HomeMy WebLinkAbout- - Mayer Hoffman McCann PSA - 6/19/2012PROFESSIONAL SERVICES AGREEMENT
CITY OF COSTA MESA
THIS AGREEMENT is made and entered into this 16th day of May, 2012 ("Effective
Date"), by and between the CITY OF COSTA MESA, a municipal corporation ("City"), and
Mayer Hoffinan McCann, P.C. ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to have Consultant perform the services described herein
below; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise
contemplated within California Government Code, Section 37103, and holds all necessary
licenses to practice and perform the services herein contemplated; and
C. WHEREAS, City and Consultant desire to contract for the specific services described in
Exhibit "A" (the "Project") and desire to set forth their rights, duties and liabilities in connection
with the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the provisions
of California Government Code, Sections 1090-1092, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described in
Consultant's Proposal, a copy of which is attached hereto as Exhibit "A" and incorporated herein
by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel experienced in their respective fields
and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by
professional consultants in similar fields and circumstances in accordance with sound
professional practices. It is understood that in the exercise of every aspect of its role, within the
scope of work, consultant will be representing the City of Costa Mesa, and all of its actions,
communications, or other work, during its employment, under this contract is under the direction
of the department. Consultant also warrants that it is familiar with all laws that may affect its
performance of this Agreement and shall advise City of any changes in any laws that may affect
Consultant's performance of this Agreement.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to
the complete satisfaction of the City and within the hereinafter specified. Evaluations of the
work will be done by the City Clerk or her designee. If the quality of work is not satisfactory,
City in its discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the
matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is
satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this
Agreement in compliance with all applicable Federal and California employment laws including,
but not limited to, those laws related to minimum hours and wages; occupational health and
safety; fair employment and employment practices; workers' compensation insurance and safety
in employment; and all other Federal, State and local laws and ordinances applicable to the
services required under this Agreement. Consultant shall indemnify and hold harmless City from
and against all claims, demands, payments, suits, actions, proceedings, and judgments of every
nature and description including attorneys' fees and costs, presented, brought, or recovered
against City for, or on account of any liability under any of the above-mentioned laws, which
may be incurred by reason of Consultant's performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage
in, nor permit its agents to engage in, discrimination in employment of persons because of their
race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital
status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the
Government Code.
1.6. Non -Exclusive Agreement. Consultant acknowledges that City may enter into
agreements with other consultants for services similar to the services that are subject to this
Agreement or may have its own employees perform services similar to those services
contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set
forth herein shall not be delegated or assigned to any person or entity without the prior written
consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ
other personnel to perform services contemplated by this Agreement at Consultant's sole cost
and expense.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have
access to financial, accounting, statistical, and personnel data of private individuals and
employees of City. Consultant covenants that all data, documents, discussion, or other
information developed or received by Consultant or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Consultant without written authorization
by City. City shall grant such authorization if disclosure is required by law. All City data shall
be returned to City upon the termination of this Agreement. Consultant's covenant under this
Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. As compensation for the provision of services outlined in Exhibit
A and in accordance with this agreement, Consultant shall be paid in accordance with the fees set
forth in Exhibit `B". Consultant's total compensation shall not exceed One hundred thirty-five
thousand one hundred twenty-eight ($135,128.00).
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2.2. Additional Services. Consultant shall not receive compensation for any services
provided outside the scope of services specified by the Response unless the City or the Project
Manager for this Project, prior to Consultant performing the additional services, approves such
additional services in writing. It is specifically understood that oral requests and/or approvals of
such additional services or additional compensation shall be barred and are unenforceable.
2.3. Method of Billing. Consultant may submit invoices to City's Project Manager for
approval on a progress basis, but no more often than monthly. Said invoice shall be based on the
total of all Consultant's services which have been completed to City's sole satisfaction as of the
date the invoice is created. City shall pay Consultant's invoice within forty-five (45) days from
the date City receives said invoice. Each invoice shall describe in detail, the services performed,
the date of performance, and the associated time for completion. Any additional services
approved and performed pursuant to this Agreement shall be designated as "Additional Services"
and shall identify the number of the authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement
shall be maintained in accordance with generally recognized accounting principles and shall be
made available to City or its Project Manager for inspection and/or audit at mutually convenient
times for a period of three (3) years from the Effective Date.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be
performed pursuant to this Agreement shall commence within five (5) days from the Effective
Date of this Agreement. The Project Schedule may be amended by mutual agreement of the
parties. Failure to commence work in a timely manner and/or diligently pursue work to
completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
performance resulting from acts beyond the reasonable control of the party or parties. Such acts
shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with
laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a
party.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue for a
period of three (3) years ending on May 16, 2015 with an option to extend the contract in one-
year periods, for a minimum of two fiscal years, unless previously terminated as provided herein
or as otherwise agreed to in writing by the parties.
4.2. Notice of Termination. The City reserves and has the right and privilege of
canceling, suspending or abandoning the execution of all or any part of the work contemplated
by this Agreement, with or without cause, at any time, by providing written notice to Consultant.
The termination of this Agreement shall be deemed effective upon receipt of the notice of
termination. In the event of such termination, Consultant shall immediately stop rendering
services under this Agreement unless directed otherwise by the City.
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4.3. Compensation. In the event of termination, City shall pay Consultant for
reasonable costs incurred and professional services satisfactorily performed up to and including
the date of City's written notice of termination. Compensation for work in progress shall be
prorated as to the percentage of work completed as of the effective date of termination in
accordance with the fees set forth herein. In ascertaining the professional services actually
rendered hereunder up to the effective date of termination of this Agreement, consideration shall
be given to both completed work and work in progress, to complete and incomplete drawings,
and to other documents pertaining to the services contemplated herein whether delivered to the
City or in the possession of the Consultant.
4.4. Documents. In the event of termination of this Agreement, all documents
prepared by Consultant in its performance of this Agreement including, but not limited to,
finished or unfinished design, development and construction documents, data studies, drawings,
maps and reports, shall be delivered to the City within ten (10) days of delivery of termination
notice to Consultant, at no cost to City. Any use of uncompleted documents without specific
written authorization from Consultant shall be at City's sole risk and without liability or legal
expense to Consultant.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and
keep in full force and effect during the life of this Agreement all of the following minimum
scope of insurance coverages with an insurance company admitted to do business in California,
rated "A," Class X, or better in the most recent Best's Key Insurance Rating Guide, and
approved by City:
(a) Commercial general liability, including premises -operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury or bodily
injury with a policy limit of not less than One Million Dollars
($1,000,000.00), combined single limits, per occurrence. If such insurance
contains a general aggregate limit, it shall apply separately to this
Agreement or shall be twice the required occurrence limit.
(b) Business automobile liability for owned vehicles, hired, and non -owned
vehicles, with a policy limit of not less than One Million Dollars
($1,000,000.00), combined single limits, per occurrence for bodily injury
and property damage.
(c) Workers' compensation insurance as required by the State of California.
Consultant agrees to waive, and to obtain endorsements from its workers'
compensation insurer waiving subrogation rights under its workers'
compensation insurance policy against the City, its officers, agents,
employees, and volunteers arising from work performed by Consultant for
the City and to require each of its subcontractors, if any, to do likewise
under their workers' compensation insurance policies.
(d) Professional errors and omissions ("E&O") liability insurance with policy
limits of not less than One Million Dollars ($1,000,000.00) combined
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single limits, per occurrence and aggregate. Architects' and engineers'
coverage shall be endorsed to include contractual liability. If the policy is
written as a "claims made" policy, the retro date shall be prior to the start
of the contract work. Consultant shall obtain and maintain, said E&O
liability insurance during the life of this Agreement and for three years
after completion of the work hereunder.
5.2. Endorsements. The commercial general liability insurance policy and business
automobile liability policy shall contain or be endorsed to contain the following provisions:
(a) Additional insureds: "The City of Costa Mesa and its elected and
appointed boards, officers, officials, agents, employees, and volunteers are
additional insureds with respect to: liability arising out of activities
performed by or on behalf of the Consultant pursuant to its contract with
the City; products and completed operations of the Consultant; premises
owned, occupied or used by the Consultant; automobiles owned, leased,
hired, or borrowed by the Consultant.."
(b) Notice: "Said policy shall not terminate, be suspended, or voided, nor
shall it be cancelled, nor the coverage or limits reduced, until thirty (30)
days after written notice is given to City.
(c) Other insurance: "The Consultant's insurance coverage shall be primary
insurance as respects the City of Costa Mesa, its officers, officials, agents,
employees, and volunteers. Any other insurance maintained by the City of
Costa Mesa shall be excess and not contributing with the insurance
provided by this policy."
(d) Any failure to comply with the reporting provisions of the policies shall
not affect coverage provided to the City of Costa Mesa, its officers,
officials, agents, employees, and volunteers.
(e) The Consultant's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
5.3. Deductible or Self Insured Retention. If any of such policies provide for a
deductible or self-insured retention to provide such coverage, the amount of such deductible or
self-insured retention shall be approved in advance by City. No policy of insurance issued as to
which the City is an additional insured shall contain a provision which requires that no insured
except the named insured can satisfy any such deductible or self-insured retention.
5.4. Certificates of Insurance: Consultant shall provide to City certificates of
insurance showing the insurance coverages and required endorsements described above, in a
form and content approved by City, prior to performing any services under this Agreement.
5.5. Non -limiting: Nothing in this Section shall be construed as limiting in any way,
the indemnification provision contained in this Agreement, or the extent to which Consultant
may be held responsible for payments of damages to persons or property.
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6.0. GENERAL PROVISIONS
6.1. Entire Agreement: This Agreement constitutes the entire Agreement between the
parties with respect to any matter referenced herein and supersedes any and all other prior
writings and oral negotiations. This Agreement may be modified only in writing, and signed by
the parties in interest at the time of such modification. The terms of this Agreement shall prevail
over any inconsistent provision in any other contract document appurtenant hereto, including
exhibits to this Agreement.
6.2. Representatives. The Chief Executive Officer or his or her designee shall be the
representative of City for purposes of this Agreement and may issue all consents, approvals,
directives and agreements on behalf of the City, called for by this Agreement, except as
otherwise expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who
shall be authorized to issue all consents, approvals, directives and agreements on behalf of
Consultant called for by this Agreement, except as otherwise expressly provided in this
Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly with
Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its
agent in all consultations with City during the term of this Agreement. Consultant or its Project
Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices: Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery,
facsimile or mail and shall be addressed as set forth below. Such communication shall be
deemed served or delivered: a) at the time of delivery if such communication is sent by personal
delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48
hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such
communication is sent through regular United States mail.
IF TO CONSULTANT:
Mayer Hoffman McCann, P.C.
2301 Dupont Drive, Suite 200
Irvine, CA 92612
Tel: 949-474-2020
Fax: 949-263-5520
Attn: Jennifer Farr
IF TO CITY:
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Tel: 714-754-5243
Fax: 714-754-5040
Attn: Bobby Young
6.5. Drug-free Workplace Policy. Consultant shall provide a drug-free workplace by
complying with all provisions set forth in City's Council Policy 100-5, attached hereto as Exhibit
"C" and incorporated herein by reference. Consultant's failure to conform to the requirements
set forth in Council Policy 100-5 shall constitute a material breach of this Agreement and shall
be cause for immediate termination of this Agreement by City.
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6.6. Attorneys' Fees: In the event that litigation is brought by any party in connection
with this Agreement, the prevailing party shall be entitled to recover from the opposing party all
costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
conditions, or provisions hereof.
6.7. Governing Law: This Agreement shall be governed by and construed under the
laws of the State of California without giving effect to that body of laws pertaining to conflict of
laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto
agree that the sole and exclusive venue shall be a court of competent jurisdiction located in
Orange County, California.
6.8. Assi _gement: Consultant shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without
City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance
shall be void and shall constitute a breach of this Agreement and cause for termination of this
Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of
Consultant's obligation to perform all other obligations to be performed by Consultant hereunder
for the term of this Agreement.
6.9. Indemnification and Hold Harmless Consultant agrees to defend, indemnify, hold
free and harmless the City, its elected officials, officers, agents and employees, at Consultant's
sole expense, from and against any and all claims, actions, suits or other legal proceedings
brought against the City, its elected officials, officers, agents and employees arising out of the
performance of the Consultant, its employees, and/or authorized subcontractors, of the work
undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall
apply without any advance showing of negligence or wrongdoing by the Consultant, its
employees, and/or authorized subcontractors, but shall be required whenever any claim, action,
complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the
Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action,
complaint or suit asserts liability against the City, its elected officials, officers, agents and
employees based upon the work performed by the Consultant, its employees, and/or authorized
subcontractors under this Agreement, whether or not the Consultant, its employees, and/or
authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or
indemnification of the City for claims, actions, complaints or suits arising out of the sole active
negligence or willful misconduct of the City. This provision shall supersede and replace all other
indemnity provisions contained either in the City's specifications or Consultant's Proposal,
which shall be of no force and effect.
6.10. Independent Contractor. Consultant is and shall be acting at all times as an
independent contractor and not as an employee of City. Consultant shall have no power to incur
any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of
Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time,
or in any manner, represent that it or any of its or employees are in any manner agents or
employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all
payment of Income Tax, Social Security, State Disability Insurance Compensation,
Unemployment Compensation, and other payroll deductions for Consultant and its officers,
agents, and employees, and all business licenses, if any are required, in connection with the
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services to be performed hereunder. Consultant shall indemnify and hold City harmless from any
and all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with the applicable
worker's compensation laws. City shall have the right to offset against the amount of any fees
due to Consultant under this Agreement any amount due to City from Consultant as a result of
Consultant's failure to promptly pay to City any reimbursement or indemnification arising under
this paragraph.
6.11. PERS Eligibility Indemnification. In the event that Consultant or any employee,
agent, or subcontractor of Consultant providing services under this Agreement claims or is
determined by a court of competent jurisdiction or the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant
shall indemnify, defend, and hold harmless City for the payment of any employee and/or
employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or
subcontractors, as well as for the payment of any penalties and interest on such contributions,
which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or
ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors
providing service under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in PERS as an employee of City and entitlement
to any contribution to be paid by City for employer contribution and/or employee contributions
for PERS benefits.
6.12. Cooperation. In the event any claim or action is brought against City relating to
Consultant's performance or services rendered under this Agreement, Consultant shall render
any reasonable assistance and cooperation which City might require.
6.13. Ownership of Documents. All findings, reports, documents, information and data
including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by
Consultant or any of its subcontractors in the course of performance of this Agreement, shall be
and remain the sole property of City. Consultant agrees that any such documents or information
shall not be made available to any individual or organization without the prior consent of City.
Any use of such documents for other projects not contemplated by this Agreement, and any use
of incomplete documents, shall be at the sole risk of City and without liability or legal exposure
to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages,
losses, and expenses, including attorneys' fees, arising out of or resulting from City's use of such
documents for other projects not contemplated by this Agreement or use of incomplete
documents furnished by Consultant. Consultant shall deliver to City any findings, reports,
documents, information, data, in any form, including but not limited to, computer tapes, discs,
files audio tapes or any other Project related items as requested by City or its authorized
representative, at no additional cost to the City.
6.14. Public Records Act Disclosure: Consultant has been advised and is aware that all
reports, documents, information and data including, but not limited to, computer tapes, discs or
files furnished or prepared by Consultant, or any of its subcontractors, and provided to City may
be subject to public disclosure as required by the California Public Records Act (California
Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those
documents or information that qualify as trade secrets, as that term is defined in the California
Government Code Section 6254.7, and of which Consultant informs City of such trade secret.
The City will endeavor to maintain as confidential all information obtained by it that is
designated as a trade secret. The City shall not, in any way, be liable or responsible for the
disclosure of any trade secret including, without limitation, those records so marked if disclosure
is deemed to be required by law or by order of the Court.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and
subconsultants, if any, will comply with all conflict of interest statutes of the State of California
applicable to Consultant's services under this agreement, including, but not limited to, the
Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section
1090. During the term of this Agreement, Consultant and its officers, employees, associates and
subconsultants shall not, without the prior written approval of the City Representative, perform
work for another person or entity for whom Consultant is not currently performing work that
would require Consultant or one of its officers, employees, associates or subconsultants to
abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.16. Responsibility for Errors. Consultant shall be responsible for its work and results
under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation
as may be required by the City's representative, regarding any services rendered under this
Agreement at no additional cost to City. In the event that an error or omission attributable to
Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design
drawings, estimates and other Consultant professional services necessary to rectify and correct
the matter to the sole satisfaction of City and to participate in any meeting required with regard
to the correction.
6.17. Prohibited Employ. Consultant will not employ any regular employee of
City while this Agreement is in effect.
6.18. Order of Precedence. In the event of an inconsistency in this Agreement and any
of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent
this Agreement incorporates by reference any provision of any document, such provision shall be
deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and
conditions of this Agreement and those of any such provision or provisions so incorporated by
reference, this Agreement shall govern over the document referenced.
6.19. Costs. Each party shall bear its own costs and fees incurred in the preparation and
negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
6.20. No Third Party Beneficiary Rights. This Agreement is entered into for the sole
benefit of City and Consultant and no other parties are intended to be direct or incidental
beneficiaries of this Agreement and no third party shall have any right in, under or to this
Agreement.
6.21. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
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6.22. Construction. The parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or interpretation arises with
respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties
and in accordance with its fair meaning. There shall be no presumption or burden of proof
favoring or disfavoring any party by virtue of the authorship of any of the provisions of this
Agreement.
6.23. Amendments. Only writing executed by the parties hereto or their respective
successors and assigns may amend this Agreement.
6.24. Waiver. The delay or failure of either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this Agreement shall be effective unless in writing and signed by a duly authorized representative
of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy
in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in
respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.25. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable in any circumstance, such determination shall not
affect the validity or enforceability of the remaining terms and provisions hereof or of the
offending provision in any other circumstance. Notwithstanding the foregoing, if the value of
this Agreement, based upon the substantial benefit of the bargain for any party, is materially
impaired, which determination made by the presiding court or arbitrator of competent
jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good
faith negotiations.
6.26. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original. All counterparts shall be construed together and shall
constitute one agreement.
6.27. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said
parties and that by doing so the parties hereto are formally bound to the provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their respective authorized officers, as of the date first above written.
CITY OF COSTA MESA,
A municipal corporation
Chief Executive Officer
City of Costa Mesa
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Date:
CONSULTANT
Signature
Name and Title
Social Security or Taxpayer ID Number
APPROVED AS TO FORM:
City Attorney
APPROVED AS TO INSURANCE:
Risk Management
APPROVED AS TO CONTENT:
Finance & I.T. Director/Project Manager
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Date:
Date:
Date:
Date:
EXHIBIT A
CONSULTANT'S PROPOSAL
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EXHIBIT B
FEE SCHEDULE
47
EXHIBIT C
CITY COUNCIL POLICY 100-5
SUBJECT
POLICY
EFFECTIVE
PAGE
NUMBER
DATE
DRUG-FREE WORKPLACE
100-5
8-8-89
1 of 3
BACKGROUND
Under the Federal Drug -Free Workplace Act of 1988, passed as part of omnibus drug legislation
enacted November 18, 1988, contractors and grantees of Federal funds must certify that they will
provide drug-free workplaces. At the present time, the City of Costa Mesa, as a sub -grantee of
Federal funds under a variety of programs, is required to abide by this Act. The City Council has
expressed its support of the national effort to eradicate drug abuse through the creation of a
Substance Abuse Committee, institution of a City-wide D.A.R.E. program in all local schools
and other activities in support of a drug-free community. This policy is intended to extend that
effort to contractors and grantees of the City of Costa Mesa in the elimination of dangerous drugs
in the workplace.
PURPOSE
It is the purpose of this Policy to:
1. Clearly state the City of Costa Mesa's commitment to a drug-free society.
2. Set forth guidelines to ensure that public, private, and nonprofit organizations receiving
funds from the City of Costa Mesa share the commitment to a drug-free workplace.
POLICY
The City Manager, under direction by the City Council, shall take the necessary steps to see that
the following provisions are included in all contracts and agreements entered into by the City of
Costa Mesa involving the disbursement of funds.
1. Contractor or Sub -grantee hereby certifies that it will provide a drug-free workplace by:
a. Publishing a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance is prohibited in
Contractor's and/or sub -grantee's workplace, specifically the job site or location
included in this contract, and specifying the actions that will be taken against the
employees for violation of such prohibition;
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SUBJECT
POLICY
EFFECTIVE
PAGE
NUMBER
DATE
DRUG-FREE WORKPLACE
100-5
8-8-89
2 of 3
b. Establishing a Drug -Free Awareness Program to inform employees about:
1. The dangers of drug abuse in the workplace;
2. Contractor's and/or sub -grantee's policy of maintaining a drug-free workplace;
3. Any available drug counseling, rehabilitation and employee assistance programs;
and
4. The penalties that may be imposed upon employees for drug abuse violations
occurring in the workplace;
c. Making it a requirement that each employee to be engaged in the performance of the
contract be given a copy of the statement required by subparagraph A;
d. Notifying the employee in the statement required by subparagraph 1 A that, as a
condition of employment under the contract, the employee will:
1. Abide by the terms of the statement; and
2. Notify the employer of any criminal drug statute conviction for a violation
occurring in the workplace no later than five (5) days after such conviction;
e. Notifying the City of Costa Mesa within ten (10) days after receiving notice under
subparagraph 1 D 2 from an employee or otherwise receiving the actual notice of
such conviction;
f. Taking one of the following actions within thirty (30) days of receiving notice under
subparagraph 1 D 2 with respect to an employee who is so convicted:
1. Taking appropriate personnel action against such an employee, up to and
including termination; or
2. Requiring such employee to participate satisfactorily in a drug abuse assistance or
rehabilitation program approved for such purposes by a Federal, State, or local
health agency, law enforcement, or other appropriate agency;
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SUBJECT
POLICY
EFFECTIVE
PAGE
NUMBER
DATE
DRUG-FREE WORKPLACE
100-5
8-8-89
3 of 3
g. Making a good faith effort to maintain a drug-free workplace through implementation
of subparagraphs 1 A through 1 F, inclusive.
2. Contractor and/or sub -grantee shall be deemed to be in violation of this Policy if the City
of Costa Mesa determines that:
a. Contractor and/or sub -grantee has made a false certification under paragraph 1
above;
b. Contractor and/or sub -grantee has violated the certification by failing to carry out
the requirements of subparagraphs 1 A through 1 G above;
c. Such number of employees of Contractor and/or sub -grantee have been convicted
of violations of criminal drug statutes for violations occurring in the workplace as
to indicate that the contractor and/or sub -grantee has failed to make a good faith
effort to provide a drug-free workplace.
3. Should any contractor and/or sub -grantee be deemed to be in violation of this Policy
pursuant to the provisions of 2 A, B, and C, a suspension, termination or debarment
proceeding subject to applicable Federal, State, and local laws shall be conducted. Upon
issuance of any final decision under this section requiring debarment of a contractor
and/or sub -grantee, the contractor and/or sub -grantee shall be ineligible for award of any
contract, agreement or grant from the City of Costa Mesa for a period specified in the
decision, not to exceed five (5) years. Upon issuance of any final decision
recommending against debarment of the contractor and/or sub -grantee, the contractor
and/or sub -grantee shall be eligible for compensation as provided by law.
52
EXHIBIT D
CERTIFICATES OF INSURANCE
53