HomeMy WebLinkAboutDFK SOLUTIONS GROUP, LLC'!�ISuRANCE NOT ON FILE
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MAY 1 l 2021 CLERK OF COUNCIL
N-2021-106
DATE:
AGREEMENT TO PROVIDE ENVIRONMENTAL AND SAFETY TRAINING COURSES
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THIS AGREEMENT is made and entered into this 12th day of April, 2021 by and between DKF Solutions
Group, LLC ("Contractor"), and the City of Santa Ana, 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 contractor to provide environmental and safety training courses.
B. Contractor represents that it is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable
in its field and that any services performed by Contractor under this Agreement will be performed
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 forth, the parties agree as follows:
1. SCOPE OF SERVICES
Contractor shall provide the environmental and occupational health and safety training courses
that are described in Exhibit A to this Agreement, to be scheduled by mutual agreement by the parties.
2. COMPENSATION
a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the
rates and charges identified in Exhibit A. The total sum to be expended under this
Agreement, including any extension periods, shall not exceed $50,000.
b. Payment by City shall be made within forty-five (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 April 11, 2022,
unless terminated earlier in accordance with Section 13, below. The term of this Agreement may be
extended for one 1-year period upon a writing executed by the City Manager and City Attorney.
4. INDEPENDENT CONTRACTOR
Contractor 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 -employee relationship, a joint venture relationship, or to allow the City to exercise
discretion or control over the professional manner in which Contractor performs the services which are the
subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in
a manner consistent with all applicable standards and regulations governing such services. Contractor 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. INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall maintain and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Contractor 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 Contractor'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 insured(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.
C. Workers' Compensation Insurance. In accordance with the California Labor Code,
Contractor, if Contractor 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, Contractor agrees to obtain and maintain
any employer's liability insurance with limits not less than $1,000,000 per accident.
d, If Contractor is or employs a licensed professional such as an architect or engineer:
Professional liability (errors and omissions) insurance, with a combined single limit of not
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 Contractor pursuant
to this section:
(i) Contractor shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished 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) days prior written notice to the City.
(iv) Contractor shall supply City with a fully executed additional insured
endorsement.
f. If Contractor 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 Contractor's right to be paid for its time
and materials expended prior to notification of termination. Contractor 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. INDEMNIFICATION
Contractor agrees to and shall indemnify, defend, and hold harmless the City, its officers, agents,
employees, consultants, 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 Contractor or its, subcontractors, 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 relief 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 from this Agreement. The Contractor 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 the 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. Contractor's indemnification obligations in this
section shall survive expiration of this Agreement.
7. RECORDS
Contractor shall keep records and invoices in connection with the work to be performed under this
Agreement. Contractor 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 of three (3) years, or for any longer period required by law, from the date of final payment
to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor
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. Contactor
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 final payment to Contractor under this Agreement.
8. CONFIDENTIALITY
If Contactor receives from the City information which due to the nature of such information is
reasonably understood to be confidential and/or proprietary, Contactor agrees that it shall not use or
disclose such information except in the performance of this Agreement, and farther 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 party by any subsidiary
and/or agent of the other party 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 Contractor disclosed in a publicly available source; (c) is in rightful
possession of the Contractor an obligation of confidentiality; (d) is required to be disclosed by operation
of law; or (e) is independently developed by the Contractor without reference to information disclosed by
the City.
9. CONFLICT OF INTEREST CLAUSE
Contractor 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.
10. 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: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax 714-647-6956
With courtesy copies to:
To Contractor:
Executive Director
Public Works Agency
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92702
DKF Solutions Group, LLC
164 Robles Way, Suite 274
Vallejo, CA 94591
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 new 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.
11. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Contractor
regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between
0
the parties. 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 Contractor 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.
12. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor,
Contractor 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 null 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.
13. TERMINATION
This Agreement may be terminated by the City upon seven (7) days written notice of termination.
In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for
all services performed by Contractor prior to receipt of such notice of termination, subject to the following
conditions:
a. As a condition of such payment, City may require Contractor to deliver to the City all work
product completed as of such date, and in such case such work product shall be the property
of the City unless prohibited by law, and Contractor consents to the City's use thereof for
such purposes as the City deems appropriate.
Payment need not be made for work that fails to meet the standard of performance
specified in the Recitals of this Agreement.
14. NONDISCRIMINATION
Contractor 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
recruitment, selection, training, utilization, promotion, termination or other employment related activities
or in connection with any activities under this Agreement. Contractor affirms that it is an equal opportunity
employer and shall comply with all applicable federal, state and local laws and regulations.
15. 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 venue for any action or proceeding that may be brought or arise out of, in connection
with or by reason of this Agreement.
16. PROFESSIONAL LICENSES
Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits,
N-2021-106
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. Contractor 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
termination of this Agreement.
17. MISCELLANEOUS 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 such authority or power is not, in fact, held 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.
ATTEST:
4PG
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By. f ?K"
John Ki.Funk
Sr. Assistant City Attorney
FOR APPROVAL:
Nabil Saba
Executive Director
Public Works Agency
CITY OF SANTA ANA
Kristine Ridge
City Manager
CONTRACTOR:
Name: T�r„N ,� Pates
Title: `
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