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HomeMy WebLinkAboutORANGE COUNTY COASTKEEPERft ';'ANCF NOT ON FILE 'WORT: MAY �T PROCEED CLERK OF COUNCIL. N-2019-126 j UATE: AGREEMENT TO PROVIDE DESIGN AND PUBLIC EDUCATION AUa 0 5 I119 SERVICES FOR THE' RAITT AND MYRTLE PARK PROJECT VJ'_A_ et�"`3 k°y TI3TS AGREEMENT is made and entered into this 2nd day of July, 2019 by and between Orange County Coasticeepor ("Consultant"), and the City of Santa Aria, a charter city and, municipal corporation organized and existing under the Constitution and laws of the State of California ("City'). RECITALS A. The City desires to retain a consultant to provide design and public education services for the Raitt and Myrtle Park Project. B. Consultant represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is Imowledgeable in its field and that any services performedby Consultant under this Agreement will beperfoimed in compliance with such standards as may reasonably be expected from a professional contracting firm in the field.. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms' and conditions hereinafter set #bith, the parties agree as follows: 3. SCOPE OF SERVICES Consultant shall furnish the services that are described in Exhibit A to this Agreement. 2. COMPENSATION a, City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sutra to be expended during the term of this Agreement shall .not exceed $20,000, including any extension periods; b. Payment by City shall be made within thirty (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City, 3. TERM This Agreement shall commence on the date stated above and continue through July 1, 2021 unless terminated earlier in accordance with Section 14, below. `i'he tern of this Agreement may be extended for up to one 1-year period upon a writing executed by the City Manager and the City Attorney. 4, INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employce relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manor in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in Parse 9 of 7 a mannor consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSVItANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and. shalt require its subconsultants, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance; Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of '$1,000,000 per occurrence, with $2,000,000 in the aggregate, Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insumd(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a,combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. o. Workers' Compensation insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for workers' compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of less than $1,000,000 per claim with $2,000,000 in the aggregate. e, The following requirements apply to the insurance to be provided by Consultant pursuant "" to this "s6ct16nr- (i) Consultant shall maintain all insurauoe required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be fiurnisbed to the City upon execution of this Agreement and shall be approved by the City. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) clays prior written notice to the City. Page 2 of 7 (iv) Consultant shall supply City with a fully executed additional insured endorsement. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement, Such termination shall not affect Consultant's right to be paid for its tune and materials expended prior to notification of tennination, Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. OWNERSHIP OF MATERIAIS This Agreement creates anon -exclusive and perpetual licensefor City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed fit any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer: diskettes, which are prepared or caused to be prepared by Consultant under this .Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in -writing that City is granted a non-exolttsive and porpehial license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes untended by this :Agreement shall be at City's sole risk. 7. INDEMNIFICATION Consultant agrees to and shall indemnify, defend, and hold harmless the City, its officers, agents,, employees, consiiltatts, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subconsultants, agents; employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable rolief is due by reason of the terms of or effects arising from this Agreement, This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising froin this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by tine City, regarding any action by a third party challenging the validity of this. Agreement, or asserting that personal injury; damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding, Consultant's indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the foregoing, to the extent Consultant's services are subject -to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the, negligence, recklessness, or willful misconduct of the Consultant, Pane 3 of 7 8. 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 the City for a minimum period ofthrco (3) years, or for any longer period required bylaw, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of fins payment to Consultant under this Agreement. 9. CON FIDE++'NTIALITX If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either patty by any subsidiary and/or agent of the other patty is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by operation oflaw; or (e) is independently developed by the Consultant without reference to information disclosed by file k<ity, 10, CONFLICT OF INTEREST CLAUSE+, Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the performance of services specified under this Agreement. 11., NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clork of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702.1988 With courtesy copies to; Page 4 of 7 To Consultant: Executive Director Public Works Agency City of Santa. Ana 20 Civic Center Plaza Santa Aria, CA 02702 Orange County Coastkeeper 3151 Airway Avenue, Suite F-110 Costa Mesa, CA 92626 Attu: fray Hiemstra A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the now address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded, 12. E, XCLUSIVITY AND AMEND rNT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the partics. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant, The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City, Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer; delegation or subcontract without the City's prior written consent shall be considered mull and void, Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City,. 1.4. 'TFRMINATION This Agreement maybe terminated by the City upon thirty (30) days' written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultantprior to receipt of such notice of termination, subject to the following conditions: a. As a condition of sueh payment, City mayrerluire Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property Page 5of7 of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City dooms appropriate, b, Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement, 15. NONDISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitinent, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations, 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the versus for any action or proceeding that may be brought or arise outof, in connection with or by reason of this Agreement. 17.. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies, Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for tormination of this Agreement. 18, MISCEI,LANL''OUS PROVISIONS a, Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that stitch authority or power is not, in fact, hold by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement, IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. R4 o Bn r. DAISYg2 460. GOMEZ CLERK OF • CITY OF SANTAANA Kristine Ridge ��'' City Manager Page 6 of 7 APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Joliet ,'Punk Assistant City Attorney RECOMMENDED FOR APPROVAL: liva S. Sweiss, PE, LS Executive Director Pu lic Works Agency CONSULTANT: Jc lu✓l Title: P 'rzr su�Gr 1i Page 7 of 7 TASK Plant pallet review/design Develop 3 educational signs showcasing plants and 2 educational signs showcasing bioretention features. Design bilingual brochure for residents of Santa Ana Task Specifics from Craig Foster Review landscaping plans and provide plant selection advice, keeping the theme of CA native, drought tolerant landscaping. Keep in mind the minimal maintenance budget that Parks has for upkeep of the plants. For the bio-retention area, keep in mind that the plants there should be able to tolerate up to 6" of standing water during storms. Develop/design up to (3) plant/ garden educational signs showcasing the CA native plant types/drought tolerant landscaping and up to (2) educational signs showcasing the bio-retention w/no underdrain and the subsurface infiltration gallery (Stormchamber). We can then provide the images to the contractor that is awarded the project for them to furnish. Expect feedback from the City on these signs and perhaps multiple submittals. Develop/design/distribute a brochure highlighting the project's location within the Newport Bay watershed, the water quality and water supply benefits of the project, and the project's drought tolerant landscaping/CA native plant types. This brochure should be very colorful, include multiple photos/ diagrams, and be very educational. Assume the audience for the brochure is unaware of these subjects. We would like the brochure in English and Spanish please. City will print to save money and we can distribute them together around the neighborhood and place them around the City for residents who come to City Hall. Expect feedback from the City on the brochures and perhaps multiple submittals. Attendance at two DWR Meeting in Los Attendance at any required Angeles (1 staff person) meetings with DWR, such as the pre -application funding workshop, to demonstrate our partnership on this project. Assume up to (2) meetings and please keep staff at a minimum to save money. Attendance at Ribbon Cutting Ceremony Attendance at the ribbon cutting ceremony upon project completion. HOURS COST per hour TOTAL 15 $150.00 1 $2.250.00 50 45 $150.00 $150.00 $150.00 $150.00 $7,500.00 $6,750.00 $1,200.00 $600.00 $18,300.00