HomeMy WebLinkAboutNATIONAL PLANT SERVICES 1 - 2003
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CLERK Oi COUNCIL
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N-2003-139
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(J.GMWJ)
CONSULTANT AGREEMENT
THIS AGREEMENT, made and entered into this c¡1Æ day of ÌJQe..enr.b-f!Y ,2003 by
and between National Plant Services, Inc., a California corporation (hereinafter "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 (hereinafter "City").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
catch basin inspection and cleaning, for the purpose of meeting National Pollution
Discharge Elimination System (NPDES) permit requirements.
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 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
Consultant shall perform those services as set forth in Exhibit A to this Agreement.
2.
COMPENSA nON
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
the rates and charges identified in Exhibit A. The total sum to be expended under this
Agreement, shall not exceed $9950.00 during the term of this Agreement.
b. Payment by City shall be made within thirty (30) 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
which may reasonably be expected by City.
3.
TERM
This Agreement shall commence on the date first written above and terminate on October
31, 2004, unless terminated earlier in accordance with Section 12, below. The term of this
Agreement may be extended upon a writing executed by the Executive Director of Public Works
and the City Attorney.
4.
INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, ajoint 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.
5.
INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents, volunteers and
representatives as additional insured(s) and shall include protection against claims arising from
bodily 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. 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 $ I ,000,000 per occurrence. Consultant shall supply City with a fully executed
additional insured endorsement in substantially the form attached hereto as Exhibit B upon
execution of this Agreement and shall be approved in form by the City Attorney.
b. Business automobile liability insurance, or equivalent form, with a combined single
limit of not less than $ 1,000,000 per occurrence. Such insurance shall include coverage for
owned, hired and non-owned automobiles.
c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300
of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against
liability for worker's compensation or to undertake self-insurance. Prior to commencing the
performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
d. Reserved.
2
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.
Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
(ii)
(iii)
f. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not effect 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.
6.
INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability for bodily injury or
property damages arising out of claims for bodily injury, including death, and claims for property
damage, which may arise from the negligent performance of direct or indirect operations of the
Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their
behalf which relates to the services described in section I of this Agreement. The Consultant
further agrees to indemnify, hold harmless, and pay costs for the defense of the City, regarding
any such action by a third party,;.t!:( asserting that bodily injury or property damages arises by
effects arising from this Agreement. City may make all reasonable decisions with respect to its
representation in any legal proceeding.
7.
CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and 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 oflaw; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
8.
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.
9.
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 telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
telefacsimile (714) 647-6956
With courtesy copies to:
Public Works Agency - Design Engineering
City of Santa Ana
20 Civic Center Plaza (M-36)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-5640
and,
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant:
4
National Plant Services, Inc.
1461 Harbor Avenue
Long Beach, California 90813-2741
Telefacsimile (562) 495-1528
Attn:
Dennis R. Keene
A party may change its address by giving notice in writing to the other party. Thereafter,
any notice, tender, demand, delivery, or other communication shall be addressed and transmitted
to the new address. If sent by mail, any notice, tender, demand, delivery, or other
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 telefacsimile, any notice, tender, demand, delivery, or
other 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.
10.
EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may 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 nor
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.
11. 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 ofthe services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
12.
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.
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
13.
DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14.
JURISDICTION - VENUE
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be governed and construed in accordance with the laws of the State of
California. 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.
15.
PROFESSIONAL LICENSES
Consultant shall, throughout the term ofthis 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 her inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability shall be cause for termination of this
Agreement.
16.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS
Contractor shall carry out all services pursuant to this Agreement in substantial
conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and
decrees of the United States, the State of California, the County of Orange, the City, and of any
other political subdivision, agency, or instrumentality exercising jurisdiction over the City,
including all applicable federal, state, and local occupation, safety and health laws, rules,
6
regulations and standards, applicable state and Federal labor standards, prevailing wage
requirements, the City zoning and development standards, City permits and approvals, building,
plumbing, mechanical and electrical codes, as they may apply, and all other provisions of the
City and its Municipal Code (as they may apply), and all applicable disabled and handicapped
access requirements, including, without the limitation, the Americans With Disability Act,
42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act,
Civil Code § 51 et seq.
17.
MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow 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 iffully set
forth in the body of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
/f~' d-d
~~ ;ç~ICIA E. HEAr Y .' -" - ~
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
,: ( /
By: cr;w JA C~ )INLf2.Dr
Laura Sheedy
Assistant City Attorney
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CITY OF SANTA ANA
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City Manager
CONSULTANT 7>v
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President
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NATIONAL PLANT SERVICES, INC.
Sl>"~;alzing in !odoy's needs for envIronmental pro"""!i"'",
1461 Harbor Avenue 8 Long Beach, CA 90613-2141 . 562436-7600 . Fax: e62495.152S
Oçtober 6, 2003
City of Santa Ana
Public Work$ Ag"ncy
;20 Civic Center Plaza NI-36
Santa Ana, CA 92701
Attention: Joe Parco
Re: Catch Basin Cloanlng
In accordance with your request, WII are pleased to submit the following proposal:
Scotle of Wor1t: To ins¡:Iect and clean" (IT necessary) Gatch basins in the City at Santa Ana, in
accordance with the $cape at Work attached to the City's Fax Transmittal. dated 10/3103,
"Clean Is defined es reMoval of l(IOse debris using vacuum equipMent.
NatjOnøI P~nt Services WIll Eumis/!: Arilndustrial Vac uM and utility truck with a two (2)
person crew to perform this work.
Cltv of Santa Ana Will Furnish: Complete access, openings and rights-at-way to the work area,
any local perMits or licenses thaI may be required; mapS and II catch basin identification system:
any and all traffic contrcl plans that may be required; any and all public relations aM publiC
naUficatians that may be required; II dump/transfer area at the City yard for all debris collected
during course of this work.
Price: The following schooule of rates and charges will apply to the perfor,mlnce of this work.
1. Cat~ Basin Inspection @ $25,50 Each
2. Catch Basin Cleaning @ $65,00 each
Prices are based on based on inspecllngtcleaning aii catch basins in a specified area of the City;
Prices are based on reMoval of loose debris only;
Prices exclude Prevailing Wages;
Prices exclude line cleaning and washing:
Prices exclude reMoval of hl!2ardous materials;
Prices are bas'i'd on average cond~ions of 10' length, 4' width, 6. material;
Prices are based on easily ren10vable bolts in manholes:
Tenns: Attached Tl¡!rms and Conditions are incorporated Into this proposal.
~itted,
Dennis R. Keene
President
EXHIBIT A
, ,
Catch Basin Cleaning Scope of Work
. Pull catch basin manhole cover and visually inspect catch basin for
debris.
. If a substantial amount of debris is observed remove and transport
debris to city yard for removal.
. Provide information for each catch basin on checklist provided by the
City,
. City will provide a map and location of catch basins to be
inspected! cleaned
.'.
Catch Basin Cleaning Scope of Work
. Pull catch basin manhole cover and visually inspect catch basin for
debris.
. If a substantial amount of debris is observed remove and transport
debris to city yard for removal.
. Provide information for each catch basin on checklist provided by the
City,
. City will provide a map and location of catch basins to be
inspected/cleaned
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 I; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds,
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included,
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective,)
Effective
Policy #
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
9
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COMhERClAL GENERAL LIABILITY
CG20 9710 W
1HS ENDORSiNENT CI-tANGi:S TIoIIi POLICY, PLEASE READ IT CAREFULLY
ADDITIONAL INSURED - OWNERs, LESSEES OR
CONTRACTORS - COMPLETE OPERATIONS
This endorsement mMWies Insurnnce ~mvided under tne tclilMirg:
COMMERCIAL GÐE~L LlAeILITYCO\IE~AGE: "'ART
SCHEit)ULE
m881'Poo"OI'lOrOf8iU1luti.n: A P ORO GANIZA IONWHI!III UIReD Y
WRITTEN CONTRACT AND PRIOR TO .,OSS, REQUIRES TO III! NAMED A! AN ,t.f:lDITIONAL
INSURI!D. THIS INSURANCE 15 PRIMARY AND NONoCONTRlBU11N~ AS RESPECTS TO THI!
PEFISON OR ORG...NIZATIDN. ANY OTHER INSURAN<: Ei AVAILMLE TO WCH PI!!R50N OR
ORQfIZATION ¡H/ILL ElE ~C;SS "NO NON.cONTRII!IlJTNG VltTH THIS INSURANCE.
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(tho mIr7 "FFc¡n above. icformatioDICqUrc d to <o",,¡ete Ib.i, cndorscmcntwill be shown in the Dccla'alions
.. applicable 10 tIW; e",¡onoment.)
iiet'IiaDU-1I'ho I. An IlIIIIlJ:Cd¡" alllCl1d.dto include a. anw"",d tbop"""" ororg;ø¡j,¡;¡¡li"" shO'il':l1.mt.h.
Schedule,' bit ,nly wÏlhm¡",ot to liabilily arisÍl>.go<lt of "your w...k" It Ulc gçQ\iQQ d.~hlll d..",ib.d
mIne robodul! ohlli< mdlnemeltpedormed faftbat m",.,d and included in the "lIowct..complotEd
tIp,ratio", buant,
/)L~/v.:.. Z~ J 6