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Contract - C & R Drains - 2006-04-20 AGREEMENT FOR SEWER SYSTEM ASSESSMENT AND EVALUATION This Agreement is made and entered into this acrtti day of J 2006 BY and BETWEEN The COSTA MESA SANITARY DISTRICT (hereinafter referred to as `District"), a California sanitary district established pursuant to Health and Safety Code sections 6400 et sey and C & R Drains, INC. (hereinafter referred to as `Contractor"), a California corporation, with reference to the following facts: RECITALS WHEREAS, District provides sewer service to its patrons pursuant to a system of sewer lines owned and operated by District and must take reasonable steps to prevent and abate sewer system overflows (SSOs), including providing sewer pump maintenance and sewer main line maintenance and service and further providing emergency repairs when a pump station or a main sewer line malfunctions thereby causing such an SSO• and WHEREAS, the District previously had contracted with the City of Costa Mesa to provide certain services related to sewer system overflows and pump station emergency response and main sewer line system emergency response; and WHEREAS, the District has now separated from City and has terminated its service agreement with City for said services; and WHEREAS, the District has now made other arrangements for emergency response repairs, but is desirous of retaining Contractor to provide on-site assessment and other services; WHEREAS, District and Contractor do now desire to contract for emergency response to SSOs to determine causation, the appropriate repairs needed, and to make preliminary determinations regarding whether the SSOs originate and/or are caused by privately owned facilities or public facilities; and WHEREAS, Contractor has represented that it is competent to provide such assessment and evaluation services, and WHEREAS, District desires an agreement in which personnel of District and Contractor may work together in providing emergency services assessments relating to sewer spills; and WHEREAS, the Parties acknowledge that District may later employ its own employees to provide these emergency services and may therefore, only need Contractor to provide these services on an interim basis; NOW THEREFORE, the Parties hereto agree as follows: 1. Scope of services. Contractor shall provide the following emergency response assessment services: (a) Emergency services. Contractor shall provide the following emergency sewer spill assessment services: (i) Contractor shall provide specialized sewer spill assessment responses with trained and knowledgeable staff on a schedule determined by the District. Contractor shall be familiar with and thoroughly understand the components, equipment, and operation of all 326 miles of sewer lines and the 20 District sewer-pumping stations. (ii) Contractor shall provide after-hours emergency services defined as being required between the hours of 5.00 p.m. to 7:00 a. m. Tuesday through Friday and every other Monday and all weekends as the primary responder for pumping station alarms and SSOs or as secondary responder if so designated by District. Contractor shall respond immediately to all after hours service calls and shall endeavor to be on-site within thirty (30) minutes or less. 2 (iii) Upon Contractor receipt of emergency calls, Contractor representative shall arrive on site and evaluate the situation as follows: a. Public ROW SSO: After validating the SSO is not from a pump station fault, Contractor calls National Plant Services, Inc. to manage and resolve the SSO by calling the National Plant call center at 562-435-7600. If there is a pump station fault, then Contractor calls JIMNI Systems, Inc. at 949-770- 7654 i. In the event of an SSO flowing into the Public ROW Contractor shall take action to dam storm drains and contain the SSO while either National Plant, JIMNI Systems, Inc. or District personnel are en route to the site. Contractor may take other appropriate actions to stop or abate the spill. b. Private Sewer Backup- After validating the District sewer main line is flowing free and clear Contractor will discuss the situation with the unit private party whose property may be the source of the spill and explain the excerpts from the District Operations Code attached as Exhibit A After determining there is not a District responsibility for the call, Contractor shall offer its services to resolve the customer s backup at customer's cost. District does not pay for non-District responsibilities. 2. Contractor training. Contractor agrees as follows: Contractor s staff shall be trained and certified in California and Federal OSHA practices for entry and work in and around `permit required confined spaces. 3 3. Contractor compensation. Contractor shall be compensated at the rates provided in Exhibit B , which shall remain in effect for one (1) year (a) Contractor shall provide invoices on no more frequently than a monthly basis showing services provided, dates and limes of service and persons providing those services and parts provided. Invoices shall provide such itemization and detail as District s Engineer/Manager shall reasonably require. (b) District guarantees to pay Contractor for emergency services rendered and, if necessary will back-charge the customer District is relieved of paying Contractor if private property owner retains Contractor's services. Contractor's rates are expected to be competitive. 4. Equipment/personnel sharing. This Agreement provides for a unique sharing arrangement of both personnel and equipment. Contractor shall work in a cooperative manner with District Contractors, Maintenance Supervisor and other District personnel with the goal of increasing the reliability and operating efficiency of the District pumping stations and lines. Contractor and District shall share Contractor and District-owned tools, equipment, and vehicles as necessary to perform services. Tools, equipment and vehicles purchased and owned by the respective organizations shall remain the property of the purchasing organization. 5. Employee/personnel list. Contractor shall provide the District with an updated manpower list with names, addresses, and phone numbers of its staff dedicated to District work including copies of certifications and licenses obtained by the personnel. 6. Recommendations for improvements. Contractor's staff shall meet with District's Manager/District Engineer and/or Assistant Manager as requested by District to discuss recommendations for improvements, advancements and new technology schedule revisions, and other topics that may increase the operating efficiency and reliability of the District s sewer system. 4 7 Prevailing wages. District has determined that prevailing wages probably would not apply to assessments or to private work but that if any public sewer repairs are performed prevailing wages may apply and Contractor has agreed to comply with said laws. Contractor shall fully indemnify District if Contractor fails to comply with said laws and will pay any wages and penalties assessed for failure to comply 8. Licenses. Contractor has the following licenses: Contractor Business License #531746. 9. Insurance. Contractor has the coverages attached hereto as Exhibit `C' and will maintain those coverages during the term of this Agreement. Contractor will provide District with an endorsement naming District as an additional insured on its commercial general liability insurance. 10. Indemnification. The parties agree that due to the unique personnel and equipment sharing arrangements provided for in this Agreement, the parties will each agree to indemnify defend and hold each other harmless from any and all liability that arises from their intentional or negligent acts. 11. Work quality Contractor agrees to perform all work in a competent and workmanlike manner Any emergency conditions that may exist shall be taken into consideration in determining if such work was performed in a workmanlike manner All work shall be guaranteed for a minimum of one (1) year 12. Safety Contractor shall observe all safety procedures when performing said job, including but not limited to those set forth in Labor Code Section 6705 pertaining to trenching, those provided by CAL-OSHA and those set forth in the most recent editions of CAL TRANS manuals pertaining to traffic control and the use of warning devices for highway work. Such standards shall include the following: 5 1 The Work Area Traffic Control Handbook (WATCH). 2. The Manual of Warning Signs, Lights and Devices for Use in Performance of Work Upon Highways. 3 State Labor Code Sections 6704 6706 and 6707 4 The Construction Safety Orders (CAL-OSHA). 5 The General Industry Safety Orders (CAL-OSHA). 13. Term. Due to District's unique need for such services on at least a temporary basis but possibly for an extended interim basis until District determines the permanent emergency response plan that it will implement, this contract may be terminated without cause by the giving of 30 days notice. If either party has cause, it may terminate this contract upon the giving of ten (10) days notice, provided in the event Contractor has been given notice, the grounds for termination are stated and Contractor has been given at least five (5) days to cure any defects in performance. 14. Ownership of documents. (a) Contractor shall maintain complete and accurate records with respect to the performance of its services under this Agreement and other such information required by District that relate to the performance of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to the representatives of District or its designees at reasonable times to such books and records, shall give District the right to examine and audit said books and records; shall permit District to make transcripts therefrom as necessary' and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of fmal payment. 6 (b) Upon completion, termination or suspension of this Agreement, all records relating to assessments, evaluation and repairs and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the District and may be used, reused or otherwise disposed of by the District without the permission of the Contractor With respect to computer files, Contractor shall make available to the District, at the Contractor's office and upon reasonable written request by the District, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files. 15. Independent Contractor (a) Contractor is and shall at all times remain, as to the District, a wholly independent Contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither District nor any of its officers, employees, or agents shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents, except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the District. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against District, or bind District in any manner. (b) No employee benefits shall be available to Contractor in connection with the performance of this Agreement. Except for the fees paid to Contractor as provided in this Agreement, District shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for District. District shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 16. Legal responsibilities. The Contractor shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Contractor shall at all times observe and comply with all such laws and regulations. The District, and its officers and 7 employees, shall not be liable at law or in equity occasioned by failure of the Contractor to comply with this Section. 17 Undue influence. Contractor declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the Costa Mesa Sanitary District in connection with the award, terms or implementation of this Agreement, including any method of coercion confidential financial arrangement or financial inducement. No officer or employee of the Costa Mesa Sanitary District will receive compensation, directly or indirectly from Contractor or from any officer employee or agent of Contractor in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the District to any and all remedies at law or in equity 18. No benefit to arise to local employees. No member, officer or employee of District, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one (1) year thereafter shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the Project performed under this Agreement. 19 Release of information/Conflicts of interest. (a) All information gained by Contractor in performance of this Agreement shall be considered confidential and shall not be released by Contractor without District's prior written authorization. Contractor, its officers, employees, agents or subconsultants, shall not without written authorization from the District Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the District. Response to a subpoena or court 8 order shall not be considered `voluntary' provided Contractor gives District notice of such court order or subpoena. (b) Contractor shall promptly notify District should Contractor its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents. interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the District. District retains the right, but has no obligation, to represent Contractor and/or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with District and to provide the opportunity to review any response to discovery requests provided by Contractor However, District's right to review any such response does not imply or mean the right by District to control, direct or rewrite said response. 20. Notices. Any notice which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as, but not limited to, Federal Express, which provides a receipt showing date and time of delivery or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice' To District: Costa Mesa Sanitary District 628 West 19'h St Costa Mesa, CA 92627 Attn: District Clerk To Contractor C &R Drains, Inc. 1525 W MacArthur, #11 Costa Mesa, CA 92626 9 21. Assignment. The Contractor shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder without prior written consent of the District. Contractor President John Melrose may use assistants, under direct Contractor supervision, to perform some of the services under this Agreement. Contractor shall provide District fourteen (14) days notice prior to the departure of John Melrose from Contractors employ Should he/she leave Contractor's employ the District shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this agreement, Contractor's sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the Board of Directors and the Consultant. 22. Governing Law The District and the Contractor understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 23. Entire agreement. This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements. understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 24. Authority to execute this agreement. The person or persons executing this Agreement on behalf of Contractor warrants and represents that he/she has the authority to execute this Agreement on behalf of the Contractor and has the authority to bind Contractor to the performance of its obligations hereunder. 10 25. Interpretation. In the event of conflict or inconsistency between this Agreement and any other document, including any proposal or Exhibit hereto, this Agreement shall control unless a contrary intent is clearly stated. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by their officers thereunto duly authorized on the date first written above: C&R Drains, Inc. Date: e 6 B i / Its Rt.5t .U. Costa Mesa Sanitary District Date: ( J11,r . �n, ,-9.00(,,e By A su //`l YV President By CUi ����`� Secretary APPROVED AS TO FORM ALAN R. BURNS DISTRICT ,'A I UNSEL By / 11 EXHIBIT "A" 12-7-05 Excerpts from the Costa Mesa Sanitary District Code of Operations Chapter 7.03 Sewer and Lateral Maintenance Section 7.03.010. District Maintenance. Unless provided otherwise by contract or other arrangement, District shall maintain those sewer mains and appurtenances that it owns. (Ord. 8, 1971 Ord. 30 1999) Section 7.03.020. Lateral Responsibility The property owner shall maintain the lateral that connects to District's sewer main, including any portions that may lie within the public right of way or Costa Mesa Sanitary District easement. Said laterals shall be maintained in a safe, sanitary and unobstructed condition, and all devices or safeguards which are appurtenant to and necessary for the operation thereof shall be maintained in good working order (Ord. 8, 1971) Section 7.03.030. Sewer or Lateral Work. All work done on or to any sewer or lateral shall be done in a careful and prudent manner so as to not damage District facilities. Only persons licensed appropriately and having all necessary permits shall be allowed to do such work and may be required to post a bond before beginning with the project. (Ord. 8, 1971) Section 7.09.041 Prohibition. Every owner tenant and persons using property shall have a duty not to cause permit or allow the accumulation of grease in the District's sewer line so that sewage spills may occur Such persons shall use reasonable methods to reduce grease accumulation in the District's sewer lines including but not limited to reducing or eliminating the grease that is deposited in the sewer and utilizing enzymes and similar products that prevent grease build-up. No person shall discharge grease into the sewer system so as to cause an accumulation in the District's lines so as to substantially contribute to the possibility of a sewage overflow (Ord. 41 2003) EXHIBIT "B" Name: Tom Fauth Organization. Costa Mesa Sanitary District Pax. (949) 650-2253 Phone: (714) 393-4433 From. John E. Melrose Date: 12 16-2005 Subject: Emergency Service Pages: 1 This is for service between 5pm 6am. After hour calls$176.00 for the first hour or less, each additional 114 hour will be charged at$44 00. Holiday emergency service will be at$220.00 for the first hour or less, each additional 1\4 hour will be charged at$55.00. if we can get the homeowners authorization to do the emergency service, we will collect for services rendered from the homeowner. We will follow your instructions for emergency service concerning Sewer Pump Station Alarms, and sewer backups.] Thank you John E. Melrose C & R Drains, Inc.