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
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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
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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"