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HomeMy WebLinkAboutORCHARD SUPPLY HARDWARE (OSH) 2 - 2002 f Ii "t INSURANCE NOT REQUIRED/WAIVED WORK MAY PROCEED CLERK OE COUNCIL DATE: 7/2--1/0-z... N-2002-094 'f)~ AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ORCHARD SUPPLY THIS AGREEMENT, made and entered into this ?JO day of Itf>/Zl<- ,2002 by and between Orchard Supply Hardware, a California Corporation (hereinafter "OSH"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City and OSH desire to work together in an attempt to reduce the amount of green waste entering into local landfills as required by State Assembly Bill 939. B. City provides access to Santa Ana residents to a workshop to educate them regarding the proper disposal of green waste materials. Upon completion of said class, Santa Ana residents are provided with a $25.00 voucher towards the purchase of a "Horne Composter" or a "Bio-Stack Bin". C. OSH desires to supply the residents of Santa Ana a "Horne Composter" or a "Bio- stack Bin"at a discounted rate. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES A. OSH shall: 1) Purchase and inventory "Horne Composter" and "Bio-Stack Bin" backyard recycling bin ("bins"), as provided in Exhibit A and B to this agreement, to be made available to Santa Ana residents that attend the Fullerton Arboretum Compost Workshop. 2) Provide bins for sale to Santa Ana residents at a discounted cost. Price of bins to Santa Ana residents shall be the same price that OSH pays to purchase bins, plus 10% administrative cost per bin. 3) Provide to City invoices for all compost bins purchased by OSH pursuant to this agreement. 4) Receive $25 vouchers from City of Santa Ana residents and apply the voucher to the cost of the bin. 5) Provide receipts to City for all "Horne Composter" and "Bio-Stack Bin" purchased by Santa Ana residents using $25.00 voucher. 6) Invoice the City for the cost of all vouchers received from Santa Ana residents toward purchase of bins. 7) Require that all vouchers provided by customers be for Santa Ana residents only. B. City of Santa Ana shall 1) Reimburse aSH up to $9,000.00 for all City issued vouchers submitted to aSH pursuant to this agreement. 2. INDEPENDENT CONTRACTOR aSH shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee or agent of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which aSH performs the services which are the subject matter of this Agreement; however, the services to be provided by aSH shall be provided in a manner consistent with all applicable standards and regulations governing such services. aSH shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 3. TERM This Agreement shall commence on the date first written above and terminate on May 1, 2003 unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Public Works Agency and the City Attorney. 4. INDEMNIFICATION aSH agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, aSHs, special counsel, and representatives from liability: (I) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the aSH or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. 5. CONFLICT OF INTEREST CLAUSE aSH covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 2 6. 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: Executive Director of Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-43) P.O. Box 1988 Santa Ana, California 92702 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To OSH: Orchard SUJ'ply Hardware 1975 E. 17 Street Santa Ana, CA92701 Attn: Dave Turner A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been 3 deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 7. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and OSH, 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 OSH. 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 OSH nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 8. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of OSH, OSH may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel. 9. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, OSH shall be entitled to receive and the City shall pay OSH compensation for all services performed by OSH prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require OSH to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and OSH consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 4 10. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 11. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any 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. , CITY OF SANTA ANA PATRICIA E. HEALY Clerk ofthe Council AP~ROVED A~ TQ F RM: G. Ross ecutive Director Public Works Agency ::"DfJJ # f1 Orchard Supply Hardware Sc;t-7rrf)td/ Z- Employer ID # or Individual SS # 5 Home Composter rDescrie.ti~n This generously sized bin is well suited for kitchen wastes and soft yard clippings. The unit features a locking lid top with a rain-catchment system comprised of two sunken semi-circles with drip holes. Two convenient sliding doors, one on each side at the unit's base, make harvesting of the finished humus a breeze. Door openings are approximately 13" wide by 13" tall, with a hands-free locking system when in the upright position. Simple, two half assembly. Designed and tested in California. ~ ~~ecifications Size Dimensions 32"H x 32" x 30" - top opening 26.5"x28" Capacity \3 cubic feet Weight in Ibs. 20# Composition black recycled plastic - 60% post-consumer, 40% post-industrial Usage ideally suited for family of 5-6 Key Features locking lid, lightweight Warranty \0 year warranty against cracking and deterioration Exhibit A I I J Sio-Stack Sin Description L~pecifications -- Size Dimensions 28" x 28" x 34" High Capacity 13 cubic feet Weight in Ibs. 28.5# Composition 60% recycled polyethylene plastic --, __--I Usage mixed waste, multi-purpose composting Key Features attrdctive weatherproof design, large lid opening Warranty 2 year Exhibit B