AGREEMENT WITH ARAKELIAN ENTERPRISES, INC., DBA ATHENS SERVICES FOR
STREET SWEEPING SERVICES FOR THE CITY OF SANTA ANA
1. PARTI
ES AND DATE.
THIS AGREEMENT is made and entered into on this 29th day of August 2023 by and between Arakelian Enterprises, Inc., a California corporation dba Athens Services (“Contractor”), 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”). City and Contractor are sometimes individually referred to herein as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain street sweeping services (“Services”) required by the City which shall be performed in accordance with the terms and conditions set forth in this Agreement and all plans, specifications and other contract documents attached to or incorporated into this Agreement.
Contractor represents that it is experienced in providing street sweeping services to public clients, that it and its employees and/or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that it is familiar with the plans of City.
2.2 Project.
On January 27, 2023, the City issued a Request for Proposal (“RFP”) No. 23-007 by which it sought to retain a contractor having special skill and knowledge in the provision of municipal street sweeping services. Contractor submitted a responsive proposal that was selected by the City. Contractor represents that Contractor is able and willing to provide the services described in RFP No. 23-007.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide street sweeping services to City streets as well as roads and parking lots of City Parks, Recreation, and Community Services facilities specified in this Agreement. The Services are more particularly described in the Scope of Work attached as Exhibit A and incorporated herein by reference, and Contractor’s Quote for Sweeping of City Park’s Parking Lots, which is attached as Exhibit B, attached hereto and incorporated by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 C
ity Corporate Yard.
3.1.2 .1 City shall permit Contractor to store equipment and necessary service vehicles used exclusively for providing street sweeping service, at the City Corporate Yard EXHIBIT 3
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(“Premises”). City will grant to Contractor a license to utilize eight (8) parking spaces at the Premises for City sweeping operations. These licensed spaces shall be utilized only for street sweepers, maintenance vehicles, personal vehicles, and supervisor vehicles. Additionally, City will grant to Contractor a license to use the small office/locker room at the Premises.
3.1.2.2 Contractor shall use the Premises only for storage of equipment required to perform under this Agreement such as street sweepers, supervisor vehicle(s) and a back hoe if necessary to remove sludge from wash rack to waste bins, and for no other purpose without the City’s prior written consent. Contractor may utilize the wash rack to clean sweepers and shall dispose of sludge in the waste bins, and for no other purpose without the City’s prior written consent. Contractor may utilize the wash rack to clean sweepers and shall dispose of sludge in the waste bins on the Premises. Contractor shall maintain sweeper wash bay/rack area clean and prevent sludge from entering the storm drains in violation of National Pollutant Discharge Elimination System (“NPDES”) regulations.
3.1.2.3 Contractor may perform minor maintenance on its City sweeper fleet while stored at the Premises, however, Contractor shall provide all tools and equipment necessary for such maintenance. Further, Contractor shall not perform any maintenance that will allow the escape of fluids in violation of NPDES regulations. Any waste/trash resulting from such maintenance shall be disposed off-site.
3.1.3 Term. The base term of this Agreement shall commence on July 1, 2024 for a ten (10) year term (“Base Term”), unless earlier terminated as provided herein. This Agreement may be renewed, by mutual written agreement of City and Contractor, no later than one- hundred and eighty (180) days prior to the expiration of the Base Term, provided Contractor is not in material breach of the Agreement, for up to a five (5) year term (“Renewal Term”). Such Renewal Term is exercisable by a writing by the City Manager and the City Attorney, unless terminated earlier in accordance with the terms of this Agreement. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines set forth herein.
3.2 Responsibilities of Contractor.
3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement.
City retains Contractor on an independent contractor basis and not as an employee. Contractor retains the right to perform supportive or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Contractor or any of Contractor’s officers, employees or agents, except as set forth in this Agreement. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within
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the term of this Agreement. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with the obligations hereunder, City shall respond to Contractor’s submittals in a prompt manner.
3.2.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City, whose approval shall not be unreasonably withheld.
3.2.4 City’s Representative. The City hereby designates the Director of Public Works, or their designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Contractor but not the authority to enlarge the Scope of Work or change the total compensation due to Contractor under this Agreement. The City’s City Manager shall be authorized to act on City’s behalf and to execute all necessary documents which enlarge the Scope of Work or change the Contractor’s total compensation, subject to the provisions contained in Sections 3.1 and 3.3 of this Agreement. Contractor shall not accept direction or orders from any person other than the City Manager, City’s Representative or their designee.
3.2.5 Contractor’s Representative. Contractor hereby designates the Division Vice President, or their designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct the Services, using their best skill and attention, procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.6 Coordination of Services. City and Contractor agree to work closely with each other in Contractor’s performance of Services and shall be available to each other at all reasonable times.
3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by contractors and/or professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the discipline necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions to the extent caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub- contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
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3.2.8 Inadequate Performance. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, if, in the judgment of the Director of Public Works or their designee, the level of maintenance falls below the standard of care set forth in Section 3.2.7 and Contractor fails to remedy within 24 hours of notification, City shall have the right to withhold all or a portion of payment for work that is deemed inadequate pursuant to this Section.
3.2.9 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations to the extent arising from Contractor’s performance of Services. If the Contractor performs any work contrary to such laws, rules and regulations, Contractor shall be solely responsible for all costs arising therefrom. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability to the extent arising out of any failure to comply with such laws, rules or regulations.
3.2.10 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.11 Labor.
3.2.11.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720, et 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. This project is a “maintenance” project and requires compliance with the Prevailing Wage Laws. Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify 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. Notwithstanding the foregoing, in the event of a change in law, including but not limited to a change in applicable worker classifications pertaining to the Services as specified in Exhibit D, the City agrees to negotiate in good faith with Contractor to adjust the rates set forth in Exhibit B and Exhibit D in an amount commensurate with the cost of any such change. The City and Contractor shall not unreasonably withhold agreement to such compensation adjustment.
3.2.11.2 Registration. Contractor and any subcontractor(s) of Contractor shall comply with the provisions of Labor Code Section 1771 and Labor Code Section 1725.5 requiring registration with the Department of Industrial Relations (“DIR”).
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3.2.11.3 It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Contractor shall therefore comply with such Labor Code sections to the fullest extent required by law.
3.2.12 Insurance. Contractor agrees to procure and maintain, at Contractor’s expense all insurance specified in Exhibit C attached hereto and by this reference incorporated herein. Contractor shall require all subcontractors to carry the same policies and limits of insurance that the Contractor is required to maintain, unless otherwise approved in writing by the City.
3.2.13 Bonds.
3.2.13.1 Performance Bond. Contractor shall ex ecute and provide to City concurrently with this Agreement a Performance Bond in the amount of one million dollars and zero cents ($1,000,000). The performance bond shall be renewed and submitted to the City annually. No payment will be made to Contractor until it has been received and approved by the City.
3.2.13.2 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.
3.2.13.3 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California-admitted surety and satisfactory to the City. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.2.14 Water Quality Management and Complianc
e.
3.2.14.1 Storm Water Management. Storm, surface, ground, nuisance, or other waters may be encountered at various times during the Services. Contractor hereby acknowledges that it has investigated the risk arising from such waters, has prepared its bid accordingly, and assumes any and all risks and liabilities arising therefrom.
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3.2.14.2 Compliance with Water Quality Laws, Ordinances and Regulations.
Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services pertaining to water quality including all applicable provisions of the Santa Ana Municipal Code regulating water quality and discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, written policies, or permits issued pursuant to any such authority.
Contractor shall additionally comply with the laws and regulations of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regarding discharges of storm water to separate storm drain systems or other watercourse, including applicable requirements in municipal storm water management programs.
3.2.14.3 Compliance with DAMP and LIP. In addition to compliance with the laws, ordinances and regulations listed in paragraph 3.2.14.2, Contractor must comply with all applicable requirements of the Orange County Drainage Area Management Plan (“DAMP”) and the City of Santa Ana Local Implementation Plan (“LIP”) as amended from time to time. Both documents contain Model Maintenance Procedures with Best Management Practices (“BMPs”).
These Model Maintenance Procedures contain pollution prevention and source control techniques to minimize the impact of those activities upon dry-weather urban runoff, storm water runoff, and receiving water quality. Contractor shall be familiar the DAMP, and the LIP and shall comply with the requirements as specified therein.
3.2.14.4 Standard of Care. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Sections 3.2.14.2 and 3.2.14.3 of this Agreement. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by the City, regarding the requirements of the laws, regulations and policies described in Sections 3.2.14.2 and 3.2.14.3 of this Agreement as they may relate to the Services.
3.2.14.5 Liability for Non-compliance.
3.2.14.5.1 Indemnity: With respect to the laws, regulations, standards and ordinances listed in Sections 3.2.14.2, 3.2.14.3, and 3.2.14.4, Contractor agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for to the extent arising from Contractor’s noncompliance with the laws, regulations, and ordinances listed in Sections 3.2.14.2, 3.2.14.3, and 3.2.14.4 of this Agreement arising out of or in connection with the Services.
3.2.14.5.2 Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Contractor’s failure to comply with any applicable water quality law, regulation, or policy. Contractor hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity, provided that Contractor approves defense counsel and any such settlement.
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3.2.14.5.3 Damages: City may seek damages from Contractor for delay in completing the Services caused by Contractor’s failure to comply with the laws, regulations, policies and standard described in Sections 3.2.14.2, 3.2.14.3 and 3.2.14.4 of this Agreement, or any other similar relevant water quality law, regulation, or policy.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the facility rates set forth in Exhibit B and curb mile rates set forth in Exhibit D attached hereto and incorporated herein by reference (collectively, “Rates”). The initial annual compensation shall not exceed Four Million, Three Hundred Four Thousand, Eight Hundred Fifty Dollars and Zero Cents ($4,304,850) (“Base Compensation”) without written approval by City. The Base Compensation is comprised of (1) an initial base amount of $3,913,500 for street sweeping services to City streets as well as roads and parking lots of City Parks, Recreation, and Community Services facilities and (2) a ten percent (10%) contingency initially of $391,350 for additional sweeping services at the City’s sole discretion. Subsequent annual compensation amounts are subject to an adjustment as set forth in Section 3.3.5 of this Agreement. Extra Work may be authorized, as described below, and if authorized, will be compensated at the Rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Contractor shall submit to City a monthly itemized invoice by the 15th of each month for the services rendered in the prior month, which shall indicate work completed and hours of Services rendered by Contractor. Payment for curb miles swept may be withheld as specified in Section 3.2.8. City shall, within sixty (60) days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the City disputes any of Contractor’s fees, the City shall give written notice to Contractor within sixty (60) days of receipt of an invoice of any disputed fees set forth therein and only such disputed fees may be withheld.
3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by the City Manager.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary, or requested by Contractor subject to City approval which shall not be unreasonably withheld, for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Extra work includes, but is not limited to, changes in law and City-directed changes to the Services. Contractor shall not perform, nor be compensated for, Extra Work without prior written authorization from the City.
3.3.5 Adjustment to Charges. The Rates and Base Compensation will be adjusted annually based on the actual Consumer Price Index (CPI) with no cap beginning at the end of the first 12 months. The index that will be used for determining adjustments to street sweeping charges shall be the most recent December CPI for All Urban Consumers for Los Angeles - Anaheim-Riverside CMSA, published by the United States Department of Labor Bureau of Labor Statistics or any relevant successor for the Orange County area. The adjustment will be calculated using 100% CPI, from December of one year to December of the next year (e.g.,
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December 2024 to December 2025). Contractor must submit a written request by February 5th of every year for the City’s review and consideration.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Contractor shall maintain complete and accurate records with respect to the performance of Services. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 City Option for Termination for Cause. Repeated instances of failure to perform and/or continued disregard of the requirements of this Agreement shall result in cancellation of the Agreement. Specifically, the issuance of three (3) unsatisfactory reports to Contractor by City for noncompliance with material obligations in this Agreement in any six (6) month period shall be deemed a material breach of this Agreement and shall be grounds for the City to terminate this Agreement for cause. In the event of such material breach, City shall, at its option, notify Contractor of City’s intention to terminate this Agreement. City shall give notice of termination in writing, mailed to Contractor’s most recent address on file with the City.
Except in cases of emergencies, this Agreement shall be terminated ten (10) days from and after the hour such notice is deposited in the United States Mail in a sealed envelope properly addressed to Contractor and bearing prepaid first-class postage. In order for any termination to be effective, Contractor shall have at least five (5) days from the notice of intent to terminate to cure any alleged breach of Agreement.
3.5.1.2 Costs for Termination for Cause. In the event of the termination of this Agreement for any material breach or failure of performance on the part of Contractor, Contractor agrees to pay City upon demand the amount of any damage or loss sustained by City in the matter of street sweeping, including the advertising for and the vetting of another contractor. Therefore, Contractor shall pay City for all increases in the City’s cost of street sweeping incurred under such new contractor and for all costs and attorneys’ fees incurred by the City in the cancellation of this Agreement and the negotiation of such new street sweeping contract. The waiver of a breach of any of the terms of this Agreement shall not cancel or in any way affect the right of the City to declare a default for any recurrence of the same or any other breach of this Agreement.
3.5.1.3 Additional Options for Termination. Either party may request termination of this Agreement when conditions during the Agreement beyond the reasonable control of either party make it impossible to perform, or when prevented from proceeding with the contract (i) by act of God, (ii) by law, or (iii) official action of a federal, state, or local authority. Further, Contractor may terminate this Agreement (i) in the event the City Council fails to appropriate funds for a fiscal year sufficient to allow the City to make timely payments to the Agreement under this Agreement for such fiscal year (excluding any amounts in dispute); or (ii) in the event of nonpayment by the City. Any termination hereunder will require one-hundred and
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eighty (180) days written notice prior to Agreement termination date requested. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City a minimum of forty-five (45) working days to cure the alleged breach.
3.5.1.4 Return of Documents, Data, and other Information. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.5 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor: Arakelian Enterprises, Inc. dba Athens Services 14048 Valley Blvd.
Industry, CA 91746
ATTN: Steven Librenjak, Division Vice President
City: City Clerk
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714-647-6956
[email protected]
Courtesy Copies: Executive Director, Public Works Agency City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, CA 92702-1988
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 State mails, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, 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.
3.5.3 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
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3.5.4 Attorney’s Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.
3.5.5 Subcontractors. For the avoidance of doubt, the term “subcontractor” as used in this Agreement shall not include (i) third party operators or owners of waste disposal or processing facilities or (ii) subhaulers of waste.
3.5.6 Indemnification. Contractor shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, attorney fees and related costs and expenses, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner (i) to the extent arising out of or incident to any alleged acts, omissions, negligence or willful misconduct of Contractor, its officials, officers, employees, agents, consultants and contractors (ii) to the extent arising out of or in connection with the performance of the Services, the Project or this Agreement. Contractor shall defend, at Contractor’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse City and its officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.
3.5.6.1 Exception. Notwithstanding any provision in this Agreement to the contrary, Contractor shall not be required to defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage, or injury in law or equity to property or persons, including wrongful death, whatsoever, to the extent arising from or in connection to (i) any acts or omissions of third parties or (ii) the negligence, willful misconduct, violation of law, or breach of this Agreement by the City, its officials, officers, employees, volunteers and agents.
3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions of this Agreement, shall not bind or obligate the City or the Contractor. This Agreement may only be modified by a writing signed by both parties.
3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County.
3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
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3.5.10 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.5.12 Assignment or Transfer. Contractor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other considera- tion contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
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3.5.19 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, military and veteran status, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3. 5.20 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5.21 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.5.23 Non-appropriation. The City’s liability under this Agreement shall not exceed the City's appropriation to fund the Agreement. If the City Council fails to appropriate funds for a fiscal year sufficient to allow the City to make timely payments to the Agreement under this Agreement for such fiscal year (excluding any amounts in dispute), then the Contractor shall have the right to stop work until Contractor receives from City all past-due payments and evidence that sufficient funds have been appropriated by City. Any delay resulting from such suspension shall be deemed caused by the City. If requested by Contractor, the City shall provide information to the Contractor regarding the amounts appropriated for the Agreement.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
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signature page follows]
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EXHIBIT A
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Contractor shall perform services as set forth below.
I. IMPLEMENTATION
The Agreement will require the implementation schedule below. In addition to street sweeping services, sweeping of City owned surface parking lots may be requested. Currently, the street sweeping operation utilizes a minimum of five street sweepers and increases the fleet during leaf season or other high- volume periods of tree debris (e.g., leaf and jacaranda seasons).
City staff shall have the right to modify, add, reduce, or delete the amount of sweeping, schedules, routes, frequency, phases, standards and days of sweeping with prior notice to Contractor.
A. IMPLEMENTATION SCHEDULE:
ROUTE TYPE
CURB MILES
FREQUENCY
TOTAL ANNUAL
CURB MILES
Residential 647 Weekly 33,660
Arterials 214 2 x Week 22,300
Raised and Non-Raised Center Medians 215 2 x Month 5,148 Industrials 59 2 x Month 1,420
Downtown 11 5 x Week 2,920
Alleys 92 Weekly 4,789
Total Curb Mileage 70,237
II. PERFORMANCE ON SCHEDULE
The Contractor will be provided the latitude in establishing work schedules which correspond to the City's route schedules, manpower and equipment resources. The Contractor will be provided the opportunity to discuss with the City adjusting established schedules to meet special circumstances.
The City will make all final decisions pertaining to adjustment of schedules based on feasibility and efficiency with the goal of completing sweeping on the day scheduled.
III. CONTRACTOR REQUIREMENTS & RESPONSIBILITIES
I. WORK ASSIGNMENTS & SCHEDULE
The City will provide weekly route schedules to the Contractor. Routes schedules have been established to maximize efficiency and minimize impacts on residents, businesses and schools.
The Contractor shall submit a written sweeping schedule to the City Projects Manager or designee within fifteen (15) days of the effective date of the Agreement. This schedule shall clearly identify the sweeping tasks required by this agreement and days they are scheduled to be performed in each particular area. Contractor shall have ability to review and propose sweeping route modifications to the City for review as efforts to improve sweeping program efficiency. If it is necessary to make periodic revisions to this maintenance
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schedule, a modified schedule must be submitted for review to the Projects Manager or designee for approval prior to the date the changes are to take effect, but not less than 48-hours.
Otherwise, it is intended that the Contractor will develop a permanent schedule utilizing the information, route schedule and any other information provided by the City, which will allow the City to monitor the Contractor's progress. Failure to notify of a change and/or failure to perform an item of work on a scheduled day may result in deduction of payment for that date or week based on curb miles not swept if not cured within twenty-four (24) hours. On rainy days, normal sweeping operations should be considered in effect unless or until they are canceled by City Project Manager or designee. The designated Contractor holidays for this contract shall be New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving Day Holidays and Christmas Day Holidays.
The existing posted routes (days and times) will not be changed to accommodate Contractor.
The City reserves the right to change frequency of sweeping routes, modify routes with either reduction or addition of curb miles swept, and add new streets and routes to be swept.
II. ALTERNATIVE-FUEL SWEEPING EQUIPMENT
This solicitation for services will require alternative-fuel sweepers ONLY, as defined pursuant to Air Quality Management District (AQMD) Rule 1186.1 - alternative-fuel sweeper means a sweeper with engine(s) that use compressed or liquefied natural gas, liquefied petroleum gas (propane), methanol, electricity, or fuel cells. Hybrid-electric and dual fuel technologies that use diesel fuel are not considered alternative-fuel technologies for the purposes of Rule 1186.1.
III. STREET SWEEPING EQUIPMENT
1. The street sweeper or any relief sweeper used to perform this contract work shall:
a. Be AQMD and State (if applicable) approved alternative fuel. The Contractor shall be liable for all AQMD, State or Federal fines levied against the City relating to Contractor Street sweeping equipment violations.
b. Be a standard full size motorized sweeper equal to or larger than a Tymco 600, Schwarze model A7 or similar model with comparable hopper size, equal pick up abilities and with dual gutter brooms.
c. Equipment shall be maintained visually and operationally; br ushes and brooms are to be replaced regularly. The paint and body of the street sweeper shall be maintained in good condition with no visible rust or body damage.
d. Vehicle engines shall be routinely maintained to ensure a high level of service during street sweeping operations and comply with all State or California Department of Motor Vehicles CAL-OSHA and all other applicable codes required by the State, County, and City.
e. Equipment should arrive clean for each daily schedule. All equipment is subject to inspection by the City's Project Manager or other designated City Staff at any time. f. The Contractor shall provide a relief sweeper(s) to complete scheduled routes for each sweeper out of operation, broken down, scheduled for maintenance or any other similar situation.
g. The Contractor shall provide a listing of all sweepers and relief sweepers identifying:
i. Make, model, and year.
ii. Company identification unit number.
iii. California license number.
iv. Company vehicle colors.
v. Sweeper color, if different.
vi. Names of all operators to be used, California driver's license number, license class,
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expiration date and California DMV record for each driver. h. The Contractor will not be permitted to washout or clean hopper on any public street, alley or City owned parking lot.
2. The street sweeper or any relief sweeper shall be equipped with the following:
a. Rotating amber dome lights. All sweepers shall conform to all City, County, State and federal safety and environmental requirements.
b. DMV night traveling amber side, rear, and top lights or similar. c. Dual side gutter brooms having no less than 5" long bristles. d. A set of road trouble fluorescent triangles.
e. A radio or mobile phone.
IV. STREET SWEEPING SPEED
1. Street sweepers shall be operated at speeds no greater than eight (8) miles per hour, as will be indicated on tachograph charts, covered hereinafter.
2. Reviews by the City shall be made of all tachograph or Global Positioning System charts to check sweeping start - stop times, miles swept, and sweeping speeds. If at any time the City determines the sweeping speed has exceeded the agreed upon speed, the Project Manager or designee may require the Contractor to re -sweep any part of, or the entire sweeping route in question at no additional cost to the City.
3. Indications of any day's sweeping exceeding 8 miles per hour shall result in:
a. Notification after the first two occurrences to the contractor that he is in non-compliance.
Reduction in monthly payment by approximately eight (8) miles an hour of the current curb rate for each day that sweeping is recorded in excess of 8 miles per hour over an average of one hour per day.
V. QUALITY OF SWEEPING
A. The Contractor shall at all times use good sweeping practices in accordance with the standard of care specified in Section 3.2.7 of the Agreement and will make adjustments to its equipment as necessary, resulting in clean streets with no debris trails left behind.
During the fall and winter seasons or following a windstorm or seasonal Jacaranda tree flower drop in the spring, the Contractor is expected to complete all routes; therefore, the Contractor will be responsible for adjusting resources to ensure routes are completed (by but not limited to increasing sweepers/operators during the fall season). The sweeper must operate with dual brooms unless it is unfeasible. On occasion and as deemed reasonably necessary by City, this will require the complete width of the street, curb to curb, to be swept clean of debris. The Contractor must exercise due care to prevent spilling, scattering, or dropping of debris during the sweeping activity and shall immediately clean up any such spillage, dropping, or scattering.
Sweeping practices include the following:
1. Sweeping speed shall be adjusted to street conditions with a maximum speed of eight (8) miles per hour; and patterned concrete medians, intersections, and crosswalks shall be swept at a maximum speed of three (3) miles per hour.
2. Items impeding sweeping, such as palm fronds, rocks, and debris shall be removed from
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the sweeping path by the operat or rather than going around them. Immovable items that impede sweeping such as construction debris and areas of impaired vertical or horizontal clearance caused by tree limbs shall be reported to the Project Manager or designee immediately for correction.
3. Contractor is not responsible for areas missed due to parked cars or other personal property.
4. Standards, schedules, and frequencies may be modified from time to time as deemed necessary by the City to ensure the Contractor’s conformance with the standard of care specified in in Section 3.2.7 of the Agreement.
5. Due to different street widths throughout the City, street sweeping may require slower travel speed and/or multiple passes by the sweeper, in many cases, to ensure curb -to-curb coverage of the street.
6. Streets with raised medians (commercial and residential) shall have their curb -gutter perimeter swept, including turnouts.
7. Street grade striped medians shall be swept in their entirety.
8. All deposits within intersections shall be removed as part of the sweeping operations.
9. Each street shall be swept clean to the adjacent property line. If a swept area is deemed by the Project Manager or designee as failing to conform to the standard of care specified in in Section 3.2.7 of the Agreement, the substandard section shall be re-swept before the end of the day at no charge to the City.
The determination of acceptable performance in accordance with standard of care specified in in Section 3.2.7 of the Agreement is at the sole, reasonable discretion of the City. Contractor shall re-sweep at their own expense. The Project Manager or designee shall be notified of the completed re -sweep. Swept clean means clean street with debris trails left behind. Any sweeper used must not blow debris onto private property.
VI. GLOBAL POSITIONING SYSTEM (GPS)
1. The Contractor shall provide automatic vehicle location device (vehicle location and management system [e.g., GPS]) on all street sweeper units, including subcontractors.
This device shall be placed on all sweeping equipment assigned to the City at the Contractor's cost.
2. Contractor shall provide associated easy to use, cloud based software programs, which will report all street sweeping activity and is accessible from web browsers on a variety of desktop, laptop and mobile devices. The associated software shall be provided at no cost to the City including monthly monitoring charges. The Contractor shall provide software and licensing for a minimum of five (5) City users.
3. Software shall be capable of demonstrating real-time location, speed and path of travel of equipment equipped with GPS systems. Software shall be capable of recording and printing daily activity logs indicating actual miles traveled, streets swept, curb miles swept, brooms up or down, the direction and speed of travel, ground speed of equipment, the location of equipment at any given time and any other information that is suitable for documenting actual work performed by the Contractor under this agreement.
4. Contractor shall have a tachograph system to backup GPS in the event of a system failure and shall submit an initialed tachograph chart for any period of work with the monthly invoice for any day of work that the GPS system is non-operational.
5. Contractor shall provide adequate training on an annual basis for City staff in the operation and use of this system and allow City of Santa Ana Public Works Maintenance division
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employees access to login from any web browser.
6. Should any GPS device fail, or need repair, the Contractor shall immediately report that the GPS is inoperative to the City. If the Contractor's software or monitoring website fails, the Contract Administrator shall immediately notify the City. Contractor shall repair any non - operational portion of the system within two (2) busine ss days or liquidated damages will be deducted from payments due the Contractor for each twenty -four (24) hour period, or portions thereof, that the system is unavailable to the City.
VII. REQUIRED CONTRACTOR IDENTIFICATION SIGNAGE
City of Santa Ana Public Works Agency authorized contractors will be required to have identification signage on all vehicles at all times while working in an official capacity for the City.
Such signage shall be of a professional manner and maintained neat in appearance, free of graffiti, easily identifiable and in sound condition. All costs associated with the fabrication of such signage shall be borne by the Contractor. Such signage design shall be pre-approved by the City prior to production.
Signage type and material shall be plastic with magnetic backing, painted signage on vehicle or similar. Taped vehicle signage will not be allowed.
Such signage shall state Authorized Contractor, City of Santa Ana, Public Works Agency, name of Contractor and Contractor telephone number.
Signage Letter Minimum Size shall be three -inches for Authorized Contractor, City of Santa Ana and Public Works Agency. A minimum of one -inch height will be required for all other information.
VIII. FUELING OF SWEEPERS
The Contractor shall be responsible for fueling each sweeper and shall be ready to sweep at all scheduled times. The City highly encourages the Contractor to explore possibilities of purchasing fuel at the City Corporate Yard fueling station located at 220 S D aisy Ave, Santa Ana, CA 92703.
IX. SPECIAL SWEEPING
This contract shall require up to 400 annual curb miles of special sweeping at no additional cost for special events, parades, inclement weather sweeps, roadway hazards, spills (similar, but not limited to oil, paper, debris, etc.). These sweeps are not re-sweeps of an area not swept properly, but rather an additional sweep that is not part of the regular schedule. If appropriate, prior approval from City Projects Manager or designee is required.
X. PERFORMANCE DURING INCLEMENT WEATHER
1. The City shall determine when the sweeping operations should cease due to inclement weather or other reasons and will notify the Contractor immediately once decision is made.
2. During the periods when inclement weather hinders normal operations, the Contractor shall adjust their work force in order to accomplish those activities impacted by weather.
3. Failure to adjust the work force to show good progress on the work shall result in deduction of payments to reflect only the work actually accomplished.
XI. SUPERVISION OF CONTRACT AND MEETINGS WITH CITY
The Contractor shall furnish a Supervisor, not assigned to operate a sweeper. The function of
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the Supervisor will be to monitor the day -to-day operation to ensure thorough and timely completion of all routes. The Supervisor will redirect sweepers to return to areas that do not meet presentation standards. The Supervisor will procure additional sweepers or extend hours if necessary to stay on schedule and produce work in accordance with the standard of care specified in in Section 3.2.7 of the Agreement.
The Contractor shall furnish sufficient supervisory and working personnel capable of promptly accomplishing on schedule, to the satisfaction of the City's Project Manag er or authorized representative, all work required under the Contract.
All work shall meet with the approval of the City of Santa Ana Public Works Maintenance Services Division , whose approval shall not be unreasonably withheld . There shall be a minimum of one monthly meeting with the Contractor and the City representative to determine progress and to establish areas needing attention. A status report of activities performed and maintenance issues addressed by the Contractor will be submitted in writing to the City on a weekly basis.
Any specific problem area which does not meet the conditions of the specifications set forth herein shall be called to the attention of the Contractor and if not corrected, payment to the Contractor will not be made until condition is corrected in in accordance with the standard of care specified in in Section 3.2.7 of the Agreement.
XII. CONTRACTOR'S OFFICE
Contractor is required to maintain an office within a one (1) hour response time of the job site and provide the office with phone service during normal working hours. During all other times, a telephone answering service shall be utilized and the answering service shall be capable of contacting the Contractor by radio or cellular phone. Contractor shall have a maximum response time of sixty (60) minutes to all emergencies.
XIII. CONTRACTOR PERSONNEL
Contractor's employees shall be required to wear a clean uniform bearing the Contractor's name. Employees who normally and regularly come into direct contact with the public shall also bear some means of individual identification, such as a nametag or identification card.
Employees shall not remove any portion of their uniform while working within the City.
Employees driving the Contractor's vehicles shall at all times pos sess and carry a valid Commercial Driver's License as applicable issued by the State of California. Any person employed by the Contractor who fails or refuses to carry out the directions of the City, appears to be incompetent, acts in a disorderly, improper or unsafe manner, or shows signs of intoxication or other impairment shall be immediately removed from the job site by the Contractor. Prior to returning a removed employee to work within the City, the Contractor shall provide in writing the reaso n for the individual's behavior and the means used to prevent this behavior from occurring again. Failure of the Contractor to prevent, prohibit, or resolve problems with its employees working within the City will result in sweeping operations being suspended until further notice, and cause for contract termination. The City may enter a contract with another party for street sweeping services during such a suspension, and the Contractor will be liable for all costs.
XIV. LABOR STRIKE
It shall be the responsibility of each contractor to provide continuous contractual services, without any interruption. In case of any labor strikes, the Contractor shall provide other means, as its own cost, to provide a comparable continuous contractual service as if there were no
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strike. Failing to do so will cause the City, to take whatever action is deemed necessary to provide such service and the cost will be borne by the Contractor.
XV. SUBCONTRACTOR/JOINT VENTURES
The selected Contractor shall be the Prime Contractor performing the primary functions of the Agreement at all times which is street sweeping. If any portion of the Agreement is to be performed by a subcontractor for the Extra Work in Section 3.3.4 of the Agreement, this must be clearly set forth in the Proposal submittal as to what part(s) is/are to be delegated.
The City reserves the right to reject any Proposal wherein use of subcontractors significantly affects the ability of the Proposer to function as the Prime Contractor on the awarded Agreement. The Prime Contractor will at all times be responsible for the acts and errors or omissions of its subcontractors or joint participants and persons directly or indirectly employed by them. Acceptance or rejection of a Proposer's request to use subcontractors is at the approval of the City, which shall not be unreasonably withheld.
XVI. WORKING HOURS
All sweeping activities shall be completed according to established sweeping time windows as posted on City streets. Typically, sweeping operations should be completed by 3:30 PM, Monday through Friday unless prior approval is given by the City Projects Manager or designee.
Generally sweeping occurs no earlier than 4:00 AM, except in designated areas in which sweeping begins at 2:00 AM, such as the Downtown area. Approval and deviation of Contractor schedule will be at the sole discretion of the City.
XVII. INSPECTIONS
The Executive Director or his designee shall regularly inspect the streets and other City property subject to this Agreement to ensure that the work is being, and has been, performed in accordance with the terms identified in this agreement. All work found in such inspections not conforming to the applicable requirements shall be corrected by the Contractor.
XVIII. PROTECTION OF THE PUBLIC & DAMAGES TO EXISTING STRUCTURES
1. The Contractor shall exercise caution at all times for the protection of persons and property.
All fines, penalties and/or repair charges resulting from the Contractor's actions shall be the sole responsibility of the Contractor.
2. The Contractor shall not permit placing or use equipment in such a manner as to block vehicle traffic lanes or create safety hazards. The Contractor shall be responsible for the use of all appropriate warning traffic safety devices when deemed necessary.
3. Methods proposed by the Contractor and approved by the City shall not harm, deface or damage the streets being swept, street trees, sidewalks or street curbs. In the event that damaged to City right-of- way has occurred in the course of work, the Contractor shall be solely responsible for its repair or replacement.
XIX. SPECIFICATIONS
This scope of services is intended to cover all labor, material and standards of workmanship to be employed for in this work plan or reasonably implied by terms of same. Work or materials of a minor nature which may not be specifically mentioned, but which may be reasonably assumed as necessary for the completion of this work, shall be performed by the Contractor as if described in the specifications.
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XX. WATER
The City requires the Contractor to use water (recycled or potable water) when sweeping to reduce dust at all times. Therefore, the Contractor shall make the necessary arrangements to obtain an attachable portable water meter and a designated recycled water connector (if required) with the City's Water Resources Division to fulfill this Agreement's terms. The water meter will collect usage data for the City, but the Contractor will not be responsible for paying for water usage.
Contractor acknowledges that all sweepers must be equipped with, and all drivers must be instructed in the proper use of, approved hydrant wrenches and anti -surge/eddy valves and hydrant meters. In the event Contractor encounters an i noperable or "dead" fire hydrant, Contractor shall report hydrant's condition and location to the City Public Works, Maintenance Services Division, within twenty -four (24) hours. Backflow Preventers shall be used properly with all water filling equipment (NO EXCEPTIONS).
The use of recycled water is preferable to potable water. Recycled water fill station locations will provide by the City upon execution of the agreement. The Contractor will also have access to City fire hydrants to fill sweepers.
XXI. DEBRIS DISPOSAL
Disposal of debris at the City Corporation Yard and at City designated debris exchange zones will be permitted at no cost. Proposal pricing/fee shall not include any disposal fees. Debris disposal shall not be permitted onto the street.
The Contractor will be responsible for collection of incidental debris around trash container/bin resulting from disposal exchange within two-hours after exchange. Coordination will be made by the City Projects Manager or designee. The Contractor shall make ev ery effort to recycle materials.
XXII. SPILLS
1. The Contractor shall make additional passes on a street route to pick up any spillage of sweeping materials debris dropped during turns or crossings of cross gutters, prior to moving to the next area.
2. The equipment operator shall immediately stop in the event of equipment spillage such as a spillage of gasoline, diesel, motor oil, or hydraulic oil. A call for assistance must be made and the area cleaned within two hours. Failure to affect a proper cleanup will result in the City responding with Fire and Public Works Hazmat crews, and costs will be deducted from the following invoice to be paid. The quality of spill clean-ups shall be to the satisfaction of the City Projects Manager or designee.
XXIII. RECORDS
The Contractor shall keep accurate records concerning all of his/her employees or agents and provide the City with names and telephone numbers of emergency contact employees. The Contractor shall complete a monthly maintenance report indicating work performed, including GPS maps of routes swept and submit this completed report to the City Projects Manager or designee, This report should also contain a description of work performed, including man - hours, equipment, and any additional work, which the Contractor deems to be beyond the scope of the Agreement. Payment for this work will not be authorized unless the additional work and the costs thereof are first approved by the City. A phone log will be submitted monthly of all calls from the City of Santa Ana Public Works Agency Maintenance Services Division and the City of Santa Ana Police Department to the Contractor, identifying whether or not those calls require a request for service, and a description of the action taken from the City call.
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The Contractor shall provide monthly phone customer service logs from the public, indicating name, date, time and phone number of caller, reason for request, response/action by Contractor and time required to address request. Such logs shall be accurate and truthful.
The Contractor shall permit the City to inspect and audit its books and records regarding City- provided services at any reasonable time.
XXIV. AFTER-HOUR EMERGENCY SERVICES
The Contractor will provide the City with names and telephone numbers of at least two qualified persons who can be called by City representatives when emergency maintenance conditions occur during hours when the Contractor's normal work force is not present in the City. These Contractor representatives shall respond to said emergency within one (1) hour from receiving notification. The City anticipates the need for this service of up to five-occurrences per year.
XXV. MATERIALS AND EQUIPMENT
A. The Contractor shall make all reasonable effort to purchase equipment and materials In the City and to utilize Santa Ana vendors. Such efforts shall be provided to the City. The City shall have the ability to provide a list of possible Santa Ana vendors to the Contractor.
B. Contractor shall furnish all labor, equipment tools, and materials and supplies including Personal Protective Equipment (PPE), such as face mask respirator (N- 95) gloves, coverall suits, trash bags and the skills and training required to perform all services listed above and per Cal-OSHA requirements.
XXVI. CUSTOMER SERVICE
Contractor shall provide service, which is accessible, courteous, responsive, timely, equitable and given in the spirit of professionalism and mutual respec t. A Contractor equipment operator is an extension of the City of Santa Ana Public Works, and as suc h is expected to:
1. Interact with customers and City officials, whether in person or on the phone, in a pleasant, respectful and professional manner.
2. Give full attention to each customer's needs by asking questions. Provide information, products and service in an accurate, organized and complete manner. Determine that the customer's request has been fulfilled.
3. Comply with all federal, state, county, and city laws and regulations.
4. Use adequate equipment that is kept clean and neat at all times.
5. Train other Contractor employees to be polite and courteous during public contact.
6. Employ truth and accuracy in reporting customer service records.
XXVII. DEFINITIONS
1. Clean Street Condition - Clean streets with no debris trails left behind
2. Contractor - Refers to the individual, partnership, or corporation that is awarded a contract by the City upon conclusion of this RFP process.
3. City Holidays Observed - New Year's Day, Martin Luther King, Presidents' Day Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day After Thanksgiving, Christmas Eve and Christmas Day.
4. Curb Mile - measurement of curbing of streets and medians and equal to 5,280 linear feet.
5. Curb-to-Curb - area within the curb limits of the street including medians, intersections and
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street ends.
6. Debris - litter, rubbish, leaves, sand, debris trail, dirt, garbage, and other foreign material.
7. Inclement Weather - weather conditions that prohibit the effective operation of sweeping operations.
8. Linear Mile - measurement of actual miles driven in order to satisfactorily clean streets to the City standard, which may require multiple passes depending on condition and width of street.
9. Re-sweep - sweep required when previous sweeps are deemed by the City to be below standard or when a street or sections of a street are missed during regularly scheduled operation. Such re- sweeps will be at no additional cost with up to two re-sweeps performed to City satisfaction.
10. Special Sweeping (Sweeps) - sweeping involving special events, parades, inclement weather, roadway hazards, spills (similar, but not limited to oil, paper, debris, etc.) and City surface parking lots.
11. Street - all paved dedicated public rights-of-way within the existing or future City limits.
12. Sweeper - Sweeping machine.
13. Travel Speed - sweeper operator must maintain a speed of no more than eight (8) miles per hour, or other agreed upon speed by the City, while the sweeping broom is lowered in the operating position.
XXVIII. COMPENSATION
1. Invoices
a. The Contractor shall submit a monthly invoice by the 15th of the month to the City for the services rendered in the prior month.
b. All invoices for work performed under this contract shall be submitted electronically in a Microsoft Excel 2016 format or newer, or other format approved by the City Projects Manager or designee.
The invoice shall include the following information at a minimum:
i. Contractor's invoice number
ii. Beginning and ending dates for services
iii. City work order number (if applicable)
iv. Work site address/location (if applicable)
v. Unit cost, subtotals and total for invoice
vi. Curb miles swept authenticated by GPS reports and maps. vii. GPS Route Maps (if requested by City)
2. Payment
Payment by City shall be made in accordance with Section 3.3.2 of the Agreement.
3. Extra Work
No new work of any kind shall be considered an extra unless a separate estimate is given for said work and the estimate is approved by the City in writing before the work is commenced. The Contractor will be required to provide before and after photographs of safety items or emergency repairs. Documentation of contract compliance may be required on some occasions.
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XXIX. EMPLOYMENT OPPORTUNITIES FOR SANTA ANA RESIDENTS
Contractor shall solicit and advertise employment opportunities to Santa Ana residents. The City shall inform the Contractor of areas to publicize recruitment opportunities, such as work centers and community centers. Such effort and procedure will be provided to the City for review.
XXX. CONTRACTOR COMMUNITY EVENT PARTICIPATION AND PUBLIC AWARENESS Contractor shall participate in extensive public awareness efforts and community events and programs, such as neighborhood clean-up events and anti-litter campaigns. Such participation shall be upon City request provided with reasonable notice of event timing.
XXXI. FINES
The Contractor shall be liable for all violation fines levied against the City by, but not limited to, AQMD, State or Federal Agencies to the extent caused by Contractor’s performance of street sweeping services.
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EXHIBIT B
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14048 Valley Blvd, City of Industry, CA 91716
(888) 336-6100
July 31, 2023
Arturo Rodriguez
Assistant Public Works
Maintenance Manager
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
Subject: Sweeping of City Park’s Parking Lots Quote
Dear Mr. Rodriguez:
We are in receipt of your request for pricing/quote for the city park’s parking lots. After review of the aerial maps we have based our pricing on a per parking lot basis rather than curb mile, this approach takes into account the specific requirements and complexities of each of the parking lots listed. Please see pricing below.
Park Sites Rate Per
Hour*
Unit
(1xMonth)
Extended
Price
(Annual
Total)
1 Adams 250.00$ 12 3,000.00$
2 Bomo Koral 250.00$ 12 3,000.00$
3 Cabrillo 250.00$ 12 3,000.00$
4 Centennial 350.00$ 12 4,200.00$
5 Cesar Chavez
Campesino 250.00$ 12 3,000.00$
6 Delhi 350.00$ 12 4,200.00$
7 El Salvador 250.00$ 12 3,000.00$
8 Edna 250.00$ 12 3,000.00$
9 Heritage 250.00$ 12 3,000.00$
10 Jerome 250.00$ 12 3,000.00$
11 Madison 350.00$ 12 4,200.00$
12 Memorial 350.00$ 12 4,200.00$
13 Morrison 250.00$ 12 3,000.00$
14 Portola 250.00$ 12 3,000.00$
15 Riverview 250.00$ 12 3,000.00$
16 Rosita 350.00$ 12 4,200.00$
17 Santa Anita 250.00$ 12 3,000.00$
18 Carl Thornton 250.00$ 12 3,000.00$
19 Windsor 250.00$ 12 3,000.00$
Total 63,000.00$
* Per hour rate will be charged at the full hour.
City Council
11 –
129
8/29/2023
14048 Valley Blvd, City of Industry, CA 91716
(888) 336-6100
We ar
e offering you an hourly rate, as well as, an extended rate. We anticipate that some of these parking lots will involve manual labor, such as blowing of corners and raised medians which may require more time.
If yo
u have any further questions, please feel free to reach out to us. We are excited for this opportunity to continue being a proud partner to the City of Santa Ana and look forward to next steps.
Sinc
erely,
Matth
ew Niklas
Executive Vice President
City Council
11 –
130
8/29/2023
0.12 curb miles
City Council
11 –
131
8/29/2023
.3 curb miles
City Council
11 –
132
8/29/2023
.13 curb miles
City Council
11 –
133
8/29/2023
3.08 curb miles
City Council
11 –
134
8/29/2023
.09 curb miles
City Council
11 –
135
8/29/2023
.5 curb miles
City Council
11 –
136
8/29/2023
.24 curb miles
City Council
11 –
137
8/29/2023
.06 curb miles
City Council
11 –
138
8/29/2023
.14 curb miles
City Council
11 –
139
8/29/2023
.7 curb miles
City Council
11 –
140
8/29/2023
.3 curb miles
City Council
11 –
141
8/29/2023
.43 curb miles
City Council
11 –
142
8/29/2023
.1 curb miles
City Council
11 –
143
8/29/2023
.16 curb miles
City Council
11 –
144
8/29/2023
.23 curb miles
City Council
11 –
145
8/29/2023
.32 curb miles
City Council
11 –
146
8/29/2023
.11 curb miles
City Council
11 –
147
8/29/2023
.5 curb miles
.13 curb miles
.63 curb miles total
City Council
11 –
148
8/29/2023
.2 curb miles
City Council
11 –
149
8/29/2023
EXHIBIT C
City Council
11 –
150
8/29/2023
EXHIBIT C
Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below for the duration of this Agreement:
a. Minimum Scope and Limit of Insurance
(1) Commercial General Liability (CGL). Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
(2) Automobile Liability. ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with a limit no less than $1,000,000 per accident for bodily injury and property damage.
(3) Workers’ Compensation . As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(4) Broader Coverage. If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
b. Other Insurance Provisions
(1) Additional Insured Status . The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL pol icy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
(2) Primary Coverage. For any claims related to this contract, the Contractor’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers.
City Council
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151
8/29/2023
Any insurance or self -insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
(3) Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
(4) Waiver of Subrogation. Contractor hereby grants to City a waiver of any right to subrogation that any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
(5) Self-Insured Retentions . Self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
The policy language shall provide, or be endorsed to provide, that the self - insured retention may be satisfied by either the named insured or City.
(6) Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
(7) Verification of Coverage . Contractor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them.
The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
(8) Subcontractors. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.
(9) Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
City Council
11 –
152
8/29/2023
EXHIBIT D
City Council
11 –
153
8/29/2023
14048 Valley Blvd, City of Industry, CA 91716
(888) 336-6100
July 21st, 2023
Pedro Guillen, Deputy Public Works Director
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
Subject: Athens Proposal Update, RFP #23-007, Street Sweeping Services
Dear Mr. Guillen:
As you are aware, Athens Services and your staff have been engaged in ongoing negotiations across the past few months related to RFP #23-007, Street Sweeping Services.
I am happy to present the final aligned proposal that is poised to continue having Athens Services as key service provide in the City for years to come.
Notable Deal Points:
• Curb-Mile Rate ---------- $53.05
• Wages --------------------- Payment of Prevailing Wages (Teamsters or Future TBD Classification) • Parking: ------------------- SNA Corporate Yard, Existing Office, 8 Stalls • CPI: ------------------------- Actual CPI, No Cap, 100% CPI, No PPI • Term: ---------------------- 10 Year, 5 Year Option, 15 Year Potential • PI Freeze: ----------------- PI Freeze Reduced from 24 Months to 12 Months, First CPI Increase Would be 7/1/2025 • Water & Disposal: ----- Free Water & Disposal at City Yard • Contract Start: ---------- July 1st, 2024
Due to the Cities direction to pay prevailing wage and because there is no specific classification for municipal street sweeping (cleaning of gutters & arterials) and since the City did not provide specific guidance, we have elected to use the Teamsters classification. If the City feels another determination is better suited, we are open to that discussion.
Athens reserves the right in the future to adjust the selected classification. If there is a change in determination or classification directed by the DIR, Athens would deem that a change in law and require a potential adjustment to the accompanying curb-mile rate.
We are excited for this opportunity to continue being a proud partner to the City of Santa Ana and look forward to next steps.
Sincerely,
Steven D. Librenjak
Division Vice President
City Council
11 –
154
8/29/2023
14048 Valley Blvd, City of Industry, CA 91716
(888) 336-6100
July 21st, 2023
Pedro Guillen, Deputy Public Works Director
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
Subject: Athens Proposal Update, RFP #23-007, Street Sweeping Services Dear Mr. Guillen:
As you are aware, Athens Services and your staff have been engaged in ongoing negotiations across the past few months related to RFP #23-007, Street Sweeping Services.
I am happy to present the final aligned proposal that is poised to continue having Athens Services as key service provide in the City for years to come.
Notable Deal Points:
• Curb-Mile Rate ---------- $53.05
• Wages --------------------- Payment of Prevailing Wages (Teamsters or Future TBD Classification) • Parking: ------------------- SNA Corporate Yard, Existing Office, 8 Stalls • CPI: ------------------------- Actual CPI, No Cap, 100% CPI, No PPI • Term: ---------------------- 10 Year, 5 Year Option, 15 Year Potential • PI Freeze: ----------------- PI Freeze Reduced from 24 Months to 12 Months, First CPI Increase Would be 7/1/2025 • Water & Disposal: ----- Free Water & Disposal at City Yard • Contract Start: ---------- July 1st, 2024
Due to the Cities direction to pay prevailing wage and because there is no specific classification for municipal street sweeping (cleaning of gutters & arterials) and since the City did not provide specific guidance, we have elected to use the Teamsters classification. If the City feels another determination is better suited, we are open to that discussion.
Athens reserves the right in the future to adjust the selected classification. If there is a change in determination or classification directed by the DIR, Athens would deem that a change in law and require a potential adjustment to the accompanying curb-mile rate.
We are excited for this opportunity to continue being a proud partner to the City of Santa Ana and look forward to next steps.
Sincerely,
Steven D. Librenjak
Division Vice President
EXHIBIT 4
City Council
11 –
155
8/29/2023
14048 Valley Blvd, City of Industry, CA 91716
(888) 336-6100
Jul
y 31, 2023
Artu
ro Rodriguez
Assistant Public Works
Maintenance Manager
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92701
Subje
ct: Sweeping of City Park’s Parking Lots Quote
Dear M
r. Rodriguez:
We are in receipt of your request for pricing/quote for the city park’s parking lots. After review of the aerial maps we have based our pricing on a per parking lot basis rather than curb mile, this approach takes into account the specific requirements and complexities of each of the parking lots listed. Please see pricing below.
Park Sites Rate Per
Hour*
Unit
(1xMonth)
Extended
Price
(Annual
Total)
1 Adams 250.00$ 12 3,000.00$
2 Bomo Koral 250.00$ 12 3,000.00$
3 Cabrillo 250.00$ 12 3,000.00$
4 Centennial 350.00$ 12 4,200.00$
5 Cesar Chavez
Campesino 250.00$ 12 3,000.00$
6 Delhi 350.00$ 12 4,200.00$
7 El Salvador 250.00$ 12 3,000.00$
8 Edna 250.00$ 12 3,000.00$
9 Heritage 250.00$ 12 3,000.00$
10 Jerome 250.00$ 12 3,000.00$
11 Madison 350.00$ 12 4,200.00$
12 Memorial 350.00$ 12 4,200.00$
13 Morrison 250.00$ 12 3,000.00$
14 Portola 250.00$ 12 3,000.00$
15 Riverview 250.00$ 12 3,000.00$
16 Rosita 350.00$ 12 4,200.00$
17 Santa Anita 250.00$ 12 3,000.00$
18 Carl Thornton 250.00$ 12 3,000.00$
19 Windsor 250.00$ 12 3,000.00$
Total 63,000.00$
* Per hour rate will be charged at the full hour.
EXHIBIT 5
City Council
11 –
156
8/29/2023
14048 Valley Blvd, City of Industry, CA 91716
(888) 336-6100
W
e are offering you an hourly rate, as well as, an extended rate. We anticipate that some of these parking lots will involve manual labor, such as blowing of corners and raised medians which may require more time.
If
you have any further questions, please feel free to reach out to us. We are excited for this opportunity to continue being a proud partner to the City of Santa Ana and look forward to next steps.
S
incerely,
M
atthew Niklas
Executive Vice President
City Council
11 –
157
8/29/2023
0.12 curb miles
City Council
11 –
158
8/29/2023
.3 curb miles
City Council
11 –
159
8/29/2023
.13 curb miles
City Council
11 –
160
8/29/2023
3.08 curb miles
City Council
11 –
161
8/29/2023
.09 curb miles
City Council
11 –
162
8/29/2023
.5 curb miles
City Council
11 –
163
8/29/2023
.24 curb miles
City Council
11 –
164
8/29/2023
.06 curb miles
City Council
11 –
165
8/29/2023
.14 curb miles
City Council
11 –
166
8/29/2023
.7 curb miles
City Council
11 –
167
8/29/2023
.3 curb miles
City Council
11 –
168
8/29/2023
.43 curb miles
City Council
11 –
169
8/29/2023
.1 curb miles
City Council
11 –
170
8/29/2023
.16 curb miles
City Council
11 –
171
8/29/2023
.23 curb miles
City Council
11 –
172
8/29/2023
.32 curb miles
City Council
11 –
173
8/29/2023
.11 curb miles
City Council
11 –
174
8/29/2023
.5 curb miles
.13 curb miles
.63 curb miles total
City Council
11 –
175
8/29/2023
.2 curb miles
City Council
11 –
176
8/29/2023
Public Works Agency
www.santa-ana.org/public-works
Item # 12
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
August 29, 2023
TOPIC: Agreement with the Legacy Fund for Use of 10th Street
AGENDA TITLE
Approve a License Agreement with The Legacy Fund for Use of 10th Street Right of Way (Non-General Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute a license agreement with The Legacy Fund, a nonprofit public benefit organization, for use of public right-of-way on 10th Street between Main Street and Sycamore Street for improvements for the use and benefit of Orange County School of Arts students, staff, and faculty, for a 10-year term with two optional five-year extensions, with a $3,000 annual license fee paid to the City, subject to non-substantive changes approved by the City Manager and the City Attorney.
DISCUSSION
On September 5, 2000, the City Council adopted Resolution No. 2000-059 closing the portion of 10th Street between Main Street and Sycamore Street to vehicular traffic.
Since then, this portion of 10th Street has been closed to traffic and primarily used as a loading zone and pedestrian area by Orange County School of the Arts (OCSA) students, faculty, and staff (Exhibit 1). On December 11, 2020, OCSA transferred ownership of land that the school sits on to The Legacy Fund (TLF), a nonprofit public benefit corporation. TLF operates for the benefit of OCSA.
On October 24, 2022, TLF submitted plans for various improvements at the OCSA campus known as the Campus Green project. As part of this proposed project, OCSA is requesting to make improvements on the closed portion of 10th Street including installing new street trees, moveable outdoor furniture, and painting graphics on the street surface for the use and benefit of their students, staff, and faculty (Exhibit 2). The cost of the proposed improvements will be paid for and maintained by TLF. The City and TLF must enter into a License Agreement (Exhibit 3) to document TLF’s right to improve, use, and maintain the area, to resolve liability issues, identify insurance requirements, and to prescribe terms of indemnification of the City by the TLF.
City Council
12 –
1 8/29/2023
Agreement with the Legacy Fund for Use of 10th Street
August 29, 2023
3 6
7 8
The Public Works Agency recommends approving the proposed license agreement as the proposed use is consistent with existing uses. The agreement resolves liability concerns and the proposed improvements will improve the quality of life for the community, and will not prohibit existing drainage, pedestrian access, or other beneficial public uses of the space. The City retains the right and ability to re-open this portion of 10th Street to vehicular access at any time with appropriate notice as defined in the proposed License Agreement.
FISCAL IMPACT
For their use of the public right-of-way, TLF shall pay the City $3,000 annually. Funds will be deposited into the Residential Street Improvement Revenue Fund, Rental of Property Account (No. 05817002-57960) and be budgeted for use in future residential street improvement projects.
EXHIBIT(S)
1. Location Map
2. Proposed Improvements
3. License Agreement
Submitted By: Nabil Saba, Executive Director of Public Works Approved By: Kristine Ridge, City Manager
City Council
12 –
2 8/29/2023
N
(NTS)
LEGEND:
EXHIBIT 1
PWA
SANTA ANA
PUBLIC WORKS AGENCY
PROPOSED LICENSED AREA
WITH THE LEGACY Fund
LICENSE AGREEMENT
PAGE 1 OF 1
S
Y
C
A
M
O
R
E
S
T
R
E
E
T
10TH STREET MAIN STREET
005-185-31
398-562-08
EXHIBIT 1
City Council
12 –
3 8/29/2023
Long Beach, CA | 562.901.1500 | studio-111.com
09.30.2022Client
Howard CDM
17434 Bellflower Blvd., #300, Bellflower, CA 90706
Campus Green and Student Lounge
1010 N Main St, Santa Ana, CA 92701
Project
A3
16.242
Development Project Review
Site Plan
1 19'-7"22'-5"22'-0"22'-0"22'-0"18'-0"14'-0"
140'-0"
25'-0"25'-0"25'-0"25'-0"24'-0"
209'-7"
J
22'-8"22'-8"18'-0"
2 3
4 5
6 7
8 IHGE FDCBA
22'-8"
UP
UP
DN
UP
DN
DN DNDNDN DN
UP
DN
LIMIT OF WORK
LIMIT OF WORK
LIMIT OF WORK
LIMIT OF WORK
LIMIT OF WORK
LIMIT OF WORK
E E E
LEVEL 1 IMPROVEMENT
PER A5 SHEET
MEDIA & ARTS
CENTER
HUMANITIES
BLDG.
THE ANNEX
MAIN STREET
SYCAMORE
STREET
10 TH STREET
N
10' 20' 40'0'1"=20'
SITE PLAN1 SCALE:
L1.00
SITE PLAN
16'-0"
PA
1 LANDSCAPE
KEYNOTES
1. CONCRETE PAVING WITH EQUALLY SPACE SCORE JOINTS.
2. CONCRETE PAVING WITH ENHANCED FINISH AT PLAZA
3. NOT USED
4. ARTIFICIAL TURF
5. NOT USED
6. ARTIFICIAL TURF EDGE TRANSITION AT TREE TRUNK
7. DESIGN BUILD 6'-11" HT. METAL PERIMETER ENCLOSURE FENCE WITH SCREEN MESH, REFER TO RENDERING VIEW ON SHEET A9 FOR DESIGN INTENT. ***
8. DESIGN BUILD SHADE PAVILION, REFER TO RENDERING VIEW ON SHEET A11
FOR DESIGN INTENT
9. DESIGN BUILD SHADE SCULPTURE, REFER TO RENDERING VIEW ON SHEET A16 FOR DESIGN INTENT
10. DESIGN BUILD GRAND STAIR WITH METAL RISER AND CONCRETE INFILL.
REFER TO RENDERING VIEW ON SHEET A12 FOR DESIGN INTENT. GROUND LEVEL TO 2ND FLOOR PATIO.
11. 8'X40' CONTAINER SET ON MAT SLAB
12. 8'X40' CONTAINER 'HOT BOX' WITH POWER UTILITIES
13. CONTRACTOR TO DESIGN BUILD 6'-11" HT. DOUBLE GATE PEDESTRIAN ACCESS WITH SCREEN MESH.
14. CONTRACTOR TO DESIGN BUILD 6'-11" HT. METAL SLIDING GATE ACCESS WITH SCREEN MESH.
15. RELOCATED VENDING MACHINES PER OWNER.
16. STAGE PER OWNER
17. OVERHEAD SHADE FABRIC WITH CABLE ATTACHMENTS TO BUILDING FACE
TO BUILDING FACE
18. SITE FURNISHING PER OWNER
19. PAINTED GRAPHIC OVER STREET SURFACE.
20. INSTALL NEW (SYCAMORE) STREET WITHIN ROW WALK. CUT 5'-0"x4'-0" TREE WELL WITH DEEP ROUTE IRRIGATION AND ROOT BARRIER.TREE SELECTION PER CITY SUPERVISOR. REPAIR AND REPLACE CONCRETE WALK AS
REQUIRED PER CITY STANDARD
21. INSTALL NEW (10TH) STREET TREE EQUALLY SPACED WITHIN ROW WALK.
CUT 5'-0"x3'-0" TREE WELL WITH DEEP ROUTE IRRIGATION AND ROOT BARRIER. TREE SELECTION PER CITY SUPERVISOR. REPAIR AND REPLACE
CONCRETE WALK AS REQUIRED PER CITY STANDARD
22. CAFE TRAILER PER OWNER
23. CONSTRUCT NEW CURB AND GUTTER PER CITY STANDARD
24. REMOVE AND REPLACE EXISTING DRIVE APRON. INSTALL CONCRETE WALK PER CITY STANDARDS.
25. 18" HT. CAST IN PLACE CONCRETE PLANTER SEAT WALL (24" WIDE) NOTES:
A. BUILDING OVERHANG
B. PAVING UNDER BREEZEWAY
C. ALL WALKS TO MAINTAIN 5'-0" MIN WIDTH
D. PAINTED MURAL WALL OWNER
E. DONOR WALL PER OWNER
F. ACCESSIBLE 2ND LEVEL ACCESS. ELEVATOR LOCATION
G. PRIVATE EASEMENT
H. LOT LINES
I. FDC LOCATION PER ARCHITECTURE SHEETS
J. ACCESSIBLE ROUTE FROM ADA PARKING STALL TO CAMPUS GREEN K. CONCRETE WALK UNDER STAIR. 10'-0" OVERHEAD CLEAR MIN.
EXISTING KEYNOTES
E1. (E) TREE PROTECT IN PLACE
E2. (E) BUILDING COLUMN. REPAIR AND REPAINT ANY DAMAGE AREA FROM
PAVING REMOVAL
E3. (E) UTILITY PULL BOX. PROTECT IN PLACE AND ADJUST LID TO GRADE, E4. (E) FIRE HYDRANT. PROTECT IN PLACE
E5. (E) P.I.U SERVICE. PROTECT IN PLACE
E6. (E) CURB PROTECT IN PLACE
JOB NO. 21-127
ORANGE
COUNTY
SCHOOL OF
THE ARTS
CAMPUS GREEN
# DATE ISSUE
NOT ISSUED FOR CONSTRUCTION
1010 N. MAIN ST.
SANTA ANA, CA 92701
PA
PA
PA
PA PA PA PA PA
PA
PA
PA
PAPA
PAPA
PA
PA
PA
E1 E1 E1
E4
E3
E2
E2
68'-0"
24'-0"
G G
H H
H
B
E
D
A
A
F
1 1
2 3
4 4
4 6
7 7
7 7
8 9
10 11 11 11 11 11
1112
13 13
13 13
14 15
25 16
17 18
18 19
20 21
22 24 24 24
OPEN OPEN
E4
J
44'-8"
9'-0"
64'-5" 70'-0" 14'-9" 38'-4" 19'-3"
7319'-7"8'-2"
K
14'-9"
TYP.
27'-0"
7'-3"
8'-0"
3986'-9"
47'-6" 47'-6" 47'-6" 52'-5"
194'-6" 158'-0"27547'-4"
249'-7"
20'-0"
R152'-7"
120'-9"
25'-0"
E4
E4
E6
E6
E6 E6 E6
10'-0"
3'-0"
TYP.
12'-0"
21'-0"19'-0" 19'-2"
16'-3"
47'-5"
42'-0"33'-0"
25'-4"
7'-4"
PA
25 10'-0"
16'-6"
41'-11"4'-3"
10'-7"
16'-0"
40'-0"
40'-0"
TYP.
127'-11"158'-7"
87'-3"
88'-1"
13'-0"
26'-1"14'-9"
14'-6" 8'-8"
8'-0"
EXHIBIT 2
City Council
12 –
4 8/29/2023
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is dated as of August 29, 2023, and entered into by and between the CITY OF SANT A ANA, a charter city and municipal corporation existing under the Constitution and laws of the State of California ("City"), and The Legacy Fund ("Licensee"), a California non-profit public benefit corporation.
RECITALS
A. Licensee owns that certain real property located at 921 North Main Street and 1000 North Main Street, described as Parcel 2 of Lot Line Adjustment No. 2014-01, Instrument Number 2014000501842, Official Records, Orange County (APN 005-185-34), and a portion of Lot 9 of the Columbia Tract, Book 7, Page 17 of Miscellaneous Maps, Official Records, Orange County (APN 398- 562-09), which is occupied by Licensee as part of the Orange County School of the Arts (hereinafter OCSA) campus.
B. City owns or has an easement for public street/road purposes along, above and under the public street commonly known as Tenth Street (hereinafter "Streef'), which was granted or dedicated to the City on documents recorded in Book 105, Page 369 of Deeds, and as Instrument Number 2009000365812 of Official Records, and as Instrument Number 2009000365808, of Official Records, all in the Office of the County Recorded of County of Orange, State of California (hereinafter "Public Right of-Way").
C. The Street is located between Sycamore Street and Main Street, which abuts the OCSA Campus, as depicted on Exhibit A (hereinafter "License Area'').
D. Licensee desires to use the License Area for purposes of installing the Area Improvements (as defined below) and allowing OCSA students, faculty and school staff to occupy License Area to eat lunch, rest in between classes, present outdoor performances, host festivals and school club activities, conduct campus emergency drills, and facilitate community engagement activities ("Permitted Uses"). Area Improvements include the installation of trees, painted graphics over street surfaces, traffic gates, placement of moveable outdoor :furniture, equipment, and materials (hereinafter "Area Improvements") as set forth and identified in Exhibit B, attached hereto and incorporated herein by this reference.
E. The City has agreed to grant Licensee a license to use the License Area, on the terms and conditions set forth in this Agreement.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. License. The City hereby grants to Licensee a nonexclusive license for the right to enter and use the License Area beginning on August 15, 2023, for the Permitted Uses descnbed in Recital D, upon the terms and conditions set forth herein ("License"), subject to Licensee's performance of all of its obligations under this Agreement. This License shall remain in effect until August 14, 2033, unless extended in writing by the Executive Director of the Public Works Agency, or his or her designee. The License may be extended up to five years, up to two times. In no case, under this agreement, shall the license be extended beyond August 14, 2043. The License may be terminated by City upon thirty (30) days written notice. This Agreement is intended and shall be construed only as a revocable license to use the License Area and not as a lease or grant of any possessory or other interest. 1 EXHIBIT 3
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Parks, Recreation, and Community Services
www.santa-ana.org/departments/parks-recreation/
Item # 13
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
August 29, 2023
TOPIC: Agreement with Volcan Advertising & Entertainment for Music Entertainment at the Fiestas Patrias Event
AGENDA TITLE
Approve Agreement with Volcan Advertising & Entertainment for Music Entertainment at the Fiestas Patrias Event in the Amount of $122,000 (General Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute an agreement with Volcan Advertising & Entertainment to provide musical entertainment at the Fiestas Patrias event, in the amount of $122,000, beginning August 29, 2023 through September 30, 2023, subject to non-substantive change approved by the City Manager and City Attorney.
DISCUSSION
The Fiestas Patrias event has been an annual attraction for the downtown community and surrounding neighborhoods. It attracts thousands of Santa Ana residents and visitors from Orange County and the Southern California region. The purpose of this event is to celebrate through a safe, family-friendly event that includes: live entertainment, food booths, informational/resource booths, merchandise/service booths, cultural exhibits, and carnival rides/games.
The City of Santa Ana Parks, Recreation, and Community Services Agency (PRCSA) has been working to bring together the elements needed to produce this year’s Fiestas Patrias event and has entered into agreements with various vendors to provide the necessary equipment, stages, and entertainment.
The City recommends entering into an agreement with Volcan Advertising & Entertainment to provide four musical performances at this year’s event: Los Sebastianes, Kumbia All Starz, Graciela Beltran, and Marilyn Odessa.
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Agreement with Volcan Advertising & Entertainment for Music Entertainment at the Fiestas Patrias Event.
August 29, 2023
3 6
8 3
FISCAL IMPACT
Funds are budgeted and available in the following account for the specified year:
Fiscal
Year
Accounting Unit-
Account #
Fund
Description
Accounting Unit, Account
Description
Amount
FY 22-23 01113230-62300 General Fund PRCSA-Recreation and Community Services-
Contractual Services
Professional
$122,000
EXHIBIT(S)
1. Agreement
Submitted By: Hawk Scott, PRCSA Executive Director
Approved By: Kristine Ridge, City Manager
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AGREEMENT WITH VOLCAN ADVERTISING AND ENTERTAINMENT TO
PROVIDE LIVE PERFORMANCES AT CITY’S 2023 FIESTAS PATRIAS EVENT THIS AGREEMENT is made and entered into this 29th day of August, 2023, by and between Volcan Advertising and Entertainment , a California corporation (“Contractor”), 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 contractor to provide live performances at the City’s Fiestas Patrias Event on September 16 & 17, 2023.
B. Contractor represents that Contractor is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
a. Contractor shall provide a performance by musical artist Marilyn Odessa (“Artist”), as further detailed in Exhibit A, for the City’s Fiestas Patrias Event on September 16, 2023. Contractor shall ensure that Marilyn Odessa provides a sixty (60) minute live
musical performance, beginning at or around 7:45 p.m. PST at the location specified, in writing, by City staff.
b. Contractor shall provide a performance by musical artist Kumbia All Starz (“Artist” or collectively as “Artists”), as further detailed in Exhibit B, for the City’s Fiestas Patrias Event on September 16, 2023. Contractor shall ensure that Kumbia All Starz provides a sixty (60) minute live musical performance, beginning at or around 9:00 p.m. PST at the location specified, in writing, by City staff.
c. Contractor shall provide a performance by musical artist Graciela Beltran (“Artist” or collectively as “Artists”), as further detailed in Exhibit C, for the City’s Fiestas Patrias Event on September 17, 2023. Contractor shall ensure that Banda Los Sebastianes provides a sixty (60) minute live musical performance, beginning at or around 6:45 p.m. PST at the location specified, in writing, by City staff.
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d. Contractor shall provide a performance by musical artist Banda Los Sebastianes (“Artist” or collectively as “Artists”), as further detailed in Exhibit D, for the City’s Fiestas Patrias Event on September 17, 2023. Contractor shall ensure that Banda Los Sebastianes provides a sixty (60) minute live musical performance, beginning at or around 8:00 p.m. PST at the location specified, in writing, by City staff.
e. Contractor must provide song list of family friendly, clean edit songs with lyrics to be approved by the City of Santa Ana prior to performance.
2. COMPENSATION
a. City agrees to pay, and Contractor agrees to accept as total payment for its services for City, including all travel expenses and performances by Artists, the rates and charges identified in Exhibits A, B, C, and D. The total amount to be expended under this Agreement shall not exceed One-Hundred Twenty-Two Thousand Dollars and Zero Cents ($122,000).
b. Union fees, manager and/or agent commissions, and insurance obligations are part of the cost of production and City shall not be liable or responsible for any such payments under this Agreement.
c. Contractor will be responsible for paying the Artists procured pursuant to this Agreement directly and will be responsible for compliance with all applicable wage and hour laws, tax withholding, and any other applicable laws. Contractor agrees to indemnify, hold harmless, and defend the City, its officials, employees, agents and volunteers from any claim or lawsuit wherein it is alleged that Artist(s) retained pursuant to this Agreement were not paid; not paid what was owed; or any wage, hour or tax obligation which is alleged to have resulted pursuant to this Agreement. d. Payment of deposit for Marilyn Odessa of Six Thousand Dollars and Zero Cents ($6,000) shall be processed upon execution of Agreement and receipt of an invoice by the City, subject to City accounting procedures. e. Payment of deposit for Kumbia All Starz performance of Twenty-Three Thousand, Five Hundred Dollars and Zero Cents ($23,500) shall be processed upon execution of Agreement and receipt of an invoice by the City, subject to City accounting procedures.
f. Payment of deposit for Graciela Beltran performance of Seven Thousand, Five Hundred Dollars and Zero Cents ($7,500) shall be processed upon execution of Agreement and receipt of an invoice by the City, subject to City accounting procedures.
g. Payment of deposit for Banda Los Sebastianes performance of Twenty-Four Thousand Dollars and Zero Cents ($24,000) shall be processed upon execution of
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Agreement and receipt of an invoice by the City, subject to City accounting procedures.
h. Remaining balances for Artists’ performances shall be paid on the day of the event, subject to City accounting procedures.
i. Contractor agrees that if for any reason, performer selected by Contractor and approved by the City, is unable to perform at the scheduled City event or does not appear, Contractor will immediately refund any monies paid to it for the performer’s services at the specified City event. Contractor will bear the sole risk and responsibility of recouping any damages incurred by Contractor as the result of performer failing to attend or being unable to attend. If the City and Contractor can come to a mutual agreement regarding the services of an alternative performer for the specified City event within a reasonable amount of time prior to the event, Contractor will be obligated to repay only the portion of the funds previously paid, in excess of the agreed upon fees for the alternative performer, if any. j. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above and terminate on September 30, 2023, unless terminated earlier in accordance with Section 17, below.
4. ROYALTY-FREE LICENSE
The City shall have the right and royalty -free license to simulcast or produce and show a tape-delayed broadcast of the Artists ’ performance to the City community or general public, through the internet or any other means. This license shall be non -exclusive and the copyright shall remain with the Artists. Copies of Artists’ performance may be maintained by the City, and Artists consent to use of such recordings.
5. INDEPENDENT CONTRACTOR
Contractor 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 relationsh ip, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor 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.
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6. INSURANCE
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, their agents, representatives, employees or subcontractors.
a. Minimum Scope and Limit of Insurance:
1. Commercial General Liability Insurance . Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Worker’s Compensation Insurance. In accordance with California State law, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer’s liability insurance with limits not less than $1,000,000 per accident.
4. Broader Coverage. If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
b. Other Insurance Provisions
1. Additional Insured Status. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
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2. Primary Coverage. For any claims related to this contract, the Contractor’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
4. Waiver of Subrogation. Contractor hereby grants to City a waiver of any right to subrogation that any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
5. Self-Insured Retentions. Self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City.
6. Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
7. Verification of Coverage. Contractor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them.
The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
8. Subcontractors. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.
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9. Special R isks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
7. RELEASE
Contractor, on behalf of Artists, accepts any City-provided equipment used in connection with the performance in their “as -is” condition, with all faults. Contractor, on behalf of Artist s, fully releases, waives and discharges forever any and all claims, demands, rights, and causes of action of any kind or nature against, and covenants not to sue, City, its elected officials, officers, employees, agents and volunteers, and all persons acting on behalf of, by, through or under each of them, under any present or future laws, statutes, or reg ulations for any claim or event relating to the condition of the City-provided equipment or Artists’ use thereof.
8. INDEMNIFICATION
Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor or its subcontractors, agents, employees, or other persons acting on their 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 terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reaso n of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for speci al counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding.
Notwithstanding the foregoing, to the extent Contractor’s services are subjec t 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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.
9. INTELLECTUAL PROPERTY INDEMNIFICATION
Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney’s fees, for infringement of any United States’ letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement.
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10. RECORDS
Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under th is 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 Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor 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. Contractor 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 Contractor under this Agreement.
11. CONFIDENTIALITY
If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed b y the Contractor without reference to information disclosed by the City.
12. CONFLICT OF INTEREST CLAUSE
Contractor 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.
13. 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)
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P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With copy to: Executive Director
Parks, Recreation, and Community Services Agency
City of Santa Ana
20 Civic Center Plaza (M-23)
P.O. Box 1988
Santa Ana, California 92702
To Contractor: Volcan Advertising & Entertainment
Attn: Bobby Nava, Marketing Director
4959 Palo Verde St. Suite B203-B
Montclair, CA 91763
909-629-5252
[email protected]
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 fax, 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 pur poses of calculating these timeframes, weekends, federal, state, County or City holidays shall be excluded.
14. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Contractor 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. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor 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 are not embodied herein.
15. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor 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
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be construed to limit the City’s ability to have any of the services that are the sub ject to this Agreement performed by City personnel or by other consultants retained by City.
16. 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.
17. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, except that p ayment need not be made for work that fails to meet t he standard of performance specified in the Recitals of this Agreement.
18. NON-DISCRIMINATION
Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gende r, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations.
19. 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.
20. PROFESSIONAL LICENSES
Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of Ca lifornia, the City of Santa Ana and all other governmental agencies. Contractor 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.
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RECOMMENDED FOR APPROVAL
____________________________
Hawk Scott
Executive Director
Parks, Recreation, and Community Services Agency
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EXHIBIT A
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TALENT CONTRACT Date: 8/04/2023
Contract # 119781
Volcan Advertising &
Entertainment
4959 Palo Verde St, Suite 203-B
Montclair, CA 91763
(909) 629-5252
[email protected]
To Monique Leon
City Of Santa Ana
20 Civic Center Plaza,
P.O. BOX
1988 Santa Ana, CA,
92707
A c t i v i t y B u s i n e s s P a y m e
n t T e r
m s
D u e D a t e
Participant Marilyn Odessa Due on receipt Open
Event: Fiesta Patrias Santa Ana
Dates: Saturday, September 16th, 2023, from 7:45 PM to
8:45 PM
Location: 602 N. Flower Street Santa Ana, CA 92703
This Package Includes:
1 Hour Presentation of Marilyn Odessa in the city of Santa Ana.
Address 602 N. Flower St Santa Ana, Ca 92703.
Marilyn Odessa Performance Schedule: Saturday, September 16th from 7:45 pm – 8:45 pm Presentation with Banda.
Total Cost for Presentation: $12,000.00
Signature: Date:
Upon signing this contract, the Client must make a deposit of 50% to secure the artist for the desired date and time. If at any time the client wishes to cancel the scheduled presentation. The deposit of 50% is nonrefundable. No refunds. No exceptions. If the artist wants to re-negotiate another event with the client, it will be up to the artist. Otherwise, you will lose your deposit.
The balance must be paid 1 week prior to the event or on the day of the event prior to the artist going on stage. If you choo se to pay on the day of the event unless another agreement is made. 50% Deposit: $6,000.00
Balance Due 1 Day Prior to Event:
Total: $12,000.00
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EXHIBIT B
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TALENT CONTRACT Date: 7/14/2023
Contract # 119788
Volcan Advertising &
Entertainment
4959 Palo Verde St, Suite 203-B
Montclair, CA 91763
(909) 629-5252
[email protected]
To Monique Leon
City Of Santa Ana
20 Civic Center Plaza,
P.O. BOX
1988 Santa Ana, CA,
92707
A c t i v i t y B u s i n e s s P a y m e n t
T e r m s D u e D a t e
Participant KUMBIA ALL STARZ Due on receipt Open
Event: Fiesta Patrias Santa Ana
Dates: Saturday, September 16th, 2023, from 9PM to 10PM Location: 602 N. Flower Street Santa Ana, CA 92703
This Package Includes:
Presentation of Kumbia All Starz in the city of Santa Ana.
Address 602 N. Flower St Santa Ana, Ca 92703.
Kumbia All Starz Performance Schedule: Saturday, September 16th from 9:00 pm – 10:00 pm.
Signature: Date:
Upon signing this contract, the Client must make a deposit of 50% to secure the artist for the desired date and time. If at any time the client wishes to cancel the scheduled presentation. The deposit of 50% is nonrefundable.
No refunds. No exceptions. If the artist wants to re -negotiate another event with the client, it will be up to the artist. Otherwise, you will lose your deposit. The balance must be paid 1 week prior to the event or on the day of the event prior to the artist going on stage. If you choose to pay on the day of t he event unless another agreement is made.
50% Deposit: $23,500.00
Balance Due 1 Day Prior to Event:
Total: $47,000.00
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EXHIBIT C
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TALENT CONTRACT Date: 8/04/2023
Contract # 119782
Volcan Advertising &
Entertainment
4959 Palo Verde St, Suite 203-B
Montclair, CA 91763
(909) 629-5252
[email protected]
To Monique Leon
City Of Santa Ana
20 Civic Center Plaza,
P.O. BOX
1988 Santa Ana, CA,
92707
A c t i v i t y B u s i n e s s P a y m e n t
T e r m s D u e D a t e
Participant Graciela Beltran Due on receipt Open
Event: Fiesta Patrias Santa Ana
Dates: Sunday, September 17th, 2023, from 6:45 PM to
7:45 PM
Location: 602 N. Flower Street Santa Ana, CA 92703
This Package Includes:
Presentation of Graciela Beltran in the city of Santa Ana.
Address 602 N. Flower St Santa Ana, Ca 92703.
Graciela Beltran Performance Schedule: Sunday, September 17th from 6:45 pm – 7:45 pm Presentation with Mariachi.
Total Cost for Presentation: $15,000.00
Signature: Date:
Upon signing this contract, the Client must make a deposit of 50% to secure the artist for the desired date and time. If at any time the client wishes to cancel the scheduled presentation. The deposit of 50% is nonrefundable. No refunds. No exceptions. If the artist wants to re-negotiate another event with the client, it will be up to the artist. Otherwise, you will lose your deposit.
The balance must be paid 1 week prior to the event or on the day of the event prior to the artist going on stage. If you choo se to pay on the day of the event unless another agreement is made. 50% Deposit: $7,500.00
Balance Due 1 Day Prior to Event:
Total: $15,000.00
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EXHIBIT D
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TALENT CONTRACT Date: 7/14/2023
Contract # 119787
Volcan Advertising &
Entertainment
4959 Palo Verde St, Suite 203-B
Montclair, CA 91763
(909) 629-5252
[email protected]
To Monique Leon
City Of Santa Ana
20 Civic Center Plaza,
P.O. BOX
1988 Santa Ana, CA,
92707
A c t i v i t y B u s i n e s s P a y m e n t
T e r m s D u e D a t e
Participant BANDA LOS SEBASTIANES Due on receipt Open
Event: Fiesta Patrias Santa Ana
Dates: Sunday, September 17th, 2023, from 8 PM to 9 PM
Location: 602 N. Flower Street Santa Ana, CA 92703
This Package Includes:
Presentation of Banda Los Sebastianes in the city of Santa Ana.
Address 602 N. Flower St Santa Ana, Ca 92703.
Banda Los Sebastianes Performance Schedule: Sunday, September 17th from 8:00 pm – 9:00 pm Presentation with Mariachi.
Total Cost for Presentation: $48,000.00
Signature: Date:
Upon signing this contract, the Client must make a deposit of 50% to secure the artist for the desired date and time. If at a ny time the client wishes to cancel the scheduled presentation. The deposit of 50% is nonrefundable. No refunds. No exceptions. If the artist wants to re-negotiate another event with the client, it will be up to the artist. Otherwise, you will lose your deposit.
The balance must be paid 1 week prior to the event or on the day of the event p rior to the artist going on stage. If you choose to pay on the day of the event unless another agreement is made. 50% Deposit: $24,000.00
Balance Due 1 Day Prior to Event:
Total: $48,000.00
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Police Department
www.santa-ana.org/police
Item # 14
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
August 29, 2023
TOPIC: Policy Manual Maintenance and Support to the Police Department
AGENDA TITLE
Approve Master Service Agreement with Lexipol, LLC to Provide Policy Manual Maintenance and Support to the Police Department (General Fund and Non-General Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute an agreement with Lexipol, LLC, for the period of October 1, 2023 through September 30, 2026, to provide policy manual maintenance, support, and training services to the Police Department in an amount not to exceed $175,573.29, subject to non-substantive changes approved by the City Manager and City Attorney.
DISCUSSION
Lexipol, LLC (“Lexipol”) proposes to provide the Police Department with web-based law enforcement policy manual, maintenance, support, and training services. The agreement includes Annual Law Enforcement Policy & Daily Training Bulletin (DTB) Subscription, Annual Custody Policy & DTB Subscription, Annual Corrections Supplemental Manual, and CorrectionsOne Academy. CorrectionsOne Academy is an online training platform that provides courses certified through California Board of State and Community Corrections (BSCC) for annual continuing education requirements. The Lexipol Law Enforcement & Custody Policy Manual has over 150 policies based on federal and state laws, regulations, and law enforcement best practices.
CorrectionsOne Academy also has over 550 courses, training videos, and management features to meet annual training mandates.
Lexipol’s policy manual is written by legal and law enforcement professionals who constantly monitor major court decisions, legislation, and emerging trends affecting law enforcement operations. Lexipol provides regular updates in response to legislative mandates, case law, and evolving law enforcement best practices. Lexipol archives departmental policies and tracks changes, facilitating improved documentation of policy
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Policy Manual Maintenance and Support to the Police Department August 29, 2023
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revisions. Lexipol also documents officers who have reviewed certain policies for keeping up-to-date training records.
In addition, Lexipol proposes to provide Daily Training Bulletin services that will provide comprehensive daily training to help police employees learn the content of the policy manual and the practical application of the policies. Each year, Lexipol will furnish 365 customizable, scenario-based training bulletins that will link directly to the policy manual.
The Daily Training Bulletins will address use of force, vehicle operation, discriminatory harassment, and a variety of other law enforcement risk management topics. The Police Department will have the ability to customize the Daily Training Bulletins to address agency-specific topics. The Department has subscribed to Lexipol for over ten years which has been an asset for the Department’s training program.
The first-year subscription fee is $67,949, which includes a one-time Jail manual implementation cost. The Board of State and Community Corrections (BSCC) will pay for the costs associated with the Lexipol CorrectionsOne subscription for the agreement. The City receives subvention from BSCC for the training of eligible corrections officers. BSCC will pay $7,653 of Year One of the agreement. The annual subscription renewal fees for the second year will be $52,653.31, of which BSCC will pay for $6,300. Year Three of the agreement will be $54,970.98 and BSCC will pay for $6,300. At the conclusion of the three-year term, the total amount paid to Lexipol will be $175,573.29. CorrectionsOne subscription term to begin July 1, 2023.
FISCAL IMPACT
Funding is available in the FY 2023-24 budget and funding for subsequent fiscal years will be included in the proposed budgets for City Council consideration as follows:
Fiscal Year Accounting Unit –
Account No. Fund Description Accounting Unit –
Account No. Description Amount
FY 23-24 01114475-62140 General Fund
PD Jail Operations,
Implementation,
Subscriptions
$30,143.09
FY 23-24 01114410-62140 General Fund PD Training Services, Subscriptions $30,152.91
FY 23-24 02414401-62140 Police Activities &
Programs Fund
Police Special Rev-STC
Program, Subscriptions $7,653.00
FY 24-25 01114475-62140 General Fund PD Jail Operations, Subscriptions $14,692.75
FY 24-25 01114410-62140 General Fund PD Training Services, Subscriptions $31,660.56
FY 24-25 02414401-62140 Police Activities &
Programs Fund
Police Special Rev-STC
Program, Subscriptions $6,300.00
FY 25-26 01114475-62140 General Fund PD Jail Operations, Subscriptions $15,427.39
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FY 25-26 01114410-62140 General Fund PD Training Services, Subscriptions $33,243.59
FY 25-26 02414401-62140 Police Activities &
Programs Fund
Police Special Rev-STC
Program, Subscriptions $6,300.00
Total $175,573.29
EXHIBIT(S)
1. Agreement with Lexipol
Submitted By: David Valentin, Police Chief
Approved By: Kristine Ridge, City Manager
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MASTER SERVICE AGREEMENT
Agency Name DEPARTMENT NAME Santa Ana Police Department Agency Address DEPARTMENT ADDRESS 60 Civic Center Plz POB 1981 CITY, STATE ZIP Santa Ana, CA 92701
Attention
Lexipol's Address 2611 Internet Boulevard, Suite 100
Frisco, TX 75034
Effective Date INSERT EFFECTIVE DATE 10/1/2023
This Master Service Agreement (the “Agreement”) is entered into by and between Lexipol, LLC, a Delaware limited liability company ("Lexipol"), which may include one or more Lexipol subsidiary entities, and the Agency identified above.
This Agreement consists of:
(a) this Cover Sheet
(b) Exhibit A - Selected Services and Associated Fees
(c) Exhibit B - Terms and Conditions Specific to this Agreement Each individual signing below represents and warrants that they have full and complete authority to bind the party on whose behalf they are signing to all terms and conditions contained in this Agreement.
DEPARTMENT NAME (STATE) Lexipol, LLC
Signature Signature
Print Name: Print Name:
Title: Title:
Date: Date:
See below
Jan Roos
Vice President & General Counsel
8-14-2023
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
CITY OF SANTA ANA
_______________________
KRISTINE RIDGE
City Manager
ATTEST:
_______________________
JENNIFER L. HALL
City Clerk
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By: _______________________
TAMARA BOGOSIAN
Senior Assistant City Attorney
RECOMMENDED FOR APPROVAL:
________________________
DAVID VALENTIN
Chief of Police
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UNIT PRICE DISCOUNT EXTENDED
19,000.00 15% 16,150.00$
7,653.00 7,653.00$
30,152.91 0% 30,152.91$
12,388.16 0% 12,388.16$
1,604.93 0% 1,604.93$
70,799.00$ 67,949.00$
67,949.00$
UNIT PRICE DISCOUNT EXTENDED
6,300.00$ 0% 6,300.00$
31,660.56$ 0% 31,660.56$
13,007.57$ 0% 13,007.57$
1,685.18$ 0% 1,685.18$
0%
52,653.31$ 52,653.31$
52,653.31$
UNIT PRICE DISCOUNT EXTENDED
6,300.00$ 0% 6,300.00$
33,243.59$ 0% 33,243.59$
13,657.95$ 0% 13,657.95$
1,769.44$ 0% 1,769.44$
0% -$
54,970.98$ 54,970.98$
54,970.98$
Exhibit B
Terms and Conditions of Service
1. Definitions. For purposes of Lexipol’s Terms and Conditions of Service (the “Terms”), each of the following capitalized terms will have the meaning included in this Section. Other capitalized terms are defined within their respective sections below. Depending on the selected Service(s), Agency may receive support from, and be invoiced by, a Lexipol subsidiary, including The Praetorian Group and/or Cordico Inc.
1.1 “Agency” means the department, agency, office, company, or other entity purchasing and/or otherwise subscribing to Lexipol products or services.
1.2 “Agreement” means the combination of (a) the cover sheet to which these Terms are attached; (b) Lexipol’s subscription and pricing information sheets, which are typically included as an Exhibit A (“Services Being Purchased and Related Fees”) or as set forth in any similar pricing sheet (including by way of addendum); and (c) these Terms.
1.3 “Derivative Work(s)” means work(s) based on Lexipol’s Subscription Materials, or any substantive portion thereof. Derivative Works include revision, modification, abridgement, condensation, expansion, or any other form in which the Subscription Materials or any portion thereof are recast, transformed, or adapted. For purposes of the Agreement, a Derivative Work also includes any compilation Annual Corrections Supplemental Manual (SPS) 10/1/2025 - 9/30/2026
TERM THREE TOTAL
Term Three Subscription Total
CorrectionsOne Academy (Prorated + 2 months to align wit10/1/2025 - 9/30/2026 Annual Law Enforcement Policy & DTB Subscription 10/1/2025 - 9/30/2026 Annual Custody Policy & DTB Subscription 10/1/2025 - 9/30/2026
TERM TWO TOTAL
Term Two Subscription Total
TERM THREE TOTAL
DESCRIPTION TERM
Annual Custody Policy & DTB Subscription 10/1/2024 - 9/30/2025 Annual Corrections Supplemental Manual (SPS) 10/1/2024 - 9/30/2025
TERM ONE TOTAL
Term One Subscription Total
TERM TWO
DESCRIPTION TERM
CorrectionsOne Academy (Prorated + 2 months to align wit Agency is purchasing the following:
Selected Services and Assciated Fees
Exhibit A
TERM
TERM ONE
One-time cost
7/1/2023 - 9/30/2024
10/1/2023 - 9/30/2024
10/1/2023 - 9/30/2024
10/1/2023 - 9/30/2024
DESCRIPTION
Jail Policy Manual Implementation, Tiers I, II & III
CorrectionsOne Academy (Prorated + 2 months to align wit Annual Law Enforcement Policy & DTB Subscription
Annual Custody Policy & DTB Subscription
Annual Corrections Supplemental Manual (SPS)
10/1/2024 - 9/30/2025
Annual Law Enforcement Policy & DTB Subscription 10/1/2024 - 9/30/2025 Total Not to Exceed $175,573.29
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Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
(30) days prior to each Renewal Term. Agency will pay to Lexipol the fee(s) specified on each invoice within thirty (30) days following receipt of the invoice. All invoices will be sent to Agency at the address specified on the cover sheet to which these Terms are attached or as otherwise designated by Agency in writing. All payments will be made by electronic transfer of immediately available funds or by mailing a check to Lexipol at 2611 Internet Blvd, Ste 100, Frisco, TX 75034 (Attn: Accounts Receivable). Lexipol reserves the right to parties are entitled at law or in equity. The provisions of Sections 1 (Definitions), 6 (Service-Specific Terms), 8 (Privacy Policy), 8 (Warranty Disclaimer), 9 (Confidentiality), 10 (Warranty Disclaimer), 11 (Limitation of Liability), 12 (General Terms), and this Section 4 shall survive the expiration or termination of the Agreement for any reason.
5. F ees and Invoicing . Unless otherwise agreed upon in writing, Lexipol (or, if applicable, The Praetorian Group or Cordico Inc.) will invoice Agency at the commencement of the Initial Term and thirty are not eligible for refund, proration or offset in the event of Agency’s termination for convenience.
4. Effect of Expiration or Termination. Upon the expiration or termination of the Agreement for any reason, Agency’s access to Lexipol’s Services shall cease. Termination or expiration of the Agreement shall not, however, relieve either party from any obligation or liability that has accrued under the Agreement prior to the date of such termination or expiration, including payment obligations. The right to terminate the Agreement shall be in addition to, and not in lieu of, any other remedy, legal or equitable, to which the default; or (b) in the event that the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to the bankruptcy laws of any applicable jurisdiction.
3. Termination.
3.2 For Convenience. The Agreement may be terminated for convenience (including lack of appropriation of funds by Agency) upon sixty (60) days written notice. Note: fees already paid for Services thereafter (each a “Renewal Term”) unless one party provides written notice of non-renewal to the other party at least thirty (30) days prior to expiration of the then-current term. The Initial Term and all Renewal Terms collectively comprise the “Term” of the Agreement.
3.1 For Cause. The Agreement may be terminated by either party, effective immediately, (a) in the event that the other party fails to discharge any obligation or remedy any default under the Agreement for a period of more than thirty (30) calendar days after it has been given written notice of such failure or (subscription) services, as may be offered by Lexipol and/or its subsidiaries and affiliates from time to time.
1.7 “Subscription Materials” means all policy manuals, supplemental publications, daily training bulletins, written content, images, videos, and all other data and multimedia provided by Lexipol and/or its licensors through the Services.
2. Term. The Agreement becomes enforceable upon signature by Agency’s authorized representative. Following the Initial Term, the Agreement shall renew in successive one-year periods attached, or as otherwise expressly set forth and agreed upon by Lexipol and Agency in a writing and defined as the “Effective Date.”
1.5 “Initial Term” means the period commencing on the Effective Date and continuing for the length of time indicated on the cover sheet or subscription and pricing sheet provided by Lexipol. If the Initial Term is not so indicated, the default Initial Term is one (1) year from the Effective Date.
1.6 “Service(s)” means all Lexipol product(s) or service(s), including one-time and recurring that incorporates any portion of the Subscription Materials. Further, “Derivative Work” includes any work considered a “derivative work” under United States copyright law.
1.4 “Effective Date” means the date specified on the cover sheet to which these Terms are
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(“Wellness App”) offered by Cordico®. All Subscription Materials delivered by the Wellness App, including but not limited to all object and source code, all information created, developed, or reduced to practice, and all written, image-based, or video-based content underlying the Wellness App that is not specifically provided by Agency is the proprietary intellectual property of Lexipol and/or its suppliers or licensors, protected to the maximum extent permitted by trademark, copyright, and patent laws. Agency is granted a data owned by Agency prior to the Effective Date or which Agency provides during the Term for purposes of identifying authorized users, confirming agency or department information, or other purposes that are ancillary to receipt of the Service, remains Agency’s property. Lexipol retains no right or interest in Agency Data and shall return or destroy Agency Data following termination of the Agreement. Lexipol’s LMS Service is subject to the Service Level Agreement attached to these Terms.
6.3 Wellness. This Section applies when Agency subscribes to Lexipol’s Wellness Application attached to these Terms.
6.2 Learning. Lexipol’s Learning Management System (“LMS”), offered by Praetorian Digital, is a proprietary Service protected under U.S. copyright, trademark, patent, and other laws. Lexipol and its licensors retain all rights, title, and interest in and to the LMS (including, without limitation, all intellectual property rights), including all copies, modifications, extensions, and Derivative Works thereof. Agency’s right to use the LMS is limited to the rights expressly granted in the Agreement. Agency Data, defined as Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
Subscription Materials pursuant to a valid court order, lawful government agency request, Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request. Agency acknowledges and agrees that all policies and procedures it implements have been individually reviewed and adopted by Agency, that neither Lexipol nor any of its agents, employees, or representatives shall be considered “policy makers” in any legal or other sense, and that Agency’s highest-ranking official shall, for all purposes, be considered the “policy maker” with regard to same. Lexipol’s KMS Service is subject to the Service Level Agreement pertaining thereto. Agency shall retain a perpetual, personal, non-sublicensable and non-assignable right to use the Subscription Materials for Agency’s internal purposes but will not remove any copyright notice or other proprietary notice of Lexipol appearing thereon. Agency acknowledges and agrees that Lexipol shall have no responsibility to update such Subscription Materials beyond the Term of the Agreement and shall have no liability whatsoever for Agency’s creation or use of Derivative Works. Lexipol’s Subscription Materials are to be treated as Confidential Information (per Section 9 herein), but Agency may disclose
6. Service-Specific Terms. The following sections apply to specific Lexipol Services:
6.1 Policy. Lexipol’s policy Subscription Materials and Knowledge Management System (“KMS”) are proprietary, protected under U.S. copyright, trademark, patent, and/or other applicable laws, and Lexipol reserves all rights not expressly granted in these Terms. Agency may prepare Derivative Works using Lexipol’s Subscription Materials, but Lexipol shall remain the sole owner of all right, title and interest in and to them, including all copyrights, intellectual property rights, and other proprietary rights therein or taxes and similar fees now in force or enacted in the future. Unless otherwise exempt, Agency is responsible for and will pay in full all taxes properly imposed related to its receipt of Lexipol’s Services, except for taxes based on Lexipol’s net income. In the event any amount owed by Agency is not paid when due, and such failure is not cured within ten (10) days after written notice thereof, then in addition to any other amount due, Agency shall pay a late payment charge on the overdue amount at a rate equal to the lower of (a) one percent (1%) per month, or (b) the highest rate permitted by applicable law. increase fees for Renewal Terms. All amounts required to be paid under the Agreement are exclusive of
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by which Agency accesses the Services. Agency will not permit access to Agency’s account(s) or use of Agency’s username(s) and/or password(s) by any person or entity other than authorized Agency personnel.
Agency will immediately notify Lexipol if Agency becomes aware that any person or entity other than authorized Agency personnel has used Agency’s Account or Agency’s username(s) and/or password(s). 100% secure and Lexipol cannot and does not warrant that information Agency transmits to or through the Services is 100% secure. Agency acknowledges that Lexipol may provide view-only access and summary
8. Privacy Policy. Lexipol will hold Agency Data in confidence unless required to provide access in accordance with a court order, government agency request, or other legal process such as a Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request. Lexipol will use commercially reasonable efforts to ensure the security of all Agency Data. Lexipol’s systems use the Secure Socket Layer (SSL) Protocol for Lexipol Services, which encrypts information as it travels between Lexipol and each Agency. However, Agency acknowledges and agrees that data transmission on the internet is not always hereunder. Agency acknowledges that a breach or threatened breach of any portion of this Section may cause irreparable harm and shall entitle Lexipol to injunctive relief in addition to any other available remedy.
7. Account Security. The rights to access and use the Services under the Agreement are personal and unique to Agency and Agency shall not assign or otherwise transfer any such rights to any other person or entity. Except as set forth herein, Agency remains solely responsible for maintaining the confidentiality of Agency’s username(s) and password(s) and the security of Agency’s account(s), meaning the account Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
any rights or license to Lexipol’s trade secrets, intellectual property, Confidential Information, Subscription Materials, KMS, LMS, Wellness App, or the software underlying such products and services, whether by estoppel, implication or otherwise. Agency may not, and may not assist others to, decompile, disassemble, reverse engineer, or otherwise attempt to discover any object code, source code, or proprietary data underlying the Services. Agency grants all rights and permissions in or relating to Agency Data as are necessary to Lexipol to enforce the Agreement, exercise Lexipol’s rights, and perform Lexipol’s obligations Invoices for Grant Writing services will be sent as soon as work begins for the applicable target grant.
Complete payment must be received no later than thirty (30) days after receipt of invoice. In the event Agency has not made timely payment on an invoice, Lexipol reserves the right to suspend all grant Services to Agency until past-due payments are received in full, and may terminate Agency’s access to GrantFinder, if applicable. Invoices over thirty (30) days past due may be charged a twenty-five dollar ($25) late fee.
6.5 Generally; Injunctive Relief. Nothing in the Agreement shall be construed as conferring information reasonably required by Lexipol’s grant writing team in a timely manner (at least five (5) days prior to the applicable grant application close date). Agency is responsible for all submissions of final grant applications by grant deadlines, but Lexipol shall be considered Agency’s duly authorized representative for submissions where applicable. Failure to submit requested materials to write grant applications on time will result in rollover of project services and fees to next grant application cycle; not a refund of the fees.
Requests for cancellation of Grant Writing services will result in a 50% fee of the total value of the service. expires for any reason, Agency shall lose access to the Wellness App and to all associated Subscription Materials and shall discontinue all use of the same for any purpose. Nothing in this section or these Terms shall be construed as conferring any right of ownership or use to the Wellness App, whether by estoppel, implication or otherwise.
6.4 Grants. This Section applies when Agency selects Lexipol’s Grant Writing, Consulting, and/or GrantFinder services. For Grant Writing services, Agency takes full responsibility for submitting nonexclusive limited right to access the Wellness App during the Term. If the Agreement is terminated or
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10. Warranty Disclaimer. ALL SERVICES AND SUBSCRIPTION MATERIALS ARE PROVIDED "ASIS" AND
LEXIPOL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. portion thereof to be drafted, or in favor of the party receiving a particular benefit under the Agreement.
12.2 Invalidity of Provisions. Each of the provisions contained in the Agreement and these Terms is distinct and severable. A declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision in this Section shall apply whether the subject claim is based on breach of contract, tort, strict liability, product liability or any other theory or cause of action.
12. General Terms.
12.1 General Interpretation. The language used in the Agreement and these Terms shall be deemed to express the mutual intent of Lexipol and Agency. The Agreement shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any
11. Limitation of Liability. Lexipol’s cumulative liability resulting from any claims, demands, or actions arising out of or relating to the Agreement, the Services, or the use of any Subscription Materials shall not exceed the aggregate amount of subscription fees actually paid to Lexipol by Agency for the associated Services during the twelve-month period immediately prior to the assertion of such claim, demand, or action.
In no event shall Lexipol be liable for any indirect, incidental, consequential, special, exemplary damages, or lost profits, even if Lexipol has been advised of the possibility of such damages. The limitations set forth any such disclosure will promptly notify, to the extent practicable, the other party in writing of such demand for disclosure so that the other party may, at its sole expense, seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information.
Each party shall be responsible for any breach of this section by any of such party’s personnel or agents.
Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
all Confidential Information confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information to any third party unless expressly authorized by the disclosing party. Notwithstanding the foregoing, a party may disclose Confidential Information pursuant to a valid governmental, judicial, or administrative order, subpoena, discovery request, regulatory request, Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request, or similar method, provided that the party proposing to make information to the other party that is marked “confidential” or is of such a type that the confidentiality thereof is reasonably apparent (collectively, “Confidential Information”). The receiving party will: (a) limit disclosure of any Confidential Information of the other party to the receiving party’s directors, officers, employees, agents and other representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the Services; (b) advise its personnel and agents of the confidential nature of the Confidential Information and of the obligations set forth in the Agreement; (c) keep information (which may include number of policies developed or in development, percentage of staff reviews of developed policies and DTBs) to Agency’s affiliated Risk Management Authority, Insurance Pool or Group, or Sponsoring Association if they are actively funding member Agency Subscription Fees.
9. Confidentiality. During the term of the Agreement, either party may be required to disclose
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be counted as a part of more than one such 1-minute period (i.e. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Yearly Uptime Percentage will be measured based on the industry standard monitoring tools.
3. Exclusions from Uptime Percentage. All Service Unavailability resulting from the following will be excluded from calculation of Uptime Percentage: (a) Regularly-scheduled maintenance of the Service that does not exceed six (6) hours per 3-month period and is communicated by Lexipol at least twenty-four (24)
2. Uptime Commitment. The Uptime Percentage for the Service will be ninety-nine and five-tenths percent (99.5%) (the “Uptime Commitment”). Subject to the exclusions described in below, “Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any annual billing cycle in which Agency’s selected Service(s) are unavailable out of the total number of minutes in that billing cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by Agency failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will which shall be deemed an original but all of which together shall constitute one and the same document for purposes of the Agreement.
Lexipol Service Level Agreement for Cloud-Based Services
1. Response Times. For issues relating to Lexipol’s online, cloud-based Services (e.g. KMS, LMS, Wellness), Lexipol will make an industry standard and commercially reasonable effort to respond promptly (via Lexipol’s Normal Support Channels) within two (2) Business Days after receipt. and conditions set forth in any purchase order or any other form or document that are inconsistent with or in addition to the terms and conditions set forth in the Agreement are hereby objected to and rejected in their entirety, regardless of when received, without further action or notification, and shall not be considered binding unless specifically agreed to in writing by both parties. No amendment, modification, or supplement to the Agreement shall be binding unless it is in writing and signed by the party sought to be bound thereby.
12.9 Counterparts. The Agreement may be executed in any number of counterparts, each of time to time. Alternatively, electronic mail or facsimile notice to established and authorized recipients is acceptable when acknowledged by the receiving party.
12.8 Entire Agreement. The Agreement, including these Terms, embodies the entire agreement and understanding of the parties hereto and expressly supersedes all prior written and oral agreements and understandings with respect to the subject matter hereof. No representation, promise, or statement of intention has been made by any party hereto that is not embodied in the Agreement. Terms
12.6 Attorney’s Fees. If any action is brought by either party to the Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys’ fees and expenses of litigation.
12.7 Notices. Any notice required by the Agreement or given in connection with it shall be in writing and shall be made by certified mail (postage prepaid), recognized overnight delivery service, or (if mutually agreed upon) by email to authorized recipients at such address as each party may indicate from
12.5 Compliance with Laws. Each party shall maintain compliance with all applicable laws, rules, regulations, and orders promulgated by any federal, state, or local government body or agency relating to its obligations pursuant to the Agreement and these Terms. reflected in such provision to the maximum extent possible.
12.3 Waiver. Lexipol’s failure to exercise, or delay in exercising, any right or remedy under any provision of the Agreement shall not constitute a waiver of such right or remedy.
12.4 Governing Law. The Agreement shall be construed in accordance with, and governed by, the laws of the State in which Agency is located, without giving effect to any choice of law doctrine that would cause the law of any other jurisdiction to apply. hereof. Further, if a court of competent jurisdiction finds any provision of the Agreement to be invalid or unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intention as
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with electronic communications; (e) Lexipol’s suspension or termination of the Service in accordance with the Terms; (f) Exceeding Lexipol’s published Concurrent Request Limits; (g) Software that has been subject to unauthorized modification by Agency; (h) Negligent or intentional misuse of the Service by Agency.
Copyright © Lexipol, LLC 1995-2022
Rev. 1.1.2022
hours in advance via Lexipol’s support channels (Lexipol typically schedules such regularly scheduled maintenance once per month); (b) Any failures of the Lexipol Standard and Custom Reporting Services that does not exceed six (6) hours per 3-month period and is communicated by Lexipol at least twenty-four (24) hours in advance via Lexipol’s Normal Support Channels; (c) Any issues with a third-party service to which Agency subscribes but does not control; (d) Any problems not caused by Lexipol that result from, computing or networking hardware, other equipment or software under Agency’s control, the Internet, or other issues
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Police Department
www.santa-ana.org/police
Item # 15
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
August 29, 2023
TOPIC: Homeland Security Grants Strategy Update
AGENDA TITLE
Approve Agreement with Filler Security Strategies, Inc. in the Amount of $56,750 to Provide a Revision to the Three-Year Countywide Homeland Security Grants Strategy (Non-General Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute an agreement with Filler Security Strategies, Inc., for the period of August 29, 2023 through March 31, 2024, to provide a revision to the Countywide Homeland Security Grants Strategy in an amount not to exceed $56,750, subject to non-substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The United States Department of Homeland Security has developed the Urban Areas Security Initiative (UASI) funding program. UASI is designed to address the unique planning, equipment, training, and exercise needs of high-threat, high-density urban areas and provides funds to local emergency first responders that assist in building an enhanced and sustainable capacity to prevent, protect, respond to, mitigate, and recover from acts of terrorism.
The grant specifically provides funding for anti-terrorism equipment, planning, training, exercises, and technical assistance. Santa Ana has been designated as an Urban Area Core City since 2003. As such, for selected grant years, Santa Ana is the fiduciary agent for the region and manages projects, which include providing training and procuring equipment utilized by the 34 jurisdictions in Orange County.
In 2013, UASI grant program funds were utilized to develop the Countywide Homeland Security Grants Strategy. The Strategy is used by the Anaheim/Santa Ana Urban Area (ASAUA) as a basis for proposing projects to be funded through the Homeland Security Grant Program. It identifies countywide goals, objectives, and priorities to streamline regional efforts and maximize organizational efforts in support of the National
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Homeland Security Grants Strategy Update
August 29, 2023
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Preparedness Goal and the following five mission areas: to prevent, protect, mitigate, respond to, and recover from terrorist attacks and catastrophic natural disasters. It focuses on addressing the Urban Area's target capabilities and sustaining robust programs in support of the Whole Community approach.
On April 25, 2023, the Police Department issued a request for proposals (RFP #23- 057A) for a revision to the Countywide Homeland Security Grants Strategy. On May 23, 2023 the City received a proposal from Filler Security Strategies, Inc. Filler Security Strategies was the sole proposal received in response to the City's request. An evaluation committee consisting of representatives from the Anaheim/Santa Ana Urban Area reviewed and rated the proposal based on established evaluation criteria outlined within the RFP.
According to the RFP, the consultant would be responsible for reviewing the current strategy, conducting planning meetings with ASAUA subject matter experts and stakeholders, and providing a revised strategy document that incorporates the updated goals and objectives of the region in support of federal homeland security program initiatives.
The proposed revision should maintain, or build on, the following key components:
I. Purpose, Vision, Focus, and Coordination
II. Goals, Objectives, and Implementation Steps
III. Evaluation Plan for the Homeland Security Strategy IV. Strategy Update Summary
The results of the RFP evaluation are as follows:
Proposer Location Score
Filler Security Strategies, Inc. Falmouth, ME 90.17
100 Points Possible
Staff recommends that the City Council approve an agreement with Filler Security Strategies, Inc.
FISCAL IMPACT
Funds will be available in the FY 2023-24 budget upon City Council approval of the prior-year carry-forwards for expenditure as follows:
Fiscal
Year
Accounting Unit
– Account No.
Fund
Description
Accounting Unit -
Account No.
Description
Amount
FY 23-24 12514407-62300 OES UASI
UASI Cal OES Santa
Ana, Contract Services-
Professional
$56,750
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Homeland Security Grants Strategy Update
August 29, 2023
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EXHIBIT(S)
1. Agreement with Filler Security Solutions, Inc.
Submitted By: David Valentin, Police Chief
Approved By: Kristine Ridge, City Manager
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AGREEMENT WITH FILLER SECURITY STRATEGIES, INC. TO PROVIDE REVISION TO
THE COUNTYWIDE HOMELAND SECURITY GRANTS STRATEGY
THIS AGREEMENT is made and entered into on tis 29th day of August, 2023 by and between Filler Security Strategies, Inc., ("Consultant"), and the City of Santa Ana, a charter city and municipal coiporation organized and existing under the Constitution and laws of the State of California ("City").
RECIT ALS
A. On April 25, 2023, the City issued a Request for Proposal No. 23-057A ("RFP") seeking a consultant to provide an in-depth revision of our countywide ASAUA and Orange County Operational Area ("OCOA") Homeland Security Grants Strategy ("Strategy"). The 2023 ASAUA/OCOA Strategy Update process will focus on updating the current strategy to align with the priorities, goals, and objectives with current Homeland Security Grant Program ("HSGP") program and Federal guidelines.
B. On May 23, 2023 the City received a proposal from Consultant whose response was the sole response received in response to the RFP. Consultant represents that Consultant is able and willing to provide the services described in the Scope of Work that was included in the RFP and attached hereto as Exhibit A to this Agreement.
C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services perfoimed by Consultant under tis Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm 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:
1. SCOPE OF SERVICES
a. Consultant shall perform during the teim 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 Scope of Services - Exhibit A, attached hereto and incorporated by reference. b. In performing these services, the Consultant shall abide by the Federal Grant Contract Provisions, a copy of which is attached hereto as Exhibit C to this Agreement and incorporated by reference.
Exhibit 1
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2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total paytnent for its services for City, the rates and charges identified in the Cost Proposal - Exhibit B, attached hereto and incorporated by referenced. The total amount to be expended during the term of this Agreement shall not exceed $56,750.
b. Payment by City shall be made within foity-five (45) days following receipt of proper invoice evidencingworkperfornned,subjecttoCityaccountingprocedures. Paymentneednotbemade for work which fails to meet the standards of performance set foith in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on August 29, 2023 and end on March 31, 2024, with the option for the City to grant an extension, exercisable by a writing by the City Manager and the City Attorney, unless teiminated earlier in accordance with Section 15, below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationsip, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in wich Consultant perfornns the services which are the subject matter of t's 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 employees and shall be responsible for all applicable withholding taxes.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual propeity 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, wich 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 purposes intended by this Agreement shall be at City's sole risk.
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6. INSURANCE
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to propeity which may arise from or in connection with the perfomiance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors.
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the genera aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code l), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant's profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Itxsured Status
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations perfoimed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Foim CG 20 1011 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
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Primary Coverage
For any claims related to this contract, the Contractor's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
Waiver of Subrogation
Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by viitue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect tis waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the tnsurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Acceptabiliffl of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M.
Best's rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completio'tx of the cotxtract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor must purchase"extended reporting" coverage for a minimum offive (5) years after completion of work.
Verificatiotx of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive tlie Contractor's obligation to provide them. The City reserves the right to require complete, ceitified copies of all required insurance policies,
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including endorsements required by these specifications, at any time.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.
Special Risks or Circumstatxces
City resetaves the right to modify these requirements, including limits, based on the nature of the risk, piior experience, insurer, coverage, or other special circumstances.
7. INDF,MNIFICATION
Consultant agrees to defend, and shall indemnify and hold haimless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (l) 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 Contractor, 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 terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events refeired to in this Section or by reason of the ternns of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold haimless, 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 propeity 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. Notwithstanding the foregoing, to the extent Contractor'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 Contractor.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnifythe City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringemeiit 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.
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9. 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 incutred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period ofthree (3) years, or for any longer period required by law, from the date of final payment to Consultant under t's 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 tmee (3) years from the date of final payment to Consultant under this Agreement.
10. CONFIDENTIALITY
If Consultant receives from the City information wich 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 infoimation except in the performance of this Agreement, and fiirther 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 infoimation. Confidential information includes not only written infomiation, but also information transferred orally, visually, electronically, or by other means. Confidential infoimation disclosed to either paity 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 infoimation 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 infoimation disclosed by the City.
11. 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.
12. NON-DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided 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.
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13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the teims of this Agreement and any attachments hereto, the terms of this Agreement shall prevail.
This AgreementmaynotbemodifiedexceptbywritteninstnimentsignedbytheCityandbyanauthorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate 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.
14. ASSIGNMENT
Inasmuch as tis Agreement is intended to secure the specialized services of Contractor, 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 Contractors retained by City.
15. TERMINATION
This Agreement may be ternninated 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 termination, 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 propeity of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes 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.
16. 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, tight or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
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17. JURISDICTION - VENUE
Tis 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 tis Agreement.
18. PROFESSIONAL LICENSES
Consultant shall, throughout the teim of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. 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.
19. 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:
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:
Chief of Police
Santa Ana Police Department
60 Civic Center Plaza
Santa Ana, California 92702
Fax:714-245-8190
To Contractor:
Joshua Filler, President
Filler Security Strategies, Inc.
34 Faim Gate Road
Falmouth, ME 04105
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Fax: (202) 761-4013
Email: [email protected]
A party may change its address by giving notice in writing to the other party. Thereafter, any cornrnunication 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 ceitified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission repoit 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.
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 teims 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 signatoi'y or is withdrawn.
b. The Agreement is the final and con'iplete agreement and any prior or contemporaneous agreements for similar services between the paities is superseded by this Agreement. Tliis shall not apply where the Paities are currently engaged and Consultant is providing sei'vices not contemplated by this Agreement.
C. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of tis Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed t's Agreement the date and year first above written.
ATTEST: CITY OF SANTA ANA
Jennifer L. Hall
City Clerk
Kristine Ridge
City Manager
APPROVED AS TO FORM:
SONIA R. CARVAI,HO
City Attorney
FILLER SECURITY STRATEGIES,
INC
Tamara Bogosian
Senior Assistant City Attorney
Joshu k\f
President
RECOMMENDED FOR APPROVAL:
fm., (pl4 41
Chief of Police
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Exhibit A
CITY OF SANTA ANA
EXHIBITI
SCOPE OF SERVICES
DESCRIPTION AND SCOPE OF WORK
The City of Santa Ana, on behalf of the Anaheim/Santa Ana Urban Area (ASAUA), is seeking a vendor who can deliver an in-depth revision of our countywide ASAUA and Orange County Operational Area (OCOA) Homeland Security Grants Strategy (Strategy). The 2023 ASAUA/OCOA Strategy Update process will focus on updating the current strategy to align with the priorities, goals, and objectives with current HSGP program and Federal guidelines.
The Consultant would be responsible for reviewing the current strategy, conducting planning meetings with ASAUA subject matter experts and stakeholders, and providing a revised strategy document that incorporates the updated goals and objectives of the region in support of federal homeland security program initiatives.
A. BACKGROUND INFORMATION
The requested revision will be paid in part or in full with funding from the United States Department of Homeland Security's Urban Areas Security Initiative (UASI) grant. Funding from this grant is applied to homeland security related training, exercises, equipment, and projects in the ASAUA. The ASAUA is comprised of the County of Orange, 34 incorporated cities, and two universities with a population of over 3 million people. The ASAUA has approximately 12,000 public safety emergency responders from the fire service, law enforcement, and public health. UASI grant management support is provided by the two largest cities in the ASAUA, Santa Ana and Anaheim. These two cities alternate fiscal responsibility and administration of the UASI grant.
The Strategy is used by the ASAUA as a basis for proposing projects to be funded through Homeland Security Grant Program dollars. It identifies countywide goals, objectives, and priorities to streamline regional efforts and maximize organizational efforts in support of the National Preparedness Goal (Goal) and the following five mission areas: to prevent, protect, mitigate, respond to and recover from terrorist attacks and catastrophic natural disasters. It focuses on addressing the Urban Area's target capabilities and sustaining robust programs in support of the Whole Community approach.
B. OBJECTIVE
Proposed revision should maintain, or build on, the following key components:
1. II.
Ill
IV.
Purpose, Vision, Focus, and Coordination
Goals, Objectives, and Implementation Steps
Evaluation Plan for the Homeland Security Strategy
Strategy Update Summary
RFP No. 23-057A ASAUA Homeland Security Grants Strategy Update Page 15 of 36
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CITY OF SANTA ANA
C. PERFORMANCE SCHEDULE
Revision of the Homeland Security Strategy must be delivered by December 31, 2023 to align with deadlines put forth by the UASI grant program.
D. MINIMUM REQUIREMENTS
1. Proposer shall have substantial knowledge of the National Preparedness Goal, HSGP program guidelines and requirements.
2. Proposer's designated staff must have three years or more of experience in regional planning and coordination efforts for multiple jurisdictions and disciplines.
RFP No. 23-057A ASAUA Homeland Security Grants Strategy Update Page 16 of 36
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Exhibit B
Cost Proposal
LINE DESCRIPTION QUANTITY UNIT UNIT
QUANTITY
UNIT
PRICE
EXTENDED
TOTALPRICE
1 Kick-off Meeting 1 1 1 Sl,500 Sl,500
2 Complete research, review local grant
investments, plans, source materials,
and deliver summary report
1 1 I 55,000 S5,000
3 Review THIRA/SPR data and develop
capability questionnaire
1 1 1 S6,000 !,)6,000
4 Conduct assessment, and analyze,
organize, and present assessment
results
I I 1 S7,000 S7,000
5 Condud strategy workshop 1 1 1 512,250 S12,250
6 Produce draft strategy 1 1 1 S22,000 5,>:z,ooo
7 Produce final strategy and briefing 1 1 I 53,000 S3,000 Total Cost $56,750
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Exhibit C - Federal Regulations
a. Federal Regulations - Recipient must comply with the government cost principles, uniforin administrative requirements and audit requirements for federal grant program housed within Title 2, Part 200 of the Code of Federal Regulations.
b. Debarinent and Suspension - As required by Executive Orders 12549 and 12689, and 2 CFR §200.2 12 and codified in 2 CFR Part 200, Recipient must provide protection against waste, fraud, and abuse by debarring or suspending those persons deemed irresponsible in their dealings with the Federal government.
c. Audit Records - With respect to all matters covered by this agreement all records shall be made available for audit and inspection by CITY, the grant agency and/or their duly authorized representatives for a period of three (3) years from the date of submission of the final expenditure report by the City of Santa Ana. For a period of three years after final delivery hereunder or until all claims related to this Agreement are finally settled, whichever is later, Recipient shall preserve and maintain all documents, papers and records relevant to the services provided in accordance with this Agreement, including the Attachtnents hereto. For the same time period, Recipient shall make said documents, papers and records available to City and the agency from which City received grant funds or their duly authorized representative(s), for examination, copying, or mechanical reproduction on or off the premises of Recipient, upon request during usual working hours. d. - Recipient shall provide to City all records and inforination requested by City for inclusion in quarterly reports and such other reports or records as City may be required to provide to the agency from which City received grant funds or other persons or agencies. e. Section 504 of the Rehabilitation Act of 1973 (Handicapped) - All recipients of federal funds must comply with Section 504 of the Rehabilitation Act of 1973 (The Act). Therefore, the federal funds recipient pursuant to the requirements of The Act hereby gives assurance that no otherwise qualified handicapped person shall, solely by reason of handicap be excluded from the participation in, be denied the benefits of or be subject to discrimination, including discrimination in employinent, in any program or activity that receives or benefits from federal financial assistance. The Recipient agrees it will ensure that requirements of The Act shall be included in the agreements with and be binding on all of its contractors, subcontractors, assignees or successors.
f. Ainericans with Disabilities Act of 1990 - (ADA) Recipient must comply with all requirements of the Atnericans with Disabilities Act of 1990 (ADA), as applicable. g. Political Activity - None of the funds, materials, property, or services provided directly or indirectly under this agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office, or otherwise in violation of the provisions of the "Hatch Act", h. - Recipient will comply with all applicable lobbying prohibitions and laws, including those found in the Byrd Anti-Lobbying Ainendment (31 U.S.C. 1352, et seq.), and agrees that none of the funds provided under this award may be expended by the Recipient to pay any person to influence, or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any federal action concerning the award or renewal of any federal contract, grant, loan, or cooperative agreement. i. Non-Discrimination and Equal Opportunity - Recipient will comply, and all its contractors (or subrecipients) will comply, with Title VI of the Civil Rights Act of 1964, as amended; Section 504 of
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the Rehabilitation Act of 1964, as amended; Subtitle A, Title II of the Americans with Disabilities Act (ADA) (1990); Title IX of the Education Ainendments of 1972; the Age Discrimination Act of 1975, as amended; Drug Abuse Office and Treatment Act of 1972, as amended; Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, as amended; Section 523 and 527 of the Public Health Service Act of 1912, as amended; Title VIII of the Civil Rights Act of 1968, as amended; Department of Justice Non-Discrimination Regulations, 28 CFR Part 42, Subparts C, D, E, and G; and Department of Justice regulations on disability discrimination, 28 CFR Part 35 and 39. In the event a Federal or State court, Federal or State administrative agency, or the Recipient makes a finding of discrimination after a due process hearing on the grounds of race, color, religion, national origin, sex, or disability against a recipient of funds, the Recipient will forward a copy of the findings to CITY which will, in turn, submit the findings to the Office of Civil Rights, Office of Justice Programs, U.S. Department of Justice. If applicable, recipient will comply with the equal opportunity clause in 41 C.F.R. 60-1.4(b) in accordance with Executive Order 11246 as amended by Executive Order No. 11375. j. Equal Employinent Opportunity - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements of the Executive Order 11246 of September 24, 1965, entitled "Equal En'iployment Opportunity," as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60), as applicable. k. Public Contracts Code - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requireinents of the California Public Contract Code Section 10295.3, as applicable.
1. Copeland "Anti-Kickback" Act - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements of the Copeland "Anti-Kickback" Act (30 U.S.C. 3145) as supplemented in Department of Labor regulations (29 CFR Part 3), as applicable. m. David-Bacon Act - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements of the Davis-Bacon Act (40 U.S.C. 3141-3144 and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5), as applicable. n. Work Hours and Safety - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements of Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3702 and 3704) as supplemented by Deparh'nent of Labor regulations (29 CFR Part 5), as applicable.
o. Clean Air Act - Recipient will comply, and all its contractors (or subrecipients) will comply, with all applicable standards, orders or requirements issued under the Clean Air Act (42 u.s.c. 7401-7671q), and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as applicable. p. Energy and Conservation - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements of the Energy Policy and Conservation Act (42 U.S.C. 6201), as applicable.
q. Waste Disposal - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements of Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as applicable.
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r. Patent Rights - Recipient agrees that the Department of Homeland Security shall have the authority to seek patent rights for any process, product, invention or discovery developed and paid for with funding through this Agreement based on the requirements of 37 CFR§ 401 and any other implementing regulations, as applicable.
s. - Recipient may copyright any books, publications or other copyrightable materials developed in the course of or under this Agreement. However, the federal awarding agency, State Administrative Agency (SAA) and City reserve a royalty-free, non-exclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for federal government, SAA and/or City purpose:
(1) the copyright in any work developed through this Agreement; and (2) any rights of copyright to which the subcontractor purchases ownership with support through this grant. The Federal government's, SAA's and City's riglits identified above must be conveyed to tl'ie publisher and tlie language of tl'ie publislier's release form must ensure the preservation of these rights.
t. Equal Employinent in Construction Contracts - Pursuant to Equal Employi'nent Opportunity requirements of 41 C.F.R. 60-1.4(b) in accordance with Executive Order 11246 as amended by Executive Order No. 11375, as to any construction contract thereunder, if applicable, during the perforinance of this contract, the contractor agrees as follows:
(1 ) The contractor will not discriminate against any employee or applicant for employinent because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
The contractor will take affirinative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or tennination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employinent because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
This provision shall not apply to instances in which an employee who has access to the compensation infonnation of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such inforination, unless such disclosure is in response to a forinal complaint or charge, in furtherance of an investigation, proceeding,
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hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all infonnation and reports required by Executive Order 11246 of September 24, 1965, and by niles, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will perinit access to his books, records, and accounts by the administering agency and the Secretary of Labor for puiposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, tenriinated, or suspended in whole or in part and the contractor may be declared ineligible for further Governunent contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence iim'nediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in eveiy subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance. u. Prohibition on Certain Telecommunications and Video Surveillance Services or f - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements under Unifonn Guidance 2 CFR §200.216. Recipient will comply with FEMA Policy 405- 143-1, Prohibitions on Expending FEMA Award Funds on Covered Telecommunications Equipment or Services (Interim), which prohibits grant recipients and subrecipients from obligating or expending loan or grant funds to procure or obtain, extend or renew a contract to procure or obtain, or to enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecoininunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.
As described in Public Law 115-232, section 889, covered telecoininunications equipment:
(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
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(2) For the purpose of public safety, security of govermnent facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Techology Company (or any subsidiary or affiliate of such entities).
(3) Telecommunications or video surveillance services produced by such entities or using such equipment.
(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the governinent of a covered foreign country.
v. Dotnestic Preferences for Procurements/Subcontracts - Recipient will comply, and all its contractors (or subrecipients) will comply, with all requirements under Unifonn Guidance 2 CFR §200.322.
Recipient shall comply with the federal and recipient standards in the award of any subcontracts.
For purposes of this Agreement, subcontracts shall include but not be limited to purchase agreements, rental or lease agreements, third party agreements, consultant service contracts and construction subcontracts.
Recipient shall ensure that the terins of this Agreement with the CITY are incorporated into all Subcontractor Agreements. The recipient shall submit all Subcontractor Agreements to the CITY for review prior to the release of any funds to the subcontractor. The recipient shall withhold 'funds to any subcontractor agency that fails to comply with the tenns and conditions of this Agreement and their respective Subcontractor Agreement.
Recovered Materials
Recipient shall tnake maximum use of products containing recovered materials that are EPA- designated items unless the product cannot be acquired competitively within a timeframe providing for compliance with the contract perfon'nance schedule; Meeting contract perforinance requirements; or at a reasonable price.
Inforznation about this requirement, along with the list of EPA-designated items, is available at EPA's Comprehensive Procurement Guidelines webpage: https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
(2) Domestic Preference for Procurements
Recipient should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other manufachired products.
For purposes of this clause:
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Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage tmough the application of coatings, occurred in the United States.
Manufactured products mean items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber. w. Tennination for Cause and Convenience - Should recipient fail for any reason to comply with the contractual obligations of this agreement within the time specified by this Agreement, the CITY reserves the right to terminate the Agreement, reserving all rights under state and federal law.
Approved to Form
Tamara Bogosian
Sr. Assistant City Attorney
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Finance and Management Services
www.santa-ana.org/finance
Item # 16
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
August 29, 2023
TOPIC: Amend Agreement for Plan and Investment Advisory Services Pertaining to the 457 Deferred Compensation Plan
AGENDA TITLE
Amend Agreement with Benefit Financial Services Group, LLC (BFSG) for Plan and Investment Advisory Services Pertaining to the 457 Deferred Compensation Plan to Add Participant Planning and Consulting Services at No Additional Cost
RECOMMENDED ACTION
Authorize the City Manager to execute the first amendment to the agreement with Benefit Financial Services Group, LLC to provide Participant Planning and Consulting Services at no additional cost, subject to non-substantive changes approved by the City Manager and City Attorney.
DISCUSSION
On November 21, 2018, at the conclusion of a competitive bidding process, the City Council awarded a three-year agreement, with the provision for two-year contract extensions, to BFSG to provide plan and investment advisory services pertaining to the 457 Deferred Compensation Plan. The City has exercised the contract extensions and the current contract expires on December 31, 2024. City staff anticipates releasing an RFP for similar services before the existing agreement expires.
The City of Santa Ana offers full-time employees a 457 Deferred Compensation Plan ("plan" or "457 plan"), which was established in 1973, with the adoption of City Resolution 7-21, along with a corresponding US Internal Revenue Service approval.
The 457 Deferred Compensation Plan is a voluntary supplemental retirement savings program that allows employees to make contributions on a pre-tax basis. Each calendar year, employees can choose to contribute to the Plan up to an amount established by the Internal Revenue Service. The City does not contribute any funds on the employees’ behalf.
BFSG has proven to be reliable and highly knowledgeable in assisting with 457 plan administration. As of March 31, 2023, the Plan holds $132.5 million in Plan Assets for 1,350 participants. BFSG has provided assistance in plan administration, investment advisory, and communication services during the term of the contract. BFSG is
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Amend Agreement with Benefit Financial Services Group
August 29, 2023
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prepared to offer Financial Planning and Consulting services to plan participants at no additional cost. If the recommendation is approved, plan participants would have the option to elect to obtain such services from BFSG. As a registered investment advisor, BFSG is an independent fiduciary firm that is legally bound to have a fundamental obligation to act in the best interests of their clients and to provide investment advice in their client’s best interest. These additional services, if elected by plan participants, could be an added benefit when planning for retirement and investment decisions. For these reasons, staff recommends amending the agreement with BFSG to add Participant Planning and Consulting Services.
FISCAL IMPACT
There is no fiscal impact associated with this action.
EXHIBIT(S)
1. First Amendment to Agreement
2. BFSG Financial Planning and Consulting Agreement
Submitted By: Kathryn Downs, FMSA Executive Director
Approved By: Kristine Ridge, City Manager
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FIRST AMENDMENT TO AGREEMENT TO PROVIDE INDEPENDENT
INVESTMENT ADVISORY SERVICES
457 DEFERRED COMPENSATION PLAN
THIS FIRST AMENDMENT to the above-referenced agreement is entered into on August 29, 2023, by and between Benefit Financial Services Group, LLC, a California Limited Liability Corporation and SEC registered investment advisor and wholly-owned, indirect subsidiary of Focus Financial Partners ( BFSG or 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 parties entered into Agreement No. A-2019-037, dated February 19, 2019, by which Consultant agreed to provide services regarding the monitoring of investments and providing independent investment advice pertaining to the City s 457 Deferred Compensation Plan ( Plan ) to assist the City s Plan Administrative and Investment Committee with oversight of the Plan (
B. The Agreement remains in effect through December 31, 2024, following the City exercise of its option under the Agreement to extend the initial term of the Agreement for one (1) additional two (2) year period. The Agreement is current and in-effect.
C. The parties now wish to amend and augment the Scope of Services set forth in the Agreement.
No other changes, including any extensions of the Agreement, are contemplated by this Amendment.
The Parties therefore agree:
1. Section 1, Scope of Services, is hereby amended to include the following language:
Additionally, Consultant will offer financial planning and consulting services, as well as those services described in Exhibit A-1, which is attached hereto and incorporated herein by reference directly to Plan Participants (or City Employees) at no additional cost to the City. Plan Participants maintain the option to elect and/or request such Outside Investment Services from Consultant, and any such agreements for Outside Investment Services shall be entered into between the Plan Participant and Consultant only, and the City shall not be interpreted or implied, in any manner, to be a party to said agreements for Outside Investment Services. As a registered investment advisor, Consultant is an independent fiduciary firm that is legally bound to exercise its fundamental obligation to act and/or advise in the best interests of its clients.
2. Consultant agrees that it has not provided any of the Outside Investment Services detailed above and will not begin any Outside Investment Services prior to the effective date provided herein.
3. Except as modified by this Amendment, all terms and conditions of the Agreement shall remain in full force and effect.
EXHIBIT 1
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SIGNATURE PAGE FOR FIRST AMENDMENT TO AGREEMENT TO PROVIDE INDEPENDENT INVESTMENT ADVISORY SERVICES PERTAINING TO THE 457 DEFERRED COMPENSATION PLANIN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above.ATTEST CITY OF SANTA ANA_______________________________ ______________________________JENNIFER L. HALL KRISTINE RIDGECity Clerk City Manager APPROVED AS TO FORM CONSULTANTSonia R. Carvalho City AttorneyBy:___________________________ _______________________________JONATHAN T. MARTINEZ By:Assistant City Attorney Title:RECOMMENDED FOR APPROVAL________________________________KATHRYN DOWNSExecutive DirectorFinance & Management Services Agency ______________________________________________________________Title:Title:
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Keeping costs low and having prudent investment options can only get your participants so far. Many participants need help answering the basic questions, like:Am I saving enough to retire whenready?Should I contribute to a Roth?Have I allocated my accountproperly?What does my entire financial picturelook like?That is why we developed Personal Financial Strategies (PFS). T o help participants answer their personal questions and provide them with an action plan customized to their needs and goals.
Identify financial goals and objectivesAssist with establishing a budgetDevelop and understand full financial pictureCreate a customized action plan with recommendations on savings rate and portfolio allocationAdvice provided in a fiduciarycapacity.Will not solicit assets to leave theretirement plan.Do not sell products or receive anycommissions.Program offered through our team ofCertified Financial Planners
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1 BENEFIT FINANCIAL SERVICES GROUP
FINANCIAL PLANNING AND CONSULTING AGREEMENT
I
n connection with the agreement entered into on <<<DATE>>> between Benefit Financial Services Group, an SEC registered investment adviser having a principal mailing address of 2040 Main Street, Suite 720, Irvine, California 92614 (the “PLANNER”) and <<<EMPLOYER INFO>>>, whose mailing address is <<<ADDRESS>>> (the “EMPLOYER”), I, <<<EMPLOYEE NAME>>> (the “CLIENT”), as a prerequisite to receiving the services contemplated under the Agreement, acknowledge and agree to the following:
P
LANNER agrees to provide basic financial planning and consulting services to CLIENT. Per the terms of the Agreement described above, such services are to be provided only to the extent requested by CLIENT. CLIENT will not incur any separate or additional fee as a result of electing to receive the PLANNER’s financial planning and consulting services.
C
LIENT acknowledges that recommendations provided by PLANNER are not endorsed or reviewed by EMPLOYER.
P
LANNER’s financial planning and consulting services shall conclude upon PLANNER’s communication of its recommendations to CLIENT. It is expressly understood by CLIENT that these services do not create an ongoing relationship between PLANNER and CLIENT.
P
LANNER will remain available to review and update any recommendations provided to CLIENT upon CLIENT’s request.
P
LANNER’s recommendations (i.e. investments, estate planning, retirement planning, taxes, insurance, etc.) shall be discussed by the PLANNER with CLIENT and may be implemented, at CLIENT’s sole discretion, with the corresponding professional advisors (i.e. broker, accountant, attorney, etc.) of CLIENT’s choosing. In respect to estate planning matters, PLANNER’s role shall be that of a facilitator between CLIENT and CLIENT’s corresponding professional advisors. No portion of PLANNER’s services should be interpreted as legal or accounting advice. CLIENT should defer to CLIENT’s attorney or accountant.
C
LIENT agrees to provide information and/or documentation requested by PLANNER as pertains to CLIENT’s objectives, needs, and goals. PLANNER shall not be required to verify any information obtained from the CLIENT, CLIENT’s attor ney, accountant, or other professionals, and is expressly authorized to rely thereon. CLIENT is free at all times to accept or reject any recommendation from PLANNER, and CLIENT acknowledges that he has the sole authority with regard to the implementation, acceptance, or rejection of any recommendation or advice from PLANNER.
C
LIENT is free to obtain legal, accounting, and brokerage services from any professional source to implement the recommendations of PLANNER. CLIENT will retain absolute discretion over all implementation decisions.
P
LANNER’s financial planning and consulting services do not include investment implementation, supervisory, management, or reporting services, nor the regular reviewing, updating, or monitoring of CLIENT’s investment por tfolio or financial plan. In the event CLIENT desires that PLANNER provide investment supervisory or management services, CLIENT may request that PLANNER do so under the terms of a separate Investment Advisory Agreement between PLANNER and the CLIENT, for which services PLANNER shall be paid a separate and additional fee.
P
LANNER, acting in good faith, shall not be liable for any action, omission, investment recommendation/decision, or loss in connection with its services. The federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which CLIENT may have under any federal or state securities laws, ERISA, or under the rules promulgated by the Employee Benefits Security Administration and/or the Department of Labor. In no event shall PLANNER be responsible to CLIENT for any special, indirect, incidental, exemplary, punitive, or consequential damages in connection with or otherwise arising out of this Agreement.
C
LIENT hereby acknowledges prior receipt of a copy of the PLANNER’s written Disclosure Statement as set forth on Part 2A of Form ADV and PLANNER’s Privacy Notice.
S
ubject to the conditions and exceptions noted below, and to the extent not inconsistent with applicable law, in the event of any dispute pertaining to PLANNER’s services, both PLANNER and CLIENT agree to submit the dispute to arbitration in accordance with the auspices and rules of the American Arbitration Association (“AAA”), provided that the AAA accepts jurisdiction. PLANNER and CLIENT understand that such arbitration shall be final and binding, and that by agreeing to arbitration, both PLANNER and CLIENT are waiving their respective rights to seek remedies in court, including the right to a jury trial. CLIENT acknowledges that he/she/it has had a reasonable opportunity to review and consider this arbitration provision prior to execution.
EXHIBIT 2
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2 Agreed to and accepted by:
____________________________________
Name (Printed)
____________________________________ _____________________________ Signature Date
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City Attorney’s Office
www.santa-ana.org/city-attorneys-office/
Item # 17
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
August 29, 2023
TOPIC: City Attorney Evaluation and Resolution to Reflect Positive Performance
AGENDA TITLE
City Attorney Evaluation and Resolution to Reflect Positive Performance
RECOMMENDED ACTION
Adopt a resolution to reflect an Exceeds Expectations performance evaluation conducted on August 15, 2023 and acknowledge retainer adjustment of $25,000 per the existing Legal Services Agreement with Best Best and Krieger LLP for City Attorney and Special Counsel Legal Services.
DISCUSSION
The Santa Ana City Charter provides that the City Council shall conduct evaluations of its appointees on an annual basis. In addition, the Legal Services Agreement with Best Best and Krieger LLP for City Attorney Sonia Carvalho’s services provides for an annual evaluation and opportunity for consideration of adjustments based on a positive evaluation. The City Council conducted the evaluation of City Attorney Carvalho on August 15, 2023. The City Council agreed that Ms. Carvalho is doing an excellent job as City Attorney and provided an Exceeds Expectations rating by a unanimous vote.
In 2021, the City Council approved a Restated Legal Services Agreement. Per that agreement, the City Council agreed to an increase of $25,000 based on continued positive performance. Although the City Attorney received a positive performance evaluation in 2022, the City Attorney declined the automatic retainer increase. As a result of the 2023 positive performance evaluation, the City Attorney requested the increase approved in 2021.
The new annual retainer amount of $350,000 for the City Attorney provides cost savings to the City as the City does not pay any additional benefits such as medical insurance, car allowances, retirement health plan, or any long-term CalPERS pension payments. In comparison, see total costs for a City Attorney in the following cities:
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City Attorney Evaluation and Resolution to Reflect Positive Performance August 29, 2023
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City of Anaheim $460,516
City of Newport Beach $338,958
City of Huntington Beach $367,560
City of San Jose $629,574
City of Pasadena $416,410
City of Glendale $413,472
City of Riverside $410,652
City of Vallejo $375,100
City of Burbank $364,876
FISCAL IMPACT
The City Council’s adoption of the proposed resolution acknowledging the retainer adjustment will result in an annual total increase in costs of $25,000. There are sufficient funds in the City Attorney’s Office Contractual Services account (01108032- 62300) to cover the increased expenses.
EXHIBIT(S)
1. Resolution
2. Restated Legal Services Agreement
Submitted By: City Attorney’s Office
Approved by: Kristine Ridge, City Manager
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Resolution No. 2023-XXX
RESOLUTION NO. 2023-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA AFFIRMING A POSITIVE CITY
ATTORNEY EVALUATION AND ACKNOWLEDGING A
RETAINER INCREASE PURSUANT TO THE EXISTING
RESTATED LEGAL SERVICES AGREEMENT FOR CITY
ATTORNEY SERVICES
WHEREAS, on or about April 2012, the City of Santa Ana entered into an agreement with Best Best & Krieger LLP for City Attorney and additional special counsel services , and later amended and restated the agreement in 2014 and 2021 (“2021 Restated Legal Services Agreement”); and
WHEREAS, the City Charter and 2021 Restated Legal Services Agreement provide that the City Council shall conduct an annual performance evaluation of the City Attorney; and
WHEREAS, the City Council conducted such an evaluation, resulting in a positive performance appraisal; and
WHEREAS, the 2021 Restated Legal Services Agreement provides for an automatic retainer increase upon a positive performance evaluation.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows:
Section 1. On August 15, 2023, the City Council completed the City Attorney evaluation and approved an “exceeds expectation” rating. Pursuant to the terms of t he 2021 Restated Legal Services Agreement, the annual retainer is automatically increased by $25,000.
Section 2. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution.
ADOPTED this ____ day of ___________________, 2023.
Valerie Amezcua
Mayor
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Resolution No. 2023-XXX
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By:
John M. Funk
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Jennifer Hall, City Clerk, do hereby certify the attached Resolution No. 2023 -_____ to be the original resolution adopted by the City Council of the City of Santa Ana on _____________________, 2023.
Date:
City Clerk
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Nav1qjlati A-2021-217
a. CfloCo)
RESTATED LEGAL SERVICES AGREEMENT
CDWninvmyrr
RESTATED AGREEMENT FOR CITY ATTORNEY AND SPECIAL COUNSEL
LEGAL SERVICES BETWEEN THE CITY OF SANTA ANA
AND
BEST BEST & KRIEGER LLP
1. PARTIES AND DATE
ThisAgreementismadeandenteredintoasof theseconddayof November, 2021by and between the City of Santa Ana (" Client") and Best Best & Krieger LLP, a limited liability partnershipengagedin the practiceof law (`BB& K").
2. RECITALS
2. 1 Client wishesto engagetheservicesof BB& K, andspecifically, SoniaR. Carvalho, as its City Attorney to perform all necessarylegal services for the Client on the terms set forth below. ForpurposesofthisAgreement, theterns "Client" shallincludethecommunity'sSuccessor Agency, Housing Authority, and any other affiliated entities.
3. TERMS.
3. 1 Term. The term of this Agreement shall commence on November 2, 2021 and shall continue in full force and effect until terminated in accordance with Section 3. 12.
3. 2 Sconeof Services. BB&K shallserveasCity Attorneyandshallperformlegal services ("Services") asmay be requiredfrom time to time by the Client as setforth by this Agreement, unlessotherwiseagreedto by the Client andBB&K. As part of the Servicesto be performedhereunder, BB&K shallberesponsiblefor thefollowing:
3.2.1 Preparation for, and attendance at, regular meetings of the Client;
3.2.2 Provisionof legalcounselatsuchothermeetingsasdirectedby theClient;
3.2.3 Preparation or review of Client ordinances and resolutions, together with such staff reports, orders, agreements, forms, notices, declarations, certificates, deeds, leases and otherdocumentsasrequestedby theClient;
3.2.4 Rendering to the officers and employees of the Client legal advice and opinions on all legal mattersaffecting the Client, including new legislation andcourt decisions, as directedby the Client;
3.2.5 Researching and interpreting laws, court decisions and other legal authoritiesin ordertopreparelegalopinionsandto advisetheClienton legalmatterspertaining to Client operations, asdirectedby the Client;
3.2.6 Performinglegalwork pertainingto propertyacquisition, propertydisposal, publicimprovements, publicrights -of -way andeasements, asdirectedby theClient; 1-
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3.2.7 Responding to inquiries and review for legal sufficiency ordinances, resolutions, contracts, andadministrativeandpersonnelmatters, asdirectedbytheClient;
3.2.8 Representingandassistingon litigation matters, asdirectedby the Client.
Suchservicesshall include, but shall not be limited to, the preparationfor and making of appearances, includingpreparingpleadingsandpetitions, makingoralpresentations, andpreparing answers, briefs or other documentson behalf of the Client, and any officer or employeeof the Client, in all federal and state courts of this State, and alternative dispute resolution officer, and beforeanygovernmentalboardor commission, includingreviewing, defendingor assistingany insurerof the Clientor its agentsor attorneyswith respectto anylawsuitfiled againstthe Client or any officer or employee thereof, for money or damages.
ADDITIONAL SERVICES FOR AN ADDITIONAL FEE
3.2.9 BB& K' s Project 5 Program. Provides participants with memoranda summarizingnewchangesin caselawundertheCaliforniaEnvironmentalQualityAct ("CEQA'), an annually updatedset of CEQA notices and forms to aid participants in meeting CEQA's requirements, an annually updated set of Local CEQA Guidelines and a draft Resolution for adoptingLocalCEQAGuidelines, memorandasummarizingpendingandrecentlypassedCEQA legislation, andother CEQA resourcesand materials. Memoranda, forms, andguidelinesare provided to participating agencies via the CEQA Guidelines Client Portal, a secure website providing anon -demandandcontinuallyupdatinglibrary of CEQAresources. By providing our Project 5 Programupdatesto a largepool of participants, BB& K is ableto divide the overall cost of theproductsamongall participantsandchargeonly a fractionof thetotal coststo theindividual client agencies. The Project 5 services will be included within the annual retainer and no additional chargeswill be billed to the City for thesespecialservices.
3.2. 10 BB& K' s Advanced Records Center Services. Through its new Advanced Records Center (" ARC"), BB& K combines its legal acumenand experiencewith cutting -edge technology, to provide comprehensive and cost-effective support for non -routine records -related matters. Specifically, at the Client' s option, the ARC team will assist Client with non -routine Public RecordsAct ProcessingandPolicy Drafting, asdetailedbelow.
3.2. 11 BB& K Trainings. Best Best & Krieger LLP offers a variety of trainings to public agencyandprivatebusinessleadershipandstaff on topicsrequiredby law, aswell as preventativeandeducationallegaltopics. Thetrainingsareinteractiveandcanbegivenonsite, via live webinar or virtual on -demand. Someof our most popular trainings include AB 1234Ethics, Workplace Civility andSexualHarassmentAvoidance Training, The Brown Act " OpenMeetings Law," Crystalizing Your Agency' sCPRA Policies & ProceduresandSB 1343SexualHarassment Avoidance Training for Non -Supervisors.
3.2. 12 BB& K' s Election Law Center Subscription Services. Participants in BB& K' s Election Law Center will be given accessto up-to-date election documenttemplates, includingresolutionsandothermandatoryelectiondocuments. Theannualsubscriptionalsogives participants accessto BB& K' s Election Law Center hotline, which participants can use for guidanceon day-to-dayelectionlaw questionsthat ariseduring campaignandelectionseason.
The annual fee shall be billed each December. The current fee is $ 1,950. 2-
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3. 3 DesignatedCity Attorney. SoniaR. Carvalho ("Carvalho") shall be designatedas City Attorneyin accordancewith the City of SantaAna City Charter, andshallberesponsiblefor the performanceof all Servicesunder this Agreement, including the supervisionof Services performedby othermembersof BB&K. CarvalhoshallbedesignatedasHousingAuthorityand Successor Agency Counsel. No change in these assignments shall be made without the consent of the Client.
3. 4 Timeof Performance. TheServicesof BB&K shallbeperformedexpeditiouslyin the time framesandasdirected by the Client.
3. 5 Assistance. TheClientagreestoprovideall informationanddocumentsnecessary for the attorneysat BB& K to perform their obligationsunder this Agreement.
3. 6 IndependentContractor. BB& K shallperformall legalservicesrequiredunderthis Agreement asan independent contractor of the Client and shall remain, at all times asto the Client, a wholly independentcontractorwith only suchobligations asarerequiredunderthis Agreement.
Neither the Client, nor any of its employees, shall have any control over the manner, mode or meansby which BB& K, its agentsor employees, render the legal servicesrequired under this Agreement, except as otherwise set forth. The Client shall have no voice in the selection, discharge, supervisionor controlof BB&K' s employees, representativesor agents, or in fixing their number, compensation, or hours of service.
3. 7 FeesandCosts. BB&K shallrenderandbill for legalservicesin the following categoriesandatratessetforthin Exhibit "A" andin accordancewith theBB&K Billing Policies setforthin Exhibit "D", bothof whichareattachedheretoandincorporatedhereinby reference.
In addition, theClientshallreimburseBB&K for reasonableandnecessaryexpensesincurredby it in the performance of the Services under this Agreement. Authorized reimbursable expenses shallinclude, but arenot limited to, printing andcopyingexpenses, mileageexpensesat therate allowedby theInternalRevenueService, toll roadexpenses, long distancetelephoneandfacsimile tolls, computerizedresearchtime (e.g. LexisorWestlaw), researchservicesperformedbyBB&K' s library staff, extraordinarymail or delivery costs (e.g. courier, overnightandexpressdelivery), court fees and similar costs relating to the Servicesthat are generally chargeableto a client.
However, noseparatechargeshallbemadeby BB&K for secretarialorwordprocessingservices.
3. 8 Billing. BB&K shallsubmitmonthlyto theClienta single -pageinvoicefor the Retainer Services and a detailed statement of account for all Special Legal Counsel Services. The Client shallreview BB&K' s monthly statementsandpay BB&K for Servicesrenderedandcosts incurred, asprovidedfor in thisAgreement, onamonthlybasis.
3. 9 AnnualReviews. TheClientandBB&K agreethatareviewof performanceand thecompensationamountsreferencedin this Agreementshouldoccuratleastannually.
3. 10 Insurance. BB& K carries errors and omissions insurance with Lloyd' s of London.
After astandarddeductible, this insuranceprovidescoveragebeyondwhatisrequiredby theState of California. A declarationpage containing information aboutBB& K' s errorsandomissions insurancepolicy is available upon Client' s request.
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3. 11 Attorney - Client Privilege. Confidential communication between the Client and BB& K shall be coveredby the attorney -client privilege. As used in this article, "confidential communication" means information transmitted between the Client and BB& K in the course of the relationship coveredby this Agreementandin confidenceby a meansthat, so far asthe Client is aware, disclosesthe informationtonothird personsotherthanthosewho arepresentto further the interestsof theClient in theconsultationor thoseto whomdisclosureis reasonablynecessary for thetransmissionof theinformation or theaccomplishmentof the purposefor which BB& K is consulted, andincludesanylegalopinion formedandadvicegivenby BB&K in thecourseof this relationship.
3. 12 Termination of Agreement and Legal Services. This Agreement and the Services renderedunderit maybe terminatedatanytime upona voteof five membersof the City Council in accordancewith the City of SantaAna City Charter and with thirty ( 30) days' prior written notice from either party, with or without cause. In the event of such termination, BB& K shall be paidfor all ServicesauthorizedbytheClientandperformedupthroughandincludingtheeffective dateoftermination. BB&K shallalsobereimbursedfor all costsassociatedwith transitioningany files or other dataor documentsto a new law firm or returning them to the Client.
3. 13 Entire Agreement. This Agreementcontainsthe entire Agreementof the parties with respectto the subjectmatterhereof, andsupersedesall prior negotiations, understandingsor agreements.
3.14 GoverningLaw. This Agreementshallbe governedby the laws of the Stateof California. Venueshallbe in OrangeCounty.
3. 15 Amendment: Modification. No supplement, modification or amendment of this Agreementshallbebinding unlessexecuted, in writing, andsignedby both parties.
3.16 Waiver. No waiver of any default shall constitutea waiver of anyother default or breach, whetherof the sameor other covenantor condition. No waiver, benefit, privilege, or servicevoluntarily given or performed by aparty shall give the other party any contractualrights by custom, estoppel, or otherwise.
3.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwiseunenforceableby acourt of competentjurisdiction, theremainingprovisions shall continue in full force and effect.
3. 18 Counterparts. This Agreementmay be signedin counterparts, eachof which shall constitute an original.
3.1.9 Delivery of Notices. All noticespermittedor requiredunderthis Agreementnotices shall be deemedmade when personally delivered or when mailed, forty- eight (48) hours after depositin the U.S. Mail, first classpostageprepaidand addressedto theparty at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardlessof the method of service. All noticespermitted or required underthis Agreement shall be given to therespectivepartiesat thefollowing address, or at suchotheraddressasthe respective parties may provide in writing for this purpose:
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Client: City of SantaAna
20 Civic Center Plaza
Santa Ana, CA 92701
Attention: City Manager
BB& K: Best Best & Krieger LLP
18101 Von Karmen, Suite 1000
Irvine, CA 92614
Attention: Sonia R. Carvalho
3. 20 Indemnification.
A) BB&K agreesto indemnifyCity / Agency, its officers., employeesandagents against, andwill hold and saveeachof them harmlessfrom, any andall actions, suits, claims, damagestopersonsorproperty, losses, costs, penalties, obligations, errors, omissionsor liabilities herein "claimsorliabilities") thatmaybeassertedor claimedby anyperson, firm or entityarising from the negligent acts or omissionsof BB& K hereunder, or arising from BB& K' s negligent performanceof anyterm, provision, covenantor condition of this Agreement, exceptto the extent suchclaimsor liabilities arisefrom thenegligenceor willful misconductof City, its officers, agents or employees.
B) City acknowledgesBB& K is being appointedas City Attorney pursuant to the authorityof GovernmentCodeSection36505, andhasthe authorityof that office. Accordingly, the City is responsiblepursuantto GovernmentCodeSection825for providing adefensefor the City Attorneyfor actionswithin thescopeof its engagementhereunder. Therefore, City agreesto undertakeits statutoryduty andindemnify BB& K, its officers, employeesand agentsagainstand will hold andsaveeachof themharmlessfrom, anyandall claimsor liabilities thatmaybeasserted or claims by anyperson, firm or entity arising out of or in connectionwith the work, operationsor activities of BB& K within the courseandscopeof its performanceheremider, but nothingherein shall require City to indemnify BB& K for liability arising from its own negligenceor alleged negligence. In connection herewith:
i) Citywill promptlyprovideadefenseandpayanyjudgmentrenderedagainst the City, its officers, agencyor employeesfor any such claims or liabilities arising out of or in connectionwith suchwork, operationsor activities of City hereunder; and ii) In theeventBB&K, itsofficers, agentsoremployeesismadeapartytoany actionor proceedingfiled or prosecutedagainstCity for suchdamagesor otherclaimssolely arisingoutof or in connectionwith thework operationor activities of City hereunder, City agrees to payto BB&K, its officers, agentsor employeesanyandall costsandexpensesincurredby attorney, its officers, agentsor employeesin suchactionor proceeding, including, but notlimited to, legal costs and attorneys' fees.
IN WITNESS WHEREOF, the Client andBB& K haveexecutedthis Agreementfor City Attorney and SpecialCounselLegal Servicesasof the date first written above.
SIGNATURES CONTAINED ON FOLLOWING PAGE)
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A- 2021- 217
SIGNATURE PAGE TO
AGREEMENT FOR CITY ATTORNEY AND SPECIAL COUNSEL LEGAL SERVICES
BETWEEN THE CITY OF SANTA ANA AND BEST BEST & KRIEGER LLP
CITY OF SANTA ANA
By:
Name: VicenteF. Sarmiento
Title: Mayor
Date: November, 2021
ATTEST:
By:
Name: Dais Gomez
Title: Clerk of the Council
Date: November 2 , 2021
BEST BEST & KRIEGER LLP:
By: _ 9Uottx4- / l
Name: Sonia R. Carvalho
Title: PARTNER
Date: November I , 2021
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EXHIBIT A
TO
RESTATED AGREEMENT FOR CITY ATTORNEY AND SPECIAL COUNSEL
LEGAL SERVICES BETWEEN CITY OF SANTA ANA
AND
BEST BEST & KRIEGER LLP
BILLING ARRANGEMENTS
1. BasicLegalServices - Description. Basiclegalservicesshallincludeall servicesprovided to Client that arenot otherwisespecifically identified below aseitherSpecialLegal Services, Third Party ReimbursableLegal Services, or Public FinanceLegal Services ("Basic Legal Services").
The Client shallpay for BasicLegal Servicesin the amountof $325,000per yearwhich will be chargedasa flat ratemonthly retainerwith a singlepageinvoice. The City Council agrees to conduct an additional evaluation on or before the end of the 21-22 Fiscal Year and if the results areannouncedin public aspositivethentheCouncilmayalsoannounceanincreaseof theannual amount to $ 350, 000.
TheClientshallalsoprovidefor oneparkingspaceattheRossAnnexParkingGarageand for theuseof City equipmentsuchasa desktopcomputeranda mobile devicesuchasanIPador similar deviceto assistthe City Attorney whenworking on site.
2. DiscretionaryBasic Legal Servicesat Hourly. Additional legal servicesmay be providedby BB&K atthediscretionof themembersof theSantaAnaCity Attorney's Office at the following blended rates, in an amount not to exceed One Hundred Thousand Dollars 100,000) per year:
Attorneys $ 295.00 per hour
Paralegals & Law Clerks $ 160.00 per hour
Other Para - Professionals* $ 160.00per hour
Other titles may be usedin our legal services. Pleaserefer to section6 of this Exhibit for those otherpersonneltitles andrates.
Utility Matters at Hourly Rates. Certain mattersidentified at Utility Matters, suchasbut notlimitedto theNPDESProgramandUtility Enterprisematters, shallbebilledatthefollowingrates:
Attorneys
Paralegals & Law Clerks
Other Para -Professionals*
300 / 325.00 per hour
160.00per hour
160.00per hour
Other titles may be used in our legal services. Pleaserefer to section 6 of this Exhibit for those otherpersonneltitles andrates.
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3. SpecialLegalServices - Description. SpecialLegalServicesshallincludethefollowing types of services:
A. Litigationandformaladministrativeor otheradjudicatoryhearingmatters B. Labor relations and employment matters
C. Non -routine real estatematters (e.g. CC& R' s, deed or title work) D. Land acquisition anddisposalmatters (including pre -condemnation) E. SuccessorAgency andhousingmatters
F. Taxes, feesandchargesmatters (e.g. Prop. 218 & Mitigation FeeAct) G. Public construction disputes
H. Non -routine contractnegotiationmatters (including non-BB& K model agreements and franchise agreements)
I. Non -routine land use and developmentmatters (including generalplan updates, Williamson Act issues, annexations and development agreements) J. Environmental matters (e.g. CEQA, NEPA, endangeredspecies) K. Water law matters (e.g. waterrights & quality)
L. Tax and ERISA related matters
M. Toxic substancesmatters (e.g. CERCLA, RCRA)
N. Complex public utility matters ( e.g. electric, natural gas, telecommunications, water, rail or transit that involve stateor federal regulatory issues) O. Renewable energy and energy efficiency project contracts and power purchase agreements
P. IntergovernmentalRelations andAdvocacy efforts (e.g. legislative andregulatory representation) at the federal and state level.
Q. Non -routine election law matters, including election law litigation.
R. PRA Policy drafting including reviewing, assessing, andupdating records -related policiestoreflectcurrentlegalstandardsandbestpractices.
S. Other mattersmutually agreedupon betweenBBK andthe City Manager.
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4. Special Legal Services — Rates. The Client shall pay for Special Legal Servicesat the following ratesandasspecifiedin the specific letter confurning the requestfor suchSpecialLegal Services.
Partners & Of Counsel
Partners - Employee Benefits/ CALPERS
Associates
Paralegals & Clerks
Other Para - Professionals*
From $295up to $375per hour
425 per hour
From $250 up to $290 per hour
175per hour
175per hour
Other titles may be usedin our legal services. Pleaserefer to section6 of this Exhibit for those otherpersonneltitles andrates.
Theseratesarereviewed annually andmay be increasedfrom time to time with advancedwritten notice to the client.
5. Agreement Regarding Rate Categories. If BB& K believes that a matter falls within the Special Legal Services, Third Party Reimbursable Legal Services, or Public Finance Legal Servicesrate categories, BB& K shall seekwritten approvalfrom the City Manageror his/her designee. The City Manager's or his/her designee's approval of sucha requestfrom BB& K shall not be unreasonablywithheld.
6. Other Billing Personnel. Additional billing personnel shall bill at the following rates for all servicesperformedwhenapprovedin writing by theCity Manager:
Muni & Litigation Analysts At applicable rates
Research Analysts At applicable rates
Administrative Assistants At applicable rates
for docketing andaudit letter responses)
7. Annual Adjustments.
Beginning July 1, 2023, andevery July I" thereafter, the aboveratesandretainer amounts will be adjustedannuallyby the amountof the salarycost of living adjustment, if any, given to employeeswho aremembersof the SAMA bargainingunit.
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EXHIBIT B
TO
RESTATED AGREEMENT FOR CITY ATTORNEY AND SPECIAL COUNSEL
LEGAL SERVICES BETWEEN
CITY OF SANTA ANA
AND
BEST BEST & KRIEGER LLP
THIRD PARTY REIMBURSABLE BILLING POLICIES Third Party Reimbursable Legal Services - Description. Third Party ReimbursableLegal Servicesshall include legal services providedto the City for which theCity receivesreimbursementfroma developeror otherthird party. These reimbursable legal servicesinclude, but arenot limited to, negotiation and review of developmentagreements, planningentitlements, review of CC&Rs; establishmentof financingdistricts (i.e., CommunityFacilities Districts; AssessmentDistricts; Landscapeand Lighting MaintenanceDistricts); theprocessingof land use/environmentalprojectsfor which the City is entitledto reimbursement, aswell asdefendinganychallengestoprojectentitlementsor any dispute or litigation related to such reimbursable legal services. Third Party Reimbursable Legal Services - Rates. TheClient shallpay for Third PartyReimbursableLegal Servicesat BB& K' sthencurrent publishedstandardprivate client rates, minus tenpercent (10%) or at a lowerrate agreedupon. Upon executionof this Agreement, BB& K shallprovide acopy of its publishedrate scheduleto theClient. BB& K shall alsoprovide annualwritten updatesto the Client when changesaremadeto thepublished rate schedule.
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EXHIBIT C
TO
RESTATED AGREEMENT FOR CITY ATTORNEY AND SPECIAL COUNSEL
LEGAL SERVICES BETWEEN
CITY OF SANTA ANA
AND
BEST BEST & KRIEGER LLP
PUBLIC FINANCE & BOND BILLING POLICIES
1. Public Finance & Bond Rates. BB& K will provide bond counsel, special counsel or disclosure counsel services at the request of the Client. Such bond counsel and special counsel servicesincludethepreparationofall legislativeapprovalsandlegaldocumentationrelatingtothe appropriatesaleanddelivery of the bonds, notesor otherobligations. BB&I{ will alsoprepare suchclosingcertificatesandlegalopinionsnecessaryfor thedeliveryof the bonds. As disclosure counsel, wewill preparethe disclosuredocumentsfor theClient andconductthe necessarydue diligencerelatedtothetransaction. Ourfeeswill bedeterminedbaseduponthetypeof financing andthe expectedinvolvementof theattorneysinvolved. We will provide theClient with adetailed description of our services and our fees and reimbursable costs upon the Client' s request.
Notwithstandingtheforegoing, in thosecaseswherethefeesarereimbursableby athird party, at BB&K' soptionit mayproceedonanhourlybasisandutilizetheThirdParryReimbursableLegal Servicescategoryprovidedfor in this Amendment, includingwith respectto servicesrenderedfor theformationof, or annexationto, aCFD (of eithertheCity or otherlocalpublicagency), aswell asthe negotiationandpreparationof funding agreementsandjoint financing agreements. Legal servicesrelatedto the Client's compliancewith its continuingdisclosurecovenantsandprovide suchnecessaryadviceon the Client' s complianceshallbe billed asSpecialLegal Services, above.
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EXHIBIT D
TO
RESTATED AGREEMENT FOR CITY ATTORNEY AND SPECIAL COUNSEL LEGAL SERVICES
BETWEEN
CITY OF SANTA ANA
AND
BEST BEST & KRIEGER LLP
BB& K BILLING POLICIES
Our centuryof experiencehasshownthat theattorney -client relationshipworks bestwhen thereis mutual understandingabout fees, expenses, billing andpaymentterms. Therefore, this statementis intendedto explain ourbilling policiesandprocedures. Clientsareencouragedto discusswith us anyquestionstheyhaveaboutthese policies andprocedures. Clientsmaydirect specificquestionsaboutabill to theattorneywith whom the client works or to our Accounts Receivable Department ( accounts. receivable@bbklaw. com). Any specific billing arrangements different from those set forth below will be confirmed in a separate written agreement between the client and the firm.
INVOICE AND PAYMENT OPTIONS
Best Best & Krieger strives to meet our clients' needsin terms of providing a wide variety of invoice types, delivery andpayment options. Pleaseindicatethoseneedsincluding the preferredmethod of invoice delivery (Invoicevia Email; or USPS). In addition, [email protected] W-9 upon request and discussvarious acceptedpayment methods.
FEES FOR ELECTRONICALLY STORED INFORMATION (" ESI") SUPPORT AND STORAGE BBK provides Electronically StoredInformation (`BSI") servicesfor mattersrequiring ESI support — typically litigation or threatenedlitigation matters. BBK provides servicesfor basicESI processingandstorage atthefollowingratespermonthbasedonthenumberof gigabytesof data ("GB") processedandstored:
1GB- 250GB: $10per GB
251GB - 550GB: $8 per GB
551GB - 750GB: $6 per GB
751GB - ITB: $ 4 per GB
The amount BBK charges for basic processing and storage of ESI allows BBK to recover the costs of providingsuchservices, plusa netprofit for BBK. BBK believesthattheratesit chargesfor processingand storageare lower than comparableservicesavailablefrom third party vendorsin the market. If you wish to contractseparatelywith a third party vendorfor processingand storagecosts, pleasenotify BBK in writing.
OPTIONALBBK alsoprovidesadvancedESIprocessingservicesathourlyratesfor personnelin its Litigation Support Group. A copy of BBK' s current rates for suchserviceswill beprovided upon request.] BBK shall not incur costsfor ESI support on a particular matterwithout first confirming by email or written correspondence with the client that the client agreessuchservicesarenecessaryfor the matter at hand.
FEES FOR PROFESSIONAL SERVICES
Unless a flat fee is set forth in our engagement letter with a client, our fees for the legal work we will undertakewill be basedin substantialpart on time spentby personnelin our office on that client' s behalf. In specialcircumstanceswhich will be discussedwith theclient andagreeduponin writing, feeswill bebasedupon the novelty or difficulty of thematter, or thetime or otherspeciallimitations imposedby the client.
Hourly ratesaresetto reflecttheskill andexperienceof the attorneyor otherlegalpersonnelrendering services on the client' s behalf. All legal services are billed in one -tenth of an hour ( 0. 10/hour) or six -minute D- 1
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increments. Our attorneys are currently billed at rates from $ 220 to $795 per hour, and our administrative assistants, researchassistants, municipal analysts, litigation analysts, paralegals, paraprofessionalsandlaw clerks arebilled atratesfrom $150to $290perhour for newwork. Theseratesreflecttherangesin both ourpublic and our private rates. These hourly rates are reviewed annually to accommodaterising firm costs and to reflect changesin attorneystatusaslawyersattainnewlevelsof legal experience. Any increasesresultingfrom such reviews will be instituted automatically and will apply to each affected client, after advancenotice.
Non -AttorneyPersonnel: BBK mayemploytheservicesof non -attorneypersonnelunderthesupervision of aBBK attorneyin order to perform servicescalled for in the legal servicesagreement. The most common non - attorneypersonnelutilized areparalegals. Othertypesof non -attorneypersonnelinclude, but arenot limited to, caseclerks, litigation analysts, andspecialtyconsultants. The client agreesthatBBK may usesuchnon -attorney personneltoperformits serviceswhenit isreasonablynecessaryin thejudgmentof theresponsibleBBK attorney.
Hourly feesfor non -attorneypersonnelwill bechargedattheratethenin effectfor suchpersonnel. A copyof BBK' s currentratesandtitles for non -attorneypersonnelwill beprovideduponrequest.
FEES FOR OTHER SERVICES, COSTS AND EXPENSES
We attempt to serve all our clients with the most effective support systems available. Therefore, in additionto feesfor professionallegalservices, we alsochargeseparatelyfor someotherservicesandexpensesto the extentof their use by individual clients. Thesechargesinclude but arenot limited to, mileage at the current IRS approved rate per mile, extraordinary telephone and document delivery charges, copying charges, computerizedresearch, court filing fees and other court -related expendituresincluding court reporter and transcription fees. No separatechargeis madefor secretarialor word processingservices; those costsareincluded within the abovehourly rates.
We may needto advancecostsandincur expenseson your behalf on an ongoing basis. Theseitems are separateand apartfrom attorneys' fees and, asthey are out-of-pocket charges, we needto have sufficient funds on hand from you to pay them when due. We will advisethe client from time to time when we expectitems of significantcostto beincurred, andit is requiredthattheclientsendus advancesto coverthosecostsbeforethey are due.
ADVANCE DEPOSIT TOWARD FEES AND COSTS
Becausenew client mattersinvolveboth a substantialundertakingby our firm andtheestablishmentof client credit with our accounting office, we require anadvancepayment from clients. The amount of this advance deposit is determinedon a case -by -casebasisdiscussedfirst with the client, and is specified in our engagement letter.
Uponreceipt, the advancedepositwill be depositedinto the firm's clienttrust account. Our monthly billings will reflect suchapplicationsof the advancedepositto costsandnot to attorney's fees (unlessotherwise notedin our accompanyingengagementletter). At theendof engagement, we will apply anyremainingbalance first to costs and then to fees. We also reserve the right to require increases or renewals of these advanced deposits.
By signingthe initial engagementletter, eachclient is agreeingthat trust accountbalancesmay be withdrawn andapplied to costsasthey areincurred andto our billings, when we issueour invoice to the client.
If we succeedin resolvingyour matterbeforethe amountsdepositedareused, anybalancewill be promptly refunded.
MONTHLY INVOICES AND PAYMENT
Best Best & Krieger LLP provides our clients with monthly invoicesfor legal servicesperformedand expensesincurred. Invoices are due and payable upon receipt.
Eachmonthly invoice reflects both professional and other feesfor servicesrenderedthrough the end of the prior month, aswell as expensesincurred on the client' s behalf that havebeenprocessedby the end of the prior month. Processingof someexpensesis delayeduntil thenextmonthandbilled thereafter.
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Our fees are not contingent upon any aspectof the matter and are due upon receipt. All billings are due andpayablewithintendaysofpresentationunlessthefull amountis coveredby thebalanceof anadvanceheld in our trust account. If abill is not paid within 30 days, a latechargeof onepercentper monthon theunpaid invoicemaybeaddedto thebalanceowed, commencingwiththenextstatementandcontinuinguntilpaid.
It is ourpolicyto treateveryquestionaboutabill promptlyandfairly. It is alsoourpolicythatif aclient doesnotpayaninvoicewithin60daysof mailing, weassumetheclientis, forwhateverreason, refusingtopay.
We reservethe right to terminate our engagementandwithdraw asattorneyof record wheneverour invoices are notpaid. If aninvoiceis 60dayslate, however, wemayadvisetheclientby letterthattheclientmustpaythe invoicewithin14daysorthefirmwill takeappropriatestepstowithdrawasattorneyof record. If thedelayis causedby aproblemin theinvoice, wemustrelyupontheclientto raisethatwith usduringthe 14-dayperiod.
This samepolicy applies to fee arrangementswhich require the client to replenish fee depositsor make deposits for anticipated costs.
Fromtimetotimeclientshavequestionsabouttheformatof thebill or descriptionof workperfornied. If you haveanysuchquestions, pleaseaskthemwhenyou receivethebill sowemayaddressthemon a current basis.
CHANGES IN FEE ARRANGEMENTS AND BUDGETS
It may be necessaryunder certain circumstancesfor a client to increasethe size of required advancesfor feesafterthecommencementof ourengagementanddependinguponthescopeofthework. Forexample, prior to a protractedtrial or hearing, the firm may require a further advancepaymentto the firm' s trust account sufficient to cover expected fees. Any such changes in fee arrangementswill be discussedwith the client and mutually agreedin writing.
Becauseof the uncertaintiesinvolved, any estimatesof anticipatedfeesthatwe provide at therequestof aclientfor budgetingpurposes, or otherwise, canonlybeanapproximationof potentialfees.
BEST BEST & KRIEGER LLP
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City Manager Office
www.santa-ana.org/city-managers-office
Item # 18
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
August 29, 2023
TOPIC: Resolution in Support of the HOME Act (Carrillo-AB 1306)
AGENDA TITLE
Resolution Declaring Support of the HOME Act AB1306
RECOMMENDED ACTION
Adopt a resolution declaring support of Assembly Bill 1306 (Carrillo) - State Government: Immigration Enforcement.
DISCUSSION
At the August 1, 2023, Councilmember Vazquez added the following councilmember- requested item: Discuss and Consider Directing the City Manager to Return for City Council’s Consideration a Resolution in Support of AB1306 to Harmonize State Policy with Broadly-Supported, Existing Criminal-Justice Reforms.
About Assembly Bill 1306
Assembly Bill 1306 (“AB 1306”), also known as "The HOME Act," is a proposed state bill aimed at halting transfers between the California Department of Corrections and Rehabilitation (CDCR) and Immigration Customs Enforcement (ICE) for individuals who have completed their sentences and been granted parole. The bill emphasizes previous restorative justice legislation and guarantees that individuals under these policies can return to their homes and reintegrate into society, regardless of their citizenship status.
The primary goal of the proposed bill is to enable these individuals to rebuild their lives after serving their sentences.
As noted below, there exists state law that limits or restricts state and local law enforcement agencies in federal immigration enforcement activities. However, existing law does not impose these limitations or restrictions on CDCR. AB 1306 would restrict CDCR from cooperating with Immigration and Customs Enforcement (ICE) in specific circumstances. More information is provided in the section below.
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Resolution in Support of the HOME Act (Carrillo-AB 1306) August 29, 2023
About the California Values Act and TRUST Act
The California Values Act, effective since January 1, 2018, restricts the participation of state and local law enforcement agencies in federal immigration enforcement activities.
It forbids these agencies, including school police and security departments, from using their resources to engage in immigration-related investigations, interrogations, detentions, detections, or arrests. The California Values Act also imposes limitations on how law enforcement can collaborate with federal task forces that involve immigration enforcement components. The aim of the California Values Act is to create a clear separation between state and local law enforcement and federal immigration enforcement efforts.
The Values Act builds upon the TRUST Act and expands its scope. The TRUST Act originally prohibited law enforcement from honoring federal immigration holds unless the individual had a serious or violent felony conviction. However, the California Values Act includes certain exceptions that allow law enforcement agencies to cooperate with immigration authorities in the following circumstances:
•Provide a person’s release date or personal information, as specified, if such information is available to the public;
•Respond to notification and transfer requests when the individual had been convicted of specified crimes which reflected a higher public safety danger and are on the serious end of the criminal spectrum such as serious and violent felonies and offenses requiring an individual to register as a sex offender; •Make inquiries into information necessary to certify an individual for a visa for a victim of domestic violence and human trafficking;
•Respond to a request from immigration authorities for information about a person’s criminal history;
•Participate with a joint law enforcement task force, as long as the primary purpose of the task force is not immigration enforcement; or, •Give immigration authorities access to interview an individual in agency custody as long as the interview access complied with the requirements of the TRUTH Act.
How the California Values Act and TRUST Act do not Affect CDCR Under both the Values Act and the TRUST Act, the California Department of Corrections and Rehabilitation (CDCR) is not classified as a California law enforcement agency. As a result, the restrictions and requirements imposed on law enforcement agencies regarding immigration enforcement do not apply to CDCR. Contrarily, current law explicitly mandates CDCR to cooperate with Immigration and Customs Enforcement (ICE) through provisions in the Penal Code (Sections 5025 and 5026). Therefore, CDCR's obligations differ from those of California law enforcement agencies in matters related to immigration enforcement.
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Resolution in Support of the HOME Act (Carrillo-AB 1306) August 29, 2023
How AB 1306 Proposes to Changes State Law Relating to CDCR and Federal Immigration Enforcement
AB 1306 restricts the California Department of Corrections and Rehabilitation (CDCR) from cooperating with Immigration and Customs Enforcement (ICE) in specific circumstances. It prohibits CDCR from providing information or assistance to ICE when releasing individuals on various grounds, such as elderly parole, medical parole, compassionate release, youth offender parole hearings, vacatur of felony murder convictions, vacatur due to human trafficking or intimate partner violence victimization, resentencing based on childhood trauma, youthful offender or human trafficking/intimate partner violence victim, resentencing under the California Racial Justice Act, or grant of clemency.
Additionally, the bill repeals provisions that previously mandated CDCR's cooperation with the Department of Homeland Security (DHS) in matters related to immigration enforcement. In summary, the bill aims to limit CDCR's collaboration with ICE, but only in specific cases of release, while also removing the requirement for CDCR to cooperate with DHS.
Resolution
Attached for consideration by the City Council is a resolution (Exhibit 1) supporting AB 1306.
FISCAL IMPACT
There is no fiscal impact associated with this action.
EXHIBIT(S)
1. Resolution
Submitted By: Kristine Ridge, City Manager
Approved By: Kristine Ridge, City Manager
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Resolution No. 2023-XXX
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4 RESOLUTION NO. 2023-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA SUPPORTING ASSEMBLY BILL 1306 (The HOME Act)
Whereas, refugees and immigrants are a vital part of California’s heart and identity, and the City of Santa Ana recognizes the humanity of all people who call our community home, Whereas, California’s criminal justice system unjustly and disproportionately harms Black, Latinx, Indigenous, and Asian and Pacific Islander American communities.
Whereas, in recent years, the Legislature and California voters have demonstrated a strong commitment to reforming our criminal system and ending mass incarceration by enacting various landmark reforms. Through these reforms, certain incarcerated individuals have the opportunity to be considered for resentencing or release.
Whereas, despite these reforms, when California’s prisons voluntarily and unnecessarily transfer immigrant and refugee community members eligible for release from state custody to U.S.
Immigration and Customs Enforcement (ICE) for immigration detention and deportation purposes, they subject these community members to double punishment and further trauma. This double-punishment devastates families and deprives our communities of beloved leaders who are eager to positively contribute to society. If not because of where they were born, these community members would be allowed to return home to their families and communities.
Whereas, immigrant community members can be incarcerated by ICE, often for prolonged periods and with no right to bail, and deported, permanently banishing them from the country, from their families, their homes, their livelihoods and “all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). The Supreme Court has repeatedly acknowledged that for many people, deportation is a more severe penalty than any jail sentence. See, e.g., Lee v.
United States, 137 S.Ct. 1958, 1968 (2017); Padilla v. Kentucky, 559 U.S. 356, 364 (2010).
Whereas, data shows that Black and Brown immigrants are disproportionately targeted by arrest, detention, and deportation.
Whereas, when the California legislature passed criminal justice reforms previously, these reforms were expected to save the state millions by reducing the length of draconian sentences.
However, when Californians who are immigrants earn release through these reforms, the
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4 California Department of Corrections and Rehabilitation expends additional funding unnecessarily to coordinate with and hand these community members over to ICE for a second, double punishment. The full intent, benefits, and cost savings from these reforms cannot be fully realized if CDCR continues to waste resources on assisting ICE with deportations.
Whereas, our immigration policies should be driven by our values: equality, fairness, compassion, and common humanity. Immigrants are part of our families, communities and workplaces. Every person who calls the U.S. home, including our neighbors who are immigrants, should be safe from profiling and harm by the government.
Whereas, California has an important opportunity to reunite families and strengthen communities by passing the HOME Act (Harmonizing Our Measures for Equality, AB 1306 by Assembly Member Wendy Carrillo) this year.
Whereas, the HOME Act is a simple fix that will harmonize state policy with broadly-supported, existing criminal-justice reforms that have already been enacted into law. These laws are reducing mass incarceration and addressing racism in our legal systems.
Whereas, community members who have earned release under existing laws included in the HOME Act should be able to return home, reunite with their families, and rebuild their lives instead of being cruelly transferred to ICE. This is an issue of equality and fairness.
Whereas, Oregon, Illinois, and Washington DC have already enacted laws that stop all ICE transfers from jails and prisons, and itis time for California to catch up. Additionally, many counties within California have already stopped all ICE transfers, including Los Angeles, San Joaquin, Santa Cruz, Humboldt, San Francisco, Santa Clara, and Contra Costa.
Whereas, the City of Santa Ana values all members of our community, embraces compassion, equality, and inclusion, and proudly defends the rights of all residents, including refugees and immigrants.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows:
Section 1.The City of Santa Ana strongly supports California Assembly Bill No. 1306 and urges the California State Legislature to pass this bill in order to harmonize state policy
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4 with broadly-supported, existing criminal-justice reforms that have already been enacted into law.
Section 2.The City Council hereby directs the City Clerk to transmit a copy of this Resolution to the California Assembly Speaker Robert Rivas , California Assembly Appropriations Committee Chair Chris Holden, California Senate President Pro Tempore Toni Atkins, California Senate Public Safety Committee Chair Aisha Wahab, California Senate Judiciary Committee Chair Thomas Umberg, California Senate Appropriations Committee Chair Anthony Portantino, and the Bill’s author, Assembly Member Wendy Carrillo.
Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution.
ADOPTED this 29th day of August 2023.
___________________________
Valerie Amezcua
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By: _______________________________
Laura A. Rossini
Chief Assistant City Attorney
AYES:___________________ Councilmembers
NOES:___________________ Councilmembers
ABSTAIN:________________ Councilmembers
NOT PRESENT:____________ Councilmembers
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Resolution No. 2023-XXX