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HomeMy WebLinkAboutAGMT - Dalton Trucking (East Beach Sand Replenishment) «rxe c an-cru CONTRACT SERVICES AGREEMENT East Beach Sand Replenishment Project (Dalton Trucking) THIS AGREEMENT, entered into this twentieth day of October, 1997 by and between the CITY OF SEAL BEACH, a municipal corporation, ( "CITY ") and DALTON TRUCKING ( "DALTON ") is made with reference to the following: RECITALS: A. CITY requires beach quality sand to replace sand on the CITY'S East Beach. CITY has entered into an agreement ( Sand Contract) with Coast Rail Services, Inc. (COAST) under which COAST will transport approximately 100,000 tons (net dry weight) of beach quality sand (the Sand ") to the U. S. Naval Weapons Station in accordance with the Sand Contract. NOW, THEREFORE, it is mutually agreed as follows: SECTION 1. TERM The term of this agreement ( "Agreement ") shall commence on the 20th day f of October, 1997, and shall terminate on the 31st day of January, 1998,unless terminated earlier or extended as set forth herein. SECTION 2. SERVICES TO BE PERFORMED BY DALTON DALTON shall collect approximately 100,000 tons (net dry weight) of beach sand (the "Sand ") from the U.S. Naval Weapons Station, transport the Sand to the City's East Beach and deposit and spread it thereon as assigned by the City and considering equipment capability. SECTION 3: COMPENSATION TO DALTON In accordance with the Sand Contract, COAST shall remit to DALTON the agreed upon sum due Dalton for all services performed by Dalton. The measurement of work performed and progress estimate of the value thereof on the agreement shall be prepared by COAST and submitted to the Director of Public Works two weeks after the commencement date and every two weeks thereafter for verification and payment consideration by the Director of Public Works. Payment shall be $200.00 per railcar for the unloading of the railroad cars, transporting from the unloading facility at the Naval Weapons Station to the East Beach, and spreading of sand on the East Beach as directed by the City. 1 • • SECTION 4: STANDARD OF CARE DALTON shall perform all services hereunder in a manner commensurate with the industry professional standards. All services shall be performed by qualified and experienced personnel. SECTION 5: INDEPENDENT PARTIES CITY and DALTON intend that the relation between them created by this Agreement is that of employer- independent contractor. The manner and means of conducting the work are under the control of DALTON, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. SECTION 6: INDEMNIFICATION AND HOLD HARMLESS AND WAIVER OF SUBROGATION AND CONTRIBUTION To the fullest extent permitted by law, Indemnitor hereby agrees, at its sole cost and expense, to defend, protect, indemnify, and hold harmless the City of Seal Beach, the U.S. Department of the Navy, and their respective elected officials, officers, attorneys, agents, employees, volunteers, successors, and assigns (collectively "Indemnitees ") from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith (collectively "Liabilities "), arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to any act, failure to act, error, or omission of Indemnitor or any of its officers, agents, servants, employees, subcontractors, materialmen, suppliers or their officers, agents, servants or employees, arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to this Agreement, or the performance or failure to perform any term, provision, covenant, or condition of the Agreement, including this indemnity provision. This indemnity provision is effective regardless of any prior, concurrent, or subsequent active or passive negligence by Indemnitees and shall operate to fully indemnify Indemnitees against any such negligence. This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies which Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against an Indemnitee shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. Indemnitor shall pay Indemnitees for any attorneys fees and costs incurred in enforcing this indemnification provision. Accountants, attorneys, or other professionals employed by Indemnitor to defend Indemnitees shall be shall be selected by Indemnitees. Indemnitor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the 2 • • Indemnitor regardless of any prior, concurrent, or subsequent active or passive negligence by the Indemnitees. For so long as DALTON is not in default in the performance of the terms of this agreement, City shall indemnify, defend, and hold harmless from any claims, actions, or lawsuits initiated by third parties against DALTON, which claims, actions or lawsuits allege, in whole or in part, that the acts, omissions of DALTON contributed to any property damage or personal injury incurred by said third party due to flooding, beach erosion, storm or wave damage. SECTION 7. INSURANCE On or before the commencement of the term of this Agreement, DALTON shall furnish CITY with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 7A, B, C and D. Such certificates, which do not limit DALTON' indemnification, shall also contain substantially the following statement "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer afforded coverage shall provide thirty (30) days' advance notice to the CITY of SEAL BEACH and US NAVY by certified mail, Attention: Public Works Director, 211 8th Street, Seal Beach, CA 90740 and Commanding Officer, Naval Weapons Station, Seal Beach, CA 90740 -5000. It is agreed that DALTON shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to CTTY and licensed to do insurance business in the State of California. A. COVERAGE DALTON shall maintain at their expense, during the term of this agreement, the following insurance coverage for its employees engaged in the performance of this agreement (1) Worker's Compensation Statutory coverage as required by the State of California. (2) Liability Comprehensive general coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate products /completed operations 3 • • • $1,000,000 aggregate - all other (if applicable) Property Damage: $100,000 each occurrence $250,000 aggregate If submitted, combined single limit policy with aggregate limits in the amount of $1,000,000 will be considered equivalent to the required minimum limits shown above. B. SUBROGATION WAIVER DALTON agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that DALTON shall look solely to its insurance for recovery. DALTON hereby grants to CITY and US NAVY, on behalf of any insurer providing comprehensive general and automotive liability insurance to either DALTON, CITY, or US NAVY with respect to the services of DALTON herein, a waiver of any right of subrogation which any such insurer of said DALTON may acquire against CITY or US NAVY by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE If DALTON at any time during the term hereof should fail to secure or maintain the foregoing insurance, CITY shall be permitted to obtain such insurance in the DALTON name or as an agent of the DALTON and shall be compensated by the DALTON for the costs of the insurance premiums at the maximum rate permitted by law computed from the date written notice is received that the premiums have been paid. D. ADDITIONAL INSURED CITY, US NAVY, its elected officials, boards and commissions, officers, and employees shall be named as an additional insured under all insurance coverage required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. 4 1r 7 • • - • SECTION 8. PROHIBITION AGAINST TRANSFER DALTON shall not assign, sublease, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of CITY. SECTION 9: PROGRESS OF THE WORK It is understood that DALTON shall not be assessed with any penalties or be responsible for any damages resulting from any delay in the completion of the work caused by acts of God, acts by Union Pacific Railroad, Coast Rail Services and US Navy, fire not due to acts of DALTON, floods, or earthquakes, a state of war or emergencies, or by delays of subcontractors due to such causes, provided that the Contractor shall, within 10 days from the beginning of such delay, notify the City, in writing, of the cause of the delay. SECTION 10: COST OF LITIGATION If any legal action is necessary to enforce any provision hereof or for damages by reason of an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all actual costs and expenses and attorneys' fees. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. CITY OF SEAL BEACH, a municipal corporation BY: c � p ity Manager DALTON TRUCKING BY: President ATTEST: •itt Clerk 5