HomeMy WebLinkAboutPROACTIVE CONSULTING GROUP, LLC 2 - 2017City of Santa Ana
Clerk of the Council
AGREEMENT TERMINATION FORM
Please complete this form in its entirety when the attached agreement and
amendments (if any) are no longer in effect.
Note: If your agreement is grant related, please ensure that all grant retention requirements
have been satisfied prior to signing the termination form.
Is the agreement(s) a permanent record? Yes No
Return form to the Clerk of the Council Office (M-30).
Call 647-1520 if you have any questions.
Use
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(List all amendments. Use space below if needed.)
Department: PJ/k
Phone/Ext.: 331 c'
Signature: ✓yip
Date: b�/�--- It
Revised: 10-18-16
INSURANCE NOT ON IFILE
WORK MAY N
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1
AGREEMENT TO PROVIDE SCAQMD
COMPLIANCE ASSISTANCE SERVICES
N-2017-253
THIS AGREEMENT is made and entered into this 30th day of October, 2017 by and between
ProActive Consulting Group, LLC, a California Limiter] Liability company ("Consultant"), and
the City of Santa Ana, a charter city and municipal corporation organized and existing under the
Constitution and laws ofthe State of California ("City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
Southern California Air Quality Management District ("SCAQMD") compliance
assistance to assist the City in closing compliance gaps.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. In mldertaking 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 consulting firm in the Geld.
NOW THEREFORE, in consideration of the mutual and respective promises, and subJect to the
teens and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall perform during tire. tern of this Agreement, the tasks and obligations
including all labor, materials, tools, equipment, and incidental customary work required to fully
and adequately complete the services described and set forth in Exhibit A, attached hercto and
incorporated by refcrerice.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept the rates and charges identified in
Exhibit A. `the total amount to be expended under this Agreement shall not exceed
$5,000. This amount shall include a contingency amount of $1,800 to be used at tine
discretion of tie City.
b. Payment by City shall be made within 45 days (forty-five) days following receipt of
proper invoice evidencing Nvork performed, subject to City accounting procedures.
Payment noed not be made for work which'I'ai'ls to meet the standards of performance
set forth in the Recitals which may reasonably be expected by City
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3. TERM
This Agreement shall commence on the date first written above for a one year period,
unless terminated earlier in accordance with Section 16, below.
4. PREVAILING WAGES
Consultant is aware of the requirements of California Labor Code Section 1720, of seq.,
and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq.,
("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the
performance of other requirements on "public works" and "maintenance" projects. If the services
being perfonned are part of an applicable "public works" or "maintenance" project, as defined by
the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to
fully comply with such Prevailing Wage Laws. Consultant shall defend, indenmtify and hold the
City, its elected officials, officers, employees and agents free and harmless from any claim or
liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
S. 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 Agreenert, however, the services to be
provided by Consultant shall be provided in a manner consistent with all applicable standards and
regulations goveming such services. Consultant shall pay all salaries and wages, employer's social
security taxes, unemployment insurance and similar taxes relating to employees and shall be
responsible for all applicable withholding taxes.
6. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense airy and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or works of
authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or
caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant
shall require all subcontractors to agree in writing that City is granted a non-exclusive and
perpetual license for any Documents & Data the subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any and all
Documents & Data. Consultant makes no such representation and warranty in regard to
Documents & Data which were provided to Consultant by the City. City shall not be limited in
any way in its use of the Documents and Data at any time, provided that any such use not within
the proposes intended by this Agreement shall be at City's sole risk.
Page 2 of 9
7. 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:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents,
volunteers and representatives as additional insured(s) and shall include, but not be
limited to protection against claims arising from bodily and personal injury,
including death resulting therefrom and damage to property, resulting from any act
or occurrence arising out of Consultant's operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. Tine amounts of
insurance shall be not less than the following: single lhuA 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,
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. 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.
d. If Consultant is or employs a licensed professional such as an architect or engineer:
Professional liability (errors and ornissions) 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 Consultant
pursuant to this section:
i. Consultant 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.
hi. 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. Consultant shall supply City with a fully executed additional insured
endorsement.
f If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has
been procured and is in farce and paid for, the City shallhave the right, at the City's
Page 3 of 9
election, to forthwith tenninate this Agreement. Such termination shall not affect
Consultant's right to be paid forits time and materials expendedprior to notification
of termination. Consultant waives the right to receive compensation and agrees to
indemnify the City for any work performned prior to approval of insurance by the
City.
8. INDEMNIFICATION
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers,
agents, employees, contractors, 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
negligent operations of the Consultant, its 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 the terns 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 Consultant
further agrees to indemnify, hold hannless, 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 terns of, or effects arising from this Agreement. City may make all reasonable
decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing,
to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity
shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
9. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indenunify the City, its officers, agents, representatives, and
employees against any and all liability, including costs, for infi-ingernom of any United States'
letters patent, trademark, or copyright infringement, including costs, contained in the work product
or documents provided by Consultant to the City pursuant to this Agreement.
10. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain comptete and accurate records with respect to
the costs incurred under this Agreement and any services, expenditures, and disbursements
charged to the City for a mininnum 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 regularbusiness hours. Consultant shall allow inspection of all
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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.
11, CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees that
it shall not use or disclose such information except in the performance of this Agreement, and
father 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 ineans. 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
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.
12. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under this
Agreement.
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. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, 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 notbemodifiedexcept bywritten instrurnent
signed by the City and by an authorized representative of Consultant. The parties agree that any
terns or conditions of any purchase order or other instrument that are inconsistent with, or in
addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each
party to this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
party, which is not embodied herein.
Page 5 of 9
15. 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 persomlel or by other consultants retained by City.
16. TERMINATION
This Agreement may be tenminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of
tenminatiorn, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to
deliver to the City all work product(s) completed as of such date, and in such case
such work product shall be the property of the City unless prohibited by law, and
Consultant consents to the City's use thereof for such proposes as the City deems
appropriate.
b. Payment need not be made for work which fails to meet the standard of
performance specified in the Recitals of this Agreement.
17. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or
granted by the provisions of this Agreement shall be effective unless it is in writing and signed by
the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or
remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not
similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
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
dete-imiued 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. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agrecmcnt, 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 gm cnnrnental agencies. Consultant shall notify the City immediately and
Page 6 of 9
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.
20. 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 ten2is of
this Agreement, and shall indenvlify 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.
21. 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:
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza. (M-21)
P.O. Box 1988
Santa Ana, California 92702
Fax: 714-647-5635
To Consultant:
ProAclive Consulting Group, LLC
15235 Springdale Street
Huntington Beach, CA 92649
Attn: Patrick Tam
Fax: (714-893-7955
Sonia R. Can+albo
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Fax: 714- 647-6515
Page 7 of 9
A party may change its address by giving Notice in writing to the f>ther party. `hhcrc:afier,
any coinrnwiication shall be addicssed and transmitted to the new address: If stint I>y mail,
conrnlunication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly rTistered or certified, with posutge prepaid, and
addressed as sct forth above. If.sent by fax; communication shall be effcctivc or deemed to have
been given twa ,nty-lino (24) hours after the time set forth on the transmissiou repoil issued by the
transmitting facsimile machine, addressed as set forth above. For puiJioses of calculating these*
time, frames, \veekends, federal, state, County or City holidays shall be excladcd,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above; written.
ATTEST:
aria D. Fluizar
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By: /It✓ --...-.
John X . Funk
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Fred Mousarl)
Executive Director
Public Works Agency
CITY OF SANTA. ANA
Rani Glodinez
City Manager
ProAetive C' usulting Group Li,C:
Patrick Tain
Title:
Tax ID#_ I�7,C_
Parc 8 of 9
EXHIBIT A
SCOPE OF SERVICES
U ,# ►
C+ P!Uiting Group
SCAOMD Compliance Assistance
Corrective Actions in response to recent
Col�gliance Gap Analysis
Proposal for
City of Santa Ana
Public Works Agency
Water Resources Division
200 S. Daisy Avenue (M-85)
Santa Ana, A 92708
From
Proactive Consulting Croup, LLC.
15235 Springdale Street
Huntington Beach, CA 92649
October 9, 2017
15235 Springdale Street, Huntington Beach, CA 92649
Tel: (714) 893-7900 ♦ rax: (714) 893-7955 ♦ email: info@prochs.com
This agreement is made between ProActive Consulting Group, LLC. (hereafter referred to as
ProActive) and City of Santa Ana (hereafter referred to as "The Client", interchangeably).
A. SCAQMD Compliance — Provide corrective actions to assist the City to close coinpliance gaps
Based on the recently conducted compliance assessment, several deficiencies were identified.
While some of the items should be handled by the City staff under the guidance of ProActive,
certain areas can be addressed by.ProActive's professional staff for a more expedient resolution.
Specifically, the following items will be addressed by ProActive:
• Assist the client improve its recordkeeping practice to ensure it is uniformly adopted
throughout all pump stations and it complies with the SCAQMD permitting requirements.
• Pix the permit issues associated with West Station. The permit issued for the portable
Caterpillar generator, which was later relocated to Cambridge station, needs to be
inactivated. A new permit will need to be secured wherever the subject generator is
relocated to.
• Update the City on the back fee issues of the pump stations. At the time of preparing this
proposal, the SCAQMD system still flags the Garthe and West Stations with back fees.
• Provide guidance to the City on how to design the plexi -glass tags to properly label the
engines which do not presently have the technical information correlating to the
respective operating permits.
• Prepare administrative change application to correct the brake horsepower rating for the
Garthe station engine. The application will be prepared and submitted by a SCAQMD
Certified. Permitting Professional; applications filed by a CPP are placed on preferential
track at the Air District.
B. Professional Fees
ProActive's cost to address and handle the above five tasks will be $3,200.
Proposal No.: P201T3869 Page 2 of
This AgreantenI is accepted on behalf of City of Santa Ana by:
Print Name
Name Date
This Agreement is accepted on behalfof ProActive Consulting GrouP, 1.C,C., by:
Patrick "Pam, MS, CPP, RCA � � 10!9!2017
Print Name
Sign Name Date
Please note that the "terms and Conditions on Page 4 is an integral part of the Agreement.
i WrA
Proposal No.: P2017.3869 Poge 3 of'.{