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Contract - Costa Mesa, City of - 1963-12-09 AGREEMENT //�� This Agreement made and entered into this ftc, day of R/Lv40i.44J , 1993 , by and between the CITY OF COSTA MESA, a municipal corporation ("CITY") and the COSTA MESA SANITARY DISTRICT, a 1923 District Act agency ("DISTRICT") ; RECITALS: WHEREAS, CITY and DISTRICT entered into an agreement on December 19, 1955, relating to solid and liquid waste disposal. Said agreement was amended July 3 , 1978, and again on July 7 , 1986; and WHEREAS, the parties hereto desire to rewrite said agreement and amendments to more fully conform to the present relationship between the parties; and WHEREAS, the parties hereto desire to set forth their rights and obligations in connection therewith; WHEREAS, California Government Code § 6500 provides that two or more public agencies may by agreement jointly exercise any power common to the contracting parties; and WHEREAS, the CITY and DISTRICT have and possess the power and authorizations to finance, acquire, maintain and operate a public sewer and solid and liquid waste collection system for their respective jurisdictions; and WHEREAS, the CITY and DISTRICT have determined, by their separate resolutions, that this Agreement is beneficial to the residents of the CITY and DISTRICT. NOW, THEREFORE, for and in consideration of the covenants contained herein, the parties agree as follows: 1. PRIOR AGREEMENTS 1. 01 The agreement of December 19, 1955, and its amendments of July 3 , 1978 , and July 7 , 1986, are, upon execution of this Agreement by both parties, deemed to be superseded by this Agreement. 1. 02 The purpose of this Agreement is to establish the rights, powers and duties of the CITY and DISTRICT concerning the public sewer and solid, liquid waste collection system within the CITY and DISTRICT, and to have the CITY and DISTRICT jointly exercise some or all of their separate powers over such systems in the manner set forth in this Agreement. 1. 03 All powers, duties, rights, and interests transferred by the agreement of December 19, 1955, to the CITY from the DISTRICT in the operation, management and control of the sewer system and garbage and trash operations of the DISTRICT, except as hereinafter specifically excepted, shall be abrogated and canceled: A. The CITY shall retain all powers, duties, rights, title and interests, if any, to the right-of-way for the sewers and collection of solid and liquid waste for commercial, industrial and multi-family residential uses with the City of Costa Mesa. B. Except as provided in paragraph 11. 03, the CITY shall retain all powers, duties, rights, title, and interest in all solid waste source reduction and recycling programs in the City of Costa Mesa. 2. OBLIGATIONS 2 . 01 The CITY and DISTRICT on an annual basis shall mutually agree upon the nature, scope and amount of labor, materials and equipment necessary to conduct the business of the District. Based on such annual agreement, CITY shall provide all labor, materials and equipment necessary to conduct the field work of the DISTRICT in its programs of solid waste disposal, liquid waste disposal, recycling of single family household waste, special recycling projects, including collection and recycling of telephone books and Christmas trees and drives for the pickup and disposal of solid waste designed as "heavy or large items. " 2 . 02 CITY shall not be required to provide recycling or solid waste hauling trucks, drivers and attendants in connection with DISTRICT solid waste disposal business described herein, the services of recycling and solid waste pickup being supplied to DISTRICT by private contractors. 3. DISTRICT PAYMENT OBLIGATION 3 . 01 The CITY and DISTRICT shall on an annual basis mutually agree on an estimated sum of money to be paid to the CITY by the DISTRICT for the services to be performed by the CITY for the DISTRICT as provided this Agreement. 3 . 02 The estimated annual sum shall be designated as the "CITY/DISTRICT BUDGET" which shall be adopted by resolution of each CITY and DISTRICT governing bodies. The approval of the CITY/DISTRICT BUDGET by each governing body shall be timed in such 2 a manner to conform with each agency's budget adoption and tax setting requirements. Payments of said annual compensation shall be paid by DISTRICT to CITY in twelve (12) equal monthly installments. 3 . 03 At the end of each fiscal year adjustments shall be made in said budget to reflect added or deleted services which have been performed or excused by the DISTRICT during the affected fiscal year. 3 . 04 The 1993-1994 CITY/DISTRICT ,BUDGET adopted by both CITY and DISTRICT is attached hereto as Schedule "A" and shall be effective until the adoption by resolution of subsequent Schedules "A" to this Agreement. 3 . 05 Compensation for lease of the premises as provided for herein shall be paid by DISTRICT to CITY as provided in paragraph 3 . 02 and shall be included as a line item in all subsequent CITY/DISTRICT BUDGETS and negotiated between the CITY and DISTRICT for the balance of 1993-1994 fiscal year. 4. 0 DISTRICT FUNDS 4 . 01 CITY shall have the power, subject to limitations hereinafter set forth, to administer, invest and disburse funds of the DISTRICT collected by the County of Orange on the tax roll and paid over to the DISTRICT. 4 . 02 DISTRICT's funds in the hands of the CITY shall be administered pursuant to Government Code §§ 53630-53683 and any other pertinent statute. 4 . 03 The funds of DISTRICT administered by CITY shall be kept separate from CITY funds without commingling such funds, except in the case of investment of cash balances where the pooling with CITY funds will obtain a greater return for each party and then only provided separate and detailed accounting records and supporting documents are maintained showing the contribution of CITY and DISTRICT to the pool and their respective earnings. 4 . 04 The services performed and expenses incurred by CITY through its Finance Department for the DISTRICT shall be without cost to the CITY and shall be reimbursed by DISTRICT as provided in paragraph 3 . 02 and as charged by the CITY. 4 . 05 CITY shall, to the extent reasonably possible, keep separate the administration and disbursement of CITY and DISTRICT funds and the respective accounting records and supporting documents. 4 . 06 All books and records pertaining to the administration of DISTRICT funds pursuant to this Agreement shall 3 be open to independent accounting firms employed by either party, provided a reasonable request to examine the books and records is made for a time during regular business hours. Such financial records shall be kept in accordance with generally accepted accounting principles for governmental agencies. Each party hereto shall disclose such financial information to the other as may be necessary to obtain surety bond coverage covering CITY administering of DISTRICT funds. 4 . 07 Gains and losses on pooled investments shall be in proportion to the contributions to the pool, and neither party shall be liable to the other for any such losses. 4 . 08 DISTRICT reserves the right to establish rules and regulations to govern the administration, investment and disbursement of its funds by CITY, which said rules and regulations will not be, to the extent possible, contrary to CITY established rules and regulations. CITY and DISTRICT agree to make reasonable efforts to adopt the same procedures for the handling of such funds. 4 . 09 The CITY shall provide a Treasurer to the DISTRICT, who shall also be the Treasurer to the CITY, and the Treasurer shall be bonded in the amount to be mutually agreed upon by the CITY and DISTRICT and the fee for such bond shall be paid by the DISTRICT. CITY and DISTRICT may share the premium on the CITY bond for the Treasurer to satisfy the bond requirement for the Treasurer for the DISTRICT. The Treasurer shall perform his/her duties as provided in this Agreement. 4 . 10 The Treasurer shall draw warrants from DISTRICT funds upon approval and written order of the DISTRICT'S Board where such order is consistent with the DISTRICT BUDGET. The DISTRICT'S Board shall requisition the payment of DISTRICT funds upon approval of such claims or disbursements and such requisition for payment in accordance with rules, regulations, policies. procedures and by- laws adopted by the DISTRICT'S Board. 4 . 11 All expenditures of DISTRICT funds within the designations and limitations of the approved annual DISTRICT BUDGET shall be made upon approval of the Treasurer in accordance with the rules, policies and procedures adopted by the DISTRICT'S Board. 4 . 12 The debts, liabilities and obligations of the DISTRICT shall be the debts, liabilities or obligations of the DISTRICT alone and not of the CITY. 5.0 PERSONNEL 5. 01 Labor as included herein shall mean all personnel necessary to accomplish the purposes of this agreement, 4 excluding therefrom the DISTRICT Manager/Engineer and the Attorney for the DISTRICT, both of whom will be provided for by DISTRICT. 5. 02 To the extent the CITY and DISTRICT mutually agree on an annual basis, labor will include the following full- time CITY employees who shall work exclusively on DISTRICT business: 1. One DISTRICT Clerk/Assistant Manager 2 . One Senior Lead Maintenance Worker 3 . Three Senior Maintenance Workers 4 . One Senior Maintenance Technician 5. 03 Additional support personnel necessary to conduct DISTRICT business shall be provided for by CITY as mutually agreed to by the CITY and DISTRICT and be designated by title with percentage of estimated time allocated to DISTRICT business and cost to the DISTRICT on an annual basis. The support personnel roster shall be made a part of the adopted CITY/DISTRICT BUDGET as provided for herein as Schedule "A. " 5. 04 The minimum compensation to be paid for labor upon all work performed under this Agreement shall be the general prevailing wage scale established by the Department of Industrial Safety for the State of California and as adopted by 'CITY. 5. 05 CITY shall comply in all respects with Title 40 U.S.C. § 276a, also known as "The Davis-Bacon Act" where Federal funds are involved and CITY shall also comply in all respects with California Labor Code §§ 1770 et seq. if applicable. 5. 06 The labor provided by CITY to the DISTRICT shall be CITY employees and CITY reserves all rights to control and discipline, etc. , the CITY employees subject to this Agreement pursuant to the ordinances, rules, regulations and memorandum of understanding pertaining to such CITY employees. The DISTRICT may, upon written notice to the CITY, inform the CITY'S City Manager of the conduct, omissions, etc. , of CITY employees performing services for the DISTRICT and request or recommend action by the CITY'S City Manager concerning such CITY employees. However, the request or recommendations by DISTRICT shall not require the City Manager to take any action concerning the subject CITY employees. 5. 07 All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all relief, pension, disability, workers' compensation, and other benefits which apply to the activity of officers, employees, or agents of the CITY when performing their respective functions shall apply to them to the same degree and extent while they are engaged in the performance of any functions and other duties for the DISTRICT under this Agreement. None of the officers, employees or agents of the CITY who perform services for the DISTRICT shall be deemed by 5 • reason of the services performed for the DISTRICT to be employed by the DISTRICT to be subject to the labor requirements of the DISTRICT. CITY shall retain jurisdiction over and have the direction of and management of said full-time employees for the purpose of payroll, salary, benefits, vacation schedules, retirement plans, education entitlements and all other matters affecting said full-time DISTRICT employees other than direction of their duties for the DISTRICT. Benefits for those persons working full-time for the DISTRICT shall be equivalent to other CITY employees in comparable positions. 6. 0 DIRECTION OF THE WORK 6. 01 Employees assigned to exclusive duties to the DISTRICT shall be directed in their work by the DISTRICT Manager/Engineer except as provided in paragraph 5 herein. 7. 0 DISTRICT OFFICE 7 . 01 CITY shall provide office space for the DISTRICT at 77 Fair Drive, Costa Mesa, California. The premises shall be leased by the CITY to the DISTRICT and the DISTRICT telephone, telex and FAX lines shall be provided through the CITY's communications systems. The office space provided for herein shall be adequate to office DISTRICT Clerk/Assistant Manager full-time and DISTRICT Manager/ Engineer part-time and shall be sufficient in size to house all DISTRICT records. Said office may be, at the option of the DISTRICT, locked and separately keyed. 7 . 02 Said lease shall provide that it may be terminated concurrently with any termination of this agreement with rental to be prorated to the month of termination. 7 . 03 DISTRICT shall reimburse the CITY for its reasonable share of costs for structural, signage and other modifications to the office space for the DISTRICT to the extent the CITY and DISTRICT mutually agree that such modifications to be necessary for compliance with the accessibility requirements of the Americans With Disabilities Act and Title 24 of the California Code of Regulations. Such cost and reimbursement shall appear as a line item on the CITY/DISTRICT BUDGET. 8. 0 EOUIPMENT 8 . 01 DISTRICT owns all furniture, fixtures, office equipment and machines and office supplies presently on the premises occupied by the DISTRICT at 77 Fair Drive, Costa Mesa, California and will provide such additional materials as are needed from time to time to conduct DISTRICT business. 6 • 8 . 02 DISTRICT also owns and will continue to provide replacements for all equipment used in the field as described on Schedule "B" attached to this agreement and made a part hereof. 8 . 03 CITY owns all vehicles registered by the Department of Motor Vehicles which are used exclusively for sewer maintenance and will continue to provide said vehicles as replacements are required as such vehicles are described in Schedule "C" attached to this agreement and made a part hereof. 8. 04 DISTRICT shall reimburse the CITY for the cost of the equipment and vehicles provided by the CITY to the DISTRICT. Such cost shall include the depreciation, repair, use and maintenance of such equipment and vehicles by the CITY for the DISTRICT. Such cost and reimbursement shall appear as a line item on the CITY/DISTRICT BUDGET. 9 . 0 RESERVATION OF POWERS 9 . 01 The powers of the DISTRICT and its Board to act in furtherance of its business of solid and liquid waste disposal are set forth in the Health and Safety Code, the Government Code, the Public Contracts Code, the Elections Code, the Public Resources Code and other laws of California. In addition to general powers (Health and Safety Code §§ 6510 through and including 6550. 26) are included the right to provide for elections through the County General Services Agency, Registrar of Voters and Elections Division; the right to incur bonded indebtedness; the right to raise revenue by taxation and to finance its business by other means; the right to annex territory to its DISTRICT; and such other powers as are necessary to further the business of the DISTRICT (Health and Safety Code § 6522) . 9. 02 DISTRICT reserves unto itself all powers it may possess which have not specifically by this agreement been granted to CITY. 9 . 03 DISTRICT recognizes the sovereign nature of CITY as a governmental agency and claims no powers rightfully those of the CITY except as are necessary for the performance of this agreement. 9. 04 The DISTRICT recognizes and agrees that this Agreement shall not restrict the CITY's rights under the Cortese- Knox local Government Reorganization Act of 1985 ("Act") , Government Code § 56000 et seq. In the event the CITY or the DISTRICT or the Local Agency Formation Commission (LAFCO) or any of them undertakes reorganization proceedings under the Act, this agreement shall remain in full force and effect until a final determination by LAFCO affecting its existence. 10.0 TERM 7 10. 01 This agreement shall remain in force until terminated by either party. 10. 02 The party desiring to terminate this agreement shall give the other one (1) year notice in writing in advance of its intention to terminate. 10. 03 Upon determination to terminate this agreement, both DISTRICT and CITY shall each cooperate fully with the other to ensure that disruption of services to the community will not occur. Such cooperation shall include, but not necessarily be limited to, office removal from CITY facilities, transitional training of personnel, proration of contract consideration, exchange of deeds, bills of sale, financial records, and such other acts as are necessary for a transition non-disruptive to community services. 10. 04 To the extent the termination results in the need for either the CITY and/or DISTRICT to purchase personal or real property from the other, the CITY and DISTRICT agree that an independent certified appraiser ("Appraiser") mutually agreed upon by the CITY and DISTRICT shall determine the fair market value of the property to be purchased. The appraisal shall be rendered within thirty (30) days of the receipt of either party of an offer to purchase from the other party. The sale of the property shall be at a price set by the written appraisal by the Appraiser and on such other terms as mutually agreed upon by the CITY and DISTRICT. Said sale of property shall be completed prior to the effective date of termination of this Agreement. 11. 0 RECIPROCAL INDEMNIFICATION 11. 01 Each party hereby agrees to protect, defend, indemnify and hold the other, its elective board, officer, agents and employees harmless from and against any and all attorneys' fees, costs, expenses or damages of any nature, by reason of injury sustained by any person, including death at any time resulting therefrom, or by reason of loss of, loss of use of, injury to or destruction of property including consequential damages of any nature resulting therefrom, arising out of performance of this agreement by or on behalf of the other, including damages occasioned by or allegedly occasioned by joint or contributory negligence or omission or affirmative acts in connection with supervision or direction of the work by the other, its elective or appointed boards, officers, agents or employees. 11. 02 The provisions of the foregoing paragraph shall in no event apply to damages occasioned by the sole negligence'of either party, its elective boards, officers, agents or employees. 11. 03 To the extent that the CITY and DISTRICT reach an agreement by separate contract on the liability for State mandated solid waste source reduction and recycling requirements 8 (Public Resources Code § 40000 et seq. ) , this Agreement shall not limit or impact on the DISTRICT'S assumption of the CITY's liability for such State mandates. 12. 0 INSURANCE 12 . 01 Each of the parties hereto warrants and represents to the other that it has and will maintain adequate public liability and property damage insurance to fund any loss relating to the performance of this Agreement and that each will provide that the other be included as an additional insured on the policy of the other. Each will provide to the other proof of coverage and such riders or certificates from insurance carriers as will be necessary to evidence said inclusion. 12 . 02 CITY shall have and maintain workers' compensation coverage on all CITY personnel employees, full-time or part-time on DISTRICT business. 12 . 03 CITY shall have and maintain personal injury and property damage insurance on all motor vehicles owned by CITY and used in connection with DISTRICT business. 12 . 04 Either party hereto may be partially or fully self-insured in compliance with this section. 12. 05 Either party shall provide reasonable written notice to the other party in the event that the insurance coverage provided herein is canceled or materially changed in the amount of coverage. 13.0 MISCELLANEOUS 13 . 01 Each of the parties agrees, when and as requested by the other party, to execute and deliver to such party, any and all documents, deeds, releases or conveyances, necessary or convenient to show title or power or authority vested in accordance with this agreement. 13 . 02 It is understood and agreed by each of the parties hereto that if any of these provisions shall contravene, or be invalid, such contravention or invalidity shall not invalidate the whole agreement, but it shall be construed as if not containing the particular provisions or provisions held invalid, and the rights and obligations of the parties shall be construed and enforced accordingly. 13 . 03 The provisions of this agreement are cumulative and in addition to, and not in limitation of, any other rights remedies available to either party. 14. 0 NOTICES 9 14 . 01 Notices to be served by either party on the other shall be in writing and either personally served upon managing personnel of either party or by mail, postage prepaid, at the following addresses: City Manager City of Costa Mesa 77 Fair Drive Costa Mesa , CA 92626 District Manager Offices of the Costa Mesa Sanitary District 77 Fair Drive Costa Mesa, CA 92626 15. 0 GENERAL 15 . 01 Time is of the essence in this agreement and the same shall be binding upon the successors in interest, if any, of the party hereto. 15. 02 This Agreement becomes effective and binding upon the parties on the date it is approved by appropriate action of the governing Boards of both parties. 15. 03 Approved by the City of Costa Mesa this (, - day of 4p0J,.akv, 1993 , by duly adopted City Council action. CITY OF COSTA MESA BY \/cz-, � _ Mayor ATTEST: APPROVED AS TO FORM: City C rk City Attorney 10 • Approved by the Costa Mesa Sanitary District this day of ,(2jr44,,44/ , 1993 , by duly adopted Board action. COSTA MESA SANITARY DISTRICT ir Utak Oir\)\A AD A sident ATTEST: APPROVED AS TO FORM: Secretary Attprney for -Costa Mesa Sanitary District AOREEMPMS1A aSANITARY.AOR(1412-93) 1 1