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HomeMy WebLinkAbout25G - AGMT - AMBULANCE SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: AGREEMENT WITH CARE AMBULANCE SERVICES FOR TEMPORARY EMERGENCY TRANSPORTATION SERVICES (AMBULANCE) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED 0 As Recommended ~ As Amended ~ Ordinance on ~s` Reading ~ Ordinance on 2"d Reading ~ Implementing Resolution ~ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute an agreement with Care Ambulance Services Inc. for temporary emergency transportation services in an amount not to exceed $1 ,200,000 for a period of 120 days with the ability to extend 30 days, subject to non- substantive changes approved by the City Manager and City Attorney. DISCUSSION The recently approved Orange County Fire Authority (OCFA) contract includes provisions fora re- alignment of Emergency Medical Services (EMS) delivery. On March 19, 2012 Council approved a request to release a proposal for temporary emergency transportation services due to the extended Request for Proposal process seeking a long term Emergency Transportation provider. This independent Request for Proposal process for temporary services has been completed. The provider's services shall include the provisions of all 9-1-1 Emergency Transportation Services together with the provisions of labor, materials, supplies and equipment. Selection of the temporary provider will not result in any added benefit in the review of proposals for the long term 911 Emergency Transportation Services. FISCAL IMPACT Funds are budgeted in the Fire Department, Fire Suppression and EMS, Contract Services- Professional account (01 1 1 5330-62300). APPROVED AS TO FUNDS AND ACCOUNTS: Dave Thomas Francisco Gutierrez Fire Chief Executive Director Fire Department Finance & Management Services Agency 25G-1 25G-2 3/28/12 TEMPORARY 9-1-1 EMERGENCY TRANSPORTATION AGREEMENT THIS AGREEMENT, made and entered into this 2"d day of April, 2012 by and between a California corporation, (hereinafter "PROVIDER"), 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 (hereinafter "CITY"). RECITALS: A. CITY OF SANTA ANA issued a Request for Proposals, dated March 20, 2012, for the provision of temporary 9-1-1 emergency ambulance transportation services in the City of Santa Ana (the "RFP"); and B. In response to the RFP, PROVIDER submitted its Proposal dated March _, 2012 (the "Proposal"), a copy of which is attached hereto and incorporated herein by this reference as Exhibit "A"; and C. PROVIDER is an ambulance provider fully licensed and otherwise qualified to perform the work required by this Agreement, and was selected by CITY following evaluation of proposals submitted in response to the RFP; and D. CITY desires to utilize the services of PROVIDER to provide primary ambulance transportation services and other related services in accordance with the terms of the RFP and applicable federal, state and local laws; and E. In undertaking the performance of this Agreement, PROVIDER represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from an emergency transportation provider. 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. CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE a. This Agreement shall consist of (a) this Agreement; (b) the CITY's RFP, (c) and PROVIDER'S Proposal satisfying the requirements in the RFP. This Agreement, the RFP, and the Proposal, shall be hereinafter collectively referred to as the "Contract Documents". The Contract Documents constitute the entire agreement between the parties. This Agreement contemplates that PROVIDER will do whatever is required to perform the work in accordance with the terms of the Contract Documents and in accordance with any applicable governmental laws and regulations, whether specifically identified in the Contract Documents or not. Should any inconsistency be found to exist between the aforesaid Contract Documents and this written Agreement, the provisions of this Agreement shall control. b. All provisions of the Contract Documents shall be binding on PROVIDER. In the event there is any discrepancy between the terms and conditions of one or more of the aforementioned Contract Documents, the Order of Precedence shall be used to resolve the discrepancy unless both parties mutually 1 25G-3 3/28/12 agree in writing to an alternative decision. The Order of Precedence for these documents shall be as follows: 1) First, this Agreement (together with any Amendments thereto). 2) Second, the RFP 3) Third, PROVIDER'S Proposal. 2. SCOPE OF SERVICES a. PROVIDER will perform all of the services described in this Section for CITY. The details of the services to be provided by PROVIDER are described in detail in the Contract Documents. Those services shall include the provision of all 9-1-1 Emergency Transportation Services, including but not limited to the First Tier Service and the Mutual Aid Service (as defined below), together with the provision of any labor, material, supplies and equipment related to the provision of those services, and any other duties, obligation or services required of PROVIDER in the Contract Documents. (All of the services to be provided by PROVIDER under this Agreement shall be hereinafter collectively referred to as "9-1-1 Emergency Transportation Services"). PROVIDER shall perform the 9-1-1 Emergency Transportation Services in accordance with the terms and conditions contained in this Agreement, and as described in Contract Documents. b. All emergency transportation personnel assigned by PROVIDER or by the Mutual Aid Provider to perform 9-1-1 Emergency Transportation Services under this Agreement shall be hereinafter referred to as the "Transportation Personnel". c. Without limiting PROVIDER'S obligation to comply with all of its duties and obligations under the Contract Documents, the 9-1-1 Emergency Transportation Services to be provided by PROVIDER shall include, but shall not be limited to, each of the following: 1. First Tier Service. PROVIDER will provide with its own forces a sufficient number of fully equipped ambulances and Transportation Personnel, so as to provide, in accordance with industry standards and this RFP, all of the CITY'S needs for 9-1-1 Emergency Transportation Service, being able to respond 24 hours a day 7 days a week to all 91 1 and other emergencies as required (the "First Tier Service" or "First Tier"). The First Tier Service will be designed by PROVIDER to ensure that there are enough of PROVIDER'S own ambulances and Transportation Personnel available to meet 100% of the anticipated number of calls for 9-1-1 Emergency Transportation Service in the City of Santa Ana. The First Tier Service shall meet the response times and all other requirements of this RFP for the 9-1-1 Emergency Transportation Service. 2. Mutual Aid Service. PROVIDER will also enter into a mutual aid agreement with a separate qualified ambulance service provider doing business in Orange County, to provide backup services in the event the First Tier Service is unable to respond to a call for Emergency Services (hereinafter "Mutual Aid Contract," "Mutual Aid Service," "Mutual Aid Service" or "Mutual Aid"). The company providing the Mutual Aid Service will be hereinafter referred to as the "Mutual Aid Provider." In providing 9-1-1 Emergency Transportation Services the Mutual Aid Provider must meet the same RFP requirements, response times, and otherwise provide the same level of service, as PROVIDER is required to provide under the Agreement. The Mutual Aid Contract and the Mutual Aid Provider must be approved by the CITY and the OCFA prior to provision of any service by PROVIDER, such approval not to be unreasonably withheld. The 2 25G-4 3/28/12 intent of this RFP is that PROVIDER will provide a sufficient level of coverage under the First Tier Service, such that services under the Mutual Aid Service will only be needed in rare circumstances, if at all. PROVIDER will be solely responsible for paying the Mutual Aid Provider for any services rendered under the Mutual Aid, which amount will be the Mutual Aid Provider's sole compensation for services rendered under the Mutual Aid. d. BLS and ALS Services. All Transportation Personnel assigned to perform 9-1-1 Emergency Transportation Services under this Agreement, whether under the First Tier Service or Mutual Aid Service, will provide Basic Life Support ("BLS") services and transport patients to medical facilities when required. OCFA, in cooperation with the Transportation Personnel, will provide on-scene Advanced Life Support ("ALS") services. e. All Transportation Personnel assigned to perform 9-1-1 Emergency Transportation Service under this Agreement, whether under the First Tier Service or Mutual Aid Service, must at all times meet the minimum qualifications required to provide services pursuant to this Agreement. f. PROVIDER and the Mutual Aid Provider will provide type III emergency transport (ambulance) vehicles (including all costs related to maintenance, fuel, insurance, repair costs and communication equipment) for all 9-I-I Emergency Transportation Services provided under the First Tier Service and the Mutual Aid Service. 3. COMPENSATION a. CITY shall pay PROVIDER for furnishing the material and doing the prescribed work at the daily prices or lump sum prices set forth in PROVIDER'S Proposal ("Contract Price"). Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City b. PROVIDER'S sole compensation for providing all 9-1-1 Emergency Transportation Services, specifically including but not limited to the First Tier Service and Mutual Aid Service will be the Contract Price. PROVIDER will not be entitled to bill CITY or any of its customers any additional amount for any services provided under this Agreement, unless it is first approved in writing by CITY. c. The payment of the Contract Price includes the provision of the Mutual Aid Service. PROVIDER will be solely responsible for compensating the Mutual Aid Provider for any 9-1-1 Emergency Transportation Services it may provide in the City of Santa Ana under this Agreement, which compensation will be at the rate set forth in the Mutual Aid Contract or as otherwise required by law. PROVIDER and the Mutual Aid Provider will not have any recourse against the CITY to recover for any 9-1-1 Emergency Transportation Services provided under either the First Tier Service or the Mutual Aid Service, except as specifically authorized in the Agreement. PROVIDER'S sole compensation will be the Contract Price it receives from CITY. In the event of a dispute between the Mutual Aid Provider and PROVIDER, the Mutual Aid Provider's sole remedy will be against PROVIDER. This fact will be clearly stated in the Mutual Aid Contract, and PROVIDER must agree to indemnify and defend CITY against any claims or demands arising out of, or which are in any way related to, any services provided under the Mutual Aid Service. The Mutual Aid Contract will include similar provisions requiring the Mutual Aid Provider to indemnify CITY for any claims or demands made by PROVIDER or other parties related to the 9-1-1 Emergency Transportation Services it may provide. 3 25G-5 3/28/12 4. BILLING a. CITY shall be responsible for the billing and collection of all amounts owed by customers/patients provided 9-1-1 Emergency Transportation Services in the City of Santa Ana, whether for services provided by PROVIDER, the Mutual Aid Provider, OCFA, City of Santa Ana, or their respective employees, agents, volunteers, or subcontractors. CITY, in its discretion, will be free to bill for these services in whatever manner it may deem appropriate, and may combine billings for various services provided. PROVIDER and the Mutual Aid Provider will actively cooperate with CITY to provide whatever information or assistance CITY may reasonably require so that it can process customer/patient billings in a timely manner. This will include, but is not limited to, PROVIDER providing CITY with a detailed list of all the 9-1-1 Emergency Transportation Services provided by both PROVIDER and the Mutual Aid Provider during the preceding month. The specific information to be provided by PROVIDER in the monthly reports will be determined by CITY, and may be modified by CITY from time to time to meet its reasonable needs. Failure to provide accurate information in a timely manner will constitute a material breach of this Agreement. b. The entire proceeds of all such billings and collection efforts will be the sole property of CITY. Neither PROVIDER nor the Mutual Aid Provider will have any right to the proceeds of any billings or collections for services provided under the First Tier Service, the Mutual Aid Service or for any other services provided under this Agreement, unless specifically authorized in writing by CITY. PROVIDER's Contract Price shall be sufficient to provide the required level of service under both the First Tier Service and the Mutual Aid Service, without expecting any additional amounts in compensation. 5. TERM a. The effective date of this Agreement shall be 0800 hours on April 20, 2012, ("Effective Date"), at which time PROVIDER will assume full responsibility for the provision of 9-1-1 Emergency Transportation Services within the City of Santa Ana. At the sole discretion of the CITY, the Effective Date may be postponed in order to protect public health and safety, or in the event PROVIDER is for any reason unable to commence performance at that time. b. This term of this Agreement is not to exceed 120 days. However, in the event City has not awarded an agreement for provision of EMS Transportation Services, the of the term of this Agreement may be extended for up to an additional thirty (30) days upon a writing executed by the City Manager. 6. INDEPENDENT CONTRACTOR a. PROVIDER shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the CITY, the County of Orange or OCFA. 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 PROVIDER performs the services which are the subject matter of this Agreement; however, the services to be provided by PROVIDER shall be provided in a manner consistent with all applicable standards and regulations governing such services. PROVIDER 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. The parties understand and agree that PROVIDER, its officers, agents and employees (which term specifically includes, but is not limited to, the Transportation Personnel) are not employees of the CITY, the County, or OCFA, and are not entitled to any of the rights, benefits, or privileges of City of Santa Ana, County, or OCFA employees including, but not limited to, medical, unemployment, or workers' compensation insurance. 4 25G-6 3/28/12 7. INSURANCE A. Prior to undertaking 9-I-1 Emergency Transportation Services pursuant to this Agreement, PROVIDER shall obtain, maintain and keep in full force and effect insurance as described below: 1) Commercial General Liability Insurance. PROVIDER shall maintain commercial general liability insurance which 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 PROVIDER'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 $10,000,000 per occurrence, $10,000,000 in the aggregate. 2) Ambulance Medical Malpractice Insurance in an amount not less than $3,000,000 per occurrence. If the policy carries an annual aggregate, such aggregate shall be in an amount not less than $6,000,000 per occurrence. Such insurance coverage may be combined with either the general or automobile liability coverage required above; provided, however, if the insurance coverage is so structured, the combined coverage shall be in an amount not less than $5,000,000 per occurrence, with an annual aggregate of not less than $10,000,000. 3) Comprehensive Business Automobile Liability Insurance in an amount not less than $3,000,000 per occurrence, covering owned, non-owned and hired vehicles, written on an occurrence form. If policy carries an annual aggregate, such aggregate shall be in an amount not less than $6,000,000 per occurrence. PROVIDER shall provide Business Automobile Liability coverage for all vehicles under both the First Tier Service and the Mutual Aid Service. This specifically includes, but is not limited to, PROVIDER'S obligation to provide Business Automobile Liability coverage for any vehicles provided by CITY/OCFA for use by PROVIDER under the First Tier, as well as for any vehicles provided by PROVIDER directly. 4) Workers' Compensation and Employers' Liability Insurance in a statutory amount for workers' compensation and in an amount not less than $1,000,000 for employers' liability. Such insurance shall contain a waiver-of-subrogation clause in favor of the CITY and OCFA, and their respective officers, officials, employees and agents. B. PROVIDER shall comply with the following requirements: 1) If the above-required insurance coverage does not provide for an annual aggregate which is twice the per-occurrence limit, in the alternative the insurance policy (policies) shall be amended (by appropriate ISO endorsements) so that the policy limits apply solely to this Agreement. 2) The above-required liability insurance shall be in a form which supports coverage for the provisions of the indemnification clause required under this Agreement, including a claim brought against the CITY and/or OCFA for the injury to, or death of an employee or agent of PROVIDER. 3) In the event of a claim (claims) against the above-referenced liability policies which reasonably may deplete one-half or more of the aggregate limits, PROVIDER shall immediately notify CITY. In the event a claim (claims) against the above-referenced liability policies which are reasonably expected to deplete 90% of the aggregate limits, PROVIDER shall, at PROVIDER'S expense, reinstate 5 25G-7 3/28/12 the aggregate limits at least to an amount equal to one-half of the face amount of the aggregate limits on the policies. 4) All insurance required pursuant to this section shall be issued by a company authorized by the Insurance Department of the State of California and rated A-VII or better by the latest edition of Best's Key Rating Guide. 5) No insurance required herein shall provide for a deductible in excess of $5,000 or a self- insured retention in any amount, without prior written consent of the CITY and OCFA; and, the granting or denying of such consent shall be at the sole and absolute discretion of the CITY and OCFA. C. Endorsements. 1) All insurance required herein shall be endorsed to state that "Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior to written notice by certified mail, return receipt requested, has been given to the CITY OF SANTA ANA and OCFA." 2) The liability policies required herein, except workers compensation and employers' liability, shall, by endorsement, contain the following provisions: (a) "The CITY OF SANTA ANA and OCFA, and their respective officers officials, employees, representatives, and volunteers, are hereby declared to be additional insureds as respects the operations, activities, work, errors, or omissions of the named insured arising out of or in connection with any contract or agreement with the CITY OF SANTA ANA." (b) "This insurance is primary to, and shall not contribute with, any insurance or self-insurance maintained by the CITY OF SANTA ANA, by OCFA, or by any of the designated additional insureds." (c) "This insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability." 3) Worker's Compensation policies shall be endorsed to state that the insurer waives all rights of subrogation against the CITY OF SANTA ANA and OCFA, and their respective officers, officials, agents, employees, and volunteers for losses arising from work performed by the PROVIDER under this Agreement. D. All insurance coverages shall be confirmed by execution of endorsements and certificates of insurance. PROVIDER is required to file the completed policy endorsements and certificates with CITY and OCFA on or before the Effective Date of this Agreement, and to thereafter maintain current endorsements on file with CITY and OCFA. The completed endorsements and certificates of insurance are subject to the approval of CITY and OCFA. E. Nothing in this section shall be construed as limiting in any way; the Indemnification and Hold Harmless clause contained herein in this Agreement, or the extent to which PROVIDER may be held responsible for payments of damages to persons or property. F. CITY or OCFA shall have the right at any time to review the coverage, form, and limits of insurance required herein. If, in the sole and absolute discretion of the CITY and/or OCFA, the insurance provisions in this Agreement do not provide adequate protection for the CITY and/or OCFA, the CITY and/or OCFA shall have the right to require PROVIDER to obtain insurance sufficient in coverage, form, 6 25G-8 3128/12 and limits to provide adequate protection and PROVIDER shall promptly comply with such requirement. The CITY's and OCFA's requirements shall not be unreasonable, but shall be adequate in the sole opinion of the CITY and OCFA to protect against the kind and nature of risks which exists at the time a change of insurance is required, or thereafter. G. Alternate forms of insurance, that meet the above requirements, must be approved by the CITY's and OCFA's Risk Manager prior to awarding a contract and beginning any work under this Agreement. S. INDEMNIFICATION PROVIDER agrees to and shall indemnify and hold harmless the CITY, OCFA and their respective officers, officials, agents, employees, consultants, special counsel, and representatives from liability 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 direct or indirect operations of the PROVIDER or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the 9-1-1 Emergency Transportation Services. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the CONTRACTOR, its employees, agents and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the PROVIDER, its employees, agents and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the CITY or OCFA, or their respective officers, officials, agents, employees or volunteers, based upon the work performed by the PROVIDER, its employees, agents and/or authorized subcontractors under this Agreement, whether or not the PROVIDER, its employees, agents and/or authorized subcontractors are specifically named or otherwise asserted to be liable. Notwithstanding the foregoing, the PROVIDER shall not be liable for the defense or indemnification of the CITY or OCFA for claims, actions, complaints or suits arising out of the sole negligence or willful misconduct of the CITY or OCFA. 9. AUDITS AND INSPECTIONS At any time during normal business hours, and as often as may reasonably be deemed necessary by CITY, CITY may observe and inspect PROVIDER'S business office, and PROVIDER must make promptly available to the CITY for its examination all of PROVIDER'S records that pertain to performance of the Agreement. The CITY may audit, examine, and copy any and all PROVIDER records pertaining to their performance of the Agreement, including but not limited to, personnel records, daily logs, conditions of employment, and all other data. Reasonable notice shall be given to PROVIDER prior to such inspection. 10. PROVIDER RESPONSIBILITY Except as may be specifically stated herein to the contrary, it shall be the responsibility of PROVIDER to provide all Transportation Personnel with whatever resources and equipment are necessary to perform the 9-1-1 Emergency Transportation Services, and to otherwise satisfy all of the terms and conditions set forth in the Contract Documents at all times during the Term of this Agreement. Except where it may be specifically permitted in the Agreement, PROVIDER may not use any outside ambulance service providers or other resources to satisfy its obligations to provide 9-1-1 Emergency Transportation Services to the CITY, without first obtaining the prior written consent of the CITY. Notwithstanding the granting of any such approval by the CITY, nothing stated herein shall relieve 7 25G-9 3/28/12 PROVIDER of its duties and responsibilities under the Agreement, and any additional cost incurred shall not be charged to the County, CITY or OCFA. 11. FAMILIARITY WITH WORK By execution of this Agreement, PROVIDER warrants that: A. It has thoroughly investigated and considered the 9-1-1 Emergency Transportation Services to be performed; B. It possesses any and all licenses which are required under relevant local, State, or Federal law to perform the 9-1-1 Emergency Transportation Services contemplated by this Agreement, and shall maintain all appropriate licenses during the performance of this Agreement. C. It has expertise in the provision of 9-1-1 Emergency Transportation Services as that term is defined in this Agreement; D. It carefully considered how the 9-1-1 Emergency Transportation Services should be performed; and E. It fully understands the difficulties and restrictions attending the performance of the 9-1-1 Emergency Transportation Services under this Agreement. 12. REPRESENTATIVES AND NOTICE The OCFA Fire Chief or his designee shall be the representative of OCFA on behalf of the CITY for purposes of this Agreement and may issue al] consents, approvals, directives and agreements on behalf of the CITY, called for by this Agreement, except as otherwise expressly provided in this Agreement. shall be the representative of PROVIDER for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of PROVIDER, called for by this Agreement, except as otherwise expressly provided in this Agreement. All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U.S. Mail, postage prepaid, return receipt requested, to the following addresses indicated below: If to OCFA: Attn: Clerk of the Authority 1 Fire Authority Road Irvine, CA 92602 With copy to: 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 If to CONTRACTOR: Attn: 8 25G-10 3/28/12 The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. Either party may change its address by giving notice in writing to the other party. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between CITY and PROVIDER, and supersedes any and all other agreements, oral or written, between 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 CITY and by an authorized representative of PROVIDER. 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 PROVIDER nor 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. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of PROVIDER, PROVIDER 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. 15. TERMINATION This Agreement may be terminated by the parties as hereinafter provided: a. PROVIDER may terminate this Agreement for cause, upon thirty (30) days prior written notice to CITY. b. CITY may terminate this Agreement for cause by providing PROVIDER seven (7) days prior written notice of termination for cause and the factors constituting cause. c. CITY may terminate this Agreement for any reason upon by providing thirty (30) day prior written notice of termination. d. CITY may terminate this Agreement immediately if the OCFA Fire Chief or designee (in his or her reasonable discretion) determines that continued operations by PROVIDER following a breach would constitute a danger to the public health, safety or general welfare. 16. BREACH OF AGREEMENT a. Factors Constituting Breach and Cause. Factors constituting a breach of this Agreement and also warranting Cause for termination include but are not limited to each of the following: 1. A failure by PROVIDER to perform the covenants and requirements set forth in the Contract Documents in the time and manner specified, and as required by this Agreement. 9 25G-11 3/28/12 2. Failure of PROVIDER to perform the 9-1-1 Emergency Transportation Services in a manner which enables the CITY or PROVIDER to remain in compliance with the requirements of the County of Orange Emergency Medical Services ("OCEMS") ambulance ordinance and related rules and regulations. 3. Supplying the CITY /OCFA with materially false or misleading information during the RFP process or during the course of producing any required reports to the CITY or OCFA. 4. Willful falsification or unreasonable withholding of data supplied to the CITY or OCFA or to OCEMS during the Term of this Agreement, including but not limited to: dispatch data, patient report data, response time data, financial data, or omission of other data required under this Agreement. 5. Failure of PROVIDER's employees to conduct themselves in a professional and courteous manner, and to present a professional appearance. 6. Failure of PROVIDER to maintain all required vehicle maintenance schedules and records reasonably required by CITY or OCFA. 7. Failure of PROVIDER to maintain all training and continuing education as required by OCFA and OCEMS policies and procedures and State regulations. 8. PROVIDER'S failure or refusal to respond to any request by CITY or OCFA concerning the manner or means by which PROVIDER is providing the operation of 9-1-1 Emergency Transportation Services in the CITY under this Agreement and pursuant to the Contract Documents. 9. Transfer or assignment of ownership or other interest in PROVIDER contrary to the terms of this Agreement ["Assignment"]. ] O. Disruption of service due to failure to maintain ambulance maintenance schedule. 11. The lapse of any license, permit or approval issued PROVIDER by a federal, state or local government, which license, permit or approval is/are reasonably necessary for the provision of the 9-1-1 Emergency Transportation Services contemplated by the Contract Documents. 12. PROVIDER is enjoined or prohibited by any court of competent jurisdiction from performing services under this Agreement. 13. Lapse of insurance required under this Agreement. 14. Failure to manage and resolve citizen complaints to the satisfaction of the CITY or OCFA. ] 5. Failure to meet the on-time performance criteria as required in the RFP. 16. The breach or default of, or a failure to comply Agreement, any material provision of the RFP, or herein or incorporated by reference. with, any material provision of this of any covenant specifically contained 10 25G-12 3/28/12 b. Right to Cure. In the event of any dispute arising under this Agreement, the injured Party shall notify the injuring Party in writing of its contentions by submitting a claim therefore. The injured Party shall continue performing its obligations hereunder so long as the injuring Party cures any default within thirty (30) days after service of the notice; provided, however, if a breach of this Agreement creates an immediate danger to the health and safety or general welfare to the CITY, in the reasonable discretion of the Fire Chief or designee, may take immediate action to remedy the breach itself and/or terminate this Agreement. Notwithstanding the preceding, if the Fire Chief or designee finds that PROVIDER is diligently proceeding with all steps necessary to cure such default, the Fire Chief or designee in conjunction with the CITY may, in his sole discretion, extend the time period by which PROVIDER must cure such deficiencies, including the effective date of such termination. c. Waiver. No waiver of any Event of Breach or Default shall be valid or effective unless in writing and signed by CITY. Any waiver of any one Event of Default or Breach shall not constitute, or be construed as creating, a waiver of any other Event of Default or Breach. d. Action Following Termination. Should this Agreement be terminated for breach, PROVIDER agrees that CITY and/or OCFA, in their discretion, may take immediate possession of any CITY or OCFA materials, equipment, and supplies PROVIDER may have used in the performance of the 9-1-1 Emergency Transportation Services. Notwithstanding the above, should this Agreement be terminated for breach, CITY or OCFA shall have the option to take over the delivery of the 9-1-] Emergency Transportation Services itself, using CITY personnel or contractors; contract on a temporary emergency basis with other providers of emergency transport ambulance services; seek new proposals for service; or such other option as may be deemed necessary and legally available to CITY. e. No Limitation on CITY's Rights. Nothing herein shall act as any limitation upon the remedies available to CITY whether at law, or otherwise, in the event of a breach or default of this Agreement. 17. DISCRIMINATION PROVIDER 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. PROVIDER affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 18. 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. 19. LICENSES PROVIDER 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. PROVIDER shall notify CITY and OCFA immediately and in 1] 25G-13 3/28/ 12 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. 20. COUNTERPARTS This Agreement may be executed in one or more counterparts by the parties hereto. All counterparts shall be construed together and shall constitute one Agreement. 21. MISCELLANEOUS PROVISIONS a. Each undersigned represents and wan-ants that its signature hereinbelow 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: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAK.A Interim City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager PROVIDER 12 25G-14