval, use or acceptance of the work or work product hereunder) excepting liabilities due to the sole negligence or willful misconduct of City. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable by or for Consultant under Worker's Compensation, disability or other employee benefit acts or the terms, applicability or limitations of any insurance held or provided by Consultant and shall continue to bind the parties after termination/completion of this Agreement. 14. INSURANCE. Without limiting consultant's indemnification provided herein, Consultant shall comply with the requirements set forth in Exhibit C to this Agreement. 15. STANDARD OF CARE. City relies upon the professional ability of Consultant as a material inducement to entering into this Agreement. Consultant agrees to use reasonable care and diligence in its profession in rendering services under this Agreement. Consultant agrees that the acceptance of his work by City shall not operate as a waiver or release of said obligation of Consultant. The absence, omission, or failure to include in this Agreement, items which are normally considered to be a part of generally accepted professional procedure or which involve professional judgment shall not be used as a basis for submission of inadequate work or incomplete performance. 16. LITIGATION SUPPORT. Consultant agrees to testify at City's request if litigation is brought against City in connection with Consultant's report. Unless the action is brought by Consultant or is based upon Consultant's negligence, City will compensate Consultant for the preparation and testimony at Consultant's standard hourly rates, if requested by City and not part of the litigation brought by City against Consultant. . 17. COVENANT AGAINST CONTINGENT FEES. The Consultant warrants that he has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he 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, contingent upon or resulting from the award or making this Agreement. For breach or violation of this warranty, the City shall 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 such fee, commission, percentage, brokerage fee, gift, or contingent fee. 18. CONFLICT OF INTEREST. Consultant (including principals, associates, and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this contract or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant's services 843801v5 80078/0012 hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. 19. STATEMENT OF ECONOMIC INTEREST. If City determines Consultant comes within the definition of Consultant under the Political Reform Act (Government Code §87100), Consultant shall complete and file and shall require any other person doing work under this Agreement to complete and file a "Statement of Economic Interest" with the Clerk of the City of Rohnert Park disclosing Consultant and /or such other person's financial interests. 20. MERGER. This Agreement shall constitute the entire Agreement between the parties and shall supersede any previous agreements, whether verbal or written, concerning the same subject matter. No modification of this Agreement shall be effective unless and until evidence by a writing is signed by both parties. 21. DEFAULT. If Consultant should fail to perform any of his obligations hereunder, within the time and in the manner herein provided or otherwise violate any of the terms of this Agreement, City may terminate this Agreement by giving Consultant written notice of such termination, stating the reason for such termination. In such event, Consultant shall be entitled to receive as full payment for all services satisfactorily rendered and expenses incurred hereunder, an amount which bears the same ratio to the total fees specified in the agreement as the services satisfactorily rendered hereunder by Consultant bear to the total services otherwise required to be performed for such total fee; provided, however, that the City shall deduct from such amount the amount of damage, if any, sustained by City by virtue of the breach of the Agreement by Consultant. 22. NO WAIVER OF BREACH; TIME. The waiver by City of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or provision or any subsequent breach of the same or any other term or promise contained in this Agreement. Time is of the essence in carrying out the duties hereunder. 23. THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement shall be construed to create and the parties do not intend to create any rights in third parties. 24. ATTORNEY FEES APPLICABLE LAW AND FORUM. In the event either party brings an .action or proceeding for damages arising out of the other's performance under this Agreement or to establish the right or remedy of either party, the prevailing party shall be entitled to recover reasonable attorney fees and costs as part of such action or proceeding, whether or not such action or proceeding is prosecuted to judgment. This Agreement shall be construed and interpreted according to California law, and any action to enforce the terms of this Agreement or for the breach thereof shall be brought and tried in the County of Sonoma. 25. INDEPENDENT CONTRACTOR. The parties intend that Consultant, in performing the services specified herein, shall act as an independent contractor and shall have control of the work and the manner in which it is performed. Consultant is not to be considered an agent or employee of the City and is not entitled to participate in any pension plan, insurance, bonus or similar benefits City provides its employees. In the event City exercises its right to terminate this Agreement, Consultant expressly agrees that he /she shall have no recourse nor right of appeal under rules, regulations, ordinances or laws applicable to employees. 26. TAXES. Consultant agrees to file tax returns and pay all applicable taxes on amounts paid pursuant to this Agreement and shall be solely liable and responsible to pay such 4 8438010 80078/0012 taxes and other obligations, including, but not limited to, state and federal income and FICA taxes. Consultant agrees to indemnify and hold the City harmless from any liability which it may incur to the United States for to the State of California as a consequence of Consultant's failure to pay, when due, all such taxes and obligations. 27. EMPLOYMENT PRACTICES. Consultant shall not discriminate in its performance under the Agreement either directly or indirectly on the grounds of race, color, religion, sex, age, national origin, or other prohibited grounds in its employment practices, and shall take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, national origin, or other prohibited grounds. 28. COMPLIANCE WITH LAW. Consultant shall comply with all applicable federal, state and local laws, rules and regulations affecting the Consultant and his /her work hereunder. Consultant represents and warrants to City that Consultant has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice Consultant's profession and to do the work hereunder. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice his /her profession and do the work contemplated by this Agreement. 29. TITLE TO DOCUMENTS. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the Consultant under the Agreement shall be vested in the City, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the City. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the City without restriction or limitations on their use. Consultant may retain copies of the above - described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of City during the term of this Agreement or until ninety (90) days after receipt of final payment from City. 30. INTERPRETATION. Notwithstanding the fact that one or more provisions of this Agreement may have been drafted by one of the parties to this Agreement, such provisions shall be interpreted as though they were a product of a joint drafting effort and no provisions shall be interpreted against a parry on the ground that said party was solely or primarily responsible for drafting the language to be interpreted. 31. EXECUTION. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 32. AUTHORITY. Each individual executing this Agreement on behalf of one of the parties represents that he or she is duly authorized to sign and deliver the Agreement on behalf of such party and that this Agreement is binding on such party in accordance with its terms. 5 843801v5 80078/0012 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF ROHNERT PARK: By: / Name. Stephen R. Donley (Date) Title: City Manager Per Resolution No. 2006 -171 adopted by the City Council on June 27, 2006 ATTEST: Deputy City Clerk APP OVED AS TO FORM: - 10. IN4,ti" s ant City Attorney Gabrielle P. Whelan 6 843801v5 80078/0012 CONSULTANT: Hector Correa By: Name: Hector Correa (Date) Title: Consultant By: / Name: (Date) Title: EXHIBIT "A" SCOPE OF WORK AND SCHEDULE OF PERFORMANCE 843801v5 80078/0012 EXHIBIT "B" COMPENSATION AMOUNT AND PAYMENT SCHEDULE 1. During the term of this Agreement, City shall pay Consultant on a bimonthly basis (once every two months), commencing on July 14, 2006. Payments shall be made in accordance with the schedule below. However, the City Manager of the City of Rohnert Park or his /her designee and Consultant may agree in writing to a different payment schedule, so long as Consultant's total annual compensation does not exceed $40,000. 1st Payment $5,000 2nd Payment $7,000 3rd Payment $7,000 4th Payment $7,000 5th Payment $7,000 6th Payment $7,000 843801v5 80078/0012 EXHIBIT "C" INSURANCE REQUIREMENTS 843801v5 80078/0012 CERTIFICATE OF CONSULTANT I HEREBY CERTIFY that I am the , and a duly authorized representative of the firm of , whose address is and that neither I nor the above firm I here represent has: a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to. solicit to secure this Agreement. b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the Agreement; or C) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or' consideration of any kind for, or in connection with, procuring or carrying out the Agreement; Except as here expressly stated (if any); I acknowledge that this certificate is subject to applicable State and Federal laws, both criminal and civil. Date Signature agr \Consult. 10 843801v5 80078/0012