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HomeMy WebLinkAbout07 - Historical Document Digital Archiving ServicesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 June 22, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Daniel Campagnolo, Planning Systems Administrator Planning Department 949/644 -3231 dcampagnolo @newportbeachca.gov SUBJECT: Approval of Amendment No. One to Professional Services Agreement with MCO — Advanced Document Imaging Solutions for Historical Document Digital Archiving Services. RECOMMENDATIONS 1) Approve Amendment No. One to Professional Services Agreement with MCO — Advanced Document Imaging Solutions for historical document digital archiving services to increase the contract amount by $26,000, and to extend the term of the contract to June 30, 2012. In February 2007, the Planning Department established a program to digitally archive approximately 13,000 project files comprised of both paper and microfilm. The files are scanned and indexed into the City's Geographic Information System (GIS) where staff can quickly retrieve them while conducting background research on a particular project or address. The original estimated cost for the project was $149,000. To date, approximately 85% of the project has been completed at a cost of $140,000. Staff is confident that MCO's revised estimate of $26,000 will complete the remaining 15% of the project. Funding Availability The Planning Department's FY 2009 -2010 budget includes $10,000 and, upon approval, the FY 2010 -2011 budget includes $16,000, for a total of $26,000 to complete archiving the remaining files in the Planning Department file room. Prepared by: v. C. DANI AMPAGNOLO Planning Systems Administrator Historic Document Digital Archiving Services June, 22, 2010 Page 2 Submitted by: DAVID LEPO Planning Directo Attachments: CC1. Draft Amendment No. One to Professional Services Agreement with MCO - Advanced Document Imaging Corporation CC2. FY 2008 -2009 Professional Services Agreement with MCO — Advanced Document Imaging Corporation Attachment No. CC 1 Draft Amendment No. One to Professional Services Agreement with MCO — Advanced Document Imaging Corporation AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH MCCLUSKEY COMPANIES DBA MCO — ADVANCED DOCUMENT IMAGING SOLUTIONS FOR HISTORIC DOCUMENT SCANNING THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ( "Amendment No. One "), is entered into as of this day of 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "CITY "), and MCCLUSKEY COMPANIES, a California Corporation,doing business as ( "DBA "), MCO — ADVANCED DOCUMENT IMAGING whose address is 529 W. Rincon St. Corona, CA 92880 ( "CONSULTANT "), and is made with reference to the following: RECITALS: A. On the 18th day of October 2008, City and Consultant entered into a Professional Services Agreement ( "Agreement'), to complete the digital- archiving of approximately 13,000 discretionary planning administrative files ( "Project'). B. City desires to enter into this Amendment No. One to extend the term of the Agreement to June 30, 2012, add additional services, increase the compensation and amend the insurance requirements. C. The City has allocated $10,000 from the FY2009 -2010 budget and $16,000 from the FY 2010 -2011 budget for the Project. D. City and Consultant mutually desire to amend the Agreement as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement shall be amended hereby and the following is substituted in its entirety. The term of the Agreement shall terminate on June 30, 2012, unless terminated earlier as set forth in Agreement. 2. ADDITIONAL SERVICES TO BE PERFORMED Section 2 of the Agreement shall be be amended hereby and the following is substituted in its entirety. In addition to the services to be provided pursuant to the Agreement, Consultant shall diligently perform all the services described in Amendment No. One including, but not limited to, all work set forth in the Scope of Services as in Exhibit A to Agreement, the updated proposal attached hereto as Exhibit A to 3. 4. Amendment No. One and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. COMPENSATION The introductory pargraph to Section 4 shall be amended hereby and the following is substituted in its entirety. City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement. Consultant's total amended compensation for all work performed in accordance with the Agreement, and with Amendment No. "One, including all reimbursable items and subconsultant fees, shall not exceed Seventy -Six Thousand Dollars and no /100 ($76,000.00) without prior written authorization from City. 3.1 The amended compensation reflects Consultant's additional compensation for additional services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed twenty -six thousand Dollars and no /100 ($26,000.00), without prior written authorization from City. INSURANCE Section 14 of the Agreement shall be amended hereby and the following terms are substituted in their entirety. Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. 2 B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: L Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against 3 City, and shall require similar written express waivers and insurance clauses from each of its subConsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suts instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 5. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect, [SIGNATURES ON NEXT PAGE] M IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. One on the date first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY ByW. 'It/t 611414) Leonie Mulvihill t j tjt Assistant City Attorney ATTEST: By: Leilani I. Brown,City Clerk CITY OF NEWPORT BEACH, A California Municipal Corporation By: Keith D. Curry Mayor CONSULTANT: MCCLUSKEY COMPANIES DBA MCO — Advanced Document Imaging 0 Title: Mike McCluskev Print Name: President 0 (Financial Officer) Title: CEO Print Name: Gary McCluskev [END OF SIGNATURES] Attachments: Exhibit A — Revised Estimate A09 -00339 5 EXHIL311 "H" Dan Campagnolo Planning Systems Administrator City of Newport Beach Planning Department 3300 Newport Blvd Newport Beach, CA 92658 (949) 644 -3231 dcampagnolo@newportbeachca.gov Document Conversion Quote 05/05/2010 529 West Rincon St Corona, CA 92880 Tel (951) 898 -2800 www.MCO- Image.com Thank you for the opportunity to provide quality Document Conversion Services to the City of Newport. Below is the Revised price estimate for the balance of the documents left to be converted. Based on the estimated documents left in the cabinets and throughout the document room, we have determined the documents would fill approx 47 standard sized banker boxes. The average cost to convert each banker box to date has been about $550.00 including sales tax. Total estimate to convert 47 banker boxes @ $550.00 each is $26,000.00. Price schedule: Document Prep $16.00 per hour Scanned Images, Drawings /Plans $1.00 per image Includes color as needed Scanned Images, Letter /Legal size $0.18 each Includes color as needed Please call or email if further information is needed or any questions arise. Regards, Mike McCluskey President mike @mco- image.com Attachment No. CC 2 FY 2008 -2009 Professional Services Agreement with MCO — Advanced Document Imaging Corporation PROFESSIONAL: SERVICES AGREEMENT WITH MCO — ADVANCED DOCUMENT IMAGING SOLUTIONS FOR HISTORIC DOCUMENT SCANNING THIS AGREEMENT is made and entered into as of this 18th day of October 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and McCluskey Companies, a California Corporation, doing business as (" DBA ") MCO — Advanced Document Imaging, whose address is 529 W. Rincon St. Corona, CA 92880 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City continues to digitally archive approximately 13,000 discretionary planning administrative files comprised of microfilm and paper in the Planning Department file room over a period of 12 months for City Fiscal FY 2008 -2009 and FY 2009 -2010. C The City's FY2008 -2009 budget includes $50,000 to complete archiving the approximate 13,000 discretionary planning administrative files identified in 'Recital B ", (above). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project; shall be Mike McCluskey, President, F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th day of June, 2010 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City, Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for Performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For alt time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for aft work peifiormed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Flfity-Thousand Dollars and nolloo ($50,000) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall describe the products delivered and show itemized costs for work performed and quantities of products produced consistent with the Scope of Services in Exhibit A. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein; "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement tern. Consultant has designated Mike McCluskey to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City. shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 6. ADMINISTRATION This Agreement will be administered by the Planning Department. DANIEL CAMPAGNOLO shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his!her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, Clity agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents, Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the tenn of this Agreement. 8.3 Consultant, shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 4 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action. suits, losses. judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims ), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant. its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services, 5 11 WA 13. 14. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned. and any meetings that have been scheduled or are desired. INSURANCE Without limiting Consultant's indemnification of City, and prior to cornmencernent Of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Ceififfcates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signatu . A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. ,acceptable Insurers' All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 6 D. Coverage Requirements, Workers Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium), prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1.000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 7 M This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii, This insurance shall act for each insured and additional insured as though a separate policy had been written for each. except with respect to the limits of liability of the Insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice, of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. M 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents''), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall. at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant Is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes_ 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19, INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shalt be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant small 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 to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24, CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 9974 (the "Act"), which (1) requires such persons to disclose any financial Interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. fG If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES Ali notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mall, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Daniel Campagnolo Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3231 Fax: 949 -644 -3329 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: MCO— Advanced Document Imaging Solutions Mike McCluskey, President 529 W. Rincon St Corona, CA 92880 Phone: (951) 898 -2800 Fax: (951) 898 -2808 26. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the 11 date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City ail reports, Documents and other information developed or accumulated in the performance j of this Agreement, whether in draft or final fomn. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 31. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney, 33, SEVERAi3ILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise 12 unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin: handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach Mayor for the City of Newport Beach ATTEST: ; �� CONSULTANT: "Z By: rUv� By: kl)LaVonne HaAde�s MCO —Advanced Docume maging j Gity Clerk c a Ti tle: President Print Name: Mike McCluskey M5,0— vancecl Documep malting Title: CEO Print Name: Gary McCluskey Attachments: Exhibit A — Scope of Services Exhibit B — Price Schedule 13 EXHIBIT "A" SCOPE OF SERVICES Scanning Consultant shall scan each paper and microfilm discretionary planning administrative file into a multi -page TIFF file and a PDF file at a resolution of 200 dpl. Consultant shall apply Optical Character Recognition (OCR) to each PDF file page except such file pages as City and Consultant agree, in advance, could not be captured in searchable format. The content of each TIFF and PDF file shall be organized consistent with the sequential page ordering of the original discretionary planning administrative file as directed by City. File Naming Consultant shall identify each TIFF and PDF file by case number and case type, as directed by the City, at the time each batch of discretionary planning administrative files is picked up by Consultant. File Organization Consultant shall organize TIFF and PDF files both sequentially by case number and by case type as directed by City. Each CD or DVD shall be clearly labeled to indicate which discretionary planning administrative files are contained therein. Deliverables Consultant shall deliver to City scanned images of discretionary planning administrative files in TIFF and PDF, as described above, in either CO or DVD format, which format shall be agreed to between Consultant and City. File Pick -up and Delivery Consultant shall pick up discretionary planning administrative files at City Hall, Building C, Planning Department, second floor, for scanning in such quantities and at such times as agreed between Consultant and City consistent with the "time for completion" set forth below. After scanning, Consultant shall return such discretionary planning administrative files to the original location and in same condition as when received. Each successive batch of discretionary planning administrative files shall be picked up for scanning at the same time as the previously scanned batch of scanned discretionary planning administrative files is returned. EXHIBIT °B' PRICE SCHEDULE The following is the price schedule for the "Scope of Services" provided in Exhibit "A ". "MMOT PRIME Document Preparation $16.00 per hour Images from Original Documents, Drawings /Plans $1.00 per image Images from Original Documents, LettertLegal Size $0.18 per image Images from Aperture Cards, Plans $0.50 per image Images from Aperture Cards, Letter /Legal size $0.40 per image Prices are in effect thru July of 2009 unless otherwise noted.