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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
CITY OF ANAHEIM
SAFETY CONSULTING SERVICES AGREEMENT
THIS CITY OF ANAHEIM SAFETY CONSULTING SERVICES AGREEMENT (“Agreement”), dated for purposes of identification only this _____ day of __________, 2022, is made and entered into by and between the CITY OF ANAHEIM, a municipal corporation, referred to herein as "ANAHEIM," and ___________________________, a _______________ [type of business, i.e., an individual, a partnership, a joint venture, a California corporation or some other business entity] , referred to herein as "CONSULTANT ." ANAHEIM and CONSULTANT are also referred to individually as “Party” and collectively as “Parties.”
RECITALS
WHEREAS, ANAHEIM is a municipal corporation duly organized and validly existing under the laws of the State of Cal ifornia with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim;
WHEREAS, ANAHEIM desires to retain a consulting firm to provide safety services to ANAHEIM ’s Public Utilities Department (“Department”) in one or both of two possible areas of safety consulting services, or “Service Groups,” as described in the Scope of Work attached as Exhibit A (collectively, the “Services”); WHEREAS, ANAHEIM issued a Request for Proposal on [INSERT DATE] (“Request for Proposal”) to obtain the Services of prequalified safety consulting services firms; WHEREAS, in response to the Request for Proposal, CONSULTANT submitte d a proposal dated [INSERT DATE] (“Proposal”) to provide the Services; and WHEREAS, ANAHEIM has reviewed the P roposal from C ONSULTANT and has evaluated t he previous experience and the expertise of CONSULTANT , and desires to prequalify CONSULTANT to render safety consulting services under the terms and cond itions set forth in this Agreement.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS:
1. SERVICES TO BE PROVIDED BY CONSULTANT
1.1 In compliance with all of the terms and conditions of this Agreement, CONSULTANT shall provide to ANAHEIM all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the safety consulting services necessary for the Services when required by ANAHEIM . The Services are more particularly described in the General Scope of Work attached hereto as E xhibit A and incorporated herein by this reference (“General Scope of Work ”). In addition to the General Scope of Work, the Service s will be described with greater particularity in a Request for Wor k Order Proposal (“RFWOP”) and a related Notice to Proceed, as described in Section s 1.2 and
1.3. The General Scope of Work includes those specific Service categories for which CONSULTANT ha s been or may request to be prequalified to receive a RFWOP ("Service Group"). ANAHEIM may elect to delete certai n tasks from the General Scope of Work or the RFWOP in its sole discretion. The Services will not be performed by the CONSULTANT until ANAHEIM selects CONSULTANT in accordance with this Section 1 and issues a Notice to Proceed. If selected, CONSULTANT shall perform the Services as directed by ANAHEIM and in accordance with the RFWOP, the Notice to Proceed, and this Agreement. By entering into this Agreement, ANAHEIM does not guarantee CONSULTANT that ANAHEIM will select CONSULTANT to provide any Services under this Agreement.
1.2 When Services are required, ANAHEIM will issue a RFWOP verbally or in writing , as appropriate to the size and comple xity of the Services, that provides a detailed scope of work, schedule for completion of the Services, task specifications, name of the Project Administrator, as defined in Section 6 below, and other information specific to th e required Services. ANAHEIM may, in its sole discretion, (a) issue a RFWOP only to those consultants prequalified for a specified Service Group or multiple Service Groups; or (b) open a RFWOP to SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
all prequalified consultants regardless of Service Group. If a RFWOP requests proposals from a specified Service Group or multiple Service Groups and CONSULTANT is not prequalified for those Service Groups, CONSULTANT is not eligible for consideration and may not submit a proposal. Subject to the foregoing, if CONSULTANT is prequalified in an e ligible Service Group and desires to respond to a RFWOP, CONSULTANT shall submit, within the time stated in the RFWOP, a proposal in the form prescribed in the RFWOP that states the CONSULTANT’S cost, completion schedule, and other information requested in that RFWOP (collectively, “Work Order Proposal”). Any page or word limitations or other requirements as to the form and content of the Work Order Proposal set forth in the RFWOP should be considered material elements of the RFWOP requiring strict compliance.
1.3 Selection of a prequalified consultant to comple te the Services requested in a RFWOP shall be based on the criteria set forth herein . ANAHEIM will issue a Notice to Proceed to the successful consultant indicating the date work may commence, compensation, and other information material to the Services ("Notice to Proceed"). The RFWOP, the Work Order Proposal and the Notice to Proceed shall together constitute the “Work Order .” If CONSULTANT fails to promptly commence work and/or diligently pursue a Work Order as set forth therein, ANAHEIM may elect to terminate the Work Order and/or this Agreement.
1.4 CONSULTANT acknowledges that ANAHEIM intends to enter into as - needed agreements similar to this Agreement with other consultants. The Parties u nderstand and agree that a Work Order w ill be awarded to the prequalified consultant most qualified , in ANAHEIM's opinion , to provide the S ervices set forth in the RFWOP within the required schedule and based upon the following criteria:
.01 Ability to perform the specific tasks outlined in the RFWOP; .02 Qualifications of specific individuals identified in Work Order Proposal to perform the specific tasks outlined in the RFWOP; .03 Amount and quality of time key personnel will be involved in their respective portions of the Services outlined in the RFWOP; .04 Reasonableness of the proposed cost to pr ovide the Services SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
outlined in the RFWOP;
.05 Demonstrated record of success on work previously performed for ANAHEIM or for other municipalities or enterprises and
.06 The specific methods and techniq ues to be employed in providing the Services outlined in the RFWOP.
1.5 In the event of conflicting provisions, the following documents shall govern in the order shown: (1) this Agreement, except for Exhibit A; (2) the Notice to Proceed ; (3) the RFWOP; (4) CONSULTANT’s Work Order Proposal; and (5) Exhibit A to this Agreement.
2. TERM
The term of this Agreement shall commence on the date this Agreement is executed by ANAHEIM, and shall terminate five (5) years from the Effective Date, unless terminated earlier as set forth in Section 24 herein (“Term”).
The Public Utilities General Manager (“General Manager”) is hereby authorized to extend the term of this Agreement upon the same terms and conditions for no more than two (2) one-year terms after the initial term; provided a determination is made in the sole discretion of the General Manager that such an extension is necessary for the successful completion of the Services.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of a Work Order , and CONSULTANT shall perform and complete those S ervices in accordance with the schedule included therein . If CONSULTANT fails to strictly adhere to the schedule, ANAHEIM may elect to terminate the Work Order and/or this Agreement.
3.2 The time period(s) specified for perf ormance of the Work Order may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of CONSULTANT, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
civil disturbance or disobedience, labor dispute s, labor or material shortage s, sabotage, government priorities, restraint by court order or public authority and action or non- action by, or inability to obtain the necessary authoriza tion or approvals from , any governmental agency or authority, and/or acts of any governmental agency, including ANAHEIM , which by the exercise of due diligence CONSULTANT could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if CONSULTANT, within ten (10) days of the commencement of a delay, notifies the Project Administrator in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay, and may extend the time for performing the Work Order for the period of the enforced delay if, in the sole judgment of the Project Administrator , an extension is justified. The Project Administrator’s determination shall be final and conclusive upon the P arties to this Agreement. In the event of delay, however caused, CONSULTANT’s sole remedy shall be an extension of the time of performance of the Work Order, pursuant to this Section. CONSULTANT shall not be entitled to recover damages against ANAHEIM.
4. COMPENSATION
4.1 F ull and complete payment for all Services provided in accordance with a Work Order issued pursuant to this Agreement, including reimbursable expenses, shall constitute total compensation due for that Work Order (“Total Compensation”). The cumulative amount of Total Compensation payable to CONSULTANT for all Work Orders issued during the Term of this Agreement , including any Term extensions, shall not exceed Five Hundred Thousand Dollars ($ 500,000.00). Except as provided herein, ANAHEIM shall pay the Total Compensation in the manner set forth in the Work Order.
4.2 The Parties understand and agree that each RFWOP will request, and each Work Order Proposal will provide, a total not-to-exceed amount for the Services described in the RFWOP, inclusive of reimbursable expenses. The total not -to-exceed amount for particular Services will be confirmed in the Notice to Proceed. CONSULTANT shall invoice ANAHEIM for the Services rendered pursuant to this Agreement in accordance with the hourly rates and other costs set forth in CONSULTANT's “Fee Schedule, ” as submitted during the SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
prequalification process, up to the not -to-exceed amount provided in the Notice to Proceed.
When particular personnel or expertise is required by a RFWOP that was not covered in Consultant’s Fee Schedule, Consultant may submit a Supplemental Fee Schedule with its Work Order Proposal. CONSULTANT and ANAHEIM agree that no changes to the rates and costs set forth in CONSULTANT's Fee Schedule and any Supplemental Fee Schedu le shall be made without the prior written approval of ANAHEIM.
4.3 If a Work Order provides for the reimbursement of expenses, ANAHEIM shall reimburse CONSULTANT only for the type and amount of out-of-pocket expenses set forth in the Work Order . Reim bursable expenses invoiced to ANAHEIM shall not exceed any cap on reimbursable expenses set forth in the Work Order unless the additional reimbursable expenses are first approved in writing by ANAHEIM. The Total Compensation dollar amount established in Section 4.1 shall be inclusive of all reimbursable expenses and subconsultant fees.
4.4 The General Manager or designee is authorized to approve additi onal expenditures not to exceed ten thousand dollars ($10,000) or fifteen percent (15%) of the Total Compensation, whichever is greater, for Extra Work not i ncluded in a RFWOP , if a determination is made in the sole discretion of the General Manager or designee that the Extra Work is necessary for the successful completion of a Work Order. .01 In no event shall CONSULTANT render Extra Work be yond the scope of a Work Order without the written authorization of the General Manager or designee. .02 All Extra Work approved in writing by the General Manager or designee shall be billed at either the rates set forth in the Work Order , or at a fixed price, at ANAHEIM’s sole discretion. If billed at a fixed price, CONSULTANT shall provide ANAHEIM with general description of the Extra Work to be performed and a proposed price.
Once the General Manager or designee has approved the Extra Work, has agreed to a fixed price for the Extra Work, and has notified CONSULTANT of this approval and agreement in writing, CONSULTANT shall perform the Extra Work.
.03 As used herein, “Extra Work” means any work that i s determined by ANAHEIM to be necessary for the p roper completion of the Services contained in the Work SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Order, but which is not included therein and which the P arties did not reasonably anticipate would be necessary at the time of the issuance of the Work Order.
4.5 Except as indicated in a Work Order, after the issuance of a Work Order , CONSULTANT shall submit monthly invoices to ANAHEIM describing the work performed the preceding month. CONSULTANT’s invoices shall include the name of the person who performed the work, a brief description of the S ervices performed and/or the specif ic task in the Work Order to which it relates, the date the S ervices were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures.
ANAHEIM shall pay CONSULTANT no later than thirty (30) days after approval of the monthly invoice by ANAHEIM staff. The total amount of all invoices submitted for a Work Order shall not exceed the not- to-exceed for the Work Order unless, the General Manager has approved Extra Services.
4.6 All Parties recognize that the continuation of this Agreement or any Work Order after the close of any fiscal year of ANAHEIM, which fiscal year ends on June 30 th of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in the budget for that fiscal year . ANAHEIM does not represent that this budget item will be adopted, since budget expenditures are determinations made by the City Council at the time of the adoption of the ANAHEIM budget. No penalty shall accrue to ANAHEIM in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the P arties based on items delivered, S ervices provided, monies paid and monies due.
5. PROJECT MANAGER
5.1 Within the Work Order Proposal , CONSULTANT shall designate a Project Manager, who shall coordinate the Services. This Project Manager shall be available to ANAHEIM at all reasonable times during the performance period of the Work Order . The Project Manager shall be responsible for directing all activities of C ONSULTANT and devoting sufficient time to personally supervise the provision of Services. The Project Manager may not be changed by C ONSULTANT and no other personnel may be assigned to supervise the SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Services to be provided hereunder without the express written consent of ANAHEIM.
5.2 CONSULTANT'S employees or subconsultant s, if any, who fail or refuse to perform the Services in a manner acceptable to ANAHEIM, or who are determined by ANAHEIM, at its sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of th e Services set forth in a Work Order , or a threat to t he safety of persons or property, shall be promptly removed from those Services by CONSULTANT upon request by ANAHEIM. CONSULTANT warrants that it will continuously furnish the necessary pe rsonnel to complete the Work Order on a timely basis.
5.3 The Proj ect Manager and all of CONSULTANT’s employees shall be fully qualified and licensed for the Services set forth in the Work Order.
6. ADMINISTRATION
This Agreement will be administered by the Department. The Department shall assign a project administrator at the time it issues a RFWOP (“Project Administrator”) . The Project Administrator shall have the power to act on behalf of ANAHEIM for review and approval of all S ervices performed by CONSULTANT . The Project Administrator shall not be authorized to t erminate the Services performed pursuant to this Agreement. ANAHEIM's General Manager is authorized to take any action the Project Administrator may take, replace the Project Administrator by notifying CONSULTANT in writing, approve Extra Work, if any, in accordance with Section 4 of this Agreement, and terminate this Agreement or the Work Order in accordance with Section 24 of this Agreement.
7. STANDARD OF CARE
7.1 CONSULTANT shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. CONSULTANT represents and maintains that it and its employees are skilled in the professional calling necessary to perform the Services. CONSULTANT warrants that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work performed pursuant to a Work Order, CONSULTANT certifies that the work SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
conforms to the requirements of this Agreement ; the Work Order ; all applicable federal, state and local laws; and the applicable standard of care.
7.2 CONSULTANT represents and warrants to ANAHEIM that it and its employees have, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of CONSULTANT and its employees to practice its profession. CONSULTANT shall maintain a City of Anaheim business license during the term of this Agreement.
8. INDEPENDENT CONTRACTOR
8.1 Neither ANAHEIM nor any of its employees shall have any control over the manner, mode or means by which CON SULTANT, its agents or employees, perf orm the Services, except as otherwise set forth herein. Except as expressly provided herein, ANAHEIM shall have no voice in the selection, discharge, supervision or control of CONSULTANT’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. CONSULTANT shall perform the Services as an independent contractor of ANAHEIM and shall remain at all times, as to ANAHEIM, a wholly independent contractor with only such obligations as are consistent with that role. CONSULTANT shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of ANAHEIM. ANAHEIM shall not in any way or for any purpose become or be deem ed to be a partner of CONSULTANT in its business or otherwise or a joint venturer or a member of any joint enterprise with CONSULTANT.
8.2 In consideration for the compensation to be paid to CONSULTANT by ANAHEIM, CONSULTANT agrees that ANAHEIM shall not be liable or responsible for any benefits, including, but not limited to, worker’s compensation, disability, retirement, life, unemployment, health or any other benefits , and CONSULTANT agrees that it shall not sue or file a claim, petition or application therefor a gainst ANAHEIM or any of its officers, employees, agents, representatives or sureties.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
9. INSURANCE
9.1 Without limiting ANAHEIM’s right to indemnification, it is agreed that CONSULTANT shall secure, prior to commencing any activities under this Agreement, and maintain, during the Term, insurance coverage as follows:
.01 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. .02 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Contractor’s Liability, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible of not more than $10,000 per occurrence, provided that such deductible is disclosed to ANAHEIM, in writing, at the inception of this Agreement.
.03 Comprehensive Automobile Liability Coverage including , as applicable, owned, non- owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, written on an occurrence form. .04 Professional Liability Insurance in an amount not less than $2,000,000 per claim, and CONSULTANT shall maintain such coverage for at least four (4) years from the termination of this Agreement. Such insurance shall be written on a primary basis (i.e., without a self-insured retention), but may include a deductible of not more than $10,000 per claim, provided that such deductible is disclosed to ANAHEIM, in writing, at the inception of this Agreement. 9.2 Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: “This insurance shall not be cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non- payment of premium which shall provide for not less than ten (10) days notice.”
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
9.3 Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
.01 “It is agreed that any insurance maintained by CONSULTANT , pursuant to this Agreement , shall be primary to, and not contribut e with, any insurance or self - insurance maintained by the City of Anaheim.”
.02 “The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM -designated volunteers are added as additional insureds as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
9.4 Prior to commencing any work under this Agreement, CONSULTANT shall deliver to AN AHEIM insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, CONSULTANT shall provide ANAHEIM: (i) endorsements to the insurance policies which add to these policies the appl icable clauses referenced above; or (ii) in lieu of these endorsements, documentation acceptable to ANAHEIM evidencing that the coverage, terms, and conditions set forth in the above -referenced clauses are otherwise included in CONSULTANT’s insurance policies. Insurance required hereunder shall be placed with insurers : (i) admitted to write insurance in California ; (ii) possessing an A. M. Best’s rating of A VII or highe r; or (iii) otherwise acceptable to ANAHEIM, with prior written permission from ANAHEIM. In the event that (1) a claim or other legal action is filed against ANAHEIM, and ANAHEIM, in its good faith opinion, believes it may have coverage under any of the i nsurance required herein, and (ii) the issuer of any such insurance has failed to fully accept, without reservation, ANAHEIM’s submission of said claim or legal action, then ANAHEIM has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
that this pr ovision shall not apply if the P arties agree that CONSULTANT shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action.
9.5 In addition to other remedies ANAHEIM may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, ANAHEIM may, at its sole option:
.01 Order CONSULTANT to stop work under this Agreement or any Work Order issued hereunder, and/or withhold any payment(s) which become otherwise due to CONSULTANT under this Agreement until CONSULTANT demonstrates compliance with the requirements hereof; or
.02 Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies ANAHEIM may have and is not the exclusive remedy for CONSULTANT’s failure to maintain insurance or secure appropriate endorsements.
9.6 Nothing herein conta ined shall be construed as limiting in any way the extent to which CONSULTANT may be held responsible for payments of damages to persons or property resulting from CONSULTANT’s, (or CONSULTANT’s contractors/subcontractor, if any) performance of the work covered under this Agreement.
9.7 In the event CONSULTANT hires other persons or firms to perform some of the work related to this Agreement, CONSULTANT shall ensure, and certify to ANAHEIM in writing that: (i) the acts or omissions of such persons or firms are covered under the above- referenced liability insurance; or (ii) such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of CONSULTANT under this Agreement (except for firms which are not performing professional services -such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, CONSULTANT shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
9.8 ANAHEIM’s Risk Manager is hereby authorized to reduce the requirements set forth herein in the event the Risk Manager determines that such reduction is in ANAHEIM’s best interest.
10. INDEMNITY
10.1 As respects acts, errors or omissions in the performance of professional services, CONSULTANT agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of an y kind or nature, to the extent arising directly out of CONSULTANT’s (or CONSULTANT’s contractors’ or subcontractors’, if any) negligent acts, errors or omissions in the performance of professional services under this Agreement.
10.2 As respects all acts, errors or omissions which do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by ISO -based general and automobile liability insurance coverage, CONSULTANT ag rees to indemnify, defend (at ANAHEIM's option), and hold harmless ANAHEIM, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collective ly referred to hereinafter as “Claims”), arising out of or in connection with CONSULTANT’s (or CONSULTANT's contractors’ or subcontractors’, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims which arise out of th e sole negligence or willful misconduct of ANAHEIM.
10.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAHEIM, CONSULTANT, or any other person maintains, or fails to maintain, insuran ce coverage, or a self -insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
11. PREVAILING WAGES
11.1 By execution of this Agreement, CONSULTANT certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., the SAMPLE
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
California Code of Regulations, Title 8, Section 16000 et seq and the Davis -Bacon Act (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” "maintenance" projects. It shall be CONSULTANT’s sole obligation to determine whether, and to what extent if any, the Prevailin g Wage Laws apply to the Services . If CONSULTANT determines the Services are being performed as part o f an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation for the Services is $1,000 or more, CONSULTANT shall fully comply with the Prevailing Wage Laws. Copies of the prevailing rate of per diem wages are on file at the City of Anaheim, Office of the City Clerk, 200 South Anaheim Boulevard, Anaheim, California 92805, and are available to any interested party on request. If the Prevailing Wage Laws apply to the Services, CONSULTANT shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request and shall post copies at the CONSULTANT’s principal place of business and at the project site. C ONSULTANT shall defend, indemnify and hold ANAHEIM, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
11.2 The Parties understand and agree that if, and when, the Prevailing Wage Laws apply to the Services, CONSULTANT shall comply with the express requirements of Labor Code Sections 1725.5, 1771.1, 1771.4 and 1776, including but not limited to the contractor and subcontractor registration and requirements related to certified payroll records.
12. PROGRESS
CONSULTANT is responsible for keeping the Project Administrator or duly authorized designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
13. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to A NAHEIM for entering SAMPLE
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into this Agreement is the professional reputation, experience and competence of CONSULTANT. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of ANAHEIM . Any purported assignment, transfer, encumbrance, pledge, subuse, or permission given without ANAHEIM’ s consent shall be void as to ANAHEIM. If ANAHEIM approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the approved successors and assigns of CONSULTANT.
14. SUBCONTRACTING
Except for those subcontractors set forth in CONSULT ANT’s Work Order Proposal, if any, CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the General Manager or Project Administrator. CONSULTANT shall be fully responsible to ANAHEIM for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between ANAHEIM and subcontractor nor shall it create any obligation on the part of ANAHEIM to pay or to see to the payment of any monies due to any subcontractor other than as otherwise required by law. ANAHEIM is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and ANAHEIM pursuant to this Agreement.
15. USE AND OWNERSHIP OF DOCUMENTS AND DATA
15.1 ANAHEIM shall furnish to C ONSULTANT such documents and materials as may be relevant and pertinent to the provision of S ervices hereunder as ANAHEIM may possess or acquire.
15.2 A ll documents and materials furnished by ANAHEIM to CONSULTANT under Section 15.1 shall remain the property of ANAHEIM and shall be returned to ANAHEIM upon the earlier of the termination of this Agreement, for any reason, or the completion of a Work Order. All documents or materials prepared or caused to be prepared by C ONSULTANT, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, SAMPLE
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shall become the exclusive property of ANAHEIM, and ANAHEIM shall have the sole right to use such materials in its discretion without further compensation to CONSULTANT or any other person or entity. C ONSULTANT shall, at C ONSULTANT’s sole cost and expense, provide such documents and materials to ANAHEIM upon prior written request.
15.3 Docum ents and material s prepared by C ONSULTANT pursuant to this Agreement are not intended or represented to be suitable for reuse by ANAHEIM or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from C ONSULTANT will be at ANAHEIM ’s sole risk and without liability to CONSULTANT . Further, liability arising out of changes made to C ONSULTANT’s deliverables under this Agreement by ANAHEIM or persons othe r than CONSULTANT is waived as against C ONSULTANT, and ANAHEIM assumes full responsibility for such changes unless ANAHEIM has given C ONSULTANT prior notice and has received from CONSULTANT written consent for such changes.
16. CONFIDENTIALITY
All information, including draft documents, preliminary drawings or plans, notes , ideas and communications that arise from the S ervices provided under this Agreement, shall be kept confidential by CONSULTANT unless ANAHEIM authorizes release of the information, in writing and with specificity.
17. INTELLECTUAL PROPERTY INDEMNITY
CONSULTANT shall defend and indemnify ANAHEIM , its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United State s’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to ANAHEIM pursuant to this Agreement.
18. FISCAL RECORDS AND AUDIT
CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall use recognized accounting methods in preparing such re cords and invoices. ANAHEIM reserves the right to designate its own SAMPLE
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employee representative(s) or its contracted repre sentative(s) with a certified public accounting firm who shall have the right to audit CONSULTANT's accounting procedures and internal controls of CONSULTANT's financial systems and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any items set forth in this Agreement. If CONSULTANT fails to provide supporting documentation satisfactory to ANAHEIM for costs charged, then CONSULTANT agrees to reimburse ANAHEIM for those costs. Any audit(s) shall be unde rtaken by ANAHEIM or its representative(s) at reasonable times and in conformance with generally accepted auditing standards, and CONSULTANT shall cooperate fully.
This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer if required by law, following the date of final payment under a Work Order . CONSULTANT agrees to retain all necessary records/documentation for the entire length of this audit period.
CONSULTANT will be notified in writing of a ny exception taken as a result of an audit. Any adjustments and/or payments which must be made as a result of an audit or inspection of CONSULTANT’s invoices and/or records shall be made within thirty (30) days from presentation of ANAHEIM’s findings to C ONSULTANT. If CONSULTANT fails to make a required payment identified in the findings , CONSULTANT agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interes t, then the higher rate will prevail. Interest will be computed from the date of written notification of exception(s) to the date CONSULTANT reimburses ANAHEIM for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by CONSULTANT to ANAHEIM in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of ANAHEIM's audit shall be reimbursed to ANAHEIM by CONSULTANT.
CONSULTANT reserves the right to contest any exception.
19. WITHHOLDINGS
ANAHEIM may withhold payment to CONSULTANT of any disputed sums until SAMPLE
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satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. CONSULTANT shall not discontinue work as a result of such withholding. CONSULTANT shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of return that ANAHEIM earned on its investments during the time period of the dispute, starting on the earliest date of ANAHEIM's withholding of any amounts later found, by the City Manager or a court of competent jurisdiction, to have been improperly withheld.
20. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of CONSULTANT which result in expense to ANAHEIM greater than what would have resulted if there were not errors or omissions in the work accomplished by CONSULTANT, the additional cost and expense shall be borne by CONSULTANT. Nothing in this paragraph is intended to limit ANAHEIM’s rights under the law or any other sections of this Agreement.
21. ANAHEIM'S RIGHT TO EMPLOY OTHER CONSULTANTS
CONSULTANT acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that ANAHEIM may enter into similar agreements with other entities for the provision of similar services.
22. CONFLICTS OF INTEREST
CONSULTANT and its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which: (1) may require them to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement; and (2) may prohibit them from making, or participating in making, decisions that will foreseeably financially affect such interest.
If subject to the Act, CONSU LTANT and its employees shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by ANAHEIM. CONSULTANT shall indemnify and SAMPLE
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hold harmless ANAHEIM for any and al l claims for damages resulting from CONSULTANT’s violation of this Section.
If CONSULTANT's Services under this Agreement produce design work that is subsequently used, in whole or part, in an ANAHEIM construction bid package , CONSULTANT is prohibited from bidding on such package.
23. NOTICES
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either ANAHEIM or CONSULTANT to the other shall be deemed to have been given when in hardcopy and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to ANAHEIM: ANAHEIM Secretary/City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
FAX No. (714) 765-4138
To CONSULTANT: [ CONSULTANT’s Legal Name]
[CONSULTANT’s Street Address]
[City, State ZIP]
Attention: [CONSULTANT’s Representative]
FAX No. [CONSULTANT’s FAX No.]
24. ENFORCEMENT OF AGREEMENT
24.1 Events of Default.
.01 For purposes of this Section 24, the word “Default” shall mean the failure of CONSULTANT to perform any of CONSULTANT’s duties or obligations or the breach by CONSULTANT of any of the terms and conditions set forth in this Agreement or any Work Order. In addition, CONSULTANT shall be deemed to be in Default upon CONSULTANT’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment SAMPLE
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for the benefit of creditors; (iii) being adjudged bankrupt ; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing) ; or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of CONSULTANT’s assets or of CONSULTANT’s interests hereunder. .02 ANAHEIM shall not be deemed to be in Default in the performance of any obligation required to be performed by ANAHEIM hereunder unless and until ANAHEIM has failed to perform the obligation for a period of thirty (30) days after receipt of written notice from CONSULTANT specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of ANAHEIM’s obligation is such that more than thirty (30) days are required for its performance, then ANAHEIM shall not be deemed to be in Default if ANAHEIM shall commence to cure performance within this thirty (30) day period and thereafter diligently prosecute the same to completion.
24.2 Immediate Termination f or CONSULTANT’s Default. In the event of any Default by CONSULTANT, ANAHEIM may immediately terminate this Agreement.
Termination shall be effective immediately upon receipt by CONSULTANT of written notice from ANAHEIM. In this event, CONSULTANT shall h ave no further rights hereunder , including the performance of the Services set forth in a Work Order, and ANAHEIM shall have all other rights and remedies as provided by law. For any Default involving a breach of the requirements of a Work Order , ANAHEIM, at its sole discretion, may instead immediately terminate that Work Order. In this event, CONSULTANT shall have no further rights hereunder, including the performance of the Services set forth in the Work Order , and ANAHEIM shall have all other rights and remedies as provided by law.
24.3 Termination Without Cause. ANAHEIM may terminate this Agreement at any time without the necessity of cause or Default by giving seven (7) days notice in writing to CONSULTANT. In that event, the Parties shall have no further rights hereunder, except that CONSULTANT shall be paid for all services adequately rendered prior to termination.
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CONSULTANT may not terminate this Agreement except for cause.
24.4 Suspension, Postponement or Abandonment of a Work Order. A Work Order may be suspended or abandoned by ANAHEIM for any reason, with or without notice. If any part of the Services of a Work Order is suspended or abandoned for any reason, ANAHEIM shall have the right to suspend or terminate the affected portions(s) of the Work Order, including the entire Work Order. In the event of such suspension or termination, CONSULTANT shall only expend the additional time necessary to assemble the work in progress for the purpose of properly filing and closing the job and as is previously approved by Project Administrator. In no event shall additional time exceed ten percent (10%) of the total time ex pended on the suspended or abandoned portion of the Work Order prior to the date of notice of suspension or termination.
In the event the Services of a Work Order are suspended for longer than six (6) months, CONSULTANT m ay cancel the Work O rder by giving ANAHEIM at least thirty (30) days’ written notice.
25. COMPLIANCE WITH ALL LAWS
CONSULTANT shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by CONSULTANT shall conform to appl icable local , county, state and federal laws, rules, regulations and permit requirements and be subject to approval by the Project Administrator.
26. WAIVER
A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
27. INTEGRATED CONTRACT
This Agreement and the Exhibits hereto cont ain the en tire agreement of ANAHEIM and CONSULTANT with respect to the matters covered hereby, and no agreement, statement or promise made by either ANAHEIM or CONSULTANT which is not contained SAMPLE
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herein shall be valid or binding. No prior agreement, understanding or representation pertaining to such matters shall be effective for any purpose.
28. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits, or any other attachments hereto, the terms of this Agreement shall govern.
29. INTERPRETATION
Each Party acknowledges having had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
30. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both CONSULTANT and ANAHEIM and approved as to form by the City Attorney.
31. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
32. REMEDIES CUMULATIVE
The remedies given to ANAHEIM and C ONSULTANT herein shall be cumulative and are given without impairing any other rights given A NAHEIM or CONSULTANT by statute or law now existing or hereafter enacted , and the exercise of any one (1) remedy by A NAHEIM or C ONSULTANT shall not exclude the exercise of any other remedy.
33. NO THIRD PARTY BENEFICIARIES
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The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
34. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it, and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
35. DISCRIMINATION
C ONSULTANT agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry , national origin or other prohibited basis in its provision of S ervices or hiring of subcontractors or employees. To the extent this Agreement provides that CONSULTANT offer accommodations or services to the public, such accommodations or servic es shall be offered by CONSULTANT to the public on fair and reasonable terms.
36. AUTHORITY
Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms. CONSULTANT shall, at ANAHEIM’s request, deliver a certified copy of it s governing board’s resolution or certificate authorizing or evidencing such execution.
37. EFFECTIVE DATE
This Agreement shall be effective on the date on which t his Agreement is executed by ANAHEIM (“Effective Date”).
[SIGNATURES ON FOLLOWING PAGE]
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WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
CITY OF ANAHEIM,
a municipal corporation
DATE: ______________________ By:_____________________________ Dukku Lee, Public Utilities General Manager
ATTEST:
DATE: ______________________ By:________________________________ Anaheim C ity Clerk
Consultant’s Legal Name
Type of Entity (e.g. a California corporation)
DATE: ______________________ By:____________________________ ( ),
( )
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By: __________________________________
Daniel J. Payne
Deputy City Attorney
CAO#146360.v3
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OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
EXHIBIT A
GENERAL SCOPE OF WORK – SAFETY CONSULTING SERVICES
[TO BE ATTACHED BEHIND THIS PAGE]
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OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
EXHIBIT A – GENERAL SCOPE OF WORK – SAFETY CONSULTING SERVICES
Service Group 1: Training
Projects may include conducting in- person training for water and elect ric utility workers. Topics may include, but are not limited to:
• Trenching and shoring
• Confined space entry
• Ladder safety
• Traffic control
• Welding/cutting/brazing safety
• High voltage safety
• Hoisting and rigging safety
• Fall protection
• Emergency action plan / disaster preparedness
• Lockout / Tagout and NFPA 70-E
• Arc flash
• Fire extinguisher operation
• Sling user
• Heat illness prevention
• Asbestos awareness, operation and maintenance, and asbestos cement pipe worker
• Defensive driver (classroom and behind-the-wheel)
• Consultants shall include a list of all training courses offered in their proposals
All training programs shall be conducted in accordance with all applicable laws, rules, and regulations. If training programs are required to be registered or approved by a regulatory agency, such as Cal/OSHA, the Consultant is responsible for ensuring the requirements are met shall provide the City with written evidence of such registration or approval upon request.
APU will provide meeting rooms at City facilities to conduct these training events.
The Consultant will be responsible for providing all training materials including handouts, quizzes, computers, and projectors. The Consultant shall provide an electronic certificate to APU for each employee who completes the training.
/ / /
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OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Service Group 2: Safety Consulting
Industrial Hygiene Services
Projects may include conducting industrial hygiene monitoring and reporting.
These services may require the use of Certified Industrial Hygienists or other licenses or certifications required by law. Activities may include, but are not limited to:
• Conducting employee exposure monitoring for materials such as lead, silica, or asbestos.
• Conducting noise surveys.
Facility and Jobsite Safety Inspections
Projects may include, but are not limited to:
• Visiting APU facilities such as water wells, substations, or power plants to evaluate site conditions and operations with respect to safety regulations.
Inspections will require a written report documenting the observations and recommendations.
• Conducting Safety inspections, with topics including, but not limited to, fall hazard assessments, confined space inspection, and safety equipment inspection.
Arc Flash Analysis
Projects may include, but are not limited to:
• Conducting arc flash hazard assessments in accordance with NFPA 70E and IEEE 1584. Arc flash assessment work must be conducted under the direct supervisor of a California Professional Electric Engineer.
Ergonomic Evaluations
Projects may include, but are not limited to:
• Conducted ergonomic evaluations of employee office workstations or field environments to reduce injuries.
• Developing strategies to reduce injuries from lifting.
Policy Review and Other Safety Consulting
Projects may include, but are not limited to:
• Reviewing existing APU procedures such as its Accident Prevention Manual, identifying any gaps (with respected to existing or anticipated laws or regulations), and proposing modifications.
• Developing new safety policies, procedures, and training as may be appropriate.
• Developing and researching appropriate safety metrics for use by APU and reviewing and reporting on safety metrics provided by APU, City, Public or Private Utilities, Consultant, and/or other appropriate sources.
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OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
• Reviewing and reporting on accidents, injuries, and near misses, and identifying root causes.
• Proposing best management practices in response to the metrics and incident reports described above.
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