CONTRACT 3973 CLOSEDMAINTENANCE AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
FLEMING ENVIRONMENTAL INCORPORATED
39 7 3
THIS MAINTENANCE AGREEMENT ( "Agreement ") is made and entered into this 10`h day of
July, 2005, by and between the CITY OF EL SEGUNDO, a general law city and municipal
corporation ( "CITY ") and Fleming Environmental Incorporated, a for - profit corporation
( "CONTRACTOR ").
The Parties agree as follows:
1. CONSIDERATION.
A. As partial consideration, CONTRACTOR agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONTRACTOR and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONTRACTOR on a lump -sum
basis an amount set forth in the attached Exhibit "A," which is incorporated by
reference, for CONTRACTOR's services. CITY will pay such amount promptly,
but not later than thirty (30) days after receiving CONTRACTOR's invoice.
2. TERM. The term of this Agreement will be from July 10, 2009, to September 30, 2009.
The Agreement may be renewed upon mutual consent of the parties.
3. SCOPE OF SERVICES.
A. CONTRACTOR will perform services listed in the attached Exhibit A.
B. CONTRACTOR will, in a workmanlike manner, furnish all of the labor,
technical, administrative, professional and other personnel, all supplies and
materials, equipment, printing, vehicles, transportation, office space and facilities,
and all tests, testing and analyses, calculation, and all other means whatsoever,
except as herein otherwise expressly specified to be furnished by CITY, necessary
or proper to perform and complete the work and provide the professional services
required of CONTRACTOR by this Agreement.
4. PREVAILING WAGES.
A. Pursuant to Labor Code § 1720, and as specified in 8 California Code of
Regulations § 16000, CONTRACTOR must pay its workers prevailing wages. It
is CONTRACTOR's responsibility to interpret and implement any prevailing
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wage requirements and CONTRACTOR agrees to pay any penalty or civil
damages resulting from a violation of the prevailing wage laws.
B. In accordance with Labor Code § 1773.2, copies of the prevailing rate of per diem
wages are available upon request from CITY's Engineering Division or the
website for State of California Prevailing wage determination at
http://www.dir.ca.gov/DLSR/PWD. CONTRACTOR must post a copy of the
prevailing rate of per diem wages at the job site.
C. CITY directs CONTRACTOR's attention to Labor Code §§ 1777.5, 1777.6 and
3098 concerning the employment of apprentices by CONTRACTOR or any
subcontractor.
D. Labor Code § 1777.5 requires CONTRACTOR or subcontractor employing
tradesmen in any apprenticeship occupation to apply to the joint apprenticeship
committee nearest the site of the public works project and which administers the
apprenticeship program in that trade for a certificate of approval. The certificate
must also fix the ratio of apprentices to journeymen that will be used in the
performance of the contract. The ratio of apprentices to journeymen in such cases
will not be less than one to five except:
When employment in the area of coverage by the joint apprenticeship
committee has exceeded an average of 15 percent in the 90 days before the
request for certificate, or
ii. When the number of apprentices in training in the area exceeds a ratio of
one to five, or
iii. When the trade can show that it is replacing at least 1/30 of its
membership through apprenticeship training on an annual basis state -wide
or locally, or
iv. When CONTRACTOR provides evidence that CONTRACTOR employs
registered apprentices on all of his contracts on an annual average of not
less than one apprentice to eight journeymen.
V. CONTRACTOR is required to make contributions to funds established for
the administration of apprenticeship programs if CONTRACTOR employs
registered apprentices or journeymen in any apprenticeable trade on such
contracts and if other contractors on the public works site are making such
contributions.
vi. CONTRACTOR and any subcontractor must comply with Labor Code §§
1777.5 and 1777.6 in the employment of apprentices.
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vii. Information relative to apprenticeship standards, wage schedules and other
requirements may be obtained from the Director of Industrial Relations,
ex- officio the Administrator of Apprenticeship, San Francisco, California,
or from the Division of Apprenticeship Standards and its branch offices.
E. CONTRACTOR and its subcontractors must keep an accurate certified payroll
records showing the name, occupation, and the actual per diem wages paid to
each worker employed in connection with this Agreement. The record will be
kept open at all reasonable hours to the inspection of the body awarding the
contract and to the Division of Labor Law Enforcement. If requested by CITY,
CONTRACTOR must provide copies of the records at its cost.
5. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONTRACTOR represents that CONTRACTOR
has
i. Thoroughly investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
B. If services involve work upon any site, CONTRACTOR warrants that
CONTRACTOR has or will investigate the site and is or will be fully acquainted
with the conditions there existing, before commencing the services hereunder.
Should CONTRACTOR discover any latent or unknown conditions that may
materially affect the performance of the services, CONTRACTOR will
immediately inform CITY of such fact and will not proceed except at
CONTRACTOR's own risk until written instructions are received from CITY.
6. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONTRACTOR will procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below:
Type of Insurance
Commercial general liability:
Professional Liability:
Business automobile liability
Workers compensation
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Limits (combined single)
$1,000,000
$1,000,000
$1,000,000
Statutory requirement.
B. Commercial general liability insurance will meet or exceed the requirements of
ISO -CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth
above will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will be
endorsed to name City, its officials, and employees as "additional insureds" under
said insurance coverage and to state that such insurance will be deemed "primary"
such that any other insurance that may be carried by City will be excess thereto.
Such insurance will be on an "occurrence," not a "claims made," basis and will
not be cancelable or subject to reduction except upon thirty (30) days prior
written notice to City.
C. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 0106 92, including symbol 1 (Any Auto).
D. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on a "claims made basis," CONSULTANT will continue to maintain the
insurance in effect for a period of three (3) years after this Agreement expires or
is terminated ( "extended insurance "). Such extended insurance will have the same
coverage and limits as the policy that was in effect during the term of this
Agreement, and will cover CONSULTANT for all claims made by City arising
out of any errors or omissions of CONSULTANT, or its officers, employees or
agents during the time this Agreement was in effect.
E. CONTRACTOR will furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, and such other evidence of insurance or copies
of policies as may be reasonably required by City from time to time. Insurance
must be placed with insurers with a current A.M. Best Company Rating
equivalent to at least a Rating of "A:VII." Certificate(s) must reflect that the
insurer will provide thirty (30) day notice of any cancellation of coverage.
CONTRACTOR will require its insurer to modify such certificates to delete any
exculpatory wording stating that failure of the insurer to mail written notice of
cancellation imposes no obligation, and to delete the word "endeavor" with regard
to any notice provisions.
F. Should CONTRACTOR, for any reason, fail to obtain and maintain the insurance
required by this Agreement, City may obtain such coverage at CONTRACTOR's
expense and deduct the cost of such insurance from payments due to
CONTRACTOR under this Agreement or terminate.
7. TIME FOR PERFORMANCE. CONTRACTOR will not perform any work under this
Agreement until:
A. CONTRACTOR furnishes proof of insurance as required under Section 6 of this
Agreement; and
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3973.,.j
B. CITY gives CONTRACTOR a written Notice to Proceed.
C. Should CONTRACTOR begin work in advance of receiving written authorization
to proceed, any such professional services are at CONTRACTOR's own risk.
8. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause. Notice of termination will be in writing.
B. CONTRACTOR may terminate this Agreement upon providing written notice to
CITY at least thirty (30) days before the effective termination date.
C. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
D. By executing this document, CONTRACTOR waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
INDEMNIFICATION.
A. CONTRACTOR indemnifies and holds CITY harmless from and against any
claim, action, damages, costs (including, without limitation, reasonable attorney's
fees and penalties), injuries, or liability, arising out of this Agreement, or its
performance including, without limitation, damages or penalties arising from
CONTRACTOR's removal, remediation, response or other plan concerning any
Hazardous Waste resulting in the release of any hazardous substance into the
environment. Should CITY be named in any suit, or should any claim be brought
against it by suit or otherwise, whether the same be groundless or not, arising out
of this Agreement, or its performance, CONTRACTOR will defend CITY (at
CITY's request and with counsel satisfactory to CITY) and will indemnify CITY
for any judgment rendered against it or any sums paid out in settlement or
otherwise.
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and volunteers.
C. CONTRACTOR expressly agrees that this release, waiver, and indemnity
agreement is intended to be as broad and inclusive as is permitted by the law of
the State of California and that if any portion is held invalid, it is agreed that the
balance will, notwithstanding, continue in full legal force and effect.
D. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
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3973....E
E. The requirements as to the types and limits of insurance coverage to be
maintained by CONTRACTOR as required by this Agreement, and any approval
of said insurance by CITY, are not intended to and will not in any manner limit or
qualify the liabilities and obligations otherwise assumed by CONTRACTOR
pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
9. INDEPENDENT CONTRACTOR. CITY and CONTRACTOR agree that
CONTRACTOR will act as an independent contractor and will have control of all work and the
manner in which is it performed. CONTRACTOR will be free to contract for similar service to
be performed for other employers while under contract with CITY. CONTRACTOR is not an
agent or employee of CITY and is not entitled to participate in any pension plan, insurance,
bonus or similar benefits CITY provides for its employees. Any provision in this Agreement
that may appear to give CITY the right to direct CONTRACTOR as to the details of doing the
work or to exercise a measure of control over the work means that CONTRACTOR will follow
the direction of the CITY as to end results of the work only.
10. NOTICES.
A. All notices given or required to be given pursuant to this Agreement will be in
writing and may be given by personal delivery or by mail. Notice sent by mail
will be addressed as follows:
To CITY: City of El Segundo
Attn: Yvette Simoneau
150 Illinois Street
El Segundo, CA 90245
To CONTRACTOR: Fleming Environmental Incorporated
Attn: Wendy Hamm
1372 E. Valencia Drive
Fullerton, CA 92831
B. When addressed in accordance with this paragraph, notices will be deemed given
upon deposit in the United States mail, postage prepaid. In all other instances,
notices will be deemed given at the time of actual delivery.
C. Changes may be made in the names or addresses of persons to whom notices are
to be given by giving notice in the manner prescribed in this paragraph.
11. TAXPAYER IDENTIFICATION NUMBER. CONTRACTOR will provide CITY with a
Taxpayer Identification Number.
12. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition contained
in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any
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3973.
other term, covenant, or condition contained in this Agreement, whether of the same or different
character.
13. CONSTRUCTION. The language of each part of this Agreement will be construed simply
and according to its fair meaning, and this Agreement will never be construed either for or
against either party.
14. SEVERABLE. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
15. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
16. WAIVER. Waiver of any provision of this Agreement will not be deemed to constitute a
waiver of any other provision, nor will such waiver constitute a continuing waiver.
17. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
18. AUTHORITY /MODIFICATION. This Agreement may be subject to and conditioned
upon approval and ratification by the El Segundo City Council. This Agreement is not binding
upon CITY until executed by the City Manager. The Parties represent and warrant that all
necessary action has been taken by the Parties to authorize the undersigned to execute this
Agreement and to engage in the actions described herein. This Agreement may be modified by
written agreement. CITY's city manager may execute any such amendment on behalf of CITY.
19. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection
with this Agreement will be considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
20. EFFECT OF CONFLICT. In the event of any conflict, inconsistency, or incongruity
between any provision of this Agreement, its attachments, the purchase order, or notice to
proceed, the provisions of this Agreement will govern and control.
21. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
22. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, war, terrorist act, embargo, government action, civil or military authority, the natural
elements, or other similar causes beyond the Parties' control, then the Agreement will
immediately terminate without obligation of either party to the other.
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39
23. ENTIRE AGREEMENT. This Agreement and its one attachment constitutes the sole
agreement between CONTRACTOR and CITY respecting secondary containment repairs for
underground storage tanks. To the extent that there are additional terms and conditions
contained in Exhibit "A" that are not in conflict with this Agreement, those terms are
incorporated as if fully set forth above. There are no other understandings, terms or other
agreements expressed or implied, oral or written.
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39/3.
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO
ATTEST:
Cindy Morte e ,
City Clerk _
APPROVED A ,r"
MARK D. HE , C' ttorney
Py
By
Karl . Berger, Assi nt City Attorney
FLEMING ENVIRONMENTAL, INC.
Signed:
Title: Terry L. Fleming Jr., President
Taxpayer ID No.: 33- 0791479
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3973
CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT
State of California
County of Orange
On 7/22/09 betore me, Jennifer Martin Notary Public
Date Here Insert Name and Title of the Officer
p Terry L Fleming Jr.
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the personW whose name() is /aye subscribed to the
within instrument and acknowledged to me that he /she /t-hey
executed the same in his /heet°/their authorized capacity(+es),
and that by his /her /their signatures(g) on the instrument the
person(, or the entity upon behalf of which the person ey
acted, executed the instrument.
JENNIFER MARTIN
Commission # 1653985 1 certify nder PENALTY OF PERJURY under the laws of
Notary Public • California y
Orange County the State of California that the foregoing paragraph is true
4My Comm. Expires Apr 22,201 OF and correct.
WITNESS my hand and official seal.
t
GSignature
Signature of otary Public
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Terry L Fleming Jr
❑ Individual
❑ Corporate Officer — Title(s): President
❑ Partner
❑ Limited
❑ General •
❑ Attorney in Fact Top of thumb here
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
Fleming Environmental Inc.
Number of Pages:
Signer's Name:
❑
Individual
❑
Corporate Officer — Title(s):
❑
Partner
❑ Limited
❑ General
❑
Attorney in Fact
❑
Trustee
❑
Guardian or Conservator
❑
Other:
Signer is Representing:
Top of thumb here
June 18, 2009
City of El Segundo
150 Illinois Street
EI Segundo, CA 90245
Attn: Martin
Fleming Environmental Incorporated
1372 E. Valencia Drive — Fullerton, CA 92831
(714) 228 -0935 * Fax (714) 228 -9231
License #746017
Dear Martin:
Thank you for giving Fleming Environmental, Inc. this opportunity. Below, you will find our proposal for the
Secondary Containment Repairs needed at the above facility.
$2,947.11
Price:
Misc. Expenses:
✓ Permitting and Plans: No permit fees
✓ Labor & Travel Time (Estimated at eight (8) hours by two (2) technicians
✓ Spill Bucket Retest
Equipment I Materials:
✓ Two (2) Philtite Spill Buckets
If you have any questions, please do not hesitate to let me know.
Again, we would like to thank you for considering Fleming Environmental, Inc. We are the right place, with the right
combination (Quality Service and Quality Prices).
Best Regards,
Wendy JCamm
Wendy Hamm
Environmental Compliance Division Coordinator
If you are interested in coming below and with Fleming and fax the agreement would like us
to Attention: tmaintain
ndy, compliance testing on your fuel
tanks, please sign in the areas
Please note that by signing in the spaces provided below, you areagreeing to the followin :
✓ During the course of project completion, Fleming Environmental Inc. hold no responsibility for any losses
due to business closures or area disruption
• Payment in full will be remitted within thirty (30) days of project completion. A late fee assessment of 1%
for every thirty (30) will apply.
• Fleming Environmental Inc. will warranty the work performed in accordance with this agreement for a
period of one (1) year from the date of full project completion.
Facility Representative Signature
Print Name and Title
Date
Contractor Representative Signature
Print Name and Title