CONTRACT 3137 Maintenance and Repair Agreement CLOSEDx 3 •9 a8
Agreement No.
CONTRACT FOR MAINTENANCE SERVICES
BETWEEN
THE CITY OF EL SEGUNDO AND
MARCOR REMEDIATION, INC.
This AGREEMENT is entered into this 18'h day of March, 2003, by and between the
CITY OF EL SEGUNDO, a general law city and municipal corporation ( "CITY ") and
MARCOR REMEDIATION, INC., a California corporation ( "MARCOR ").
1. CONSIDERATION.
A. As partial consideration, MARCOR agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, MARCOR and CITY agree to abide by the terms and
conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay MARCOR a sum not to exceed
fourteen thousand nine hundred seventy -five dollars ($14,975.00) for MARCOR's
services. CITY may modify this amount as set forth below. Unless otherwise
specified by written amendment to this Agreement, CITY will pay this sum as
specified in the attached Exhibit "A," which is incorporated by reference.
2. SCOPE OF SERVICES.
A. MARCOR will perform services listed in Exhibit A.
B. MARCOR 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 MARCOR by this Agreement.
3. HAZARDOUS WASTE. The parties understand and agree that a portion of MARCOR's
maintenance work includes mining and removing lead contaminants from CITY's property.
Such waste may be defined as "hazardous" under applicable laws. As used in this Agreement,
"Hazardous Waste," "HW," or "Waste" means any flammable, explosive, or radioactive
materials or hazardous, toxic or dangerous wastes, substances or related materials or any other
chemicals, materials or substances, exposure to which is prohibited, limited or regulated by any
federal, state, local law or regulation or which, even if not so regulated, may or could pose a
hazard to public health and safety, including, without limitation, asbestos, PCBs, petroleum
products and byproducts, substances defined or listed as "hazardous substances" or "toxic
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substances" or similarly identified in, pursuant to, or for purposes of, the California Solid Waste
Management, Resource Recovery and Recycling Act (Gov't. Code §§ 66700 et seq.); the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601
et seq.); the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.); the Resource
Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.); Health & Safety Code §§ 25117 or
25316, including the regulations promulgated thereto (see 22 Cal. Code of Regs. § 66261.3); any
substances or mixture regulated under the Toxic Substance Control Act of 1976 (15 U.S.C. §§
2601 et seq.); any "toxic pollutant" under the Clean Water Act (33 U.S.C. §§ 1251 et seq.); and
any hazardous air pollutant under the Clean Air Act (42 U.S.C. §§ 7901 et seq.).
..
5. TRANSPORTATION OF WASTE. MARCOR will transport any HW it collects pursuan
to this Agreement to a dump site certified for HW disposal and complying with all applicable
laws and regulations for the disposal of HW.
6. FAMILIARITY WITH WORK.
A. By executing this Agreement, MARCOR represents that MARCOR 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, MARCOR warrants that MARCOR has or
will investigate the site and is or will be fully acquainted with the conditions there
existing, before commencing the services hereunder. Should MARCOR discover
any latent or unknown conditions that may materially affect the performance of
the services, MARCOR will immediately inform CITY of such fact and will not
proceed except at MARCOR's own risk until written instructions are received
from CITY.
7. TERM. The term of this Agreement will be from April 14, 2003, to May 14, 2003. Unless
otherwise determined by written amendment between the parties, this Agreement will terminate
in the following instances:
A. Completion of the work specified in Exhibit A;
B. Termination as stated in Section 14.
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8. TIME FOR PERFORMANCE. MARCOR will not perform any work under this
Agreement until:
A. MARCOR furnishes proof of insurance as required under Section 20 of this
Agreement; and
B. CITY gives MARCOR a written Notice to Proceed.
C. Should MARCOR begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at MARCOR's own
risk.
9. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by MARCOR and CITY. The cost or credit to CITY resulting from changes in the
services will be determined in accordance with written agreement between the parties.
10. TAXPAYER IDENTIFICATION NUMBER. MARCOR will provide CITY with a
Taxpayer Identification Number.
11. PERMITS AND LICENSES. MARCOR, at its sole expense, will obtain and maintain
during the term of this Agreement, all necessary permits, licenses, and certificates that may be
required in connection with the performance of services under this Agreement.
12. PROJECT COORDINATION AND SUPERVISION.
A. Todd W. Ellerson is assigned as Project Manager and will be responsible for job
performance, negotiations, contractual matters, and coordination with CITY's
Project Manager.
B. Lt. Anthony Affinitio is assigned as CITY's Project Manager and will be
personally in charge of and personally supervise or perform the technical
execution of the Project on a day -to -day basis on behalf of CITY and will
maintain direct communication with MARCOR's Project Manager.
13. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
MARCOR under this Agreement will not be construed to operate as a waiver of any rights CITY
may have under this Agreement or of any cause of action arising from MARCOR's performance.
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 other
term, covenant, or condition contained in this Agreement, whether of the same or different
character.
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14. 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. MARCOR may terminate this Agreement at any time with CITY's mutual
consent. Notice will be in writing at least thirty (30) days before the effective
termination date.
C. Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by MARCOR will,
at CITY's option, become CITY's property, and MARCOR will receive just and
equitable compensation for any work satisfactorily completed up to the effective
date of notice of termination, not to exceed the total costs under Section 1(C).
D. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
E. By executing this document, MARCOR waives any and all claims for damages
that might otherwise arise from CITY's termination under this Section.
15. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by MARCOR under this Agreement are CITY's property.
MARCOR may retain copies of said documents and materials as desired, but will deliver all
original materials to CITY upon CITY's written notice. CITY agrees that use of MARCOR's
completed work product, for purposes other than identified in this Agreement, or use of
incomplete work product, is at CITY's own risk.
16. INDEMNIFICATION.
A. MARCOR agrees to the following:
i. MARCOR 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 MARCOR's removal, remediation, response or
other plan concerning any HW 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, MARCOR 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.
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to 42 USC e Comprehensive Environmental e,
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Compensation and Liability c , L " ealth & Safety Code
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§ 25364 to defend, protect, h ess, an i CITY from all
forms of liabil ERCLA, or other applicable law, for an
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and volunteers.
C. MARCOR 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.
E. The requirements as to the types and limits of insurance coverage to be
maintained by MARCOR as required by Section 20, 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 MARCOR pursuant to this
Agreement, including, without limitation, to the provisions concerning
indemnification.
17. ASSIGNABILITY. This Agreement is for MARCOR's services. MARCOR's attempts to
assign the benefits or burdens of this Agreement without CITY's written approval are prohibited
and will be null and void.
18. INDEPENDENT CONTRACTOR. CITY and MARCOR agree that MARCOR will act as
an independent contractor and will have control of all work and the manner in which is it
performed. MARCOR will be free to contract for similar service to be performed for other
employers while under contract with CITY. MARCOR 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 MARCOR as to the details of doing the work or to exercise a measure of control
over the work means that MARCOR will follow the direction of the CITY as to end results of the
work only.
19. AUDIT OF RECORDS.
A. MARCOR agrees that CITY, or its designee, have the right to review, obtain, and
copy all records pertaining to the performance of this Agreement. MARCOR
agrees to provide CITY, or designee, with any relevant information requested and
will permit CITY, or designee, access to its premises, upon reasonable notice,
during normal business hours for the purpose of interviewing employees and
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inspecting and copying such books, records, accounts, and other material that may
be relevant to a matter under investigation for the purpose of determining
compliance with this Agreement. MARCOR further agrees to maintain such
records for a period of three (3) years following final payment under this
Agreement.
B. MARCOR will keep all books, records, accounts and documents pertaining to this
Agreement separate from other activities unrelated to this Agreement.
20. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, MARCOR 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 Limits (combined single)
Commercial general liability: $1,000,000
Professional Liability $1,000,000
Business automobile liability $1,000,000
Workers compensation Statutory requirement.
B. Commercial general liability insurance must 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 must 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 01 06 92, including symbol 1 (Any Auto). The Automobile Liability policy
must be endorsed to delete the Pollution exclusion and add the Motor Carrier Act
endorsement (MCS -90), TL 1005, TL 1007 and/or other endorsements required
by federal or state authorities.
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," MARCOR will continue to maintain the
insurance in effect for a period of five (5) 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
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Agreement, and will cover MARCOR for all claims made by CITY arising out of
any errors or omissions of MARCOR, or its officers, employees or agents during
the time this Agreement was in effect. If coverage is provided on a "claims made
basis," the "Retro Date" must be shown, and must be before the Agreement's
effective date or the beginning of performance under the Agreement. If coverage
is canceled or not renewed, and not replaced with another claims made policy
form with a "Retro Date" before the Agreement's effective date, MARCOR must
purchase "extended reporting" coverage for a minimum of five (5) years after
termination of this Agreement.
E. MARCOR 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 admitted insurers with a current A.M. Best Company Rating
equivalent to at least a Rating of "A:VH." Certificate(s) must reflect that the
insurer will provide thirty (30) day notice of any cancellation of coverage.
MARCOR 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 MARCOR, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at MARCOR's
expense and deduct the cost of such insurance from payments due to MARCOR
under this Agreement or terminate.
21. USE OF SUBCONTRACTORS. MARCOR must obtain CITY's prior written approval to
use any subcontractor while performing any portion of this Agreement. Such approval must
approve of the proposed subcontractor and the terms of compensation.
22. NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
CITY
Carlos Mendoza, Sergeant
City of El Segundo
350 Main Street
El Segundo, CA 90245
Fax: 310- 640 -8648
MARCOR
Todd Ellertson, Project Manager
16027 Carmenita Road
Cerritos, CA 90703
562- 921 -2733
Fax: 562-921-2383
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. In all other instances, notices will be deemed given at the time of
actual delivery. 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.
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23. SOLICITATION. MARCOR maintains and warrants that it has not employed nor retained
any company or person, other than MARCOR's bona fide employee, to solicit or secure this
Agreement. Further, MARCOR warrants that it has not paid nor has it agreed to pay any
company or person, other than MARCOR's bona fide employee, any fee, commission,
percentage, brokerage fee, gift or other consideration contingent upon or resulting from the
award or making of this Agreement. Should MARCOR breach or violate this warranty, CITY
may rescind this Agreement without liability.
24. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of MARCOR and CITY and not for the benefit of any other
party. There will be no incidental or other beneficiaries of any of MARCOR's or CITY's
obligations under this Agreement. Notwithstanding the foregoing provisions, the State of
California may exercise the rights reserved for it under this Agreement to ensure compliance
with applicable California laws and regulations.
25. 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.
26. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are three (3) Attachments to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
27. 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.
28. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review
this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a
whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against
either Party.
29. SEVERABILITY. 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.
30. AUTHORITY /MODIFICATION. 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 amendment.
CITY's city manager, or designee, may execute any such amendment on behalf of CITY.
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31. 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.
32. COVENANTS AND CONDITIONS. The parties agree that all of the provisions hereof
will be construed as both covenants and conditions, the same as if the words importing such
covenants and conditions had been used in each separate paragraph.
33. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
34. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, war, 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.
35. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
36. STATEMENT OF EXPERIENCE. By executing this Agreement, MARCOR represents
that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to
perform the Agreement in a manner satisfactory to CITY. MARCOR represents that its financial
resources, surety and insurance experience, service experience, completion ability, personnel,
current workload, experience in dealing with private MARCORs, and experience in dealing with
public agencies all suggest that MARCOR is capable of performing the proposed contract and
has a demonstrated capacity to deal fairly and effectively with and to satisfy a public agency.
37. COMPLIANCE WITH LAW. MARCOR will comply with all federal, state and local laws
applicable to the performance of this Agreement including, without limitation, the El Segundo
Municipal Code.
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IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO,
a general law city.
Mary Strenn
Cit ager
ATTEST:
Cindy Mortesen,
City Clerk
APPROVED AS TO FORM:
MARK D. HENSLEY, CITY ATTORNEY
MARCOR REMEDIATION, INC.,
a . Corporation.
President
d.
Secretary
By:
Karl H. Berger, Assistant City Attorney
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SENT BY: MARCOR R5MEDIATION, INC.; 5629212383;
APR -28 -03 14:48; .. PAGE t12 /13'
• IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO,
a general law ciV.
Mary
CiM
ATTEST: _
Cindy Mort6kn,
City Clerk
APPROVED AS T
:MARK D. HE Y
By:
MARCOR REMEDIATION, INC.,
a ; Corporation.
President
Secretary
City Attorney
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