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HomeMy WebLinkAboutORCHARD SUPPLY HARDWARE (OSH) 3C 2Dp% AGREEMENT TERMINATION( Please complete this form when the attached agreement is no longer in effect i3 4F Return form to the Sr. Deputy Clerk of the Council (M -30). Call 6495 if you have any questions. The agreement with QV- J CC 3A h2 (C)_S# No. 30D5 —06U was completed on (AjT�%� and final payment has been made. I�cY�2M �3 Department: �1- aoos- nbb-of N- 20QS-0bb'D 2 Signature: Date: Revised 8 -7 -03 City of Santa Ana Clerk of the Council N-2005-066 5-~I.c.OS AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ORCHARD SUPPLY c'Pwt\- Cm..(,OIlV'\H) THIS AGREEMENT, made and entered into this fJ'/ day of 111+ Y ,2005 by and between Orchard Supply Hardware, a California Corporation (hereinafter "OSH"), 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"). RECIT ALS A. The City and OSH desire to work together in an attempt to reduce the amount of green waste entering into local landfills as required by State Assembly Bill 939. B. City provides access to Santa Ana residents to a workshop to educate them regarding the proper disposal of green waste materials. Upon completion of said class, Santa Ana residents are provided with a $25.00 voucher towards the purchase of a "Back Yard Composter Bin". C. OSH desires to supply the residents of Santa Ana a "Back Yard Composter Bin" at a discounted rate. 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. OSH shall: \ I) Purchase and inventory "Back Yard Composter Bin", as provided in Exhibit A to this agreement, to be made available to Santa Ana residents that attend the Fullerton Arboretum Compost Workshop. 2) Provide bins for sale to Santa Ana residents at a discounted cost. Price of bins to Santa Ana residents shall be discounted by $15.00 off the retail price of $59.96 at a cost of $44.96 per bin. 3) Provide to City invoices for all compost bins purchased by OSH pursuant to this agreement. 4) Receive $25 vouchers from City of Santa Ana residents and apply the voucher to the cost of the bin. 5) Provide receipts to City for all "Back Yard Composter Bins" purchased by Santa Ana residents using $25.00 voucher. 6) Invoice the City for the cost of all vouchers received from Santa Ana residents toward purchase of bins. 7) Require that all vouchers provided by customers be for Santa Ana residents only. B. City of Santa Ana shall 1) Reimburse aSH up to $9,000.00 for all City issued vouchers submitted to aSH pursuant to this agreement. 2. INDEPENDENT CONTRACTOR aSH shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee or agent 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 aSH performs the services which are the subject matter of this Agreement; however, the services to be provided by aSH shall be provided in a manner consistent with all applicable standards and regulations governing such services. aSH 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. 3. TERM ";..0/ {; This Agreement shall commence on the date first written above and terminate on May 1, 200}' 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 the Public Works Agency and the City Attorney. 4. INDEMNIFICATION aSH agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, aSHs, 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 health, and claims for property damage, which may arise from the direct or indirect operations of the aSH or its contractors, 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 ofthe events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. 5. CONFLICT OF INTEREST CLAUSE aSH 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. 6. NOTICE 2 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 ofthe City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimi1e (714) 647-6956 With courtesy copies to: Executive Director of Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-43) P.O. Box 1988 Santa Ana, California 92702 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 OSH: Orchard SUfply Hardware 1975 E. 17' Street Santa Ana, CA92701 Attn: Dave Turner 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 3 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. 7. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and aSH, 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 aSH. 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 aSH 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. 8. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of aSH, aSH 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. 9. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, aSH shall be entitled to receive and the City shall pay aSH compensation for all services performed by aSH 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 aSH 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 aSH 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 ofthis Agreement. 10. JURISDICTION - VENUE 4 This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government 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. 11. 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 i11iuries 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. ATTCT: . '.- rLV.d \'"- -~ c D-- PATRICIAE.HEALY . Clerk of the Council ~ AVID N. REAM City Manager JOSEPH W. FLE City Attorney D FOR':;~OV AL: t/<:-~"} ::fJI1J J r}.-- James G. Ross Executive Director .Public Works Agency Orchard Supply Hardware SSt-7&r c) && Z-- Employer ID # or Individual SS # 5 EXHIBIT A The GARDEN GOURMET Compost Bin is the easiest, most convenient backyard composter --rated # 1 in North America. G:.J'd.:-r, G<"...:um,;;-t ':':'"(:mp.:..:::t:.:..', -1 :.:-..:.10' PX8"1:] Use your GARDEN GOURMET TO re-use or recycle grass clippings, leaves, kitchen scraps and other yard waste The Garden Gourmet compost bin is your number one choice for backyard composting! The bin is attractive and fits neatly into almost any available backyard space thanks to its efficient square design. The lid is completely removable for easy maintenance, but material can be added using either of the two smaller doors on the lid. The sliding door near the bottom of the bin allows removal of finished compost from the bottom without disturbing the rest of the compost in the bin. It has been very successful in municipal and retail programs. Made from 100% recycled plastic, the bin's black color absorbs heat and aids in the composting process. A rodent screen is available if required. A full 11 cubic feet, there is plenty of space for your kitchen scraps, yard waste, grass clippings and more. A composting guide in three languages is included with each bin along with instructions on how to assemble the composter.