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HomeMy WebLinkAboutOMI - 1998 Agreement 8/ '-. AGREEMENT for OPERATIONS, MAINTENANCE AND MANAGEMENT SERVICES for the GA VILAN COLLEGE PUMP STATION for the CITY OF GILROY This Agreement made and entered into this ~ day of April. 1998 by and between the City of Gilroy (hereinafter "City"), whose address for any formal notice required by this Agreement is 7351 Rosanna Street, Gilroy, California 95020, and Operations Management International, Inc., a corporation organized and existing under the laws of the State of California (hereinafter "OMI"), whose address for any formal notice required by this Agreement is 5299 DTC Boulevard, Suite 1200, Englewood, Colorado 80111-3333. NOW THEREFORE, the City and OMI agree to the following: 1. GENERAL 1.1 This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. 1.2 This Agreement is the entire Agreement of the parties, and may be modified only by written agreement signed by both parties. 1.3 OMI's services are defined solely by the Agreement and not by any other contract or agreement which may be associated with the Project. 1.4 The standard of care applicable to OMI's services will be the degree of skill and diligence normally employed by qualified and competent operations and maintenance personnel performing the same or similar services. 1.5 Execution of this Agreement by City will constitute authorization for OMI to proceed. 2. SCOPE OF SERVICES-OMI I OMI shall: 2.1 Within the design capacity and capability of the Pump Station, manage, operate, and maintain the Gavilan College Pump Station located on Mesa Road at Gavilan College in Gilroy, California. OMI may alter the facilities to achieve the objectives of this Agreement: provided however, that any alteration requiring capital expenditure shall require City's prior written approval. G:\agreemnts\g\Gavi lan-Gilroy .doc -1- 03/18/98 2.2 Provide sufficient qualified staff to perform the services required to properly operate and maintain the pump station. 2.3 Respond to all pump station call-outs within one (I) hours of notification. If OMI cannot remedy a pump station failure utilizing labor or equipment to be provided by OMI, OMI will utilize the services of a subcontractor. 2.4 Perform and document all Repairs for the Pump Station, provided the total amount OMI shall be required to pay for Repair Costs does not exceed One Thousand Eight Hundred Dollars ($1,800.00) for parts and outside services. The City shall give prior written approval for non-emergency Repairs in excess of the Repair Cost Limit. 3. SCOPE OF SERVICES-CITY City shall: 3.1 Provide and pay for all capital expenditures, electrical power, repair costs in excess of the Repair Cost Limit, and licenses, property, franchise, or other taxes associated with the Pump Station. 3.2 Maintain all existing Pump Station warranties, guarantees, easements, and licenses granted to City. 4. COMPENSATION AND PAYMENTS 4.1 City shall pay to OMI as compensation for services performed under this Agreement a base fee of Thirteen Thousand Four Hundred and Six Dollars ($13,406), which is One Thousand One Hundred Seventeen Dollars and Seventeen Cents ($1,117.17) per month, for the first year of this agreement. 4.2 In addition to the fee specified in Article 4.1, City shall pay OMI for all repairs in excess of the Repair Cost Limit including parts, labor and outside services at OMI's cost plus 17.7%. 4.3 The base fee shall be negotiated each year three (3) months prior to the anniversary of the effective date hereof. Should City and OMI fail to agree, the base fee will be determined by application of the CPI for All Urban Consumers (U.S. City Average) as published by the U.S. Department of Labor, Bureau of Labor Statistics. 4.4 Monthly invoices will be issued by OMI for work performed and expenses incurred under this Agreement. Invoices are due and payable upon receipt. G:\agreemnts\g\Gavilan-Gilroy.doc - 2 - 03/18/98 5. TERM AND TERMINATION 5.1 Unless otherwise provided, the Term of this Agreement shall be for two (2) years commencing on July I, 1997 and ending on June 30, 1999. Renewal of this Agreement may be provided upon written agreement by both parties prior to expiration of the current term. 5.2 City and OMI may terminate this Agreement for no cause by giving the other party at least sixty (60) days written notice. Upon termination, OMI will be paid for all authorized work performed up to the termination date. 5.3 This Agreement is contingent upon OMI operating the Wastewater Treatment Plant for the South County Regional Wastewater Authority (SCRW A). In the event that OMI no longer operates the SCRW A facility, then this Agreement will be terminated on the ending date of the SCRW A operating Agreement. 6. LIMITATION OF LIABILITY 6.1 OMI hereby agrees to and shall indemnify, defend, save, and hold harmless the City, their respective, elective, and appointive Boards, officers, agents, representatives, and employees from and against any and all liability or loss due to property damage or bodily injury, including death, which may arise from OMI's negligent operations or intentional misconduct under this Agreement or breach of any covenant contained herein, to the proportion that OMI is at fault. The City hereby agrees to and shall indemnify, defend, save, and hold harmless OMI, its officers, agents, and employees harmless from and against any and all liability or loss due to property damage or bodily injury, including death, which may arise from causes other than OMI's negligence or intentional misconduct under this Agreement or breach of any covenant of OMI contained herein. Each party shall obtain and maintain insurance coverage of a type and in the amounts described below: OMI shall maintain: 1. Statutory workmen's compensation for all of OMI's employees at the Project as required by the State of California. 2. Comprehensive general liability insurance in an amount not less than One Million Dollars ($1,000,000.00) combined single limits for bodily injury, including death and/or property damage and shall specifically provide for the legal defense of OMI and/or the City in the event of litigation commenced as G:\agreemnts\g\Gavilan-Gi1roy.doc - 3 - 03/18/98 " , a result of allegations of liability of OMI and/or the City based on OMI's operation of the Project. City shall maintain: 1. Property damage insurance for all property including vehicles owned by City and operated by OMI under this Agreement. Any property including vehicles not properly or fully insured shall be the financial responsibility of the City. 2. Automobile liability insurance for all vehicles owned by the City and operated by OMI under this Agreement. Each party shall name the other party as an additional insured on all insurance policies covering the Project and shall provide the other party with satisfactory proof of insurance. 6.2 OMI shall be liable for fines or civil penalties which may be imposed by a Regulatory agency which are occasioned by the negligent provision of services under this Agreement, except to the extent such fines exceed One Hundred Fifty Thousand Dollars ($150,000.00) per year or to the extent such fines result from violations of environmental laws caused by City or a third party. 6.3 OMI's liability to City under this Agreement specifically excludes any and all indirect or consequential damages arising from the services contemplated under this Agreement. 6.4 It is understood and agreed that, in seeking the services of OMI under this Agreement, the City is requesting OMI to undertake uninsurable obligations for the City's benefit involving the presence or potential presence of hazardous substances or contaminants. Therefore, the City agrees to hold harmless, indemnify, and defend OMI from and against any and all claims, losses, damages, liability and costs including, but not limited to, cost of defense, arising out of or in any way connected with, the presence, discharge, release, or escape of contaminants, hazardous substances of any kind, to the extent that such presence, discharge, release thereof is not the result of the negligence or intentional misconduct of OM!. The provisions of said Section 6.4 shall control over any conflicting provisions of the Agreement. G :\agreemnts\g\Gavilan-Gilroy .doc - 4 - 03/18/98 6.5 If any of the provisions contained in this Agreement are held illegal, invalid, or unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. Limitations of liability and indemnities shall survive termination of this Agreement for any cause. 6.6 This Agreement gives no rights or benefits to anyone other than City and OMI and has no third party beneficiaries. 7. LABOR DISPUTES; FORCE MAJEURE 7.1 In the event labor stoppages by City or City's employee groups or unions (e.g., picketing) cause. a disruption in OMI's employees entering and working at the Project, City with OMI's assistance or OMI, at its own option, may seek appropriate injunctive court orders. During the labor dispute, OMI shall operate the facilities on a best-efforts basis until labor relations are normalized. 7.2 No party shall be liable for its failure to perform its obligations under this Agreement if performance is made impractical, abnormally difficult, or abnormally costly, due to any unforeseen occurrence beyond its reasonable control. The party invoking the Force Majeure clause shall notify the other parties immediately by verbal communication and in writing by certified mail of the nature and extent of the contingency within ten (10) working days after its occurrence. 8. FUTURE CONSTRUCTION 8.1 It is recognized that the City is planning to completely replace all pump station components at the Project. OMI, along with the City and the City's consulting firm, will work together to maintain accessibility and minimize disruption and outages to the existing pump station when future pump station improvements are under construction. 8.2 OMI will work with the engineer and construction contractor to coordinate activities. In the event a critical piece of equipment must be taken out of service, a plan shall be developed and approved by all parties ten (10) calendar days prior to the scheduled outage which addresses the impact of the outage on pump station operations, length of outage and methods of removing and reactivating the equipment to full service. The City shall pay all extra costs associated with said equipment outage. OMI shall not be responsible for effluent violations due to such interruptions. G :\agreemnts\g\Gavilan-Gilroy .doc - 5- 03/18/98 . . . , Both parties indicate their approval of this Agreement by their signatures below. Authorized Signature: c:2 D~ Jack R. Noble Vice President, Project Development OPERATIONS MANAGEMENT INTERNATIONAL, INe. Date: .3 - 18 -9 t3 a-o~ ~~'. a.~ e~~ G:\agreemnts\g\Gavilan-Gilroy.doc . strator CITY OF GILROY Date: 1/ - 7 - 9 J' ATTEST: W~~~\ Rhonda Pellin, Gilroy City Clerk - 6- 03/18/98