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1995-0307_ORANGE COUNTY TRANSPORTATION AUTHORITY_Transmittal to Hauswirth 0 %ôm- gf4gc5 3 d)5 pm rel-iaryd Opa 4t1 amed un,(-© X /14'/ Ch,r -yr Opp March 16, 1995 iiI195 W i+h eco r peiat-caiP_ Neigh 0rhood�-�Mr. Charles R. Hauswirth Ta � �nle.rs '-1"� Pacific Neighborhood Telecenters r e ren P • /401 d (+(01 1 Y l t 26611 Paseo Durango #200 r +0 -I- -II �- ► ' f Qc Yee San Juan Capistrano, California 92675 1 0 re Center e TeleBusiness Re. San Juan Capistrano Dear Mr. Hauswirth: At their meeting of March 7, 1995, the City Council of the City of San Juan Capistrano approved an Agreement with you for the operation of a TeleBusiness Center in San Juan Capistrano. The City Council also approved Agreement No. C-94-880 with the Orange County Transportation Authority for funding of the Center. As you will note in Section 10 of your Agreement, insurance obligations under the Orange County Transportation Authority Agreement were assigned to you, and that obligation is to be met prior to beginning work. To date, we have not yet received the required insurance. These two agreements cannot be processed until the insurance requirements set out in Section 10 have been met. Please forward the required insurance and endorsement to the City Clerk's office as soon as possible so that processing of these Agreements can be completed. If you have any questions regarding the requirements, please contact Dawn Schanderl, Deputy City Clerk, at 443-6310. Very truly yours, Cheryl Johnson City Clerk cc: Arlene Terry, CAMM Administrative Coordinator for OCTA Cassandra Walker AGREEMENT THIS AGREEMENT is made and entered into this 7th day of March 19 95 by and between the City of San Juan Capistrano, hereinafter referred to as "City," and Charles R. Hauswirth, dba Pacific Neighborhood Telecenters, hereinafter referred to as "Operator," for purposes of establishing a neighborhood-based telecommuting center, to be named "San Juan Capistrano TeleBusiness Center." WITNESSETH: WHEREAS, in order to improve air quality, reduce traffic congestion, encourage the growth of small businesses, enhance local employment opportunities, and provide valuable services to public and private sector organizations, City has been working with the Orange County Transportation Authority (OCTA) and Operator to establish a telecommuting center in San Juan Capistrano; and WHEREAS, City requires professional consulting services to establish a telecommuting center; and WHEREAS, Operator represents that it/he is duly qualified to provide said service; and, WHEREAS, City desires that the telecommuting center be privately operated and located in a suitable building in San Juan Capistrano; and, WHEREAS, City has been granted certain funds from OCTA to be used to subsidize the operations of the telecommuting center for one year; and, WHEREAS, Operator is willing to operate for a period of not less than one (1) year the San Juan Capistrano TeleBusiness Center, based on the City's pass-through of certain funds granted by OCTA, NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Operator hereby agree as follows: SECTION 1. GENERAL. The considerations of work on the project shall be governed by the conditions contained herein. In general, the tasks delineated herein are to be performed with minimum direction and assistance from City per the scope of work outlined in Exhibit A to the OCTA Contract No. C-94- 880 attached hereto as Exhibit A. • All work performed by Operator to establish and market the San Juan Capistrano TeleBusiness Center, however, shall be subject to review and approval of City Manager or his designee at all times. SECTION 2. CONDITION REGARDING OCTA CONTRACT. It shall be a condition for the benefit of all parties to this Agreement that the OCTA Contract No. C-94-880 shall be in full force and effect not later than forty-five (45) days after the Effective Date of this Agreement. If the OCTA Contract does not enter into full force and effect by such date, then either party to this Agreement shall have the right to terminate this Agreement by notice to the other parties. SECTION 3. TERM. This Agreement shall be for one (1) year with a one (1) year renewable option which can be terminated by either party with thirty (30) days written notice. SECTION 4. DESIGN OF TELEBUSINESS CENTER. Operator herewith submits proposed floor plans for the telecommuting center, to be named the "San Juan Capistrano TeleBusiness Center," to the City. Operator shall prepare and submit to the City the following documents: a. floor plans for the TeleBusiness Center (the "Plans" as Exhibit B); and b. a detailed list of the furnishings, fixtures and equipment to be purchased or leased by Operator for the TeleBusiness Center (the "FF&E List" as Exhibit C); and c. a budget for the construction, furnishing, fixturing and equipping of the TeleBusiness Center based on the Plans and the FF&E List as Exhibit D. The plans and FF&E List shall be such as to satisfy the requirements of task in Exhibit A to the OCTA Contract No. C-94-880. SECTION 5. DEVELOPMENT OF TELEBUSINESS CENTER. 1. Tenant Improvements and Furnishing. Not later than sixty (60) days after the City approves this Agreement, and after obtaining any permits required for tenant improvements from City and/or other government agencies, Operator shall cause the tenant improvements and furnishing of the TeleBusiness Center to commence. Not later than sixty (60) days after commencement, but in no event later than May 7, 1995, or such later date as may be approved in writing by the City Manager, Operator shall cause the TeleBusiness Center to be opened. 2 4 2. City Contribution to Cost. Subject to the conditions set forth below, City shall pass through to the Operator funds provided by the OCTA Contract No. C-94-880 in an amount not to exceed of $18,351.00 for operation of a TeleBusiness Center and reimbursement of all tenant improvements and furnishing costs. 3. Conditions to Reimbursement. City's obligation to pass through funds to the Operator for tenant improvements, furnishing costs, and operating costs shall be subject to the following conditions precedent: a. Insurance. Operator has delivered to the City evidence of the insurance required pursuant to Article 10, below; and b. Inspection. City has inspected and approved the tenant improvements and/or furnishing for which Operator seeks reimbursement; and c. Invoice and Proof of Payment. Operator shall submit invoices to the City Manager for reimbursement with such documentation as the City Manager may reasonably require to verify that Operator has paid the contractors or suppliers for such tenant improvements or furnishings, or can provide evidence of operating costs expended; and d. Receipt of Grant Funds. City has received sufficient grant funds under the OCTA Contract to make the reimbursement; and e. No Default. Operator shall not be in default under this Agreement, and no event shall have occurred which, with the giving of notice or the passage of time or both, would be a default by Operator under this Agreement. SECTION 6. MARKETING. 1. Plan and Budget. Not later than twenty-one (21) days after the date of City Council approval of this Agreement, Operator shall prepare and submit to the City Manager for approval a marketing plan (the "Marketing Plan") and budget (the "Marketing Budget") for the TeleBusiness Center. 2. Obligation of Operator. Operator shall implement the Marketing Plan once it has been approved, and OCTA Contract has been executed and tenant improvements for the TeleBusiness Center are in process. SECTION 7. OPERATION OF TELEBUSINESS CENTER. 1. Obligation of Operator. Not later than May 7, 1995, or such later date as may be approved in writing by the City Manager, Operator shall open the TeleBusiness Center for business and shall thereafter diligently and continuously operate it for a period of not less than one (1) year. 3 • ,. Operation of the TeleBusiness Center shall be performed in all manners and respects such that it satisfies all of City's obligations set forth in OCTA Contract No. C-94-880. Accordingly, City hereby assigns such obligations to Operator, and Operator hereby assumes said obligations for the benefit of City. 2. Hours of Operation. The TeleBusiness center shall be open for business and staffed by the TeleBusiness Center Administrator during normal business hours in the community. Additionally, the TeleBusiness Center Administrator may elect to provide telecommuters with access to their Work Stations twenty-four (24) hours a day, three hundred and sixty-five (365) days a year, provided, however, after-hours access may be subject to reasonable controls. SECTION 8. REPORTING AND EVALUATION. Operator acknowledges and agrees that the reporting and evaluation obligations of City under the OCTA Contract No. C-94-880 are of particular importance to City. Accordingly, City hereby assigns said obligations to Operator, Operator hereby assumes said obligations, and Operator further agrees to perform said obligations in strict compliance with the terms and conditions of the OCTA Contract. In addition to submitting to OCTA in a timely manner all of the reports required under the OCTA Contract, Operator shall deliver copies thereof to City contemporaneously. SECTION 9. INDEMNITY. Operator shall be responsible for all injuries to persons and for damages to real or personal property of City, caused by or resulting from any activity or operation of Operator, its employees or its agents during the progress of or connected with the rendition of services hereunder. Operator shall defend and hold harmless and indemnify City and all officers and employees of the City from all costs and claims for damages to real or personal property or personal injury to any third party resulting from the activity of itself, employees or its agents. SECTION 10. INSURANCE REQUIREMENTS. 1. Comprehensive General Liability. Operator shall maintain in full force and effect comprehensive general liability coverage, including premises operations, products/completed operations, broad form property damage and blanket contractual liability in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 4 ' *r 2. Comprehensive Automobile Liability. Operator shall maintain in full force and effect comprehensive automobile liability coverage, including owned, hired and non-owned vehicles in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 3. Errors and 0 ' sions C.v. ,: tAe1 rator shall maintain in full force and effect professional errors and o ' sions coveti in a minimum amount of$500,000. 4. Worker's Compensation. If Operator employs employees to perform services under this Agreement, Operator shall obtain and maintain, during the life of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 5) Insurance Obligations Under OCTA Contract. City hereby assigns to Operator, and Operator hereby assumes for the benefit of City, all of the indemnity and insurance obligations of City under the OCTA Contract. These policies shall not terminate, nor shall they be canceled nor the coverage reduced until after 30 days' written notice is given to the City. Prior to beginning work, Operator shall provide to City certificates of insurance establishing that the required insurance coverages have been secured by Operator. Operator shall provide an endorsement to City establishing that City has been legally added as an additional insured to the insurance policies required under this Agreement. SECTION 11. TIME FOR SUBMITTING PROOF OF INSURANCE. Operator shall submit proof of insurance requirements under this Agreement to the City Clerk's office prior to beginning any work under this Agreement. Operator shall not receive any compensation until all insurance provisions have been satisfied. SECTION 12. DEFAULT AND REMEDIES. 1. Event of Default by Operator. The failure by Operator to perform any obligation under this Agreement, if such failure is not cured within fifteen (15) days after written notice from City, shall constitute a default by Operator under this Agreement. 5 2. Remedies Upon Default. In the event of a default by Operator under this Agreement, in addition to any remedies provided by law or equity, City may terminate this Agreement by notice to the other party. In the event of such a termination, any rights or remedies for the default available to an aggrieved party by law or equity shall survive. 3. Cumulative Remedies;No Waiver. The rights and remedies under this Agreement are cumulative and in addition to all rights and remedies provided by law and/or equity from time to time. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of this Agreement shall be construed as a waiver of any subsequent breach of the same provision. The consent to or approval of any act by Operator requiring further consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent act. City acceptance of the late performance of any obligation shall not constitute a wavier by City of the right to require prompt performance of all further obligations. City acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of City's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City acceptance of any partial performance shall not constitute a waiver by City of any rights relating to the unfulfilled portion of the applicable obligation. SECTION 13. MISCELLANEOUS. 1. Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Operator or any other claim by Operator against City, Operator hereby waives any right it might otherwise have (a) to offset such obligation, liability or claim against Operator's obligations under this Agreement, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Operator of any of its obligations under this Agreement. 2. Notices. All notices, demands, approvals and other communications provided for in this Agreement shall be in writing and be delivered to the appropriate party by personal service or U.S. Mail at its address as follows: If to Operator: Mr. Charles R. Hauswirth dba Pacific Neighborhood Telecenters 26611 Paseo Durango, #200 San Juan Capistrano, CA 92675 6 • If to City: Mr. George Scarborough, City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Addresses for notice may be changed from time to time by written notice to all other •• rties. All notices personally served shall be effective when actually received. All notices mailed small be effective two (2) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the nonreceipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 3. Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of City and Operator and their respective successors and assigns. Operator shall not assign any of its rights or obligations under this Agreement without the prior written consent of the City Manager, which consent may be withheld in the City Manager's sole and absolute discretion. Any such assignment without such consent shall be void. 4. Counterparts. This Agreement may be executed in counterparts, each of which, taken together, shall be deemed to be one and the same document. 5. Prior Agreements; Amendments; Consents. This Agreement contains the entire agreement between City and Operator with respect to the TeleBusiness Center, and all prior negotiations, understandings and agreements are superseded by this Agreement. No modifications of this Agreement (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 6. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Operator irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, or, if required, the Municipal Court of the State of California for the County of Orange, in connection with any legal action or proceeding arising out of or relating to this Agreement. Assuming proper service of process, Operator also waives any objection regarding personal or in rem jurisdiction or venue. 7. Severability of Provisions. No provision of this Agreement that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of this Agreement are hereby declared to be severable. 8. Headings. Article and section headings are included in this Agreement for convenience of reference only and shall not be used in construing this Agreement. 7 S 9. Time of the Essence. Time is of the essence of this Agreement. 10. Conflict of Interest. No member, official or employee of City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to this Agreement which is prohibited by law. 11. Warranty Against Payment of Consideration. Operator warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 12. Non-liability of City Officials and Employees. No member, official or employee of City shall be personally liable to Operator, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Operator or successor, or on any obligation under the terms of this Agreement. 13. Directors Authorized to Execute Documents. The City Manager is authorized to execute on behalf of the City any and all documents or instruments necessary or desirable to implement this Agreement. The City Manager is further authorized to modify or waive any conditions set forth in this Agreement for the benefit of City. 14. Attorney's Fees. If any party to this Agreement resorts to a legal action to enforce any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expenses and court costs in addition to any other relief to which it may be entitled. 8 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first hereinabove written. CITY OF SAN JUAN CAPISTRANO By: Carolyn Nas , Mayor OPERATOR BY: CY ///.Ae6'e•vL7-C Chuck Hauswirth, President ATTEST: Cheryl Johnsoti City er APPROVED AS TO FORM: 1/ die ill Richard K. Denhalter, City Attorney 9