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HomeMy WebLinkAboutC-3356 - Subscription Agreement (for Emergency Hazardous Material Team Response Services)) SUBSCRIPTIONAORNENENT This Agreement, dated for purposes of identification only this 22 nd day of March , 2001 , by and between the Orange County - City Hazardous Materials Emergency Response Authority ("Authority") and City 0f Newport Beach ("Subscriber Agency") is made with reference to the following: A. Authority, through Provider Agencies, maintains, trains, and equips personnel capable of responding to emergencies created by the release of hazardous materials. B. Subscriber Agency desires to obtain hazardous materials emergency response services in accordance with the terms of this Agreement and the Orange County - City Hazardous Materials Emergency Response Joint Powers Agreement ("JPA"). NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: 1. TERM: The term of this Agreement shall commence on July 1, 2000 and shall automatically renew from year to year unless sooner terminated as provided below. 2. DEFINITIONS: The definitions of words and terms contained in Chapter 1 of the JPA shall apply to this Agreement. 3. AUTHORITY SERVICES: Authority, through the Provider Agencies, shall furnish Subscriber Agency with hazardous materials emergency response 1 services subject to the following: A. Services will be performed by Provider Agency personnel. The Board, in cooperation with the Provider Agencies, will determine the number, location and size of the Response Teams available to provide services pursuant to this Agreement. B. The Provider Agencies and their Response Teams will generally provide services in accordance with the provisions of the current Hazardous Materials Emergency Response Plan. The Authority, Provider Agencies and Response Teams retain discretion as to the specific type, nature and timing of the services performed pursuant to this Agreement. Neither the Authority, Provider Agencies nor Response Teams are responsible for the physical containment or clean up of any hazardous material, the control of pedestrian or vehicular traffic or the removal of persons or property from the area around the emergency. C. Neither the Authority, nor the Provider Agencies, guarantee that a Response Team will be available at a specific time to respond to a hazardous materials emergency. The Authority, Provider Agencies and Response Teams retain the sole and exclusive discretion as to the specific type, nature and timing of the services performed pursuant to this Agreement. 4. SUBSCRIBER AGENCY'S DUTIES: A. Subscriber Agency shall use its best efforts to do the following: (1) Require that all persons, business entities 2 and public agencies within its jurisdiction comply with applicable state and federal laws regarding the storage and use of hazardous materials by establishing and implementing an inspection and citation program; (2) Maintain, and make accessible to the Authority, Provider Agencies, and Response Teams, copies of all plans and documents required to be submitted pursuant to law, including, without limitation, business inventories and emergency response plans; (3) If appropriate, declare a local emergency pursuant to the provisions of Sections 8630, et seq. of the Government Code of the State of California and/or any applicable charter provisions or ordinance. To the extent permitted by law, the Authority or the responding Provider Agency shall have the right to declare a local emergency in the event the public entity with jurisdiction over the scene of the hazardous materials emergency fails or refuses to do so, and (4) Immediately comply with any request of the Response Team, Provider Agency or Authority to provide police, fire or other personnel or services to assist the Response Team, control vehicular traffic and pedestrian access to the scene of the hazardous materials emergency, or contain or clean-up any hazardous material within Subscriber Agency's jurisdiction. These services shall be provided at no cost to the Authority or the Provider Agencies. Neither the Authority nor the responding Provider Agency shall be responsible to provide these services or 3 for any costs or expenses related thereto. In the event these services are not provided, the responding Provider Agency shall have the right, but not the obligation, to contract on behalf of Subscriber Agency for such services as may be necessary, or in the alternative, the Response Team shall have the right to withdraw from the scene of the hazardous materials emergency. In the event the responding Provider Agency is required to contract for services to be provided pursuant to this subsection, Subscriber Agency shall fully reimburse the Provider Agency within five (5) days from the date costs are billed. B. Prior to the arrival of the Response Team(s) to a hazardous materials emergency occurring within its jurisdiction, Subscriber Agency shall take all action necessary or appropriate to minimize the impact of the emergency, such as area evacuation, site security and traffic control. Subscriber Agency shall provide police and fire services, communication, facilities, and any personnel, services or facility requested by Authority or the Response Team. C. Subscriber Agency shall pay its fair share contribution for each fiscal year as determined by the Board pursuant to Paragraph 1.9 of the Joint Powers Agreement. Subscriber Agency may, at its option, elect to pay its fair share contribution in four equal installments due and owing on or before July 30th, October 1st, January 1st, and April 1st. 5. AUTHORITY COLLECTIONS: A. Authority will attempt to collect from the person 4 or entity responsible for any hazardous materials emergency to which a Provider Agency has responded within the jurisdiction of Subscriber Agency, the reasonable value of all services performed by the Authority/Provider Agency. Subscriber Agency agrees to cooperate with the Authority in its collection efforts. Authority will continue its collection efforts for the period of its regular billing cycle as established by the Board. If the person or entity responsible for the hazardous materials emergency does not pay the amount billed within the regular billing cycle, Subscriber Agency shall reimburse the Authority for the costs of repairing or replacing all materials and supplies damaged or destroyed in the course of providing services or which must be disposed of following the emergency. All fees and costs owing from Subscriber Agency pursuant to this section shall be due within thirty (30) days of billing. B. If Subscriber Agency is potentially responsible for, but did not cause, the hazardous materials emergency, as the case of hazardous materials abandoned on property belonging to Subscriber Agency, and an otherwise responsible party cannot be located, Subscriber Agency shall reimburse the Authority for the costs of repairing or replacing all materials and supplies damaged or destroyed in the course of providing services. If Subscriber Agency caused the hazardous materials emergency, Subscriber Agency shall pay the Authority the hourly rate for the applicable level of service established by the Board, as set forth in the schedule of rates established by the Board pursuant 5 in to Section 6.2 of the Joint Powers Agreement, a copy of which is attached and incorporated as Exhibit "1", and the costs of repairing or replacing any equipment damaged or destroyed in the course of providing services. All fees and costs owing from Subscriber Agency pursuant to this section shall be due within thirty (30) days of billing. C. Nothing in this Agreement shall prevent Subscriber Agency from pursuing efforts to collect, from the person or entity responsible for the hazardous materials emergency, all costs and expenses incurred by Subscriber Agency in providing services other than those performed by a Provider Agency Response Team. 6. INDEMNIFICATION AND WAIVER: A. Subscriber Agency waives and gives up any claim against, or right to sue, the Authority, any Provider Agency, or any of their officers, employees or representatives, for any loss, damage or injury that related to, Agreement. the performance arises out of, or is of services rendered This waiver extends to liability for in any way pursuant to this bodily injury or property damage, that may be sustained by Subscriber Agency, officers, employees, contractors or agents and which was proximately caused, in whole or in part, by the negligent act, conduct or omission of the Authority, any Provider Agency, and/or their respective officers, employees, agents, contractors, representatives, or any third party. However, this waiver does not extend to liability for bodily injury or property damage 6 its caused by fraudulent or willful conduct or any willful or negligent act which constitutes a violation of a penal statute. B. Authority shall defend, indemnify and hold harmless Subscriber Agency, the responding Provider Agency, other Participating Agencies, and their respective officers, employees, agents and representatives with respect to any loss, damage, injury, claim, litigation or liability that arises out of, or is in any way related to, the performance of services pursuant to this Agreement. Subscriber Agency shall defend, indemnify and hold harmless the Authority with respect to any claim, litigation, loss, liability, damage, cost or expense that arises out of, or is in any way related to, the acts or omissions of Subscriber Agency or its officers, employees, agents or representatives in the course of providing fire and police services, containment or clean-up services, or any other support service or activity related to the hazardous materials emergency. Subscriber Agency shall reimburse the Authority for costs incurred in defending Subscriber Agency, the responding Provider Agency, and the other Participating Agencies as well as the amount of any judgment, settlement or award resulting from such claim or litigation, in accordance with its Fair Share Percentage, pursuant to Paragraph 7.2(C) of the JPA. The amount of reimbursement due from Subscriber Agency shall be increased pro rata if the total fair share percentages of the Provider Agencies and Subscriber Agencies required to reimburse the Authority is less than 100% of the total of all Fair Share 7 Percentages. 7. JPA: By signing this Agreement, Subscriber Agency becomes a Participating Agency in Authority. Subscriber Agency agrees that all of the provisions of the JPA are incorporated into this Agreement by reference and, in the event of any conflict between this Agreement and the JPA, the provisions of the JPA shall control. 8. TERMINATION: A. Authority may terminate this Agreement if Subscriber Agency fails to make the payments required by this Agreement, fails to provide the support services required by this Agreement, or otherwise materially breaches this Agreement. B. Subscriber Agency may terminate this Agreement by providing Authority with sixty (60) days written notice specifying the effective date of such termination. C. Subsequent to termination, Subscriber Agency shall continue to be responsible to perform the duties and obligations required by this Agreement and which are based on facts, events or occurrences which predate the termination. 9. MISCELLANEOUS PROVISIONS: A. Each of the parties to this Agreement shall immediately notify the other of any litigation or claim that is asserted by or against either party regarding this Agreement. B. Each of the parties to this Agreement shall cooperate with one another in the defense of any lawsuit or claim 8 filed against either party and arising out of, or in any way related to, this Agreement, as well as any efforts by Authority to collect money from persons or entities responsible for any hazardous materials emergency. C. The validity of this Agreement, and any of its terms and provisions, as well as the rights and duties of the parties, shall be construed pursuant to, and in accordance with, the laws of the State of California. Dated: 3- 02,2 - D Dated: 4.. a, ' G , 0659 Orange County - City Hazardous Materials Emergency Response Join owers A tho ity Pr in d Name: + /44,4cf) i, ,(6,r„0�(-- Title: A-i)rvt"o, 5.7-,2 rrL,, Lc urn iiinr470Yz. By: "AUTHORITY" .781'A 422:1 (Name of Agency) City of Newport Beach Printed Name: Garold B. Adams Title: Mayor "SUBSCRIBER AGENCY"