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HomeMy WebLinkAboutA-2006-011 A-2006-01 I AGREEMENT RE. FOG INSPECTION SERVICES 0.7// THIS AGREEMENT is made and entered into, to be effective the J,') day of /7;.. (. _..\,:,-, I i~r A' l~/l-C ,{ - , 2006, by and between: ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as "OCSD"; AND THE CITY OF SANTA ANA, hereinafter referred to as "AGENCY"; collectively as the "Parties." RECITALS WHEREAS, OCSD is the regional agency with primary responsibility for collecting, treating, and disposing of wastewater in northern and central Orange County, California, and within the jurisdiction of the California Regional Water Quality Control Board 8 - Santa Ana Region, hereinafter referred to as "RBS"; and WHEREAS, RB8 has adopted its Order No. R8-2002-0014, General Waste Discharge Requirements (the "Order"), requiring cities and local wastewater agencies within its jurisdiction in northern and central Orange County to monitor and control sewer system overflows ("SSOs"). The Order names OCSD as one of 31 Co- Permittees and as a facilitator agency to assist in obtaining regional compliance with the Order by Co-Permittees. The Co-Permittees include 16 cities and 13 local wastewater agencies, including 2 remaining military facilities, that provide sewer service in northern and central Orange County; and WHEREAS, the Co-Permittees are individually required by the Order to develop a site-specific Sewer System Management Plan ("SSMP") to provide the framework as 1 well as specific management guidance to prevent, control, mitigate, track, and report sewer spills including, but not limited to, funding, staffing, training plans, and enforcement of site-specific Fats, Oils, and Grease ("FOG") Control Programs where they are indicated; and WHEREAS, the Co-Permittees participating in the cooperative effort outlined in this Agreement desire to utilize the County of Orange (the "County"), through its Orange County Health Care Agency ("OCHCA"), to inspect food service establishments under each Co-Permittee's FOG Control Program. Using the County to perform inspections under OCSD's direction will result in significant cost savings to the participating Co- Permittees; and WHEREAS, AGENCY is one of the Co-Permittees; and WHEREAS, OCSD intends to enter into that certain agreement with the County entitled "Agreement for Provision of Environmental Health Services between County of Orange and Orange County Sanitation District." (the "County Agreement") Under the County Agreement, the County will inspect food service establishments on behalf of OCSD and any Co-Permittees that execute this Agreement. AGREEMENT NOW, THEREFORE, OCSD and AGENCY agree as follows: Section 1: Inspection of Food Service Establishments. At AGENCY's request, OCSD shall direct the County to inspect food service establishments within AGENCY's jurisdiction pursuant to the County Agreement. Section 2: Payment for Inspection Services and OCSD Administrative Costs. In consideration of any and all inspection services performed under this Agreement, 2 AGENCY shall pay OCSD AGENCY's share of payments for inspection services made to the County pursuant to the County Agreement and OCSD's costs incurred in administering the County Agreement. AGENCY's share of the costs of inspection services and administrative costs shall be calculated based on either (a) AGENCY's proportional share of the services provided under the County Agreement, or (b) AGENCY's proportional population as it compares with the populations of the other participating Co-Permittees. The OCSD Board of Directors, in its sole discretion, shall determine whether the proportional share of services or population is the appropriate measure of AGENCY's share, and AGENCY shall pay its share as determined by the OCSD Board of Directors. If population data is used, it will be updated yearly in the month of April as reported by the Center for Demographic Research at the California State University, Fullerton in its most recent Annual Report. Costs for obtaining said population data will be covered by OCSD. OCSD shall invoice AGENCY for inspection services quarterly and administrative costs annually. AGENCY shall remit payment for each invoice within thirty (30) days of receipt. Section 3: Compliance with Order. AGENCY shall bear the ultimate responsibility for ensuring its own compliance with the Order within its jurisdictional limits. Section 4: Contract Manaqer. OCSD as contract manager shall be solely responsible for administering the County Agreement. Section 5: AGENCY Cooperation/FOG Proqram. AGENCY agrees to cooperate with OCSD and the County in matters necessary for the work specified in the County Agreement. Without limiting the foregoing, 3 AGENCY agrees to provide the County inspectors with information as may be required, and access to regulated facilities. AGENCY represents that its FOG Control Program is substantially similar to OCSD's FOG Control Program, so that the County will be familiar with the AGENCY's Program. If AGENCY's Program changes and is no longer substantially similar to OCSD's FOG Control Program, OCSD in its discretion may terminate this Agreement. In the event that OCSD's FOG Control Program is revised, AGENCY shall revise its own FOG Control Program as may be necessary to ensure that AGENCY's Program remains substantially similar to OCSD's Program. If OCSD's Program changes, and AGENCY's Program is no longer substantially similar to OCSD's FOG Control Program, OCSD in its discretion may terminate this Agreement. Section 6: Independence. AGENCY shall not be obligated in any manner by this Agreement to implement any finding or recommendation set forth in any County work product resulting from inspections performed under this Agreement. Section 7: Indemnification. (a) Mutual Indemnification. Each party agrees to indemnify and hold harmless the other party, its officers, agents, and employees, from all liability, claims, losses, and demands, including defense costs, whether resulting from court action or otherwise, arising out of the acts or omissions of the indemnifying party, its officers, agents, or employees, in connection with the performance of this Agreement. Each party agrees to provide the indemnifying party with written notification of any claim within thirty (30) days of notice thereof, to allow the indemnifying party control over the defense and settlement of the claim, and to cooperate with the indemnifying party in its defense. 4 (b) Third-Party Indemnification. AGENCY agrees to indemnify and hold harmless the County, its officers, agents, and employees, from all liability, claims, losses, and demands, including defense costs, whether resulting from court action or otherwise, arising out of the acts or omissions of the indemnifying party, its officers, agents, or employees, in connection with the performance of this Agreement. Section 8: Authorized Sianature. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. Section 9: Notices. All notices, demands, invoices, and written communications required to be provided under this Agreement, shall be delivered at the following addresses or such other addresses as the Parties may designate by written notice: If to AGENCY: With Copy To: If to OCSD: With Copy To: 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 Executive Director of Public Works City of Santa Ana 220 S. Daisy Avenue, M-85 Santa Ana, CA 92703 telefacsimile: (714) 647-3345 Orange County Sanitation District Attention: General Manager P.O. Box 8127 Fountain Valley, CA 92728-8127 Director of Technical Services Orange County Sanitation District P.O. Box 8127 Fountain Valley, CA 92728-8127 5 Depending on the method of transmittal, notice shall be deemed received as follows: by facsimile or other electronic transmission, as of the date and time sent, based on electronic confirmation of receipt; or by messenger, as of the date delivered; or by U.S. Mail first class postage prepaid, as of seventy-two (72) hours after deposit in the U.S. Mail. Section 10 Construction of Aqreement. It being agreed that the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. Section 11: Modifications. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by the Parties. Section 12: Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual right by custom, estoppel, or otherwise. Section 13: Successors and Assiqns. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This Section shall not be construed as an authorization for any Party to assign any right or obligation under this Agreement. 6 Section 14: Severabilitv. Should any part of this Agreement be declared by a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the excised portion, can be reasonably interpreted to give effect to the intentions of the parties. Section 15: Time of Essence. Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions. Section 16: Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument. Section 17: Entire Aareement. This Agreement contains the entire Agreement between the Parties and supersedes any prior oral or written statements or Agreements between the Parties. Section 18: Effective Date. This Agreement shall become effective on the date first set forth above. Section 19: Term. This Agreement shall remain in effect as long as the County Agreement remains in effect, unless sooner terminated by the mutual agreement of the parties. Section 20: Independent Contractor Status. It is expressly understood and agreed by the parties that each party, while engaged in carrying out and complying with any of the terms and conditions of this agreement, is an independent contractor of the 7 other, and not an employee. The parties expressly warrant not to represent, at any time or in any manner, that either party is an employee of the other. The same stipulation shall apply to third-party contractors providing services to the parties herein pursuant to this Agreement. In addition, AGENCY acknowledges that the County, in performing services under the County Agreement, shall be wholly responsible for the manner in which it performs the services required of it by the terms of the County Agreement. COUNTY is entirely responsible for compensating staff and consultants employed by COUNTY. The County Agreement shall not be construed as creating the relationship of employer and employee, or principal and agent, between COUNTY and AGENCY or any of COUNTY's employees, agents, or subcontractors. In the County Agreement, COUNTY assumed exclusively the responsibility for the acts of its employees, agents, or subcontractors as they relate to the services to be provided during the course and scope of their employment. COUNTY, its employees, agents, or subcontractors shall not be entitled to any rights or privileges of AGENCY employees and shall not be considered in any manner to be AGENCY employees. 8 IN WITNESS WHEREOF, OCSD and AGENCY have each caused this Agreement to be executed by its duly authorized representative on the day and year set forth above. ORANGE COUNTY SANITATION DISTRICT By n .J-PI-tS air, Board of Directors /2 /l L/~ /.ti&, '/i _L( Secretary, Board o. irectors i":.'( ,v''!J4IJrl--;1 By AGENCY By Lii/I::1c' rut, DAVlb N.RtfrH City Man ger B"'~~ Y..--/ Clerk of the Council APPROVED AS TO FORM: JOSEPH FLETCHER City Attorney By: '#~'12 orena C. Pe aloza Assistant City Attorney 9