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HomeMy WebLinkAbout25F - AGMT - DISCOVERY SCIENCE CENTERREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2016 TITLE: AGREEMENT WITH DISCOVERY SCIENCE CENTER OF ORANGE COUNTY FOR PUBLIC EDUCATION SERVICES (GRANT FUNDING) (STRATEGIC PLAN NO. 5, 2) CLERK OF COUNCIL USE ONLY: 02.215715rx ❑ As Recommended ❑ As Amended ❑ Ordinance on 1't Reading CJ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with the Discovery Science Center of Orange County for public education services, for a one -year period beginning July 6, 2016 through July 5, 2017, with two optional one -year extensions exercisable by the City Manager and the City Attorney, in the amount of $120,000 annually, for a total agreement amount of $360,000, including all extensions, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION Assembly Bill 939 (AB939) mandates waste diversion from landfills and recycling program implementation using approaches that include public education. The City is in full compliance with this legislation through a variety of diversion and recycling programs. On February 4, 2013, the City entered into an agreement with the Discovery Science Center of Orange County ( DSCOC) to provide waste disposal and recycling public education through its award - winning Eco Challenge exhibit. The exhibit engages visitors of all ages in a fun, interactive experience that teaches new behaviors through educational content accompanied by stage shows and hands -on demonstrations. As part of the agreement, the DSCOC delivered an enhanced public education program specifically tailored to Santa Ana residents entitled, "Santa Ana Waste Free Days." One day each month, from February 2013 to February 2015, the DSCOC welcomed Santa Ana residents free of charge and offered a range of programs, activities, and guest incentives geared toward the promotion of positive recycling and waste disposal habits. DSCOC is presently reaching approximately 9,000 Santa Ana residents per year through this program and this number continues to grow. 25F -1 Agreement with Discovery Science Center July 5, 2016 Page 2 The total cost for an entire year of development, programming, and reporting for the "Santa Ana Waste Free Days" program was $120,000. The City used unspent CalRecycle Beverage Container Recycling grant monies as the funding source. However, now that those funds have been spent and CalRecycle has narrowed the focus for new grant expenditures, the City is unable to direct these grant funds to the DSCOC. To maintain this public education program in support of compliance with AB939 and to continue this valuable program for Santa Ana residents, alternative funding has been earmarked from the Refuse Enterprise. By approving this agreement (Exhibit 1) with the DSCOC for public education services, "Santa Ana Waste Free Days" will continue for another year, and up to two additional years, if the extension options are exercised. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #2 (expand opportunities for conservation and environmental sustainability. FISCAL IMPACT Funds in the amount of $120,000 are budgeted and available in the Public Works Refuse Collection Service Fund (Account 06917640- 62300) for expenditure in Fiscal Year 2016 -17. Annual amounts of $120,000 will be budgeted in Fiscal Years 2017 -18 and 2018 -19, if the optional extensions are exercised. Public Works Agency FM /MLM /CK Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25F -2 PROGRAM FUNDING AGREEMENT THIS AGREEMENT, made and entered into this 5th day of July, 2016 by and between Dis- covery Science Center of Orange County, a California 501(c)(3) non - profit organization, (hereinafter "DSC "), 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 is the recipient of CalRecycle grant funds from the California Department of Re- sources Recycling and Recovery, to provide recycling education and programming to residents of Santa Ana (hereinafter "Grant Funds "). B. The City would like to utilize Grant Funds to provide funding to the Discovery Science Center for its Santa Ana Waste Free Days recycling education program for children. C. Discovery Science Center is an approved recipient of Grant Funds for its Eco Challenge exhibit, and the Santa Ana Waste Free Days Program (hereinafter "Program ") will pro- vide recycling education through exciting hands -on programming. D. City desires to engage DSC to provide the Program. E. DSC represents that it is qualified and willing to provide said educational programming 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. DSC'S OBLIGATIONS DSC shall provide its 'Santa Ana Waste Free Days' recycling education program, as set forth in Exhibit A, attached hereto and incorporated by this reference. a. DSC agrees to use all grant funds received from City pursuant to this Agreement exclu- sively to provide the "Santa Ana Waste Free Days" program ( "Program "), as set forth in "Exhibit A," attached hereto and by this reference incorporated herein. b. All fluids received by DSC from City pursuant to this Agreement shall be separately ac- counted for apart from any other funds of DSC, or of any principal or member of DSC. C. DSC shall keep records of all funds received from City under the terms and conditions of this Agreement. DSC agrees to keep monthly records of the number of Santa Ana residents participating in the Program. DSC shall submit quarterly reports within fifteen (15) days after the quarter is completed. Said quarterly report shall include monthly ac- counting of: i. Number of Santa Ana residents targeted for services, ii. Actual number of Santa Ana residents attending the Santa Ana Waste Free Days program, iii. Number of guest surveys completed, iv. Number of incentive coupons redeemed P=117L.[49 V. Number of Eco Challenge attendees on Santa Ana Waste Free Days vi. Documentation of program components, including samples of printed materials. d. City and /or its representatives shall have access for purposes of monitoring, auditing, and examining DSC's activities and performance, to books, documents and papers, and the right to examine records of DSC's subcontractors, bookkeepers and accountants, employees and participants in regard to said Program. City and /or its representatives shall also schedule on -site monitoring at its discretion. Nothing herein shall be con- strued to require access to any privileged or confidential information as set forth in fed- eral or state 'law. C. All accounting records and evidence pertaining to all costs of DSC and all documents related to this Agreement shall be kept available at DSC's office or place of business for the duration of the Agreement. Records which relate to costs and expenses of this Agreement to which City or any other governmental agency takes exception, shall be retained beyond the four (4) years until resolution or disposition of such appeals, litiga- tion, claims, or exceptions. Without prejudice to any other provisions of this Agreement, DSC shall, where applica- ble, maintain the confidential nature of information provided to it concerning partici- pants in accordance with the requirements of federal and state law. However, DSC shall submit to City or its representatives, all records requested, including audit, examina- tions, monitoring and verifications of reports submitted by DSC, costs incurred and ser- vices rendered hereunder. 2. CITY'S OBLIGATIONS Upon execution of this Agreement by DSC, City shall pay to DSC from CalRecycle grant funds, for the Santa Ana Waste Free Days Program, at the rate of $10,000 per month for DSC's provi- sion of one educational Program day per month, to a maximum aggregate payment of One Hundred Twenty Thousand Dollars ($120,000), amorally, in quarterly installments. Payments shall be rnade to DSC quarterly in advance. However, City shall withhold quarterly payment if DSC fails to provide the quarterly reporting as required by Section Le., above, in confornlance with this Agreement. 3. TERM This Agreement shall commence on the date first written above and terminate on July 4, 2017, unless terminated earlier in accordance with Section 12, below. The tern of this Agreement may be extended upon a writing executed by the City Manager and City Attorney, for two (2) additional, one -year terms. 4, INDEPENDENT CONTRACTOR DSC shall, during the entire term of this Agreement, be construed to be an independent con- tractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, ajoint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which DSC perfortrs the services which are the subject matter of this Agreement; however, the services to be provided by DSC shall be provided in a manner consistent with all applicable standards and regulations governing such services. DSC shall 25F -4 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, DSC shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. DSC shall maintain commercial general liabil- ity 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 DSC'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: sin- gle 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. 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. Worker's Compensation Insurance. in accordance with the provisions of Section 3700 of the Labor Code, Consultant, if DSC has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, DSC agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. C. The following requirements apply to the insurance to be provided by Consultant pursu- ant to this section: (i.) Consultant shall maintain all insurance required above in full force and effect for the en- tire period covered by this Agreement. (ii.) Certificates of insurance shall be furnished to the City upon execution of this Agree- ment and shall be approved in form by the City Attorney. (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.) Certificates and renewals shall be sent to Christy Kindig. d. If DSC 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 forthwith terminate this Agreement. Such termination shall not effect DSO's right to be paid for its time and materials expended prior to notification of termination. DSC waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25F -5 G INDEMNIFICATION DSC agrees to and shall indemnify 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 direct or indirect operations of DSC or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which re- lates to the services described in 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, aris- ing from this Agreement. DSC further agrees to indemnify, hold harmless, and pay all costs for the de- fense 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. CONFIDENTIALITY If DSC receives from the City information which due to the nature of such information is rea- sonably understood to be confidential and /or proprietary, DSC 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 rea- sonable care. "Confidential Information" shall include all nonpublic information. Confidential infor- mation includes not only written information, but also information transferred orally, visually, elec- tronically, 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 DSC disclosed in a publicly available source; (c) is in rightful possession of DSC without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by DSC without reference to information disclosed by the City. S. CONFLICT OF INTEREST CLAUSE DSC covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE With the exception of insurance certificates and renewals covered by Section 5.e.iv, above, any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writ- ing 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 telefacsimile or other telegraphic communication in the manner pro- vided in this Section, to the following persons: 25F -6 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 copy to: Santa Ana Public Works Agency— Administrative Services City of Santa Ana 20 Civic Center Plaza (M -21) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -5069 To DSC: Discovery Science Center of Orange County Mr. Joe Adams 2500 N. Main Street Santa Ana, California 92705 Fax 714- 263 -3927 A party may change its address by giving notice in writing to the other party. Thereafter, any commu- nication 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 te- lefacsimile, communication shall be effective or deerned to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, ad- dressed as set forth above, For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded, 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Con- sultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terns 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 tears or condi- tions of any purchase order or other instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Consultant nor 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. 1.1. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Con- sultant 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 pri- or written consent shall be considered null and void. Nothing in this Agreement shall be construed to 25F -7 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. 12. TERMINATION A. This Agreement may be terminated on thirty (30) days' written notice by either party. In the event of such termination, DSC shall only be entitled to reimbursement for approved expenses incurred prior to the effective date of termination. B. This Agreement may be suspended or terminated by City upon five (5) days' written no- tice for violation by DSC of the terms and conditions of the this agreement or applicable State or Federal requirements. In the event of such suspension or termination, DSC shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. 13. DISCRIMINATION 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 recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION — VENUE This Agreement has been executed and delivered in the State of California and the validity, in- terpretation, 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 con.- section with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the tern of this Agreement, maintain all necessary licenses, per- mits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and re- quired 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 inabil- ity shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herembelow has the power, authority and right to bind their respective parties to each of the tenns of this Agreement, and shall in- demnify City filly, 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. 25F -8 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: SONIA R. CARVALHO City Attorney ,y JOSS S f OVAL Ghie 'sistant City Attorney RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR Executive Director — PWA 25F -9 CITY OF SANTA ANA David Cavazos City Manager DISCOVERY SCIENCE CENTER OF ORANGE COUNTY: JOE ADAMS President Exhibit A Santa Ana Waste Free Days Program Scope Background Beginning in 2013, Discovery Science Center of Orange County and the City of Santa Ana, Department of Public Works have partnered to bring Santa Ana Waste Free Day to the resi- dents of Santa Ana. Utilizing the Eco Challenge exhibit, DSCOC's world -class educational content and accompanied by stage shows and hands -on demonstrations, Santa Ana Waste Free Day engages resident visitors of all ages in a fun, interactive experience that teaches new behaviors. Program One day each month, DSCOC will welcome Santa Ana residents free of charge and imple- ment a range of programs, activities, and guest incentives focused on the promotion of posi- tive recycling and waste disposal habits. As a national leader in science education outreach, and as the home of the award - winning Eco Challenge exhibit, DSCOC possesses a blend of resources that present a unique oppor- tunity for the City of Santa Ana and its residents. DSCOC will deliver the following program elements that will make Santa Ana Waste Free Days an immersive educational experience for all ages: ✓ Our Eco Challenge "Minute to Win It" interactive audience show will run in our Sun Stage theater regularly during the day ✓ Our Eco Challenge "Jeopardy" multi -media game show will run at regular intervals in our 4D Theater ✓ In the Eco Challenge exhibit area, our Education team will present a special table -top demonstration focused on a key aspect of the science behind Reduce, Reuse & Recy- cle ✓ Each Santa Ana resident guest will be provided with a program containing: ✓ A schedule of shows, demonstrations and other activities ✓ A guest survey providing an opportunity to gauge learning, complete with a prize drawing to incentivize completion ✓ Recycling and waste disposal information from the City In addition, DSCOC will provide the City with attendance figures for each Waste Free Day, survey results and copies of the printed material on a quarterly basis. Based on our attendance projections for the coming year and the programming enhance- ments listed above, DSCOC intends to reach over 9,000 Santa Ana residents through this program each year. Total annual cost of the program including programming, and reporting is $120,000. 25F -10