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HomeMy WebLinkAbout12-12-2012 Administration Committee Agenda NOTICE OF MEETING ADMINISTRATION COMMITTEE ORANGE COUNTY SANITATION DISTRICT Wednesday, December 12, 2012 – 5:30 P.M. Administration Building 10844 Ellis Avenue Fountain Valley, California 92708 www.ocsd.com A regular meeting of the Administration Committee of the Orange County Sanitation District will be held at the above location, date and time. ADMINISTRATION COMMITTEE MEETING DATES Meeting Date Board Meeting Dates December 12, 2012 *December 19, 2012 January 2013 – Dark January 23, 2013 February 13, 2013 February 27, 2013 March 13, 2013 March 27, 2013 April 10, 2013 April 24, 2013 May 8, 2013 May 22, 2013 June 12, 2013 June 26, 2013 July 10, 2013 July 24, 2013 August 2013 – Dark August 28, 2013 September 11, 2013 September 25, 2013 October 9, 2013 October 23, 2013 November 13, 2013 *November 20, 2013 *Meeting held the third Wednesday of the month. 12/12/12 Administration Committee Agenda Page 1 of 2 Orange County Sanitation District Regular Meeting of the Administration Committee Wednesday, December 12, 2012 5:30 P.M. Administration BuildingBoard Room 10844 Ellis Avenue Fountain Valley, CA(714) 593-7130 AGENDA PLEDGE OF ALLEGIANCE: DECLARATION OF QUORUM: PUBLIC COMMENTS: If you wish to speak, please complete a Speaker’s Form and give it to the Clerk of the Board. Speakers are requested to limit comments to three minutes. REPORTS: The Committee Chair and the General Manager may present verbal reports on miscellaneous matters of general interest to the Committee Members. These reports are for information only and require no action by the Committee. REPORT OF DIRECTOR OF FINANCE AND ADMINISTRATIVE SERVICES:  OCSD Revenue Program (Rates) CONSENT CALENDAR: 1. Approve Minutes of the November 14, 2012, Administration Committee meeting. ACTION ITEMS: 2. Recommend to the Board of Directors to: Approve a Professional Services Agreement with Alliant Insurance Services Inc. to serve as the Orange County Sanitation District’s operational insurance broker of record in connection with property, liability, workers compensation and other smaller operational insurance coverage programs, Specification No.S-2012- 546BD, for a one-year period commencing on January 1, 2013, with the option of the Sanitation District to renew for an additional four one-year periods. 12/12/12 Administration Committee Agenda Page 2 of 2 OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS, IF ANY: ADJOURNMENT: The next Administration Committee meeting is scheduled for Wednesday, February 13, 2013, at 5:30 p.m. Accommodations for the Disabled: Meeting Rooms are wheelchair accessible. If you require any special disability related accommodations, please contact the Orange County Sanitation District Clerk of the Board’s office at (714) 593-7130 at least 72 hours prior to the scheduled meeting. Requests must specify the nature of the disability and the type of accommodation requested. Agenda Posting: In accordance with the requirements of California Government Code Section 54954.2, this agenda has been posted outside the main gate of the Sanitation District’s Administration Building located at 10844 Ellis Avenue, Fountain Valley, California, not less than 72 hours prior to the meeting date and time above. All public records relating to each agenda item, including any public records distributed less than 72 hours prior to the meeting to all, or a majority of the Board of Directors, are available for public inspection in the office of the Clerk of the Board. NOTICE TO DIRECTORS: To place items on the agenda for the Committee Meeting, items must be submitted to the Clerk of the Board 14 days before the meeting. Maria E. Ayala Clerk of the Board (714) 593-7130 mayala@ocsd.com For any questions on the agenda, Committee members may contact staff at: General Manager Jim Ruth (714) 593-7110 jruth@ocsd.com Assistant General Manager Bob Ghirelli (714) 593-7400 rghirelli@ocsd.com Assistant General Manager Jim Herberg (714) 593-7300 jherberg@ocsd.com Director of Finance and Administrative Services Lorenzo Tyner (714) 593-7550 ltyner@ocsd.com Director of Human Resources Jeff Reed (714) 593-7144 jreed@ocsd.com Glossary of Terms and Abbreviations AQMD Air Quality Management District ASCE American Society of Civil Engineers BOD Biochemical Oxygen Demand CARB California Air Resources Board CASA California Association of Sanitation Agencies CCTV Closed Circuit Television CRWQCB California Regional Water Quality Control Board CWA Clean Water Act CWEA California Water Environment Association EIR Environmental Impact Report EMT Executive Management Team EPA U.S. Environmental Protection Agency FOG Fats, Oils, and Grease FSSD Facilities Support Services Department gpd Gallons per day GWR System Groundwater Replenishment System (also called GWRS) LOS Level of Service MGD Million gallons per day NACWA National Association of Clean Water Agencies NPDES National Pollutant Discharge Elimination System NWRI National Water Research Institute O&M Operations and Maintenance OCCOG Orange County Council of Governments OCHCA Orange County Health Care Agency OCSD Orange County Sanitation District OCWD Orange County Water District OOBS Ocean Outfall Booster Station OSHA Occupational Safety and Health Administration POTW Publicly Owned Treatment Works ppm Parts per million RFP Request For Proposal RWQCB Regional Water Quality Control Board SARFPA Santa Ana River Flood Protection Agency SARI Santa Ana River Inceptor SARWQCB Santa Ana Regional Water Quality Control Board Glossary of Terms and Abbreviations SAWPA Santa Ana Watershed Project Authority SCADA Supervisory Control and Data Acquisition system SCAP Southern California Alliance of Publicly Owned Treatment Works SCAQMD South Coast Air Quality Management District SOCWA South Orange County Wastewater Authority SSMP Sanitary Sewer Management Plan SSO Sanitary Sewer Overflow SWRCB State Water Resources Control Board TDS Total Dissolved Solids TMDL Total Maximum Daily Load TSS Total Suspended Solids WDR Waste Discharge Requirements WEF Water Environment Federation WERF Water Environment Research Foundation Activated‐sludge process – A secondary biological wastewater treatment process where bacteria reproduce at a high rate with the introduction of excess air or oxygen, and consume dissolved nutrients in the wastewater. Biochemical Oxygen Demand (BOD) – The amount of oxygen used when organic matter undergoes decomposition by microorganisms. Testing for BOD is done to assess the amount of organic matter in water. Biosolids – Biosolids are nutrient rich organic and highly treated solid materials produced by the wastewater treatment process. This high‐quality product can be recycled as a soil amendment on farm land or further processed as an earth‐like product for commercial and home gardens to improve and maintain fertile soil and stimulate plant growth. Capital Improvement Program (CIP) – Projects for repair, rehabilitation, and replacement of assets. Also includes treatment improvements, additional capacity, and projects for the support facilities. Coliform bacteria – A group of bacteria found in the intestines of humans and other animals, but also occasionally found elsewhere used as indicators of sewage pollution. E. coli are the most common bacteria in wastewater. Collections system – In wastewater, it is the system of typically underground pipes that receive and convey sanitary wastewater or storm water. Certificate of Participation (COP) – A type of financing where an investor purchases a share of the lease revenues of a program rather than the bond being secured by those revenues. Contaminants of Potential Concern (CPC) – Pharmaceuticals, hormones, and other organic wastewater contaminants. Dilution to Threshold (D/T) – the dilution at which the majority of the people detect the odor becomes the D/T for that air sample. Glossary of Terms and Abbreviations Greenhouse gases – In the order of relative abundance water vapor, carbon dioxide, methane, nitrous oxide, and ozone gases that are considered the cause of global warming (“greenhouse effect”). Groundwater Replenishment (GWR) System – A joint water reclamation project that proactively responds to Southern California’s current and future water needs. This joint project between the Orange County Water District and the Orange County Sanitation District provides 70 million gallons a day of drinking quality water to replenish the local groundwater supply. Levels of Service (LOS) – Goals to support environmental and public expectations for performance. NDMA – N‐Nitrosodimethylamine is an N‐nitrosoamine suspected cancer‐causing agent. It has been found in the Groundwater Replenishment System process and is eliminated using hydrogen peroxide with extra ultra‐violet treatment. National Biosolids Partnership (NBP) – An alliance of the National Association of Clean Water Agencies (NACWA) and Water Environment Federation (WEF), with advisory support from the U.S. Environmental Protection Agency (EPA). NBP is committed to developing and advancing environmentally sound and sustainable biosolids management practices that go beyond regulatory compliance and promote public participation in order to enhance the credibility of local agency biosolids programs and improved communications that lead to public acceptance. Publicly‐owned Treatment Works (POTW) – Municipal wastewater treatment plant. Santa Ana River Interceptor (SARI) Line – A regional brine line designed to convey 30 million gallons per day (MGD) of non‐reclaimable wastewater from the upper Santa Ana River basin to the ocean for disposal, after treatment. Sanitary sewer – Separate sewer systems specifically for the carrying of domestic and industrial wastewater. Combined sewers carry both wastewater and urban run‐off. South Coast Air Quality Management District (SCAQMD) – Regional regulatory agency that develops plans and regulations designed to achieve public health standards by reducing emissions from business and industry. Secondary treatment – Biological wastewater treatment, particularly the activated‐sludge process, where bacteria and other microorganisms consume dissolved nutrients in wastewater. Sludge – Untreated solid material created by the treatment of wastewater. Total suspended solids (TSS) – The amount of solids floating and in suspension in wastewater. Trickling filter – A biological secondary treatment process in which bacteria and other microorganisms, growing as slime on the surface of rocks or plastic media, consume nutrients in wastewater as it trickles over them. Urban runoff – Water from city streets and domestic properties that carry pollutants into the storm drains, rivers, lakes, and oceans. Wastewater – Any water that enters the sanitary sewer. Watershed – A land area from which water drains to a particular water body. OCSD’s service area is in the Santa Ana River Watershed. Page 1 of 3 ADMINISTRATION COMMITTEE Meeting Date 12/12/12 To Bd. of Dir. 12/19/12 AGENDA REPORT Item Number 2 Item Number Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Lorenzo Tyner, Director of Finance & Administrative Services SUBJECT: SELECTION OF INSURANCE BROKER OF RECORD GENERAL MANAGER'S RECOMMENDATION Approve a Professional Services Agreement with Alliant Insurance Services Inc. to serve as the Orange County Sanitation District’s operational insurance broker of record in connection with property, liability, workers compensation and other smaller operational insurance coverage programs, Specification No.S-2012-546BD, for a one-year period commencing on January 1, 2013, with the option of the Sanitation District to renew for an additional four one-year periods. SUMMARY With the assistance of an insurance broker of record, the Sanitation District has annually purchased four major insurances for operations: 1) Excess General Liability Insurance 2) Excess Workers’ Compensation 3) All-Risk Property and Flood insurance 4) Boiler & Machinery insurance The insurance broker also assists with smaller coverages such as crime insurance and watercraft insurance. Staff has completed a competitive proposal process to ensure that the Sanitation District receives a high, timely level of property, liability, workers compensation and other coverage broker services. A request for proposal went out to a variety of large and regional insurance brokerage firms. A total of four firms, all with substantial relevant experience, submitted proposals: Alliant, Marsh, Aon and IOA. All four were interviewed, and the Proposal Review Team determined that Alliant Insurance Services Inc., the Sanitation District’s current insurance broker, was the firm that could best demonstrate a high and timely level of service due to its showing of superior experience with governmental organizations similar to the Sanitation District and due to the specialized insurance programs which it has developed for governmental agencies in California. The Sanitation District pays no money directly to the insurance broker; rather, any compensation to the insurance broker comes from the insurance carriers, and all compensation received by the insurance broker from insurance carriers is required by Sanitation District policy to be completely open to scrutiny by the Sanitation Page 2 of 3 District. Staff is recommending that Alliant Insurance Services be retained as the District’s broker of record. PRIOR COMMITTEE/BOARD ACTIONS December 1996 – Following a competitive RFP involving large insurance brokerage firms, the Board selected Robert F. Driver Associates (the previous name of Alliant Insurance Services) as insurance broker of record. February 2007 – Following another competitive RFP involving large insurance brokerage firms, the Board selected Alliant Insurance Services as insurance broker of record. ADDITIONAL INFORMATION Staff prepared a comprehensive RFP covering property, liability, workers compensation programs and other coverage services, but not including employee benefits or OCIP (Owner Controlled Insurance Program) coverages, which are handled separately. Proposals were received from Alliant, the largest insurance broker for governmental agency insurance in California; from Marsh, sometimes considered as the world’s largest insurance broker; from Aon, considered as either the world’s largest or second largest insurance broker; and from Insurance Office of America, a large Florida-based insurance broker who employs a number of former Alliant employees. The Proposal Review Team, consisting of the District’s Director of Administrative Services, the District’s Risk Manager, and the District’s Principal Risk and Insurance Analyst, all of whom have substantial experience with insurance, evaluated the proposals and interviewed all four proposers. All showed a wealth of experience with insurance brokerage services, along with substantial experience with insurance for governmental agencies. Following the interviews, Alliant Insurance Services stood apart from the other firms in convincing the Proposal Review Team that they were likely to provide the Sanitation District with the least expensive and with the broadest insurance coverage available. Alliant has the most experience with California governmental agencies, as it insures the vast majority of California counties along with hundreds of California cities and special districts. Alliant also has experience with many California sanitation districts. Alliant’s “PEPIP” program is the largest property insurance program in the world, and Alliant provides access to the workers compensation insurance provided by the CSAC Excess Insurance Authority. Based on the results of the public bid process, staff recommends retaining Alliant Insurance Services. CEQA N/A Page 3 of 3 BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This complies with the authority levels of the Sanitation District’s Delegation of Authority. This item has been budgeted. Orange County Sanitation District Page 1 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT PROFESSIONAL SERVICES AGREEMENT BROKER OF RECORD SERVICES Specification No. S-2012-546BD THIS AGREEMENT is made and entered into as of the date fully executed below by and between Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue, Fountain Valley, CA 92708-7018 (hereinafter referred to as "OCSD") and ______________________ with a principal business at ___________________________ (hereinafter referred to as "Broker") collectively referred to as the “Parties”. R E C I T A L S: WHEREAS, based on Broker’s expertise and experience, OCSD wishes to temporarily engage Broker to provide Broker of Record Services ("Services”) as described in Exhibit “A” attached hereto and incorporated herein by reference; and WHEREAS, OCSD’s General Manager has determined the outsourcing of said Services is in the best interest of OCSD; and WHEREAS, Broker submitted its proposal, dated _______; and WHEREAS, on ____________________, the Board of Directors of OCSD, by minute order, authorized execution of this Agreement between OCSD and Broker; and WHEREAS, OCSD has chosen Broker to conduct Services in accordance with Purchasing Resolution No. OCSD07-04; and NOW, THEREFORE, in consideration of the mutual promises and mutual benefits exchanged between the Parties, the Parties mutually agree as follows: 1. Introduction 1.1 This Agreement and all exhibits hereto (called the "Agreement") is made by OCSD and Broker. The Terms and Conditions herein exclusively govern the purchase of Services as described in the Scope of Work. 1.2 Exhibits to this Agreement are incorporated by reference and made a part of this Agreement as though fully set forth at length herein. Exhibits to this Agreement are as follows in order of precedence: Exhibit “A” Scope of Work Exhibit “B” Proposal submitted by Broker on _______________ Exhibit “C” _________ Exhibit “D” _________ 1.3 In the event of any conflict or inconsistency between the provisions of this Agreement and any of the provisions of the exhibits hereto, the provisions of this Agreement shall in all respects govern and control. 1.4 This Agreement may not be modified, changed or supplemented, nor may any obligations hereunder be waived or extensions of time for performance granted, except by written instrument signed by both Parties. Orange County Sanitation District Page 2 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT 1.5 The various headings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any Paragraph or provision hereof. 1.6 The term “workday”. Workdays are defined as all days that are not Saturday, Sunday, or legally observed holidays. Meetings with OCSD staff shall be scheduled from Monday through Thursday between the hours of 8AM and 4PM (exception is operations staff who maintain plant operations 24/7 and work a rotated 12-hour shift) and shall conform to OCSD work schedules. OCSD review periods shall not include legally observed holidays. 1.7 The term “days”, when used in the Agreement, shall mean calendar days, unless otherwise noted as workdays. 1.8 Work Hours: The work required under this Agreement may include normal Business hours, evenings, and weekends. OCSD will not pay Travel Time. 1.9 Broker shall provide OCSD with all required premiums (“premiums” in a non-insurance sense) and/or overtime work at no charge beyond the price provided in Exhibit “___”. 1.10 Except as expressly provided otherwise, OCSD accepts no liability for any expenses, losses, or action incurred or undertaken by Broker as a result of work performed in anticipation of purchases of said services by OCSD. 2. Scope of Work Subject to the terms of this Agreement, Broker shall perform the Services identified in Exhibit “A” and ___________________. Broker warrants that all of its Services shall be performed in a competent, professional and satisfactory manner. 3. Modifications to Scope of Work Requests for modifications to the Scope of Work hereunder can be made by OCSD at any time. All modifications must be made in writing and signed by both Parties. A review of the time required for the modification will be made by OCSD and Broker and the Agreement period adjusted accordingly. 4. Modifications to the Agreement This Agreement may not be modified, changed or supplemented, nor may any obligations hereunder be waived or extensions of time for performance granted, except by written instrument signed by both Parties. 5. Compensation Broker will be compensated by commissions paid by insurance carriers for the Services provided under this Agreement, with the total amount not to exceed $__________. Any amount in excess of $________________ received by Broker in commission payments shall be paid to OCSD. 6. Audit Rights Broker agrees that, during the term of this Agreement and for a period of three (3) years after its termination, OCSD shall have access to and the right to examine any directly pertinent books, documents, and records of Broker relating to the compensation received by Broker pursuant to this Agreement. 7. Performance Time is of the essence in the performance of the provisions hereof. 8. Commencement and Term The Services to be provided by Broker under this Agreement shall commence on the date of the Notice to Proceed and shall continue said Services for the period of one (1) year. 9. Renewal of Agreement 9.1 OCSD may exercise the option to renew the Agreement for up to four (4) one-year Orange County Sanitation District Page 3 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT periods based upon the criteria set forth in these specifications if mutually acceptable contract terms can be negotiated. 9.2 Renewals may be made through the Purchase Order process. 10. Extensions The Term of this Agreement may be extended only by written instrument signed by both Parties. 11. Termination 11.1 OCSD reserves the right to terminate this Agreement for its convenience, with or without cause, in whole or in part, at any time, by written notice from OCSD, (delivered by certified mail, return receipt requested) of intent to terminate. Upon receipt of a termination notice, Broker shall immediately discontinue all work under this Agreement (unless the notice directs otherwise). Broker expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Agreement. Such notice of termination shall terminate this Agreement and release OCSD from any further fee, cost or claim hereunder by Broker other than for work performed to the date of termination. 11.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD’s determination that Broker is not meeting specification requirements, if the level of service is inadequate, or any other default of this Agreement. 11.3 OCSD may also immediately cancel for default of this Agreement in whole or in part by written notice to Broker: • if Broker becomes insolvent or files a petition under the Bankruptcy Act; or • if Broker sells its business; or • if Broker breaches any of the terms of this Agreement; or • if total amount of compensation exceeds the amount authorized under this Agreement. • if Broker or any key personnel assigned to service OCSD loses a professional license affecting the ability to service OCSD. 11.4 All OCSD property in the possession or control of Broker shall be returned by Broker to OCSD on demand, or at the termination of this Agreement, whichever occurs first. 12. Indemnification and Hold Harmless Provision Broker agrees to save, indemnify, defend and hold harmless OCSD, its officers, employees and agents against any and all liability, claims, judgments, cost and demands, including demands arising from injuries or death of persons and damage to property, arising directly or indirectly out of the negligence or willful misconduct of Broker, its employees or agents, in relation to the rendition of Services pursuant to this Agreement, except claims or litigations arising through the sole negligence or willful misconduct of OCSD. Broker agrees to reimburse OCSD for any expenditure, including reasonable attorney’s fees, OCSD may incur by reason of such matters, and, if requested by OCSD, will defend any such suits at the cost and expense of Broker. 13. Broker’s Insurance Broker and all subcontractors and subconsultants shall purchase and maintain, throughout the life of this Agreement and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Acknowledgement of Insurance Requirements, Exhibit “_____“. Broker shall not commence work under this Agreement until all required insurance is obtained in a form acceptable to OCSD, nor shall Broker allow any subcontractor to commence service pursuant to a subcontract until all insurance required of the subcontractor has been obtained. Failure to maintain required Orange County Sanitation District Page 4 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT insurance coverage shall result in termination of this Agreement. 14. Key Personnel Broker’s personnel as provided in Exhibit “B” are designated as “key” and will be available for the term of this Agreement. No person designated as key shall be removed or replaced without prior written consent of OCSD. 15. Confidentiality and Non-Disclosure 15.1 Broker acknowledges that in performing the Services hereunder, OCSD may have to disclose to Broker orally and in writing certain confidential information that OCSD considers proprietary and has developed at great expense and effort. 15.2 Broker agrees to maintain in confidence and not disclose to any person, firm, or corporation, without OCSD's prior written consent, any trade secret or confidential information, knowledge or data relating to the products, process, or operation of OCSD. 15.3 Broker further agrees to maintain in confidence and not to disclose to any person, firm, or corporation any data, information, technology, or material developed or obtained by Broker during the term of this Agreement. 15.4 Broker agrees as follows: • To use the Confidential Information only for the purposes described herein; to not reproduce the Confidential Information; to hold in confidence and protect the Confidential Information from dissemination to and use by anyone not a party to this Agreement; and to not use the Confidential Information to benefit itself or others. • To restrict access to the Confidential Information to its Broker or personnel of Broker who (1) have a need to have such access and (2) have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement. • To return all Confidential Information in Broker's possession upon termination of this Agreement or upon OCSD's request, whichever occurs first. • To hold in confidence information and materials, if any, developed pursuant to the Services hereunder. 15.5 The provisions of this Section shall survive termination or expiration of this Agreement and shall continue for so long as the material remains confidential. 16. Ownership of Intellectual Property 16.1 Broker agrees that all designs, plans, reports, specifications, drawings, schematics, prototypes, models, inventions, and all other information and items made during the course of this Agreement and arising from the Services (hereinafter referred to as "New Developments") shall be and are assigned to OCSD as its sole and exclusive property. 16.2 Broker agrees to promptly disclose to OCSD all such New Developments. Upon OCSD's request, Broker agrees to assist OCSD, at OCSD's expense, to obtain patents or copyrights for such New Developments, including the disclosure of all pertinent information and data with respect thereto, the execution of all applications, specifications, assignments, and all other instruments and papers which OCSD shall deem necessary to apply for and to assign or convey to OCSD, its successors and assigns, the sole and exclusive right, title and interest in such New Developments. Broker agrees to obtain or has obtained written assurances from its employees and contract personnel of their agreement to the terms hereof with regard to New Developments and Confidential Information. Orange County Sanitation District Page 5 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT 16.3 Broker warrants that Broker has good title to any New Developments, and the right to assign New Developments to OCSD free of any proprietary rights of any other party or any other encumbrance whatever. 16.4 The originals of all computations, drawings, designs, graphics, studies, reports, manuals, photographs, videotapes, data, computer files, and other documents prepared or caused to be prepared by Broker or its subconsultants in connection with these Services shall be delivered to and shall become the exclusive property of OCSD. OCSD may utilize these documents for OCSD applications on other projects or extensions of this project, at its own risk. 17. No Solicitation of Employees Or Subcontractors 17.1 Broker agrees that it shall not, during the term of this Agreement and for a period of one (1) year immediately following termination of this Agreement, or any extension hereof, call on, solicit, or take away any of the employees or subcontractors about whom Broker became aware as a result of Broker's Services to OCSD. 17.2 Broker acknowledges that OCSD’s employees are critical to its business. Broker agrees not to employ or otherwise engage OCSD’s employees or subcontractors during the term of this Agreement and for a period of one (1) year following termination of this Agreement. Should Broker violate this provision, Broker will pay OCSD fifty percent (50%) of the former employee’s annual salary which payment is in addition to OCSD’s rights and remedies. 18. Independent Contractor Capacity 18.1 The relationship of Broker to OCSD is that of an independent contractor and nothing herein shall be construed as creating an employment or agency relationship. 18.2 Broker shall act independently and not as an officer or employee of OCSD. OCSD assumes no liability for Broker’s action and performance, nor assumes responsibility for taxes, funds, payments or other commitments, implied or expressed, by or for Broker. 18.3 Broker shall not be considered an agent of OCSD for any purpose whatsoever, nor shall Broker have the right to, and shall not, commit OCSD to any agreement, contract or undertaking. Broker shall not use OCSD’s name in its promotional material or for any advertising or publicity purposes without expressed written consent. 18.4 Broker shall not be entitled to any benefits accorded to those individuals listed on OCSD’s payroll as regular employees including, without limitation, worker's compensation, disability insurance, vacation, holiday or sick pay. Broker shall be responsible for providing, at Broker’s expense, disability, worker's compensation or other insurance as well as licenses and permits usual or necessary for conducting the Services hereunder. 18.5 Broker shall be obligated to pay any and all applicable local, state and federal payroll and other taxes incurred as a result of fees hereunder. Broker hereby indemnifies OCSD for any claims, losses, costs, fees, liabilities, damages or penalties suffered by OCSD arising out of Broker's breach of this provision. Orange County Sanitation District Page 6 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT 18.6 Broker shall not be eligible to join or participate in any benefit plans offered to those individuals listed on OCSD's payroll as regular employees. Broker shall remain ineligible for such benefits or participation in such benefit plans even if a court later decides that OCSD misclassified Broker for tax purposes. 18.7 Nothing in this section prevents the Broker from acting in its capacity as a Broker as described in this Agreement. 19. Licenses, Permits Broker represents and warrants to OCSD that it has obtained all licenses, permits, qualification and approvals of whatever nature that are legally required to engage in this work. Any and all fees required by State, County, City and/or municipal laws, codes and/or tariffs that pertain to work performed under the terms of this Agreement will be paid by Broker. 20. Broker's Representations In the performance of duties under this Agreement, Broker shall adhere to the highest fiduciary standards, ethical practices and standards of care and competence. Broker agrees to comply with all applicable Federal, State and local laws and regulations. 21. Familiarity with Work By executing this Agreement, Broker warrants that: 1) it has investigated the work to be performed; 2) it has investigated the site of the work and is aware of all conditions there; and 3) it understands the facilities, difficulties and restrictions of the work under this Agreement. Should Broker discover any latent or unknown conditions materially differing from those inherent in the work or as represented by OCSD, it shall immediately inform OCSD of this and shall not proceed, except at Broker’s risk, until written instructions are received from OCSD. 22. Right to Review Services, Facilities, and Records 22.1 OCSD reserves the right to review any portion of the Services performed by Broker under this Agreement, and Broker agrees to cooperate to the fullest extent possible. 22.2 Broker shall furnish to OCSD such reports, statistical data, and other information pertaining to Broker's Services as shall be reasonably required by OCSD to carry out its rights and responsibilities under its agreements with its bondholders or noteholders and any other agreement relating to the development of the project(s) and in connection with the issuance of its official statements and other prospectuses with respect to the offering, sale, and issuance of its bonds and other obligations. 22.3 The right of OCSD to review or approve drawings, specifications, procedures, instructions, reports, test results, calculations, schedules, or other data that are developed by Broker shall not relieve Broker of any obligation set forth herein. 23. Force Majeure Neither party shall be liable for delays caused by accident, flood, acts of God, fire, labor trouble, war, acts of government or any other cause beyond its control, but said party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force Majeure condition may be rescheduled by mutual consent or may be eliminated from the Agreement. 24. Severability If any section, subsection, or provision of this Agreement, or any agreement or instrument contemplated hereby, or the application of such section, subsection, or provision is held invalid, the remainder of this Agreement or instrument in the application of such section, subsection or provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate the expectations of the Parties. Orange County Sanitation District Page 7 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT Breach The waiver of either party of any breach or violation of, or default under, any provision of this Agreement, shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Agreement or default thereunder. Any breach by Broker to which OCSD does not object shall not operate as a waiver of OCSD’s rights to seek remedies available to it for any subsequent breach. 25. Remedies In addition to other remedies available in law or equity, if the Broker fails to make delivery of the goods or Services or repudiates its obligations under this Agreement, or if OCSD rejects the goods or Services or revokes acceptance of the goods or Services, OCSD may (1) cancel the Agreement; (2) recover whatever amount of the purchase price OCSD has paid, and/or (3) “cover” by purchasing, or contracting to purchase, substitute goods or Services for those due from Broker. In the event OCSD elects to “cover” as described in (3), OCSD shall be entitled to recover from Broker as damages the difference between the cost of the substitute goods or Services and the contract price, together with any incidental or consequential damages. 26. Governing Law This Agreement shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in Orange County, in the event any action is brought in connection with this Agreement or the performance thereof. 27. Attorney’s Fees If any action at law or inequity or if any proceeding in the form of an Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. 28. Dispute Resolution 28.1 In the event of a dispute as to the construction or interpretation of this Agreement, or any rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute by mediation. The Parties shall mutually select a mediator to facilitate the resolution of the dispute. If the Parties are unable to agree on a mediator, the mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Agreement, through the alternate dispute resolution procedures of Judicial Arbitration through Mediation Services of Orange County ("JAMS"), or any similar organization or entity conducting an alternate dispute resolution process. 28.2 In the event the Parties are unable to timely resolve the dispute through mediation, the issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure, Part 3, Title 9, Sections 1280 et seq. For such purpose, an agreed arbitrator shall be selected, or in the absence of agreement, each party shall select an arbitrator, and those two arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator, or three arbitrators acting as a board, shall take such evidence and make such investigation as deemed appropriate and shall render a written decision on the matter in question. The arbitrator shall decide each and every dispute in accordance with the laws of the State of California. The arbitrator's decision and award shall be subject to review for errors of fact or law in the Superior Court for the County of Orange, with a right of appeal from any judgment issued therein. 29. Damage to OCSD's Property Any OCSD property damaged by Broker will be subject to repair or replacement by Broker at no cost to OCSD. 30. Assignments Broker shall not delegate any duties nor assign any rights under this Agreement without the prior written consent of OCSD. Any such attempted delegation or assignment shall be void. 31. Conflict of Interest and Reporting Orange County Sanitation District Page 8 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT 31.1 Broker shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement. 31.2 Broker affirms that to the best of its knowledge there exists no actual or potential conflict between Broker’s families, business or financial interest or its Services under this Agreement, and in the event of change in either its private interests or Services under this Agreement, it will raise with OCSD any question regarding possible conflict of interest which may arise as a result of such change. 32. Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OCSD and Broker. 33. Authority to Execute The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the Parties are formally bound. 34. Read and Understood By signing this Agreement, Broker represents that he has read and understood the terms and conditions of the Agreement. 35. Entire Agreement This Agreement constitutes the entire agreement of the Parties and supersedes all prior written or oral and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof. Orange County Sanitation District Page 9 of 9 Specification No.S-2012-546BD DRAFT CONTRACT – DO NOT SUBMIT 36. Notices All notices under this Agreement must be in writing. Written notice shall be sent by registered or certified mail, postage prepaid, return receipt requested, or by any other overnight delivery service which delivers to the noticed destination and provides proof of delivery to the sender. Any facsimile notice must be followed within three (3) days by written notice. All notices shall be effective when first received at the following addresses: OCSD: Clarice M. Marcin Senior Contracts Administrator Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, CA 92708-7018 Broker: Company _______________________________ _______________________________ _______________________________ IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands the day and year indicated below. ORANGE COUNTY SANITATION DISTRICT Dated: By: ___________________________________ Chair Board of Directors Dated: By: ___________________________________ Clerk of the Board Dated: By: ___________________________________ Contracts/Purchasing Manager COMPANY Dated: By: ___________________________________ ______________________________________ Print Name and Title of Officer ______________________________________ IRS Employer’s I.D. Number Orange County Sanitation District Approved as to Form: Clarice M. Marcin Date Senior Contracts Administrator