HomeMy WebLinkAboutSAN JOAQUIN CHEMICALS, INC. 4 - 2007
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THIS AGREEMENT made and entered into this 13th day of August, 2007 by and
between San Joaquin Chemical Inc., a California Corporation (hereinafter "Contractor"), 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").
RECIT ALS
A. The City desires to retain a contractor having special skin and knowledge in the field of
water treatment and chemical services.
B. Contractor has provided such services to the City and represents that Contractor is able
and willing to continue to provide such services to the City.
C. In undertaking the performance of this Agreement, Contractor represents that it is
knowledgeable in its field and that any services performed by Contractor under this
Agreement win be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
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
Contractor shall provide water treatment services for the Santa Ana Police Department
and Detention Facility, as set forth in Exhibit A to this Agreement.
2. COMPENSATION
a. City agrees to pay, and Contractor agrees to accept as total payment for its services,
the rates and charges identified in Exhibit A. The total sum to be expended under this
Agreement, shall not exceed $20,000.00 during the term of this Agreement.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Payment need not
be made for work which fails to meet the standards of performance set forth in the Recitals
which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above and termililite on June 30,
2008, unless terminated earlier in accordance with Section 12, below. [0 order to provide
continuous uninterrupted service, the parties agree that those services provided since September
l. 2006 shall be included within the Scope of Services of this Agreement. The term of this
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Agreement may be extended upon a writing executed by the Executive Director of Finance and
Management Services and the City Attorney.
4. INDEPENDENT CONTRACTOR
Contractor shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee 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
Contractor performs the services which are the subject matter ofthis Agreement; however, the
services to be provided by Contractor shall be provided in a manner consistent with all
applicable standards and regulations goveming such services. Contractor 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.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Contractor shall maintain commercial
general liability insurance naming the City, its officers, agents, volunteers, and employees as
additional insured(s) and shall include, but not be limited to protection against claims arising
from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Contractor's operations in the performance of
this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance
shall be not less than the following: single limit coverage applying to bodily and personal injury,
including death resulting therefrom, and property damage, in the total amount of$l,OOO,OOO per
occurrence. Contractor shall supply City with a fully executed additional insured endorsement in
substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall
be approved in form by the City Attorney.
b. Business automobile liability insurance, or equivalent form, with a combined single
limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for
owned, hired and non-owned automobiles.
c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300
of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against
liability for worker's compensation or to undertake self-insurance. Prior to commencing the
performance of the work under this Agreement, Contractor agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
d. If Contractor is or employs a licensed professiollal such as an architect or engineer:
Professional liability (errors and omissions) insurance, with a combined single limit of not less
than $1,000,000 per claim.
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e. The following requirements apply to the insurance to be provided by Contractor
pursuant to this section:
(i) Contractor shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
f. If Contractor fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not effect Contractor's right to be paid for its
time and materials expended prior to notification of termination. Contractor waives the right to
receive compensation and agrees to indemnify the City for any work performed prior to approval
of insurance by the City.
6. INDEMNIFICATION
Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, contractors, special counsel, and representatives from liability: (1) 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 Contractor 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. The Contractor further agrees to indemnify, hold
harmless, and pay all costs for the defense of the City, including fees and costs for special
counsel to be selected by the City, regarding any action by a third party challenging the validity
of this Agreement, or asserting that personal injury, damages, just compensation, restitution,
judicial or equitable relief due to personal or property rights arises by reason of the terms of, or
effects arising from this Agreement. City may make all reasonable decisions with respect to its
representation in any legal proceeding.
7. CONFIDENTIALITY
If Contractor receives from the City information which due to the nature of such
intormation is reasonably understood to be confidential and/or proprietary, Contractor agrees that
it shall not use or disclose such information except in the performance of this Agreement, and
fhrther agrees to exercise the same degree of care it uses to protect its own information of like
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importance, but in no event less than reasonable care. "Confidential Information" shall include
all nonpublic information. Confidential information includes not only written information, but
also information transferred orally, visually, electronically, or by other means. Confidential
information disclosed to either party by any subsidiary and/or agent of the other party is covered
by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to
any information that (a) has been disclosed in publicly available sources; (b) is, through no fault
of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the
Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of
law; or ( e) is independently developed by the Contractor without reference to information
disclosed by the City.
8. CONFLICT OF INTEREST CLAUSE
Contractor 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.
9. 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 Finance and Management Services
City of Santa Ana
20 Civic Center Plaza (M -11 )
P.O. Box 1988
Santa Ana, California 92702
telefacsimi1e (714) 647-5008
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
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To Contractor:
San Joaquin Chemical Inc
4684 East Hedges Avenue
Fresno, CA 92703
Attn:
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, 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.
10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the CIty and
Contractor, 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 Contractor. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, that terms and conditions hereof, shall not bind or obligate Contractor 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.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor,
Contractor 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 or by other contractors retained by City.
12. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor
compensation for all services performed by Contractor prior to receipt of such notice of termination,
subject to the following conditions:
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a. As a condition of such payment, the Executive Director may require Contractor 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 Contractor 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 ofperforrnance
specified in the Recitals of this Agreement.
13. DISCRIMINATION
Contractor shall not discriminate because ofrace, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Contractor affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION - VENUE
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.
15. PROFESSIONAL LICENSES
Contractor shall, throughout the term ofthis Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Contractor shall notify the City
immediately and in writing of her inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability shall be cause for termination of this
Agreement.
16. 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 ofthe 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
a~e~
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorn~y
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By:-' . >)..,-L;f~o&..
Lau a Sheedy' (
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
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FRANCISCO GUTIERREZ
Executive Director of the
Finance Ana Management
Services Agency
CITY OF SANTA ANA
e
SAN JOAQUIN CHEMICALS, INC.
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EXHIBIT A
San Joaquin Chemicals, Inc will supply water treatment chemicals and services for the Santa
Ana Police Department and Detention Facility, including:
Supply all necessary water treatment chemicals for the recirculating cooling water system, hot
and chilled water loop.
· SANACOR 2633 is a phosphonate formula with copper inhibitors, antiscalants,
dispersants and additional corrosion inhibitors.
· SANA TOX Al 02 is a liquid compound for the prevention of biological fouling of
evaporative condensers.
· SANACOR 230I-A is a buffered nitrite formulation with copper inhibitors utilized to
limit the corrosion of the closed water loop. This product is provided for the City's hot
water boilers and chilled water loops located at the Detention Facility.
Contractor will supply its SANASPERSE 2702 and SANASOL V 2909 de-mud program once a
year to insure clean heat transfer surfaces after and before the Cooling season. This program is
performed during normal operation of the condensers and will not limit equipment performance.
Contractor will deliver all chemicals and add the products to the inhibitor container and the
cooling tower during each service visit. A Contractor representative/service person will visit the
Facility once a week. During each visit the service person will perform a water analysis of each
system and provide a written report of the findings. Contractor will remove all empty containers
from the Santa Ana Facility.
Contractor will clean City's condensers at not additional charge if Contractor fouls them during
the contract term.
Contractor will supply loaner controller and chemical pumps for 30 days to allow sufficient time
for repair or replacement of malfunctioning equipment.
Contractor will clean the cooling towers twice a year and remove the debris from the City's
property.
Contractor will invoice City on the 30th of each month in the amount of $665 for services
rendered during the term from September 1, 2006 through August 31, 2007. During the term
from September 1, 2007 through August 31, 2008, the monthly service amount will increase to
$865.
If additional services are required, they shall be approved, in writing by the Executive Director
of Finance and Management Services.
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EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses perfoIDled by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion ofthe following, including countersignature, is required to make this endorsement
effective. )
Effective
Policy #
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by __
Authorized Repr.~sentati ve
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If the certificate holder is an ADDITIONAL INSURED. the policy{ies) muat be endorHCl. A statement
on this Gertifi....le dge$ riot confer rights to the ,ertitica~ holdar in lieu of svch &ndOlSemem(s}.
If SUBROGATION IS WAIVED subject to the terms al'\d conditions of the policy, certain policies may
require if' endorsement A statement 00 this certificate does not confer right& to the certificate
holder in lieu of such endorHmtnt(S}.
DISCLAIMER
The CfJi/'tlncate at Insural'l~ on the I'tvefti.f1 $iell! of this form does not cOnstitute a contract between
thi iSi1,liog insurer(s), authorized representative or producer, and the certificate holder. nor does. it
atrifJllalively Of negatively amend, extend or alter the C:O\Ierage afforded by the po~cies listed thereon,
APPROVED AS TO F01ZM
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Laura SU t Sl.vcuy
;\S~lstaat t Ity Allof!<CY
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