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HomeMy WebLinkAboutJOHN ROBINSON CONSULTING, INC.NCE NOT ON FILE N'2021-019 tn' 11K MAY NOT PROCEED C,LERK OF COUNCIL DATE: CONSULTANT AGREEMENT y��, lP-Pc (K�' a (�THIS 7GREEMENT is made and entered into this 18th day of January, 2021 by and between John Robinson Consulting, Inc. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a Consultant to provide services related to the review and revision of the City's Recycled Water Master Plan in response to comments received by the United States Bureau of Reclamation. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting 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 Consultant shall perform 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. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit A. The total sum to be expended under the term of this Agreement, including any extension period, shall not exceed $25,000. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals 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 December 31, 2021, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for one 1-year period upon a writing executed by the City Manager and City Attorney. Page 1 of 8 C PREVAILING WAGES Consultant is aware of the requirements of California ]Labor Code Section 1720, of seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, 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. 5, INDEPENDE14T CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services, Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City'g sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officer's, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection Page 2 of 8 against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for workers' compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident, d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1.,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect, by Consultant, without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. Page 3 of 8 8. INDEMNIFICATION Consultant 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 Consultant 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 reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the 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 Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant 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 Consultant to the City pursuant to this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENT:IALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or Page 4 of 8 disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no 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: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 To Consultant: John Robinson Consulting, Inc. 1055 East Colorado Blvd, Suite 500 Pasadena, CA 91106 Attn: John Robinson, 'Principal 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 Page 5 of 8 flax, 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 timeframes, weekends, federal, state, Country or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms 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 are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City 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, 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 completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. Page 6 of 8 N-2021-019 b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, relation, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 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 Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United 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. 21. 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 terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. AT T T: Daisy Gomez Clerk of the Council CITY OF SANTA ANA Kristine Ridge City Manager Page 7 of 8 APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By: dG / " -fw- hn M. Funk Senior Assistant City Attorney RECOMMENDED FOR APPROVAL Nabit Saba, P.E. Executive Director Public Works Agency CONSULTANT �otin 12a1o,�s�� pr k - �a Page 8 of 8 EXHIBIT A JOHN ROBINSON Consulting, Inc. December 2, 2020 Mr. Brian Ige City of Santa Ana, PWA - Water Division 220 S. Daisy Ave. M-85 Santa Ana CA 92703 Subject: Letter Proposal for the USBR Crosswalk Response Dear Mr. Ige: John Robinson Consulting, Inc. (JR Consulting) is pleased to offer is letter proposal to the City of Santa Ana (City) to respond to United States Bureau of Reclamation (USBR) comments on the Recycled Water Master Plan (RWMP) received from Engineering Solution Services. JR Consulting is a California S Corporation, is a Small Business Enterprise (SBE) and is located locally in Pasadena. This letter proposal outlines our scope of services to modify the RWMP with USBR comments with corresponding schedule and fee estimate. SCOPE OF SEPVJCES JR Consulting was a subconsultant to Thomas R. Holliman & Associates (TRHA) on the development of the RWMP so is familiar with the document and can complete the modifications in order to incorporate the USBR "crosswalk" comments based upon USBR Directive and Standard (D&S) Manual WTR 11-01. The purpose of this D&S is to establish requirements and a review process for feasibility studies conducted under the Bureau of Reclamation's Water Reclamation and Reuse (Title XVI) Program and Desalination Construction Program. The purpose of Reclamation's review is to determine if a water reclamation, recycling or desalination feasibility study report meets the requirements of a feasibility study as defined under section 1604 of Pub. L. 102-575, as amended. Through this review, Reclamation also meets the requirements of section 4009 of Pub. L. 114-322 to review feasibility studies. The benefits of this D&S include providing sufficient information for the formulation of feasibility studies for water reclamation, recycling and desalination projects and clearly stating Reclamation's review procedures. The City prepared the Recycled Water Master Plan which Was partially funded by the State of California Water Resources Control Board Division of Financial Assistance (SWRCB DFA) and not USBR Title XVI Program. The City is looking to modify the RWMP in order to comply with USBR requirements which would allow the City to submit for planning and infrastructure funding from USBR potential recycled water projects. City of Santa Ana Title XVI Crosswalk Missing Information The purpose of this document is to identify all outstanding questions from the documents that have been assembled for the City of Santa Ana's Water Reclamation project. The main topic of concern is there is no detailed alternatives analysis for the proposed Water Reclamation project Mr. Brian Ige 2 of 4 December 2, 2020 which is required in order to receive Title XVI funding. The red text are comments received from Bureau of Reclamation preliminary feedback for this application. Section 4 - Description oj'Alternatives: BOR questions to be resolved: b. Statement of the specific objectives all alternatives, including the reclamation, recycling or desalination project, are designed to address. f. Description of one or more alternative technologies that could be used in the proposed water reclamation, recycling or desalination project under consideration. These alternatives must be approvable by the state(s) or tribal authorities in which the project will be located. .Section 5 - Economic Analysis Section: BOR Comment: The main section that needs to be revised is section 5, Economic Analysis. It is not clear what the water supply alternatives to the proposed Title XVI project are. It seems like the proposed Title XVI project is the combination of Phase 1, Phase 2, Phase 3A, Phase 3B, and Phase 4. BOR Comment: The water supply alternatives (D&S criteria 5(b) and 5(c)) should be alternatives to the entire proposed Title XVI project. Table 7-2 just provides the scoring values and description of each scoring value and does not actually discuss project alternatives. It also appears that the study does not directly address criteria 5(a) or 5(d). BOR Questions to be resolved: a. The economic analysis included in the feasibility study report shall describe the conditions that exist in the area and provide projections of the future with, and without, the project. Emphasis in the analysis must be given to the contributions that the plan could make toward alleviation of economic problems and the meeting of future water demand. b. A cost comparison of alternatives that would satisfy the same demand as the proposed reclamation, recycling or desalination project. Alternatives used for comparison must be likely and realistic, and developed with the same standards with respect to interest rates and period of analysis. Section 7 — Project Alternative Analysis BOR Comment: Section 7.7, table 7-2 shows a comparison of alternatives but does not provide a description of each alternative (1, 2, 3, and 4). BOR Comment: Table 7-2 just provides the scoring values and description of each scoring value and does not actually discuss project alternatives. Mr. Brian Ige 3 of 4 December 2, 2020 c, Description of other water supply alternatives considered to accomplish the objectives to be addressed by the proposed water reclamation, recycling or desalination project, including benefits to be gained by each alternative, total project cost, life cycle cost, and corresponding cost of the project water produced expressed in dollars per MG, and/or dollars per acre-foot. An appraisal level cost estimates, or better, is acceptable for these alternatives. BOR Comment: Section 7.2.1 and 7.3 provide very brief descriptions. This criterion requires more description for the alternatives, such as benefits to be gained by each alternative, total project cost, life cycle cost, and corresponding cost of the project water produced expressed in dollars per MG, and/or dollars per acre-foot (please see the D&S). Do these alternatives match with the alternatives in table 7-2? d. When a water reclamation, recycling or desalination project provides water supplies for municipal and industrial use, the benefits of the project can be measured in terms of the cost of the alternative most likely to be implemented in the absence of the project. This is assuming that the two alternatives would provide comparable levels of service. This comparison must be provided, if applicable. BOR Comment: Also, which one in the table is the proposed Title XVI project? Following are also missing in the Recycled Water Master Plan: 1. Description of potential sources of water to be reclaimed, recycled or desalinated, including impaired surface and ground waters. Statement of the specific objectives all alternatives, including the reclamation, recycling or desalination project, are designed to address. 3. Analysis of any water rights issues potentially resulting from implementation of the proposed water reclamation, recycling or desalination project. All proposed water reclamation, recycling or desalination projects must comply with state water law. time Schedule JR Consulting will commence with the proposed scope of services after the Professional Services Agreement (PSA) has fully been executed. RWMP revisions would be completed within 60 days with the goal to be completed by February 28, 2021 to allow IJSBR a 6-month review of the revised crosswalk so they can make their final decision before the end of the Federal fiscal year. Compensation JR Consulting will provide the scope of services with the proposed schedule as set forth in this proposal to the City on a time and material basis. Based on JR Consulting's present knowledge of the services described above, it is recommended a not -to -exceed budget of $24,900 which is based upon 166 hours at $150 per hour. Mr. Brian Ige 4 of 4 December 2, 2020 JR Consulting commits to timely, responsive services, and to deliver excellence in the offered services. We are eager and enthusiastic to continue City to implement a recycled water system for your member agencies. . If there are any questions, please feel free to contact me at (626) 375-9389 or i robinson(a�j ohnrobinsonconsultina.com Very truly yours, John Robinson Consulting, Inc. iH J/ .(- John Robinson, Principal