HomeMy WebLinkAboutUNITED STORM WATER, INC. 3 - 2007 ip,_ City of Santa Ana
' i Clerk of the Council COTC Office Use Only
AGREEMENT TERMINATION FORM
Please complete this form in its entirety when the attached agreement and all
amendments (if any) are no longer in effect.
Note: If your agreement is grant related, please ensure that all grant retention requirements •
have been satisfied prior to signing the termination form.
Is the agreement(s)a permanent record?Yes No
Return form to the Clerk of the Council Office (M-30).
Call 647-1520 if you have any questions.
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The agreement with a/U.7V ?Ite
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CONSULTANT AGREEMENT
THIS AGREEMENT, made and entered into this 27th day of March, 2007 by and
between United Storm Water, 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 and culvert 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 fInn 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 provide storm drain and catch basin inspection and cleaning as necessary
for City compliance with NPDES requirements.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
the following rates and charges:
· Inspect and clean City storm drains (20 at a time)
· Transport and dispose of nonhazardous waste
. Laboratory analysis
. Catch basin culvert cleaning
Vactron with operator (8 hour) $600/day
Techinician (8 Hour) $304fday
Jetter unit 14000 PSI wash unit (8 hour) $480/day
15% fuel surcharge $90/day
transport & dispose of nonhazardous waste $60fton
The parties anticipate that additional services may be required, and will be charged at the rates
and charges listed. The total sum to be expended under this Agreement shall not exceed
$22,500.00 during the term of this Agreement.
$60/each
$65/ton
$200
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 June 30,
2008 unless terminated earlier in accordance with Section 12, below. In an effort to provide
continuous service, the parties have agreed that services provided since February 15,2007 shall
be included within the Scope of Services of this Agreement. 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, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional rnanner 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 ofthis 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,OOO,OOO per occurrence. Consultant shall supply City with a fully executed
additional insured endorsement in substantially the form attached hereto as Exhibit A upon
execution ofthis Agreement and shall be approved in form by the City Attorney.
2
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. 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 in form by the City Attorney.
(iii) 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.
e. 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 indemnity the City for any work performed prior to approval
of insurance by the City.
6. INDEMNIFICATION
Consultant agrees to and shall indemnity 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 ofthis Agreement. The Consultant
further agrees to indemnity, hold harmless, and pay costs for the defense of the City, regarding
any such action by a third party, or 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 andlor proprietary, Consultant agrees
3
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 non public 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 andlor agent ofthe 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.
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
4
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant: United Storm Water, Inc.
14000 E. Valley Boulevard
City of Industry, California 91746
telefacsimile (626) 961-3166
A party may change its address by giving notice in writing to the other party. Thereafter,
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 telefacsimile, communication shall be effective or
deemed to have been giventwenty-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.
1D. 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 -imit 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.
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 fallowing conditions:
a. Payment need not be made for work which fails to meet the standazd of performance
specified in the Recitals of this Agreement.
13. DISCRINIINATION
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 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 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 her inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability sha-1 be cause for termination of this
Agreement.
16. COMPLIANCE WITH GOVERNMENTAL REQUIItEMENTS
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,
regulations and standards, applicable state and Federal labor standards, prevailing wage
requirements, the City zoning and development standazds, 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 seg.
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 shalt
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.
ATTEST:
~g3C h'r~~~ t~l v
0'~ PATRICIA E. HEALY
Clerk of the Council
CTTY OF SANTA ANA
DAVID N. RE
City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
La Sheedy
Assistant City Attorney
RECOMMENDED FOR
Executive Director of the
Pfrblic Works Agency
AL: CONSULTANT
ED PERRY
President
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ENDOR8EMENT Unicea Storm water
TtMs endorsement farms a part of 1ha policy b whkh I! la attached. Please reed k oarefupy.
Thl~ endorsement madlfles Insurance provkled under !ha Topowing:
ENVIRONMENTAL COM9INED POLICY
t3ectbn III -Who is en Insured Is amended b IrxJude as en Irtaured, with respect b Coverage A end B, any person(s) or
orgarMiallon(s) when you and such person(s) or organVaOon(s) have agreed in a wriMen contrail or written agreement that
atait person(a) ar orgenlZalbn(s) be added sa an edditlonal Ytsured on your poicy. Such written centred ar written
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This endorsement modifies such insurance as is afforded by the provisions of Policy
N ECP0002000041o relating to the following:
1. The City of Santa Ana, 20 Civic Canter Plaza, Santa Ana, California 92901; iu
officers, employees, ageats, 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 cartied 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 11 / 16 /06- 11 / 16 / 07 ,this endorsement form as a part of
Policy #
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INSURERS AFFORDING COVERAGE HAle'
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Annual Agg SIT $25,000 Oed
POL UTION LIAS (OCC FOAM)
~,. al'lJlA1IOIItI rUlCATIIlIIS 11l8CLES1...." ,-- ADIIIiD wYEIiIOClIASIIIl!IIf' SPEcw.. ~
E OTY OF S,wrA ANA, IT5 OFFICERS, ACENTS, VOLUNTEERS AND EMPLOYEES ARE NAMED AS
ITIONAL INSUREDS WITH RESPECTS TO ALL JOB OPERAnOHS PERFORMED BY THE NAMED INSUREDS.
IS INSURANCE IS PRIMAftV TO ANY INSURANCE.
EXCEPT 10 DA'Y NOTICE OF CANCELLATION FOR NONPAYMENT OF PREfIIIUM.
SIQII..D I4Itt OF 11tE ABOVE gesc:IllUD POLIC&IIH CNCEU.I!D ...01lE Nil
nPIIIATION DIloTl TItEIlEO". T..:1SIUNi 1N8UIIl!RWIU. .....w.'IHIIIltIII MML
~ DAta WlUTft.N IGTlCli to TId QIlTR:ATIt HIlUIM....-o TO TME l!I'I'. . ~'.
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IIU'~
ern OF SANTA ANA
20 CIVIC catTER PLAZA M-93
SANTA ANA, CA 92701 "-/~i:
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ACORD ZS (2001#08)
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HR Dept
6263631054
p. 1
Policy I: ECPC020000411
ENDORSEMENT
UNITED PffiiPING SERVICE~ INC.
UNITED STORM WATER, INC.
This endorsement forms a part of the policy to which it is attached. Please read it carefully.
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This endorsement modifies insurance provided under the foUowiog:
ENVIRONMENTAL COMBINED POLICY
Section 111- Who is an Insured Is amended to include as an Insured, with respect to Coverage A and S, any person(s) or
organlzation{s) when you and such person(s} or organlzation(s) have agreed In a written contract or written agreement that
such person(s) or organlzalion{s) be added as an additional i'lsured on your poUcy. Such written contract or written
agreement must be In effect prior to the occurrence giving rise to the claim or suit for which lhe person(s) or
organlzation(s) seeks coverage.
Such additional insured status applies only:
1. With respect to your work performed for such person(s) or organization(s) in the performance of your oogolng
operations for the additional insured; or
2. With respect to your work performed for such person(s) or organizalions(s) and Included in the products-
completed operations hazard, only when required by the written contract or written agreement.
With respect to damages caused by your work. as described above. the coverage provided hereunder shall be primary
and not contributing with any other Insurance available to those person(s) or organizallon(s) with which you have so
agreed In a written contract or written agreement.
Cl2006 by Berldoy SpeclaIt-t Underwrillng Mangers L\.C. an affillala of Nautilus Insnnc:e Company and Great Divide Insurance COlllpany. All rigt1IS reGeMld.
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