HomeMy WebLinkAbout11/19/2003 - STAFF REPORTS (6) DATE: November 19, 2003
TO: City Council
FROM: Executive Director- Airports and Director of Procurement & Contracting
APPROVE CONTRACT SERVICES AGREEMENT FOR THE COLLECTION,
TRANSPORTATION, DISPOSAL AND/OR DESTRUCTION OF WASTE MATERIALS
RECOMMENDATION:
It is recommended that the City Council approve a contract services agreement with
Ashbury Environmental, Incforthe collection,transportation,disposal and/or destruction
of waste materials generated at the Palm Springs International Airport, for a term of
three (3) years and an amount not-to-exceed of $50,000.
SUMMARY:
As part of the required Stormwater Pollution Prevention Plan (SWPPP) for the Airport
and in compliance with Environmental Protection Agency (EPA) regulations, significant
materials generated at the Airport require proper disposal.
BACKGROUND:
The purpose of the Stormwater Pollution Prevention Plan (SWPPP) is to identify
environmental hazards that could enter storm drains. A key element of the program is
the development of Best Management Practices (BMP) to prevent these unauthorized
discharges. The Airport has developed two BMP's that are essential to the program: 1)
the installation of oil/water separators in the apron drainage system to separate waste
materials from stormwater runoff;and, 2)the placement of waste oil barrels near the City
T-hangars in order to collect waste oils from hangar tenants. The collection,
transportation and disposal of waste materials collected via these BMP's must be
completed in accordance with EPA regulations.
Airport and Procurement & Contracting staff worked with the City Attorney's office to
develop an agreement form for the services required and an Invitation for Bids was
developed.
Invitation For Bid (IFB) 04-03 was advertised on September 10, 2003 and concurrently
mailed to three service providers. A single bid was received by the closing date and time
on September 25, 2003. The bid of Ashbury Environmental, Inc was evaluated and
deemed responsive to all the requirements of the IFB.
The agreement provides for as-needed services,with a term of three (3)years.The not-
to-exceed cost of the agreement is $50,000. Based on past experience it is anticipated
that annual use will amount to about $16,000.
Collection, Transportation, Disposal and/or Destruction of Waste Materials
November 19, 2003
Page 2
Funds are available in account415-6050-43200,Contractual Services. No general funds
will be used for this agreement.
A Minute Order is attached for City Council consideration.
HAROLD E GOOD, CPPO MIKE N WILLIAMS, A.A.E.
Director of Procurement & Contracting Deputy Director- Operations
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ALYN F SMOOT, A.A.E.
Executive Director -Airports
APPROVE^D
City Manager
Attachments: 1. Contract Services Agreement
2. Minute Order
REVIEWED BY DEn OF FINANCE
N;\WordPerfect\City_Council\Waste_Materials Staff Report 11-19-2003.wpd
CONTRACT SERVICES AGREEMENT
For the Collection, Transportation, Disposal
And/or Destruction of Waste Materials
THISONTRACT SERVICES AGREEMENT(herein"Agreement")is made and entered into
this _day of Q&WP" 2003 by and between the CITY OF PALM SPRINGS
(herein"City"), a municipal corporation, and Asbury Environmental Services(herein"Contractor").
The parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Agreement. This Agreement is to govern services to be provided by
Contractor for the proper collection, transportation, treatment, disposal and/or
destruction of various wastes, including, but not limited to, hazardous waste from the
property located at 3400 Tahquitz Canyon Way (Palm Springs International Airport,
hereinafter the "Site', in the locations described in Exhibit "A") including any and all
testing. In compliance with the terms and conditions of this Agreement, Contractor is
to provide all services, including all supervision, labor, equipment and materials, and
all other resources necessary for the proper performance of its obligations as set forth
under this Agreement.
1.2 Scope of Services. In accordance with paragraph 1.1 above and the following terms
and conditions of this Agreement, Contractor is to properly collect, transport and
provide for the treatment and/or disposal or destruction of those waste materials more
specifically described in Exhibit"A"to this Agreement,within twenty(20)calendar days
of receiving written notice to proceed from the City's Contract Officer. Upon completion
of such services, Contractor will, within ten (10) days thereafter, prepare and submit
a written report to the City, describing the work conducted and the results of any tests
performed on such waste, and a description of the disposition of all such waste. The
written report is to include copies of any and all waste profiles, waste manifests,
laboratory results, bills of lading, weigh tickets, and certifications of recycling,
treatment,destruction or disposal.Contractor represents and warrants that all services
performed in connection with this Agreement by itself or any subcontractor, will be
performed in a competent,professional and satisfactory manner,and will be performed
in accordance with the accepted procedures and standards present in the industry.
1.3 Compliance with Law. Contractor represents and warrants that all services rendered
hereunder by it or any subcontractor shall be provided in accordance with all
ordinances, resolutions, statutes, rules and regulations of the City and the statutes,
rules and regulation of the United States of America, the State of California, the
County of Riverside, and all other regional and local governmental agencies with
jurisdiction over the work to be performed herein.
1.4 Licenses Permits, Fees and Assessments. Contractor represents and warrants that
Contractor, and all subcontractors, have obtained or will obtain, at their sole cost and
expense, all licenses, permits and approvals required by law for the performance of
the services required by this Agreement.Contractor and/or its subcontractors have the
sole obligation to pay for any fees, assessments and taxes, plus applicable penalties
and interest, which may be imposed by law and arise from or are necessary for their
performance of the services required by this Agreement, and Contractor shall
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indemnify, defend, reimburse and hold harmless City against any such fees,
assessments, taxes, penalties or interest levied, assessed or imposed against City.
1.5 Treatment. Storage or Disposal Facility. Contractor represents and warrants that the
treatment, storage or disposal facility to be used in furtherance of this Agreement will
be a properly licensed and permitted facility, in accordance with all applicable federal,
state and local laws governing the same, and that there are no releases or significant
threatened releases of any "hazardous waste" as defined under California Health &
Safety Code Section 25117, or "hazardous substances" as defined under California
Health & Safety Code Section 25281, and all amendments thereto, into the air, soil or
groundwater at such designated facility or facilities. Contractor shall provide
documentation of all necessary licenses, permits, approvals and/or certificates for the
lawful operation of any such treatment, storage or disposal facility, and shall provide
copies of the same to City prior to the execution of this Agreement by City. Contractor
understands and agrees that the City may terminate this Agreement or prohibit the
transportation or disposal of any such waste to a designated treatment, storage or
disposal facility not consistent with the provisions of this paragraph and/or the intent
of this Agreement.
1.6 Familiarity with Work. By executing this Contract,Contractor warrants that Contractor,
and its subcontractors, (a) have thoroughly investigated and considered the scope of
services to be performed, (b) have carefully considered how the services should be
performed, and (c) fully understand the facilities, and the difficulties and restrictions
involved with the performance of the services under this Agreement. Contractor
warrants that Contractor and all subcontractors have or will investigate the property
described in Paragraph 1.1, and is or will be fully acquainted with the conditions there
existing, prior to commencement of any services hereunder. Should the Contractor
discover any latent or unknown conditions which will materially affect the performance
of the services hereunder, Contractor shall immediately inform the City of such fact
and shall not proceed except at Contractor's risk until written instructions are received
from the Contract Officer. Contractor, on behalf of itself and any officer, agent,
employee or representative of Contractor, hereby waives and releases City, and its
pastand present officers,Council members,Commissioners,agents,representatives,
attorneys and employees, from and against any and all damages, injuries, claims,
actions, remedies, fines or liabilities, including bodily injury, personal injury and
property damage, both known or unknown, suspected or unsuspected,to Contractor
and/or its officers, agents, employees or representatives that may arise from the
existence or potential existence of any hazardous materials, hazardous waste or
hazardous substance, as such terms may be defined under any state, federal or local
law or regulation, and from any condition or defect that exists or that may exist on the
Site; Contractor, by entering into this Agreement,expressly assumes the risks created
by any such conditions, defects, and hazardous materials, wastes or substances on
the Site.
1.7 Care of Work. The Contractor shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work,and the equipment, materials,
papers,documents, plans,studies and/or other components thereof to prevent losses
or damages, and shall be responsible for all such damages, to persons or property,
except such losses or damages that are caused solely by City's own negligence.
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1.8 Suspension of Services. The City may, with cause, at any time, suspend, delay,
interrupt or stop the performance of any and all services of Contractor under this
Agreement, upon one (1) day's written notice to Contractor. In the event of any such
suspension of services, where Contractor is in compliance with the terms of this
Agreement and is not the cause of the need for the suspension, reasonable costs
necessarily incurred by Contractor during the suspension period as a result of the
suspension, including costs incurred in reactivating sources, shall be reimbursed to
Contractor after Contractor (a) itemizes the costs involved; (b) provides satisfactory
documentation to support the itemized costs; and (c) demonstrates that the services
provided during this suspension were in direct support of the overall services to be
performed under this Agreement.
1.9 Further Responsibilities of Parties. Both parties agree to use reasonable care and
diligence to perform their respective obligations under this Agreement. Both parties
agree to act in good faith to execute all instruments, prepare all documents and take
all actions as may be reasonably necessary to carry out the purposes of this
Agreement. Unless herein specified, neither party shall be responsible for the services
of the other.
1.10 Additional Service. City shall have the right at any time during the performance of the
services,without invalidating this Agreement,to order extra work or make changes by
altering,adding to or deducting from said work. No such extra work may be undertaken
unless a written order is first given by the Contract Officer to the Contractor,
incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to
perform this Agreement, with such adjustments being subject to the written approval
of the Contractor. Any increase in compensation of ten percent (10 %) or less of the
Contract Sum, or in the time to perform must be approved by the Contract Officer.Any
greater increases in compensation, taken either separately or cumulatively, must be
approved by the City Council.
1.11 Special Requirements.Additional terms and conditions of this Agreement,if any,which
are made a part hereof are set forth in the "Special Requirements", attached hereto
as Exhibit "B" and incorporated herein by this reference. In the event of a conflict
between the provisions of Exhibit"B" and any other provisions of this Agreement, the
provisions of Exhibit"B" shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered under this Agreement, Contractor shall be
compensated in accordancewith the Schedule of Compensation setforth in Exhibit"C"
after: (1)completion of the services to be conducted under this Contract; (2)the City's
receipt of evidence showing that the waste described in Exhibit "A" was properly
collected,transported,treated,destroyed and/or disposed of,and (3)the City's receipt
of an invoice thereon. Except as otherwise provided in this Agreement pursuant to
paragraph 1.10 above, the total payments to be paid for the services to be provided
under this Agreement (collectively "Contract Sum") shall not exceed a total of fifty
thousand dollars ($50,000.00). Any invoice of services rendered to the City is to
contain a complete and accurate description of all work to be charged pursuant to the
invoice.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.Contractor shall commence the services required under this
Agreement within ten(10)days of receiving written notice to proceed from the Contract
Officer.Contractorshall complete all services required under this Agreement,including
the written report as defined under Section 1.2, within thirty (30) days of
commencement of the services hereunder, and in accordance with the Schedule of
Performance as set forth in Exhibit "D."
3.3 Site Upkeep.Contractor shall keep the work area at the Site free of safety hazards and
debris. Contractor shall be responsible for the immediate clean up of any spillage or
leakage of any hazardous waste or hazardous substance as defined in Section 1.5
above. Contractor is responsible for properly posting any notices on the Subject
Property as may be required under local, state or federal law in connection with the
services to be rendered herein. Contractor shall also be responsible for the immediate
removal and/or clean up of any spill, release or disbursement of any hazardous waste
or hazardous substance or other waste on the Site or on any other location, if such
spill, release or discharge is caused or contributed to in any way by Contractor's
actions or inactions. In the event of any spill, release or discharge of any hazardous
waste, hazardous substance,or other waste, caused in whole or in part by the actions
or inactions of Contractor, Contractor shall immediately notify the Contract Officer in
addition to any other notification requirements that may otherwise be imposed by law
on Contractor. The City may deduct from monies due, or to become due from the
Contractor, any expense incurred by the City as a result of the Contractor's failing to
correct any safety hazard or failure to promptly and completely clean up any spill,
release or discharge or to remove any hazardous waste, hazardous substance, or
other waste from the Site or any other location which, in the opinion of the Contractor
Officer, has resulted from Contractor's services under this Agreement.
3.4 Permit Documentation. Contractor represents and warrants that Contractor has
provided copies of any and all permits, licenses or approvals needed by Contractor to
perform its services under this Agreement, to City prior to the execution of this
Agreement by City.
3.5 Force Maieure. The time period(s)specified in this Agreement for performance of the
services rendered pursuant to this Agreement shall be extended because of any
delays due to unforeseeable causes beyond the control and without the fault or
negligence of the Contractor; including, but not restricted to, acts of God or of the
public enemy, unusually severe weather, fires, earthquakes, floods, epidemics,
quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts
of any governmental agency, including the City, if the Contractor,within three(3)days
of the commencement of such delay, notifies the Contract Officer in writing of the
causes of the delay.The Contract Officer shall ascertain the facts and the extent of the
delay, and extend the time for performing the services for the period of the enforced
delay when and if in the judgment of the Contract Officer such delay is justified. The
Contract Officer's determination shall be final and conclusive upon the parties to this
Agreement. In no event shall Contractor be entitled to recover damages against the
City for any such delay in the performance of this Agreement, however caused,
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Contractor's sole remedy being extension of the Agreement pursuant to this Section.
3.6 Contractor's Failure to Perform. Should the Contractor fail to perform in accordance
with the terms and conditions set forth in this Agreement, City has the right to obtain
the required services,at its discretion,from another person or entity, either temporarily
or permanently, and to either .suspend or terminate all remaining portions of this
Agreement in the event of such failure of performance on the part of Contractor. In the
event Contractor fails to perform in accordance with this Agreement, in addition to the
City's rights of suspension and/or termination of this Agreement, City retains all other
rights and claims provided for underthis Agreement and as may otherwise be provided
by law. In the event the City must obtain another person or entity to perform the
services required to be performed by Contractor herein, Contractor shall be
responsible for all additional costs,expenses and damages incurred by City as a result
of the same.
4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following principals of Contractor are hereby
designated as the principals and representatives of Contractor authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection
therewith:
Kevin Cooke
It is expressly understood that the experience, knowledge, capability and reputation
of the foregoing principals were substantial inducements for City in entering into this
Agreement. Therefore, the foregoing principals shall be responsible during the term
of this Agreement for directing all activities of Contractor and devoting sufficient time
to personally supervise the services hereunder. For purposes of this Agreement, the
foregoing principals may not be replaced nor may their responsibilities be substantially
reduced by Contractor without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be such person as may be designated by
the City Manager of City. It shall be the Contractor's responsibility to assure that the
Contract Officer is kept informed of the progress of the performance of the services
and the Contractor shall refer any decisions which must be made by City to the
Contract Officer. Unless otherwise specified herein, any approval of City required
hereunder shall mean the approval of the Contract Officer. The Contract Officer shall
have authority to sign all documents on behalf of the City required hereunder to carry
out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Contractor, its principals and employees were a
substantial,inducement for the City to enter into this Agreement.Therefore,Contractor
shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. In addition, neither
this Agreement nor any interest herein may be transferred, assigned, conveyed,
hypothecated or encumbered voluntarily or by operation of law,whetherfor the benefit
of creditors or otherwise,without the prior written approval of City.Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in /�
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concert of more than twenty five percent(25%)of the present ownership and/or control
of Contractor, taking all transfers into account on a cumulative basis. In the event of
any such unapproved transfer, including any bankruptcy proceeding, this Agreement
shall be void. No approved transfer shall release the Contractor of any liability
hereunder without the express consent of City.
4.4 Independent Contractor. Neither the City nor any of its employees shall have any
control over the manner,mode or means by which Contractor, its agents or employees
perform the services required herein, except as otherwise set forth herein. City shall
have no voice In the selection, discharge, supervision or control of Contractor's
employees, servants, representatives or agents, or in fixing their number,
compensation or hours of services. Contractor shall perform all services required
herein as an independent contractor of City and shall remain at all times as to City a
wholly independent contractor with only such obligations as are consistent with that
role. Contractor shall not at any time or in any manner represent that it or any of its
agents or employees are agents or employees of City. City shall not in any way or for
any purpose become or be deemed to be a partner of Contractor in its business or
otherwise or a joint venturer or a member of any joint enterprise with Contractor.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense,
in a form and content satisfactory to City, during the entire term of this Agreement including
any extension thereof, the following policies of insurance:
(a) Commercial General Liability Insurance. A policy of commercial general liability
insurance written on a per occurrence basis with a combined single limit of at
least $1,000,000 bodily injury and property damage including coverages for
contractual liability,personal injury,independent contractors,broad form property
damage, products and completed operations.The Commercial General Liability
Policy shall name the City of Palm Springs as additional insured in accordance
with standard ISO additional insured endorsement form CG2010(1185) or
equivalent language.
(b) Pollution Liability Insurance. A policy of pollution liability insurance written on a
claims made basis shall be written in an amount not less than $1,000,000 per
loss and $1,000,000 in the aggregate. Such coverage shall remain in effect until
five (5) years after the date of completion of this Agreement. Contractor shall
provide such evidence of such insurance to City, naming City an as additional
insured, with regards to Contractor's work under this Agreement. Where
appropriate, Pollution Liability Insurance in accordance with the limits in this
subsection (b), may be provided as a part of Contractor's Automotive Insurance.
(c) Worker's Compensation Insurance.A policy of worker's compensation insurance
in an amount which fully complies with the statutory requirements of the State of
California and which includes $1,000,000 employer's liability.
(d) Business Automobile Insurance. A policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the
amount of $1,000,000 bodily and property damage. Said policy shall include k
coverage for owned, non-owned, leased and hired cars.
(e) Additional Insurance. Additional limits and coverages, which may include
professional liability insurance, will be specified in Exhibit "B".
All of the above policies of insurance shall be primary insurance and issued by
companies whose rating satisfies the requirements in Section 5.4 of this agreement.
The insurer shall waive all rights of subrogation and contribution it may have against
the City, its officers,employees and agents,and their respective insurers. In the event
any of said policies of insurance are canceled, the Contractor shall, prior to the
cancellation date, submit new evidence of insurance in conformance with this Section
5.1 to the Contract Officer. No work or services under this Agreement shall commence
until the Contractor has provided the City with Certificates of Insurance,endorsements
or appropriate insurance binders evidencing the above insurance coverages and said
Certificates of Insurance, endorsements, or binders are approved by the City.
The contractor agrees that the provisions of this Section 5.1 shall not be construed as
limiting in any way the extent to which the Contractor may be held responsible for the
payment of damages to any persons or property resulting from the Contractor's
activities or the activities of any person or person for which the Contractor is otherwise
responsible.
In the event the Contractor subcontracts any portion of the work in compliance with
Section 4.3 of this Agreement the contract between the Contractor and such
subcontractor shall require the subcontractorto maintain the same polices of insurance
that the Contractor is required to maintain pursuant to this Section.
5.2 Indemnification. Contractor agrees to defend, reimburse and indemnify the City, its
officers, agents, employees and representatives, and to hold and save each of them
harmless from, any and all damages, injuries, claims, actions, penalties, fines, obligations,
errors,omissions or liabilities(herein"Claims"or"Liabilities")including, but not limited to,any
Claim or Liability based on any federal, state or local law involving "hazardous wastes,"
"hazardous substances" or "hazardous materials," as such terms are or may be defined
under federal, state and/or local law, and including any Claim or Liability for equitable relief,
injunctive relief or damages, any or all of which may be asserted or claimed by any person,
firm or entity as a result of or arising out of any operations or activities, or any actions,
inactions and/or omissions of Contractor, its agents, officers, employees, representatives,
subcontractors or invitees, whether or not there is concurrent, passive or active negligence
on the part of the City, its officers, agents or employees, but excluding such Claims or
Liabilities arising from the sole negligence or willful misconduct of the City, its officers,agents
or employees,who are directly responsible to the City. In connection with the indemnification
provided in this Section:
(a) Contractor will defend any action or actions filed in connection with any Claims
or Liabilities and will pay City and reimburse City for all costs and expenses,
including legal costs and attorneys'fees, incurred in connection therewith;
(b) Contractor will promptly pay anyjudgment rendered against the City, its officers,
agents or employees or any payments under any reasonable settlement involving
said parties and agreed upon by City, for any such Claims or Liabilities, and
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Contractor agrees to save and hold the City, its officers, agents and employees
harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to any
action or proceeding filed or prosecuted against Contractor, Contractor agrees
to pay to the City, and to reimburse the City, and its officers, agents or
employees, any and all costs and expenses incurred by the City, its officers,
agents or employees in such action or proceeding, including but not limited to
legal costs and attorneys'fees,and to indemnify and hold the City harmless from
any and all such claims or liabilities.
5.3 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall
be satisfactory only if issued by companies qualified to do business in the State of
California, raged"A"or better in the most recent edition of Best Rating Guide,the Key
Rating Guide or in the Federal Register and only if they are of a financial category
Class VII or better, unless such requirements are waived in writing by the Risk
Manager of City ("Risk Manager"). If the Risk Manager determines that the work or
services to be performed underthis Agreement creates an increased ordecreased risk
of loss to the City, the Contractor agrees that the minimum limits of the insurance
policies and the performance bond required by this Section 5 may be changed
accordingly upon receipt of written notice from the Risk Manager; provided that the
Contractor shall have the right to appeal a determination of increased coverage by the
Risk Manager to the City Council of City within ten (10) days of receipt of notice from
the Risk Manager.
6.0 RECORDS AND REPORTS
6.1 Reports. Contractor shall prepare and submit to the Contract Officer a written report
on the services provided pursuant to this Agreement, and shall provide all copies of all
waste profiles, waste manifests, weigh tickets, bills of lading and certificates of
recycling, treatment destruction, or disposal to the Contract Officer sufficient to verify
the completion of the work to be performed by Contractor under this Agreement.
6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and
records as shall be necessary to perform the services required by this Agreement and
to enable the Contract Officer to evaluate the performance of such services. The
Contract Officer shall have full and free access to such books and records at all times
during normal business hours of City, including the right to inspect, copy audit and
make records and transcripts from such records.Such records shall be maintained for
a period of seven (7) years following completion of the services hereunder, and the
City shall have complete and timely access to such records in the event any audit is
required.
6.3 Ownership of Documents. All drawings, specifications, reports, records, documents
and other written materials prepared by Contractor, its officers, employees,
subcontractors and agents in the performance of this Agreement,shall be the property
of the City and shall be delivered to City upon request of the Contract Officer or upon
termination of this Agreement, and Contractor shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full
rights of ownership of the documents and written materials hereunder.Contractor may
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retain copies of such documents for its own use. Contractor shall have an unrestricted
right to use the concepts embodied therein. All subcontractors shall provide for
assignment to City of any documents or materials prepared by them, and in the event
Contractor fails to secure such assignment, Contractor shall indemnify City for all
damages resulting therefrom.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both as to validity
and to performance of the parties in accordance with the laws of the State of
California. Legal actions concerning any dispute, claim or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of
Riverside, State of California, or any appropriate federal court, and Contractor
covenants and agrees to submit to the personal jurisdiction of such courts in the event
of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party
shall notify the other of the claim therefor. The injured party shall continue performing
its obligations hereunder so long as the injuring party commences to cure such default
within three (3) days of service of such notice and completes the cure of such default
within thirty (30); days after service of the notice, or such longer period as may be
permitted by the injured party; provided that if the default is an immediate danger to
the health, safety and general welfare, immediate action may be necessary, and a
shorter period for cure of such default as reasonably determined by the injured party
shall apply. Compliance with the provisions of this Section shall be a condition
precedent to termination of this Agreement for cause and to any legal action,and such
compliance shall not be a waiver of any party's right to take legal action in the event
that the dispute is not cured, provided that nothing herein shall limit City's right to
terminate this Agreement without cause pursuant to Section 7.6.
7.3 Retention of Fund. Contractor hereby authorizes City to deduct from any amount
payable to Contractor (whether or not arising out of this Agreement) (i) any amounts
the payment of which may be in dispute hereunder or which are necessary to
compensate City for any losses, costs, claims, or liabilities or, damages suffered by
City, and (ii) all amounts for which City may be liable to third parties, by reason of
Contractor's acts or omissions in performing or failing to perform Contractor's
obligation under this Agreement. In the event that any Claim or Liability is made by a
third party, the amount or validity of which is disputed by Contractor, or any
indebtedness shall exist which shall appear to be the basis for a Claim or Liability, City
may withhold from any payment due, without liability for interest because of such
withholding, an amount sufficient to cover such claim. Neither the exercise of its right
to deduct or withhold nor failure of City to exercise such right to deduct or to withhold
shall affect the obligations of the Contractor to insure, indemnify and protect City as
elsewhere provided.
7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non-
defaulting party on any default shall impair such right or remedy or be construed as a
waiver. A party's consent to or approval of any act by the other party requiring the
party's consent or approval shall not be deemed to waive or render unnecessary the
other party's consent to or approval of any subsequent act.Any waiver by either party
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of any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive of this Agreement, the rights and remedies of the
parties are cumulative and the exercise by either party of one or more of such rights
or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other party.
7.6 City's Right to Terminate Without Cause. The City may terminate this Agreement at
any time, with or without cause, upon three (3) days written notice to Contractor,
except that where termination is due to the fault of the Contractor,the period of notice
may be such shorter time as may be determined by the Contract Officer. Upon receipt
of notice of termination from City, Contractor shall immediately cease all services
hereunder except as may be specifically approved by the Contract Officer. Where
termination is not due to the failure of Contractor to fulfill its obligations under this
Agreement,Contractorshall be entitled to compensation for all services rendered prior
to the effective date of the notice of termination and for any services approved by the
Contract Officer in writing, except as provided in Section 7.3.
7.7 City's Right to Terminate Contract for Cause. In the event of a breach of any
representation or warranty of Contractor under this Agreement, or where Contractor
fails to comply with the terms and conditions of this Agreement, in addition to the City's
right to terminate under any other provision of this Agreement, or as otherwise
provided by law,the City has the right to terminate this Agreement and to terminate all
obligations of the City herein, immediately, upon written notice to Contractor of the
same.
7.8 Completion of Work Where Termination for Cause. If termination is due to the failure
of the Contractor to fulfill its obligations under this Agreement, City may, after
compliance with the provisions of Section 7.2, take over the work and prosecute the
same to completion by contract or otherwise, and the Contractor shall be liable to the
extent that the total cost for completion of the services required hereunder exceeds the
compensation herein provided (provided that the City shall use reasonable efforts to
mitigate such damages),and City may withhold any payments to the Contractorfor the
purpose of setoff or partial payment of the amounts owed the City.
7.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or is
made a party to any action or proceeding in any way connected with this Agreement,
the prevailing party in such action or proceeding, in addition to any other relief which
may be granted,whether legal or otherwise, shall be entitled to reasonable attorneys'
fees.Attorneys'fees shall include attorneys'fees on any appeal,and in addition a party
entitled to attorneys'fees shall be entitled to all other reasonable costs for investigating
such action,taking depositions and discovery and all other necessary costs which are
incurred in such litigation, including expert witness fees and consultant fees. All fees
shall be deemed to have been incurred on commencement of such action and shall be
recoverable whether or not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NONDISCRIMINATION
8.1 Non-Liability of City Officers and Employees. No officer or employee of the City shall
be personally liable to the Contractor, or to any successor in interest, in the event of
any default or breach by the City or for any amount which may become due to the
Contractor or to its successor, or for breach of any obligation or term of this
Agreement.
8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate
in any decision relating to the Agreement which effects his or her financial interest or
the financial interest of any corporation, partnership or association in which he or she
is, directly or indirectly, interested, in violation of any State statute or regulation. The
Contractor warrants that it has not paid or given and will not pay or give any third party
any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.Contractor covenants that,by and for itself, its heirs,
executors, assigns and all persons claiming under or through them,that there shall be
no discrimination against or segregation of,any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin, or ancestry in the
performance of this Agreement. Contractor shall take affirmative action to insure that
applicants are employed and that employees are treated during employment without
regard to their race, color, creed, religion, sex, marital status, national origin or
ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice.Any notice,demand, request,document, consent, approval or communication
either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid, first-class mail, in the
case of the City to the City Manager and to the attention of the Contract Officer, CITY
OF PALM SPRINGS, 3200 E Tahquitz Canyon Way, Palm Springs, CA 92262, and in
the case of the Contractor, to the person at the address designated on the executed
page of this Agreement. Either party may change its address by notifying the other
party of the change in address in writing. Notice shall be deemed communicated at the
time personally delivered or in seventy-two(72)hours from the time of mailing if mailed
as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the
meaning or the language used and shall not be construed for or against either party
by reason of the authorship of the Agreement or any other rule of construction which
might apply.
9.3 Integration Amendment. It is understood that there are no oral agreements between
the parties hereto affecting this Agreement and this Agreement supercedes and
cancels any and all previous negotiations, arrangements, agreements and
understandings, if any, between the parties and none shall be used to interpret this
Agreement. This agreement is a fully integrated Agreement and may be amended at
any time only with the mutual consent of the parties by an instrument in writing.
�,� t3
9.4 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs or sections contained in this Agreement shall be declared invalid or
unenforceable by avalidjudgement ordecree of courtof competentjurisdiction,such
invalidity or unenforceablitlity shall not affect any of the remaining phrases, sentences,
clauses, paragraphs or sections of the Agreement which are hereby declared to be
severable and shall be interpreted to carry out the intent of the parties hereunder
unless the valid provision is so material that its invalidity deprives either party of the
basic benefit of their bargain or renders this Agreement meaningless.
9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties
hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this agreement on behalf of said party, (iii) by so
executing this Agreement, such party is formally bound to the provisions of this
Agreement, and (iv)the entering into this Agreement does not violate any provision of
any other agreement to which said party is bound.
(SIGNATURES ON NEXT PAGE)
c!r r f
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the
date first written above.
CITY OF PALM SPRINGS
ATTEST: a municipal corporation
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
City Attorney
CONTRACTOR: Check one:—individual—Partnership XCorporation
Corporations require o o n signatures: One from each of the following: A Chairman of Board,President,or any Vice
President:AND B e e sistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer).
By: By: �
C ' 'Signature(notarized) Cl
FSiiggnature(notarized)
Name:
�7%oye,K"clu 'n Name:ICliv{MI hc�v MAJ-u "
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Title: tt7�� ye'61 ct Title: 1/.1Y1� Z�s� 1 y 7A�y1 ail �,� L1Ty'1 GZ',F�
State or t,GLt'�r' ki I A� State ofCA rr'tatirvl`�'1�{
County of ILDS lss County of S d%ls
On tD ''4:j beforeme, �2G6iCa "10 YY�S On lT�v —Z before me, 99e�����
personally appeared � �� �
INC- F personally appeared tbTe.hiw r`r if '✓c rL
personally known to me personally known to me (vrpfeyii� basis
saiisfasteryevldaa to be the person�jwhose name�*is/aye satis€estery-evidenee}to be the person(owhose name(a{-Ys/Nei
subscribed to the within instrument and acknowledged to me subscribed to the within instrument and acknowledged to me
that he/sbd kL iy xecuted the same in his/hedtrreTi--authorized that he/s$ =executed the same in hisR -47tl'eroauthorized
capacity(t�, and that by his/nadthetP signature@Won the capacily(i q, and that by hislrtl-Mh4rsignature(8"n the
instrument the personX or the entity upon behalf of which the instrument the person}a};or the entity upon behalf of which the
personl*acted,executed the instrument person(�)acted,executed the instrument.
WITNESE?ffy-haO and official seal. WITNESS d and official seal
Notary Si Notary Sign
Notary eat: Notary S al:
JESSICA F. TORRE"
Commission Ik 7243778 z JFSSICA F.TORR6
� ,�;ta is �� Notary Public-Cali`ornia COmmission# 7243778
Los Angeles Counl z °°�D'�-IMYCOMM-15TsesNOV27,2DO3
Notary Public-Califomiq
My Comm.C�cuNov.'7,=3 ' Los Angeles county Ir
EXHIBIT "A"
SCOPE OF SERVICES
Contractor shall provide all services, including all supervision, labor, equipment and materials, and
all other resources necessary for the proper collection,transportation, disposal and/or destruction
of waste materials from the Palm Springs International Airport.
Waste Materials: Waste Materials to be collected include:
liquids and solids contained in two (2) oil/water separators connected to the apron draining
system for the Airport;
55-gallon waste oil barrels;
55-gallon barrels containing waste runway crumb rubber and sand.
Additional Services: Each time that waste oil barrels are collected, Contractor shall service the
surrounding secondary containment, including, but not limited to, collection of any materials
contained therein.
EXHIBIT "C'
SCHEDULE OF COMPENSATION
Total Compensation: Total compensation for services provided hereunder shall not exceed
$50,000.
Rate Schedule: Services provided by the Contractor shall be compensated at the following rates:
For Oil/Water Separator Waste:
Liquids $0.75 per gallon
Solids $3.15 per gallon
Transportation Fee $71 per hour, portal-to-portal
Vehicle Clean-out Fee Included in above rates
For Waste Oil:
Flat Fee $65.00 per pickup
For Runway Rubber/Sand:
55-gallon drum $210.00 per drum
Transportation Fee $45.00 per visit
3Al0
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Term: The term of this Agreement shall be for three (3) years,
Scheduling of Services: Services shall be provided on an as-required basis. All services to be
performed will be requested by and coordinated with the Airport Maintenance Superintendent.
Estimated Frequency of Services:The estimated frequency of the services to be performed are
as follows:
Oil/water separators: 1 servicing of each separator per year;
Waste Oil: 2 pickups per year;
Runway Rubber/Sand: 1 pickup per year.
MINUTE ORDER NO:
APPROVING A CONTRACT SERVICES AGREEMENT WITH
ASHBURY ENVIRONMENTAL, INC FOR THE COLLECTION,
TRANSPORTATION, DISPOSAL AND/OR DESTRUCTION OF
WASTE MATERIALS GENERATED AT THE PALM SPRINGS
INTERNATIONAL AIRPORT, FOR A TERM OF THREE (3)
YEARS AND AN AMOUNT NOT-TO-EXCEED OF $50,000.
I HEREBY CERTIFY that this Minute Order, approving a contract services
agreement with Ashbury Environmental, Inc for the collection, transportation,
disposal and/or destruction of waste materials generated at the Palm Springs
International Airport, for a term of three (3) years and an amount not-to-exceed
of $50,000, was adopted by the City Council of the City of Palm Springs,
California, in a meeting thereof held on the 19`h day of November, 2003.
PATRICIA A. SANDERS
City Clerk