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HomeMy WebLinkAboutResolution 2004-215 N.C.S. 11/15/2004 Resolution No.2004-215 N.C.S. of the City of Petaluma, California RESOLUTION AUTHORIZING CITY MANAGER TO SIGN AGREEMENT WITH SONOMA COUNTY WASTE MANAGEMENT AGENCY FOR USE OF HOUSEHOLD HAZARDOUS WASTE FACILITY WHEREAS, the City of Petaluma desires to provide a high degree of waste diversion as part of its Waste Management Program; and, WHEREAS, the safe and proper disposal of household hazardous waste is an important component of our diversion program; and, WHEREAS, the Sonoma County Waste Management Agency has offered the residents of Petaluma the use of their new Household Hazardous Waste facility at the Central Landfill; and, WHEREAS, the City of Petaluma wishes to provide such a disposal program for its residents regardless of the outcome of the current refuse collection and disposal franchise process. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the City Manager to enter into an agreement with the Sonoma County Waste Management Agency per the agreement in Attachment A, attached, for the disposal of Household Hazardous Waste for a period of one year at a cost not to exceed $140,000 to be paid for from funds collected from the refuse collection rates. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the. foregoing Resolution was introduced and adopted by the Approved as to Council of the City of Petaluma at a (Regular) (Adjourned) (Special) meeting orm on the ........L~`.' day of ......lunuemb~z............................., 20Q4.., by the following vote: ity Attorney AYES: Mayor Glass, Healy, Vice Mayor Moynihan, O'Brien, Torliatt NOES: None ABSENT: Harris, Thompson , ATTEST: ...~L:~' City Clerk Mayor Council File Res. No......2.00.9-.2.1.5..........N.C.s. Attachment A PROFESSIONAL, SERVICES AGREEMENT Household Hazardous Materials Facility Use THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into and effective as of January 1, 2005 ("Effective Date"), by and between the City of Petaluma, a municipal corporation and a charter city ("City") and Sonoma County Waste Management Agency ("Agency"), (collectively, the "Parties"). WHEREAS, the Parties enter into this Agreement for the purpose of Agency providing professional services to City under the terms and conditions set forth herein. THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows: 1. Services. Agency shall provide the services as described in and in accordance with the schedule set forth in Exhibit "A" attached hereto and incorporated herein ("Services"). 2. Compensation; Business Tax Certificate. A. For the full performance of the Services as described herein, City shall compensate Agency under the following terms: One Hundred Forty Thousand and 00/100 dollars ($140,000.00) per year, due quarterly upon invoice, beginning January 1, 2005. B. Agency shall submit detailed quarterly reports reflecting all services performed during the preceding three (3) months, and including a revised schedule for performance and additional documentation requested by City, as applicable. C. Agency shall be compensated for services in addition to those described in Exhibit A, only if Agency arid City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. In no case shall the total compensation under this Agreement exceed $140,000.00 annually without prior written authorization of the City Manager. D. Notwithstanding any provision herein, Agency shall not be paid any compensation until such time as Agency has on file with the City Finance Department current information requested on the "Vendor Information" form available from City. E. City's obligation to pay compensation to Agency as provided herein is contingent upon Agency's performance of the Services pursuant to the terms and conditions of this Agreement and any amendments thereto. 3. Term. The term of this Agreement commences on the Effective Date, and terminates on January 1, 2006, unless sooner terminated in accordance with Section 4. Resolution No. 2004-215 N.C.S. Page 2 4. Termination. City or Agency may terminate this Agreement without cause upon ninety (90) days' written notice to the non-terminating party. City may immediately terminate or suspend this Agreement for cause. Cause for immediate termination or suspension shall include, but not be limited to, any breach of this Agreement by Agency or Agency's bankruptcy or insolvency. Upon receipt. of notice of termination or suspension for cause, Agency shall immediately stop all work in progress under this Agreement. In the event of early termination of this Agreement by City, Agency shall be entitled to payment for all Services performed to the date of termination to the extent such Services were performed to the satisfaction of City in accordance with the terms and conditions of this Agreement. If City terminates this Agreement for cause, Agency shall be liable to City for any excess cost City incurs for completion of the Services. 5. Agency's Representation; Independent Contractor. Agency represents that Agency has hired a subcontractor who possesses distinct professional skills in performing the Services. City has relied upon said representation as a material inducement to enter into this Agreement. Agency shall, therefore, provide properly skilled professional and technical personnel to perform all Services under this Agreement. It is expressly understood that Agency and its agents and employees, shall acY in an independent capacity and as an independent contractor and not as officers, employees or agents of City. This Agreement shall not be construed as an agreement for employment. 6. Facilities and Equipment. Agency shall, at its sole cost and expense, furnish all facilities and equipment that may be required for furnishing Services pursuant to this Agreement. City shall furnish to Agency no facilities or equipment, unless the City otherwise agrees in writing to provide the same. 7. Licenses, Permits, Etc. Agency shall, at Agency's sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits or other such approvals which are legally required for performing the Services. 8. Time. Agency shall devote such time to the performance of the Services as may be reasonably necessary for satisfactory performance of Agency's obligations pursuant to this Agreement. 9. Inspection. Agency shall provide the City every reasonable opportunity to ascertain that the Services are being performed in accordance with the requirements and intentions of this Agreement. All work done and materials furnished, if any, shall be subject to inspection and approval by the City. The inspection of such work shall not relieve Agency of any of its obligations pursuant to this Agreement. 10. Progress Reports. Upon the City's request, Agency shall provide, in a form acceptable to City, written progress reports of all oral and written observations, opinions, recommendations, analyses, progress and conclusions related to Agency's performance of the Services. 11. Agency No Agent. Except as City may specify in writing, Agency shall. have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an Resolution No. 2004-215 N.C.S. Page 3 agent. Agency shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 12. Standard of Performance. Agency shall perform all the Services in a manner consistent with the standards of the household hazardous waste operation and management. All instruments of service of whatsoever nature, which Agency delivers to City pursuant to this Agreement; shall conform to such standards. All such instruments of service shall become the sole and exclusive property of City upon delivery of the same. 13. Assignment/Transfer. No assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of City. 14. Subcontractors. The parties acknowledge that the services will be performed by a subcontractor. The subcontractor shall be required to comply, to the full extent applicable, with the terms and conditions of this Agreement, including but not limited to, procuring and maintaining insurance coverage as required herein and which shall name City as an additional insured. 15. Compliance With All Laws. Agency shall fully comply with all applicable local, state and federal rules, laws, regulations and ordinances pertaining to the performance of the Services required hereunder. 16. Discrimination. During the performance of this Agreement, Agency shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, national origin, ancestry, gender; sexual orientation, age or physical or mental disability in violation of any applicable law. 17. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on anon-business day. Resolution No. 2004-215 N.C.S. Page 4 City: City Clerk City of Petaluma Post Office Box 61 Petaluma, California 94953 Telephone: (707) 778-4360 Facsimile: (707) 778-4554 And: Agency: So. Co. Waste Management Agency Director 2300 County Center Drive, #B100 Santa Rosa, CA 95403 Telephone: 707-565-3788 Facsimile: 707-565-3701 18. Indemnification. Agency shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Agency's performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" within the definition of Civil Code Section 2783, as may be amended from time to time, such indemnity shall not include Liability for the active negligence of City. 19. Insurance. Agency shall ensure that its subcontractor complies with the "Insurance Requirements for Consultants" in Exhibit B-2, attached hereto and incorporated .herein by reference. 20. Amendment. This Agreement may be amended only by a written instrument executed by both Parties. 21. Litigation. If litigation ensues which pertains to the subject matter of Agency's services hereunder, Agency, upon request from City, agrees to testify therein at a reasonable and customary fee. 22. Construction. This Agreement is the product of negotiation and compromise on the part of both Parties and that the Parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 23. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Petaluma. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. Resolution No. 2004-215 N.C.S. Page 5 24. Non-Waiver. The City's failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect. 25. Severability. If any term or portion of this Agreement is held to be invalid, illegal,. or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26. No Third Party Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 27. 1Vlediation. The Parties agree to make a good faith attempt to resolve any dispute arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. 28. Agency's Books and Records. A. Agency shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for a minimum period of three (3) years or -for any longer period required by law, from the date of final payment to Agency pursuant to this Agreement. B. Agency shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Finance Director, or a designated. representative of these officers. Copies of such documents shall be provided to the City for inspection at Petaluma City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon., the records shall be available at Agency's address indicated for receipt of notices in this Agreement. D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Agency's business, City may, by written request by any of the above-named officers, require. that custody of the records be given to the City and that the records and documents be maintained in Petaluma City Hall. Access to such records and documents shall be granted to any party authorized by Agency, Agency's representatives, or Agency's successor in interest. 29. Headings. The headings used in this Agreement are for convenience only and are .not intended to affect the interpretation or construction of any provisions herein. Resolution No. 2004-215 N.C.S. Page 6 30. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Agency shall survive the termination of this Agreement. 31. Entire Agreement. This Agreement, including the exhibits attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard. 1N WITNESS WHEREOF, the parties hereto have executed this document the day, month and year first above written. CITY OF PETALiJMA SONOMA COiJNTY WASTE MANAGEMENT AGENCY By City Manager J. Matthew Mullan ATTEST: Chairman Title City Clerk 2300 County Center Drive, #B 1.00 Address APPROVED AS TO FORM: Santa Rosa CA 95403 City State Zip City Attorney Taxpayer I.D. Number APPROVED: Petaluma Business Tax Certificate Number Department Director APPROVED: Risk Manager APPROVED: Finance Director Resolution No. 2004-215 N.C.S. Page 7 Exhibit "A" Services Under the terms of this agreement, Agency shall allow the City and its residents use of the Household Hazardous Waste Facility at the Central Landfill, without additional charge during the term of the agreement. This includes any other privilege or right enjoyed by other member agencies of the Sonoma County Waste Management Agency regarding the promotion and use of the facility at the Central Landfill. Resolution No. 2004-215 N.C.S. Page 8