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HomeMy WebLinkAbout25H - AGMT - TROLLEY SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 17, 2017 TITLE: AGREEMENT WITH DULAC ENTERPRISES DBA BIG RED BUS FOR TROLLEY SERVICE {STRATEGIC PLAN NO. 3,4F) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading El Ordinance on 2nd 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 Dulac Enterprises (DBA Big Red Bus), to provide a lunchtime trolley service in downtown Santa Ana, in an amount not to exceed $93,600, for a term beginning January 24, 2017 through January 26, 2018, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Downtown Santa Ana Lunch Trolley service was developed as part of the Downtown Enhancements and Parking Modernization Plan, adopted by City Council on August 4, 2015. The purpose of the lunch trolley service is to bring more daytime customers to downtown from the Civic Center area. The City launched the lunch trolley service as a pilot program on June 1, 2016. Pilot Operation From June 1, 2016 to July 31, 2016, the lunch trolley operated on Tuesdays, Wednesdays, and Thursdays from 11:30 a.m. to 1:30 p.m. The trolley route (Exhibit 2) included 5 stops total, including the Orange County Courthouse, City Hall, and three downtown stops (4th and Broadway, 3'd and Sycamore, and Bush and 5t'). Partnering with the Downtown Santa Ana Restaurant Association, the City implemented a web -based trolley tracker and invited several downtown restaurants to participate by offering free tastings on the trolley to promote the service as well as local businesses. The pilot operation was interrupted prematurely as the operator was unable to renew its Workers' Compensation Insurance due to an audit as the vendor was going through an audit. The audit is now concluded and the operator has since renewed the requisite insurance policies for this service. 25H -1 Agreement with Dulac Enterprises for Trolley Service January 17, 2017 Page 2 Pilot Evaluation During, and since, the operation of the pilot program, staff has met with local restaurant owners, members of the Downtown Santa Ana Restaurant Association, and representatives from the downtown business improvement district (BID), to evaluate the success of the lunch trolley service. To date, all feedback has been positive. Several restaurant owners shared that they experienced increased foot traffic and lunch sales during the two months that the trolley operated. In fact, City staff has received several inquiries about the return of the trolley since the pilot program concluded in July 2016. According to representatives of the downtown BID, some local restaurants have noticed a reduction in lunchtime sales since the trolley program ended. During the trial period, daily ridership on the free trolley service ranged between 80 -110 passengers per day. Selected Vendor In September 2015, the City solicited bids from local trolley companies to provide a lunchtime trolley service in downtown Santa Ana. The City received three responses from interested vendors. Dulac Enterprises (DBA Big Red Bus) was selected for their experience and qualifications, reputation for excellent service, reasonable cost, and, importantly, their ability to meet accessibility the requirements of the Americans with Disabilites Act (ADA) — something that the other vendors were unable to accomodate. Dulac Enterprises was the only vendor that could meet ADA requirements as other vendors were unable to supply a vehicle with a wheelchair lift. As such, Dulac Enterprises was selected as the preferred vendor in May 2016 and the pilot program began on June 1, 2016. Staff recommends that the City enter into an agreement with the operator of the trolley pilot program, Dulac Enterprises, to provide a lunch trolley service in downtown Santa Ana for one year, beginning January 24, 2017. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 (Economic Development), Objective 4 (continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination), Strategy F (partner with downtown business and merchant associations to program events that showcase restaurants, shopping and entertainment venues — e.g. bus trolley tour, food festival, craft fairs, farmers' markets, etc.). FISCAL IMPACT Funds in the amount of $93,600 are available in the Downtown Enhancements and Parking Modernization Plan account (no. 02710133- 62300) for possible expenditure in FY 2016 -17. 25H -2 Agreement with Dulac Enterprises for Trolley Service January 17, 2017 Page 3 Fiscal Year Spending Projections Robert C. Corte (� Deputy City Manager City Manager's Office APPROVED AS TO FUNDS AND ACCOUNTS: lcw 13z�,X 4 4 Y . k Francisco Gutierrez Exhibits: 1. Agreement with Dulac Enterprises 2. Lunch Trolley Route and Stops Executive Director Finance and Management Services Agency 25H -3 25H -4 CONSULTANT AGREEMENT THIS AGREEMENT is made and entered into this day of January, 2017, by and between DuLac Enterprises, dbe Big RED Bus & Long Beach Trolley, a California corporation ("Consultant"), 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 consultant to provide a lunchtime trolley service in downtown Santa Ana. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant 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 a professional 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: SCOPE OF SERVICES Consultant shall provide a lunchtime trolley service in downtown Santa Ana, which will operate Tuesday, Wednesday and Thursday between 11:30 a.m. and 1:30 p.m. as set forth in Exhibit A to this Agreement. In addition, Consultant will provide ADA compliant trolley /bus services pursuant to the attached proposal and bus route. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, a rate of $600.00 per day of trolley services. The total sum to be expended under this Agreement shall not exceed $93,600.00 (calculated as 3 days per week for 52 weeks) during the term of this Agreement. 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 which 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 first written above and terminate on January 26, 2018, unless terminated earlier in accordance with Section 13, below. The Term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. flgie 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 - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner 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 a manner 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 its employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain Insurance as described below. If the Consultant maintains broader coverage and /or higher limits than the minimums described below, the City requires and shall be entitled to the broader coverage and /or higher limits maintained by the Consultant: a. Commercial General Liability Insurance. Consultant 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 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 and $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 insured's provisions. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence for owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant 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, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: 25H -6 (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City, 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. 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 time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnlfy the City for any work performed prior to approval of insurance by the City. B. INDEMNIFICATION Consultant agrees to and shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, legal counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims: (1) for personal injury, including death, and claims for property damage, arising from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on its 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 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. The Consultant further agrees to Indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for legal counsel to be selected by the City, regarding any action by a third party 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. 7. 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 of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices 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 final payment to Consultant under this Agreement. 3 25H -7 8. CONFIDENTIALITY If Consultant received 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 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 Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant and disclosed without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with 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 facsimile 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, California 92702 -1988 Facsimile (714) 647 -6956 Copies to: Mro1 Executive Director of Community Development City of Santa Ana 20 Civic Center Plaza (M -25) P.O. Box 1988 Santa Ana, California 92702 -1988 Facsimile (714) 647 -6549 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.Q. Box 1988 25H -8 Santa Ana, California 92702 -1988 Facsimile (714) 647 -6515 To Consultant: James DuLac DuLac Enterprises 395 E. 41h Street, Unit 22 Long Beach, CA 90802 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 facsimile, 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 Consultant regarding the subject matter herein, 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 and will serve to fully supersede existing Agreement. 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 or 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. 12. 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 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 with or without cause upon thirty (30) days written notice of termination to the Consultant. in such event, Consultant shall be entitled to receive and City shall pay Consultant, compensation for all services rendered prior to the effective date of termination. s 25H -9 14. NON - DISCRIMINATION Consultant shall not discriminate because of race, color, creed, relation, 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 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. 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 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 Sates, 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 termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants 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. Signature Page to Follow 25H -10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Gerardo Mouet Clerk of the Council Acting City Manager APPROVED AS TO FORM: Sonia R. City Atha M Attorney RECOMMENDED FOR APPROVAL: CONSULTANT Robert C. Cortez James DuLac Deputy City Manager Owner DuLac Enterprises, Long Beach Trolley 7 25H -11 dba Big RED Bus & r�•4:n.3W.- ROUTE AND STOPS MAP AND SCHEDULE 25H -12 25H -13 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ( "additional Insureds ") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective this endorsement form as a part of Policy # Issued to Named Insured Countersigned by Authorized Representative 25H -14