Vermillions Environmental/SilverRock 12CONTRACT SERVICES AND REVOCABLE LICENSE AGREEMENT
This CONTRACT SERVICES AND REVOCABLE LICENSE AGREEMENT (the
"Agreement") is made and entered into by and between the CITY OF LA QUINTA,
a California municipal corporation and charter city (the "City"), and VERMILLION'S
ENVIRONMENTAL PRODUCTS & APPLICATIONS, INC., (the "Contractor").
RECITALS
WHEREAS, City desires to utilize the services of Contractor as an
independent contractor to provide the City with chemical stabilization services of
the undeveloped property at SilverRock Resort ("SRR Resort") for the purpose of
dust and PM10 control; and
WHEREAS, Contractor represents that it is fully qualified to, perform such
services by virtue of its experience and the training, education and expertise of its
principals and employees; and
WHEREAS, City desires to retain Contractor, and Contractor desires to serve
City, to perform these services subject to the terms contained herein and all
applicable local, state and federal laws and regulations.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are
incorporated herein by this reference, and for other valuable consideration, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1. Scope of Services. In compliance with all terms and conditions of this
Agreement, Contractor shall provide those services related to the undeveloped
portions of the SRR Resort, which undeveloped portions comprise approximately
290 acres (the "Property"), as specified in the "Scope of Services" attached hereto
as Exhibit "A" and incorporated herein by this reference (the "services" or "work").
Contractor warrants that all services will be performed in a competent, professional
and satisfactory manner in accordance with the standards prevalent in the industry
for such services. As consideration for the services required to be performed by
Contractor hereunder, the City has agreed to provide to Contractor a revocable
license, pursuant to the terms and conditions set forth in Exhibit "B", which is
attached hereto and incorporated herein by this reference, and as further governed
by this Agreement, for the sole and exclusive purposes of permitting Contractor to
use up to three (3) acres of the Property located adjacent to (north side) the
existing SRR Resort maintenance facility located at 78-600 Avenue 54 in La Quinta
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for the purpose of Contractor storing the equipment Contractor utilizes in
performing their services, including water trucks and water towers (the "License").
1.2. Compliance with Law. All services rendered hereunder and all actions
taken by Contractor pursuant to the License shall be provided in accordance with
all applicable local, state and federal ordinances, resolutions, statutes, rules,
regulations and laws.
1.3. . Licenses, Permits, Fees and Assessments. Except as otherwise
specified herein, Contractor shall obtain at its sole cost and expense all licenses,
permits and approvals as may be required by law for all of Contractor's services
and activities hereunder. Contractor shall have the sole obligation to pay for any
fees, assessments and taxes, plus applicable penalties and interest, which may be
imposed by law and arise from or are necessary for the performance of the services
required by this Agreement or the actions taken by Contractor pursuant to the
License.
1.4. Familiarity with Work. By executing this Agreement, Contractor
warrants that (a) it has thoroughly investigated and considered the work to be
performed, (b) it has investigated the site of the work and fully acquainted itself
with the conditions there existing, (c) it has carefully considered how the work
should be performed, and (d) it fully understands the facilities, difficulties and
restrictions attending performance of the work under this Agreement. Should
Contractor discover any latent or unknown conditions materially differing from
those inherent in the work or as represented by City, it shall immediately inform
City of such fact and shall not proceed except at Contractor's risk until written
instructions are received from the Contract Officer (as defined in Section 3.2
hereof).
1.5. Standard of Care. Contractor acknowledges and understands that the
services and work contracted for under this Agreement require specialized skills
and abilities and that, consistent with this understanding, Contractor's services and
work will be held to a heightened standard of quality and workmanship. Consistent
with Section 1.4 hereinabove, Contractor represents to City that it holds the
necessary skills and abilities to satisfy the heightened standard of work as set forth
in this Agreement. Contractor shall adopt reasonable methods during the term of
this Agreement to furnish continuous protection to the work performed by
Contractor, and the equipment, materials, papers and other components thereof to
prevent losses or damages, and shall be responsible for all such damages, to
persons or property, during the term of this Agreement, except such losses or
damages as may be solely caused by City's own negligence. The performance of
services by Contractor shall not relieve Contractor from any obligation to correct
any incomplete, inaccurate or defective work at no cost to City, when such
inaccuracies are due to the negligence of Contractor.
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1.6. Compensation. Contractor's sole compensation for the services
rendered pursuant to this Agreement shall be the City's provision to Contractor of
the License.
2.0 PERFORMANCE SCHEDULE
2.1. Time of Essence. Time is of the essence in the performance of this
Agreement.
2.2. Schedule. All services rendered pursuant to this Agreement shall be
performed diligently and within the time periods established in the Scope of
Services. Extensions to the time periods specified in the Scope of Services may be
approved in writing by the Contract Officer.
2.3. Force Majeure. The time periods specified in the Scope of Services for
performance of the services rendered pursuant to this Agreement shall be extended
because of any delays due to unforeseeable causes beyond the control and without
the fault or negligence of Contractor, including, but not restricted to, acts of God
or of the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions,
riots, strikes, freight embargoes, acts of any governmental agency other than City,
and -,unusually severe weather, if Contractor shall within ten (10) days of the
commencement of such delay notify the Contract Officer in writing of the causes
of the delay. The Contract Officer shall ascertain the facts and the extent of delay,
and extend the time for performing the services for the period of the forced delay
when and if in his or her judgment such delay is justified, and the Contract
Officer's determination shall be final and conclusive upon the parties to this
Agreement.
2.4. Term. This Agreement shall commence on July 1, 2012 and expire on
June 31, 2017 (initial term) unless earlier terminated pursuant to specific terms in
this Agreement. This Agreement may be extended for up to three (3) additional
one-year terms upon mutual agreement by both parties (each, an extended term).
Unless earlier terminated in accordance with Sections 7.6 of this Agreement, or the
Scope of Services, this Agreement shall continue in full force and effect until the
expiration of the initial term or any extended term (as applicable).
3.0 COORDINATION OF WORK
3.1. Representative of Contractor. The following principals of Contractor
are hereby designated as being the principals and representatives of Contractor
authorized to act in its behalf with respect to the work specified herein and make
all decisions in connection therewith:
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a. John Vermillion, Owner/President
b. Justin Vermillion, Owner/Vice President
It is expressly understood that the experience, knowledge, capability, and
reputation of the foregoing principals were a substantial inducement for City to
enter into this Agreement. Therefore, the foregoing principals shall be responsible
during the term of this Agreement for directing all activities of Contractor and
devoting sufficient time to personally supervise the services hereunder.
The foregoing principals may not be changed by Contractor and no other
personnel may be assigned to perform the service required hereunder without the
express written approval of City.
3.2. Contract Officer. The Contract Officer shall be Steve Howlett, Golf &
Parks Manager of the City, or such other person as may be designated in writing by
the City Manager. It shall be Contractor's responsibility to assure that the Contract
Officer is kept informed of the progress of the performance of the services and
Contractor shall refer any decisions which must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder
shall mean the approval of the Contract Officer.
3.3. Prohibition Against Subcontracting or Assignment; Preventions of
Liens. The experience, knowledge, capability and reputation of Contractor, its
principals and employees were a substantial inducement for City to enter into this
Agreement. Except as set forth in this Agreement, Contractor shall not contract or
subcontract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition,
neither this Agreement nor any interest herein (including, without limitation, the
License) may be assigned or transferred, voluntarily or by operation of law, without
the prior written approval of City, which approval may be granted or withheld in
the City's sole and absolute discretion. Any attempted or purported assignment or
sub -contracting by Contractor without the City's express written approval shall be
null, void and of no effect. In addition, Contractor shall take all steps necessary to
insure that no supplier of goods or services to Contractor files any notice, lien or
similar document against the Property or any portion thereof and shall be
responsible for the immediate removal of any such cloud on the City's title to the
Property or portion thereof.
3.4. Independent Contractor. Neither City nor any of its employees shall
have any control over the manner, mode or means by which Contractor, its agents
or employees, perform the services required herein, except as otherwise set forth.
Contractor shall perform all services required herein as an independent contractor
of City and shall remain at all times as to City a wholly independent contractor with
only such obligations as are consistent with that role. Contractor shall have no
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power to incur any debt, obligation, or liability on behalf of City. Contractor shall
not at any time or in any manner represent that it or any of its agents or employees
are agents or employees of City. Contractor agrees to pay all required taxes on
amounts paid to Contractor under this Agreement, and to indemnify and hold City
harmless from any and all taxes, assessments, penalties, and interest asserted
against City by reason of the independent contractor relationship created by this
Agreement. Contractor shall fully comply with the workers' compensation laws
regarding Contractor and Contractor's employees. Contractor further agrees to
indemnify and hold City harmless from any failure of Contractor to comply with
applicable workers' compensation laws. City shall have the right to offset against
the amount of any fees due to Contractor under this Agreement any amount due to
City from Contractor as a result of Contractor's failure to promptly pay to City any
reimbursement or indemnification arising under this Section 3.4.
3.5. City Cooperation. City shall provide Contractor with any plans,
publications, reports, statistics, records or other data or information pertinent to
services to be performed hereunder which are reasonably available to Contractor
only from or through action by City.
4.0 INSURANCE.
4.1. Insurance. Prior to the beginning of any work under this Agreement
and throughout the duration of the term of this Agreement, Contractor shall
procure and maintain, at its sole cost, and submit concurrently with its execution
of this Agreement, insurance as described herein. All insurance coverage required
by this Agreement shall be placed with insurers authorized to do business in the
State of California with an A.M. Best rating level of A- or better, Class VI or better,
unless otherwise approved by the City's Risk Manager in writing.
4.1.1. Minimum Coverage. Insurance shall include the following (or
broader) coverage:
a. Insurance Services Office Commercial General Liability
coverage "occurrence" form CG 00 01 or its exact equivalent with an
edition date prior to 2004 and with minimum limits of $1,OOO,O00 per
occurrence and $2,O00,O00 in the aggregate.
b. Insurance Services Office form number CA 0001 or
equivalent covering Automobile Liability, including hired and non -
owned automobile liability with a minimum limit of $1,OOO,O00 per
accident. If Contractor owns no vehicles, this requirement may be
satisfied by a non -owned and hired auto endorsement to Contractor's
commercial general liability policy.
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C. Contractor shall carry Workers' Compensation Insurance
complying with California's worker's compensation laws, including
statutory limits for workers' compensation and an Employer's Liability
limit no less than $1,000,000 per accident or disease.
4.1.2. Required Endorsements. Liability insurance policies required -to
be provided by Contractor hereunder shall contain or be endorsed to contain
the following provisions:
a. City, its employees, officials, representatives, agents and
member agencies shall be covered as additional insureds. Coverage
shall apply to any and all liability arising out of the work or related to
this Agreement. Additional insured status under the general liability
requirement shall be provided on Insurance Services Office Form CG
20 10 with an edition date prior to 2004, or its equivalent. Additional
insured status for completed operations shall be provided either in the
additional insured form or through another endorsement such as CG
20 37 with an edition date prior to 2004.
b. General and automobile liability insurance shall apply
separately to each insured against whom a claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
Coverage will not be limited to City's vicarious liability.
C. Liability coverage shall be primary and non-contributing
with any insurance maintained by the City.
d. Each policy required hereunder, and the associated
evidence of coverage (including the workers' compensation and
employer's liability policies), shall provide that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except
after prior written notice has been given to City. Such provision shall
not include any limitation of liability of the insurer for failure to provide
such notice.
e. No liability insurance coverage provided to comply with
this Agreement shall prohibit Contractor, or Contractor's employees,
or agents, from waiving the right of recovery prior to a loss.
Contractor waives its right of recovery against City.
4.1.3. Verification of Coverage. Contractor shall deposit with City
concurrently with the execution of this Agreement certificates of insurance
evidencing the coverage required hereunder and all required endorsements.
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4.1.4. No Waiver or Obligation.
There shall be no recourse
against
City for payment
of premiums or other amounts with respect
to the
insurance required
to be provided by
Contractor hereunder. Any
failure,
actual or alleged,
on the part of City
to monitor compliance with these
requirements will not be deemed as a
waiver of any rights on the
part of
City. City has no
additional obligations
by virtue of requiring the insurance
set forth herein.
4.1.5. Prompt Notice. Contractor agrees to provide immediate notice
to City of any claim or loss against Contractor arising out of the work
performed under this Agreement. City assumes no obligation or. liability by
such notice, but has the right (but not the duty) to monitor the handling of
any such claim or claims if they are likely to involve City.
4.1.6. Subcontractors. Contractor shall include all subcontractors, if
any, as insureds under its policies or shall furnish separate certificates and
endorsements for each subcontractor approved by City. All coverages for
subcontractors, if any, shall be subject to all of the requirements stated
herein unless otherwise approved in advance in writing by City's Risk
Manager.
4.2. Remedies. In addition to any other remedies City may have if
Contractor fails to provide or maintain any insurance policies or policy
endorsements to the extent and within the time herein required, City may, at its
sole option:
a. Obtain the insurance City deems necessary and either (i) require
prompt reimbursement by Contractor, or (ii) deduct and retain the amount of
the premiums for such insurance from any sums due under this Agreement.
b. Order Contractor to stop work under this Agreement and/or
withhold any payment(s) which become due to Contractor hereunder until
Contractor demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any
other remedies City may have. The above remedies are not the exclusive remedies
for Contractor's failure to maintain or secure appropriate policies or endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to
which Contractor may be held responsible for payments of damages to persons or
property resulting from Contractor's or its subcontractors' performance of work
under this Agreement.
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5.0 INDEMNIFICATION; ENVIRONMENTAL MATTERS.
5.1 Indemnification. To the fullest extent permitted by law, Contractor
shall indemnify, protect, defend and hold harmless the City and any and all of its
officials, employees, representatives, and agents (collectively, the "Indemnified
Parties") from and against any and all liability, claims, suits, actions arbitration
proceedings, administrative proceedings, regulatory proceedings, losses, expenses
or costs of any kind, whether actual, alleged or threatened, including, without
limitation, incidental and consequential damages, actual attorney fees incurred by
City, court costs, interest, defense costs including fees of expert contractors or
expert witnesses incurred in connection therewith and any other costs or expenses
of any kind whatsoever incurred in relation to, as a consequence of or arising out
of or in any way attributable in whole or in part to the performance of this
Agreement. All obligations under this provision are to be paid by Contractor as the
City incurs them.
5.1.1. Exception to Contractor's Obligation to Indemnify. Without
affecting the rights of City under any provision of this Agreement or this
section, Contractor shall not be required to indemnify and hold harmless City
as set forth above for liability attributable to the sole fault of City, provided
such sole fault is determined by agreement between the parties or by the
findings of a court of competent jurisdiction. This exception will apply only
in instances where City is shown to have been solely at fault and not in
instances where Contractor is solely or partially at fault or in instances where
City's fault accounts for only a percentage of the liability involved. In those
instances, the obligation of Contractor will be all-inclusive and City will be
indemnified for all liability incurred, even though a percentage of the liability
is attributable to conduct of the City.
5.1.2. Contractor Acknowledgment. Contractor acknowledges that
its obligation pursuant to this section extends to liability attributable to City,
if that liability is less than the sole fault of City.
5.1.3. Indemnity Provisions for Subcontractors. Contractor agrees to
obtain executed indemnity agreements with provisions identical to those set
forth in this Section 5.1.3 from each and every subcontractor, sub tier
contractor or any other person or entity involved by, for, with or on behalf of
Contractor in the performance of this Agreement. In the event Contractor
fails to obtain such indemnity obligations from others as required herein,
Contractor agrees to be fully responsible according to the terms of this
section.
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5.1.4. No Waiver; Survival. Failure of City to monitor compliance with
the requirements of this Section 5.1.4 imposes no additional obligations on
City and will in no way act as a waiver of any of City's rights hereunder.
Contractor's obligation to indemnify and defend the Indemnified Parties as
set forth herein is binding on the successors, assigns, or heirs of Contractor
and shall survive the termination of this Agreement or this section.
5.2. Environmental Requirements.
a. Contractor shall use only non -restricted products that have been
approved, in writing, by the City, on the Property.
b Contractor shall use only products which do not have lingering
odors.
C. Contractor shall be liable and responsible for the clean-up of any
"Hazardous Materials" (defined below) or environmental contamination,
which occur as a result of, or arises in connection with, any activities
conducted by Contractor, its employees, agents, subcontractors or
representatives, or invitees, under this Agreement, including, without
limitation, the License, and shall indemnify and hold harmless the City of La
Quinta from and against any and all claims, losses, damages and injuries of
any nature whatsoever resulting from or arising out of Contractor's activities
under this Agreement, including, without limitation, the License, except to
the extent resulting from the gross negligence or willful misconduct of City,
its employees, agents, contractors or representatives. Contractor's
obligation to observe and perform this covenant shall survive the expiration
or other termination of this Agreement. If, any Hazardous Materials
attributable to Contractor, its agents, employees, subcontractors or
representatives, or invitees, or the activities of any of them, are found in the
soil, air, surface or ground water on, under or about the Property,
Contractor, at its sole expense, shall promptly take any and all actions
necessary to return the Property to the condition existing prior to the
introduction of such Hazardous Materials to the Property in accordance with
all applicable laws and the requirements of all governmental agencies with
jurisdiction, provided that City's approval of such actions shall first be
obtained, which approval shall not be unreasonably withheld. If Contractor
causes or permits a significant release of Hazardous Materials or is in
material noncompliance with any applicable law or requirement of this
Section, City may make a reasonable demand for action upon Contractor. If
Contractor does not respond within thirty (30) days (unless there is an
emergency, in which case Contractor shall be required to respond as soon as
practicable), City may, at its option, take reasonable actions to remedy the
release or noncompliance at Contractor's sole expense, which sums shall be
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immediately due and payable to City as additional compensation. At any
time during the term of this Agreement, Contractor shall, if required by any
governmental agency, promptly take whatever steps are necessary to
investigate and remedy any contamination by Hazardous Materials caused.by
Contractor, its agents, employees, subcontractors or representatives, or
invitees.
d. For purposes of this Agreement, the term "Hazardous Materials"
shall mean (1) hazardous wastes, hazardous materials, hazardous
substances, hazardous constituents, toxic substances or related materials,
whether solids, liquids or gases, including, but not limited to, substances
deemed as "hazardous wastes," "hazardous materials," "hazardous
substances," "toxic substances," "pollutants," "contaminants," "radioactive
materials," or other similar designations in, or otherwise subject to regulation
under, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA "), 42 U.S.C. § 9601 et seq.;
the Toxic Substance Control Act ("TSCA"), 15 U.S.C. § 2601 at seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. § 1802; the Resource
Conservation and Recovery Act ( "RCRA"►, 42 U.S.C. § 9601, at seq.; the
Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. § 300 at seq.; the Clean Air Act ("CAA"), 42 U.S.C. §
7401 at seq.; the Hazardous Waste Control Law, California Health and
Safety Code § 25025 et seq., the Carpenter -Presley -Tanner Hazardous
Substance Account Act, California Health and Safety Code, Division 20,
Chapter 6.8, the Hazardous Materials Release Response Plans and Inventory
Act, California Health and Safety Code, Division 20, Chapter 6.95, The
Underground Storage of Hazardous Substances Act; California Health and
Safety Code, Division 20, Chapter 6.7, the Porter -Cologne Act, California
Water Code § 13050 et seq. and in any permits, licenses, approvals, plans,
rules, regulations or ordinances adopted, or other criteria and guidelines
promulgated pursuant to the preceding laws or other similar federal, state or
local laws, regulations, rules or ordinances now or hereafter in effect relating
to environmental matters (collectively the "Environmental Laws"); and (ii)
any other substances, constituents or wastes subject to any applicable
federal, state or local law, regulation, ordinance or common law doctrine,
including any Environmental Law, now or hereafter in effect, including, but
not limited to, (A) petroleum, (B) refined petroleum products, (C) waste oil,
(D) waste aviation or motor vehicle fuel, (E) asbestos, (F) lead in water, paint
or elsewhere, (G) radon, (H) polychlorinated biphenyls (PCB's) and (1) urea
formaldehyde.
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6.0 RECORDS AND REPORTS.
6.1. Reports. Contractor shall periodically prepare and submit to the
Contract Officer such reports concerning Contractor's performance of the services
required by this Agreement as the Contract Officer shall require.
6.2. Records. Contractor shall keep such books and records as shall be
necessary to perform the services required by this Agreement and enable the
Contract Officer to evaluate the performance of such services. Any books and
records pertaining to costs shall be kept and prepared in accordance with generally
accepted accounting principles. The Contract Officer shall have full and free
access to such books and records at all reasonable times, including the right to
inspect, copy, audit, and make records and transcripts from such records.
6.3. Ownership of Documents. Originals of all drawings, specifications,
reports, records, documents and other materials, whether in hard copy or electronic
form, which are prepared by Contractor, its employees, subcontractors and agents
in the performance of this Agreement, shall be the property of City and shall be
delivered to City upon termination of this Agreement or upon the earlier request of
the Contract Officer, and Contractor shall have no claim for further employment or
additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Contractor shall cause all
subcontractors to assign to City any documents or materials prepared by them, and
in the event Contractor fails to secure such assignment, Contractor shall indemnify
City for all damages suffered thereby.
6.4. Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Contractor in the performance of
services under this Agreement shall not be released publicly without the prior
written approval of the Contract Officer or as required by law. Contractor shall not
disclose to. any other entity or person any information regarding the activities of
City, except as required by law or as authorized by City.
6.5. Confidentiality. Contractor covenants that all data, documents,
discussion, or other information, if any, developed or received by Contractor or
provided for performance of this Agreement are deemed confidential and shall not
be disclosed by Contractor to any person or entity without prior written
authorization by City. City shall grant such authorization if disclosure is required by
law. All City data shall be returned to City upon the termination of this Agreement.
Contractor's covenant under this section shall survive the termination of this
Agreement.
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7.0 ENFORCEMENT OF AGREEMENT.
7.1. California Law. This Agreement shall be construed and interpreted
both as to validity and to performance of the parties in accordance with the laws of
the State of California. Legal actions concerning any dispute, claim or matter
arising out of or in relation to this Agreement shall be instituted in the Superior
Court of the County of Riverside, State of California, or any other appropriate court
in such county, and Contractor covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action.
7.2. Disputes. In the event of any dispute arising under this Agreement,
the injured party shall notify the injuring party in writing of its contentions by
submitting a claim therefore. The injured party shall continue performing its
obligations hereunder so long as the injuring party commences to cure such default
within_ ten (10) days of service of such notice and completes the cure of such
default within forty-five (45) days after service of the notice, or such longer period
as may be permitted by the Contract Officer; provided that if the default is an
immediate danger to the health, safety and general welfare, City may take such
immediate action as City deems warranted. Compliance with the provisions of this
section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's
right to take legal action in the event that the dispute is not cured, provided that
nothing herein shall limit City's right to terminate this Agreement without cause
pursuant to Section 7.6
7.3. Waiver. No defay or omission in the exercise of any right or remedy of
a non defaulting party on any default shall impair such right or remedy or be
construed as a waiver. City's consent or approval of any act by Contractor
requiring City's consent or approval shall not be deemed to waive or render
unnecessary City's consent to or approval of any subsequent act of Contractor.
Any waiver by either party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this
Agreement.
7.4. Rights and Remedies are Cumulative. Except with respect to rights
and remedies expressly declared to be exclusive in this Agreement, the rights and
remedies of the parties are cumulative and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by it, at the.same or
different times, of any other rights or remedies for the same default or any other
default by the other party.
7.5. Legal Action. In addition to any other rights or remedies, either party
may take legal action, at law or at equity, to cure, correct or remedy any default,
to recover damages for any default, to compel specific performance of this
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Agreement, to obtain injunctive relief, or to obtain any other remedy consistent
with the purposes of this Agreement.
7.6. Termination Prior to Expiration of Term. This section shall govern any
termination of this Agreement. Subject to the requirements of Section 7.2 above,
either party hereunder may terminate this Agreement upon a default hereunder by
the other party. In addition, City reserves the right to terminate this Agreement at
any time, with or without cause, upon thirty (30) days' written notice to
Contractor. Upon receipt of any notice of termination, Contractor shall immediately
cease all services hereunder except as may be specifically approved by the
Contract Officer.
7.7. Attorneys' Fees. If either party commences an action against the
other party arising out of or in connection with this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs of suit from the
losing party, including, without limitation, expert witness fees.
8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
8.1. Non -liability of City Officers and Employees. No officer or employee
of City shall be personally liable to Contractor, or any successor in interest, in the
event of any default or breach by City or for any amount which may become due
to Contractor or to its successor, or for breach of any obligation of the terms of
this Agreement.
8.2. Conflict of Interest. No officer or employee of City shall have any
personal interest, direct or indirect, in this Agreement nor shall any such officer or
employee participate in any decision relating to the Agreement which affects his or
her personal interest or the interest of any corporation, partnership or association in
which she or he is, directly or indirectly, interested, in violation of any State statute
or regulation. Contractor warrants that it has not paid or given and will not pay or
give any third party any money or general consideration for obtaining this
Agreement.
8.3. Covenant Against Discrimination. Contractor covenants that, by and
for itself, its heirs, executors, assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the performance of this Agreement. Contractor shall
take affirmative action to insure that applicants are employed and that employees
are treated during employment without regard to their race, color, creed, religion,
sex, marital status, national origin or ancestry.
882/015610-0065
3167662.1 aO5/09/12 -1 3-
9.0 MISCELLANEOUS PROVISIONS
9.1. Notice. Any notice, demand, request, consent, approval, or
communication either party desires or is required to give the other party or any
other person shall be in writing and either served personally or sent by prepaid,
first-class mail to the address set forth below. Either party may change its address
by notifying the other party of the change of address in writing. Notice shall be
deemed communicated forty-eight (48) hours from the time of mailing if mailed as
provided in this section.
To City: To Contractor:
City of La Quinta Vermillion's Environmental Products &
Attn: Steve Howlett Applications, Inc.
78-495 Calle Tampico Attn: John Vermillion
P.O. Box 1504 78-900 Avenue 47, Suite 106
La Quinta, CA 92247-1504 La Quinta, CA 92253
9.2. ABx1 26 Disclosure and Release. On June 28, 2011, the Governor
signed Assembly Bill 26 ("ABx1 26") and Assembly Bill 27 ("ABxt 27") from the
2011-12 First Extraordinary Session of the California Legislature. ABx1 26
immediately suspended all redevelopment agency activities, except continued
performance of "enforceable obligations," and set forth a process to dissolve
redevelopment agencies and end redevelopment in California. ABx1 27 provided a
"voluntary alternative redevelopment program," which would have allowed
redevelopment agencies to remain in existence and continue redevelopment, if
remittance payments were made to cover the State of California's budget shortfall
for fiscal year 2011-12 and were made in subsequent fiscal years to cover State
costs. A lawsuit was filed, challenging the constitutionality of both ABx1 26 and
27. The California Supreme Court upheld the constitutionality of ABx1 26, revising
the effective dates of certain provisions, and struck down as unconstitutional ABx1
27. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.41h 231 ("CRA
Case'). ABx1 26 is Chapter 5, Statutes 2011, First Extraordinary Session, which
added Part 1.8 (suspension provisions) and Part 1.85 (dissolution provisions) of
Division 24 of the Health and Safety Code. The City acquired the Property from
the former La Quinta Redevelopment Agency ("Agency") prior to the date ABx1 26
was signed by the Governor. With the exception of certain portions of the Property
designated for public uses, the City paid to the Agency the fair market value of the
Property. Although the City believes the City's acquisition of the Property from the
Agency was lawfully conducted, the City cannot guarantee that the California
Department of Finance or another interested party will not order the Property to be
returned to the City, in its capacity as the "Successor Agency" to the former
Agency, and require the City, in its capacity as the Successor Agency, to sell the
Property to a third party. Contractor, on behalf of itself and its successors and
assigns, hereby releases and forever discharges the City and the City's officials,
882/015610-0065
3167662.1 a05/09/12 -14-
officers, members, agents, employees, and representatives, and each of them
(collectively, the "City Released Parties"), from and against any and all claims,
complaints, demands, causes of action, obligations, damages, costs, expenses,
liens, attorneys' fees, rights and liabilities of any nature whatsoever, whether
known or unknown, suspected or not suspected to exist, claimed or not claimed,
that arise in connection with the City's termination of this Agreement and the
License as a result of an order under ABx1 26 to the City to transfer the Property
to the City, in its capacity as the Successor Agency, and sell the Property to a third
party (collectively, the "City Released Claims"). To the full extent of the foregoing
release of the City Released Claims, Contractor also expressly waives all "unknown
claims" as against the City Released Parties and expressly waives its rights under
Civil Code section 1542, which reads as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
9.3. Integrated Agreement. This Agreement contains all of the agreements
of the parties and all previous understanding, negotiations and agreements are
integrated into and superseded by this Agreement.
9.4. Exhibits; Precedence. All documents referenced as exhibits in this
Agreement are hereby incorporated in this Agreement. In the event of any material
discrepancy between the express provisions of this Agreement and the provisions
of any document incorporated herein by reference, the provisions of this
Agreement shall prevail except as otherwise provided in Section 1.7.
9.5. Amendment. This Agreement may be amended at any time by the
mutual consent of the parties by an instrument in writing signed by both parties.
9.6. Severability. In the event that any one or more of the phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be
declared invalid or unenforceable by a valid judgment or decree of a court of
competent jurisdiction, such invalidity or unenforceability shall not affect any of the
remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement
which are hereby declared as severable and shall be interpreted to carry out the
intent of the parties hereunder.
9.7. Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that they are duly authorized to execute this Agreement on
behalf of said parties and that by so executing this Agreement the parties hereto
are formally bound to the provisions of this Agreement.
692/015610-0065
3167662.1 a05/09/12 -1 5-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates stated below.
CITY
CITY OF LA QUINTA, a California
mLinicipal corpor 'U and
charter city
Prank . Spe cek, City Manager
City of La QuiRta, California
Dated: I 2.
ATTEST:
-
Susan Maysels, Interim ity Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson, City Attorney
882/015610-0065
3167662.1 a05/09/12 -1 6-
CONTRACTOR:
VERMILLION
NMENTAL
TIONS, INC.,
Vermillion, Owner/President
Dated: V S- I f' (--z'
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates stated below.
CITY CONTRACTOR:
CITY OF LA QUINTA, a California VERMILLION' ENVIRONMENTAL
municipal corporation and charter city PRODUITS &JAPPTII�ATIONS, INC.,
SIGNED IN COUNTERPART J� 1 , d"1
Dated:
ATTEST:
SIGNED IN COUNTERPART
Susan Maysels, Interim City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER LLP l
Atto
882/015610-0065
3107062.1 a05109n2 -1 6-
By: Im I IAA%vx/'—
JOLIJVermillion, Owner/President
Dated:
Exhibit A
SCOPE OF SERVICES
Contractor shall perform the following services at the following times:
Contractor shall apply Enviortac II to the perimeter of the Property, and to the
building pads, on a quarterly basis or as needed to all areas of exposed ground and
areas not maintained under the La Quinta Farms Agreement.
Contractor shall conduct watering operations at the Property at any time during
high wind conditions when requested by the City. For purposes of this Agreement,
"highwind conditions" mean winds that are forecast in excess of 26 miles per
hour.
882/015610-0065
3167662.1 a05/09/12 -1 7-
Exhibit B
REVOCABLE LICENSE
1. GRANT; LIMITATION OF RIGHTS. City hereby grants to Contractor a non-
exclusive, revocable license over the "Licensed Property" (as defined in
Paragraph 2 below) during the term of the Agreement (as such term may be
extended pursuant to the terms thereof) for the sole purpose of the activity
identified below in Paragraph 3.
2. DESCRIPTION OF LICENSED PROPERTY. The Licensed Property shall
consist of up to 3 acres of the Property and shall be located adjacent to
(north side) the existing SilverRock maintenance facility located at 78-600
Avenue 54 in La Quinta. The City may, upon thirty (30) days written notice,
require Contractor to relocate its use of the Licensed Property as described
below to an alternative site at SilverRock Resort, or terminate this License
altogether; provided, however, that if this License is terminated, such
termination shall result in the automatic termination of the Agreement. City
shall not be liable for any costs incurred by Contractor for relocation or
termination and all such costs (including any costs already incurred) shall be
borne solely by Contractor
3. USE OF LICENSED PROPERTY. Aside from Contractor's access to the
Licensed Property for the purpose of performing the Scope of Services,
Contractor may use the Licensed Property only for the following purposes:
Storage of up to (i) six water towers, (ii) eight water trucks, four tractors,
two dump trucks, two haulers, and (iii) 500 containers of Enviortac II, three
flat bed trailers, one stainless tanker, and three storage containers. Prior to
any such storage, Contractor shall install fencing around the perimeter of the
Licensed Property and shall install appropriate materials, as approved by the
City Manager or his or her designee, to screen the Licensed Property from
the nearby residential areas. All such equipment stored on the Property shall
be maintained in clean and operational condition. No repairs to equipment
shall take place on the Licensed Property.
Contractor shall operate its equipment in a manner that minimizes noise and
traffic impacts to the nearby residential areas. Contractor's hours of
operation shall be restricted to the following dates and times:
October 151 to April 30`h Monday - Friday 7 a.m. to 5:30 p.m.
Saturday - Sunday a.m. to 5:00 p.m.
May 15S to September 30`h Monday - Friday 6 a.m. to 7 p.m.
Saturday - Sunday a.m. to 5 p.m.
882/015610-0065
3167662.1 a05/09/12 -1 8-
The hour limitations set forth above shall not apply during high wind events,
defined as wind speeds forecast in excess of 26 miles per hour.
4. CONTRACTOR'S OPERATION. Contractor hereby. acknowledges that the
Licensed Property is unimproved, undeveloped, and unoccupied. Contractor
hereby assumes all risks of injury to persons or property associated with the
condition of the Licensed Property, and Contractor's use of the Licensed
Property is subject to the Indemnity provisions contained above in Section
4.2 of the Agreement. All materials and equipment, if any, shipped or
brought to the Licensed Property under this License shall be unloaded,
checked and stored at no expense or risk to City. Contractor shall retain full
responsibility and risk of loss for its materials, equipment and supplies stored
on the Licensed Property. Contractor shall (i) conduct all activity in
connection with this License at its sole cost and expense and in a safe
manner and workmanlike manner and not allow any dangerous or hazardous
conditions created by Contractor or its agents, representatives, consultants
or contractors to occur on the Licensed Property during such activity and
Contractor shall promptly and diligently cure any such conditions should they
occur; (ii) comply with all applicable laws and governmental regulations
(including, without limitation, any "Hazardous Materials" [as that term is
defined in Section 4.4.d of the Agreement] laws); (iii) keep the Licensed
Property free and clear of all liens, lis pendens and other liens arising out of
the entry or activity performed pursuant to this License; and (iv) provide to
the City prior to initial entry the certificates of insurance required by the
Agreement.
5. SECURITY OF LICENSED PROPERTY. At all times, Contractor shall secure
the Licensed Property to permit only lawful activity to occur on site.
6. NO RELOCATION ASSISTANCE. Contractor acknowledges that the
Property, including the Licensed Property, is designated for development of a
second golf course, a luxury resort and a retail development, and
Contractor's use of the Licensed Property is for the short term convenience
of the City to help with the PM10 and dust control of the Licensed Property.
Contractor irrevocably and absolutely waives, releases and discharges the
City, and any present or former employees, subsidiaries, officers, agents,
consultants, attorneys, insurers, successors and assigns of the City from all
claims that Contractor has or may be entitled to "Relocation Assistance" (as
defined below) or from all claims that Contractor is or may be deemed a
"displaced person" upon the relocation of the Licensed Property, and/or the
expiration or earlier termination of this License or of the Agreement. It is
understood and agreed that the City shall have no liability for any Relocation
Assistance, including without limitation, relocation benefits payable under
the Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970 (42 U.S.C. 4601, et seq.) and the implementing regulations
thereto, or under Title I, Division 7, Chapter 1 of the Government Code of
882/015610-0065 _ 1 9_
3167662.1 05/091]2
the State of California (Section 7260, et seq.) and the California Relocation
Assistance and Real Property Acquisition Guidelines (25 C.C.R. § 6000 et
seq.), or relocation assistance or benefits payable to any owner or tenants
(collectively, "Relocation Assistance"). Contractor acknowledges that it has
no property interest in the Licensed Property, and that it will have no claim
for loss of business, loss of profits, or loss of goodwill upon termination of
Contractor's use of the Licensed Property on the expiration or earlier
termination of this License or of the Agreement.
7. REMOVAL OF CONTRACTOR'S PROPERTY. Upon termination of the
License, Contractor shall remove any and all construction, structures,
buildings, improvements and fixtures from the Licensed Property at its sole
costs and expense. Such removal shall be completed no later than twenty
(20) days after termination.
8. TERMINATION OF LICENSE. This is a revocable License and the City may
terminate this License by providing a 30-day written notice of termination to
Contractor at any time and for any reason. At the expiration of such 30-day
period, Contractor shall cease using the Licensed Property, shall remove all
property as provided in Section 7, and shall restore the Licensed Property to
its original condition or such other condition as is satisfactory to the City.
882/015610-0065 -.20-
3167662.1 a05M/12
BO gpry CERTIFICATE OF LIABILITY INSURANCE
RODUCER THIS CERTIFICATE IS ISSUED AS A MATT
Nugen 6 Assoc Ins Sete Inc Lic#OC17304 ONLY AND CONFERS NO RIGHTS UP(
HOLDER. THIS CERTIFICATE DOES NOT
10722 Arrow Route #116 ALTER THE COVERAGE AFFORDED BY
Rancho Cucamonga, CA 91730
INSURERS AFFORDING COVERAGE
VERMILLION ENVIRONMENTAL PRODUCTS I INSURER
APPLICAT INC D8A: EP&A ENVIROTEC INSURER B.
78-900 AVENUE 74 STE#106 I INSURERC:
LA QUINTA CA 92253 INSURER D:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR
K001
INSRD
,
POLICY NUMBER
POLICYEFFECTIVE
DATEMWDDNY
POLICY EXPIRATION
ATE(MMtDDIYY)LIMITS
GENERAL LIABILITY
EACH OCCURRENCE
$5 000 000.
X COMMERCIAL GENERAL LIABILITY
CLAIMSMADE � OCCUR
(
PREMISES E.o=mnm
$ SO OOO.00
MEDEXP(Anyoneperw)
$ 5,000.00
A
Y
POLLUTION LIAB
EPK100394
02/10/12
02/10/13
PERSONAL EADVINJURY
$5 000 000.
$5,000,000•
CONTRACTUAL LIAB
GENERAL AGGREGATE
s5,000,000..
GENT AGGREGATE LIMIT APPLIES PER:
PRO- LOC
X POLICY JECT
PRODUCTS -COMPIOPAGG000
000.
AUTOMOBILE
LIABILITY
ANYAUTO
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COMBINEDSINGLELIMIT
(Ea acciAeM)
00,000.00
X
(Per person)B
ALLOWNEDAUTOSBODILYIN)
SCHEDULED AUTOS
X
MIRED AUTOS
NON-OMEDAUTOS
183921A
05/26/12
05/26/13
X
BODILYINJURYX
(Pa�ftM)
PHYSICAL DAMAGE
X
( P ra E nt) DAMAGE
$
ED 1000 .
GARAGE LIABILITY
AUTO ONLY-EAACCIDENT
$
OTHERTHAN EAACC
AUTOONLY: AGO
$
ANYAUTO
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EXCESS/UMBRELLA LIABILITY
OCCUR CI CLAIMSMADE
EACH OCCURRENCE
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AGGREGATE
$
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$
DEDUCTIBLE
$
RETENTION $
C
WORKERSCOMPENSATIONAND
EMPLOYERS' LIABILITY
ANY PROPRIETORNARTNER/EXECUTIVE
OFFICE"EMBEREXCLUDED9
Ilyyes, oeswbeunoer
SPECIAL PROVISIONS below
3D 5021192
'
05/16/12
05/16/13
X TORY LIMIT ER
E.L. EACHACCIDENT
$1 0OO 000.
E.L. DISEASE - EA EMPLOYE
$1 GDD OOO.
E.L. DISEASE -POLICY LIMIT
$1 00O 000.
g
OTHER INLAND
183921A
05/26/12
05/26/13
SCHEDULE EQUIPMENT
MARINE/PROPERTY
/
$291,000.PROPERTY
LEASED RENTED
ALUE 50 000.
PER ITEM.DED 1000.
DESCRIPTION OF OPERATIONS / LOCATIONS/VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS
CITY OF LA QUINTA,ITS EMPLOYEES,OFFICIALS,REPRESENTATIVES,AGENTS AND MEMBER
AGENCIES ARE NAMED AS ADDITIONAL INSURED PER FORM EN0118-211
SHOULD ANY OF THE ABOVE DESCRIBED P III BE CANCELLED BEFORE THE EXPIRhTIOIh
CITY OF LA QUINTA DATE THEREOF, THE IS
INS R WILL E4DEAVOR TO MAI1.2- DAYS WRITTEN
PO BOX 1504 NOTICE TO THE CERTIFICAT OLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL
78-495 CALLS TAMPICA IMPOSE NO OBLIGATION It
BILRY OF ANV KND UPON T TS AGENTS OR
LA QUINTA CA 92253 REPRESENTATIVES.
BUSINESS LICENSE DIVISION AUTHORIZED REPRESENT
ACORD25(2001/08) \L _,,- ® ACORD CORPORATION 1988
NAME OF INSURED: V4?RMTi.i.ION ENVXUZOUAL PRODUCP$ par[ of the FAIRFAX group
APPLICAT INC DBA: EPA& ENVIROTEC
POLICY #: EPK100394
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
PRIMARY AND NON-CONTRIBUTORY ADDITIONAL
INSURED WITH WAIVER OF SUBROGATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
CONTRACTORS POLLUTION LIABILITY COVERAGE PART
ERRORS AND OMISSIONS LIABILITY COVERAGE PART
THIRD PARTY POLLUTION LIABILITY COVERAGE PART
SCHEDULE
Name of Additional Insured Persons or Organization(s)
Where Required by Written Contract
A. SECTION III — WHO IS AN INSURED within the Common Provisions is amended to include as an
additional insured the person(s) or organization(s) indicated in the Schedule shown above, but solely with
respect to "claims" caused in whole or in part, by "your work" for that person or organization performed by
you, or by those acting on your behalf.
This insurance shall be primary and non-contributory, but only in the event of a named insured's sole
negligence.
B. We waive any right of recovery we may have against the person(s) or organization(s) indicated in the
Schedule shown above because of payments we make for "damages" arising out of "your work" performed
under a designated project or contract kith that person(s) or organization(s).
C. This Endorsement does not reinstate or increase the Limits of Insurance applicable to any "claim" to which
the coverage afforded by this Endorsement applies.
i
ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED.
i
EN0118-0211 Page 1 of 1