County of San Diego - Industrial Hygiene ServicesSERVICE AGREEMENT BETWEEN THE CITY OF POWAY AND THE COUNTY OF
SAN DIEGO FOR INDUSTRIAL HYGIENE SERVICES
This agreement (the "Agreement") is made as of the date signed by the County of San
Diego between the City of Poway, a municipal corporation, hereinafter referred to as
"CITY", and the County of San Diego, hereinafter referred to as "COUNTY".
WITNESS THAT WHEREAS:
A. CITY desires that Industrial Hygiene services be provided by the COUNTY; and
B. California Government Code section 53060 grants the CITY the authority to
contract with and employ public agencies for the furnishing to CITY of special
services if such public agencies employ persons who are specially trained,
experienced, and competent to perform the special services requested; and
C. The COUNTY employs personnel trained and qualified to perform the services
contemplated herein, including employing one or more specialists, each
appropriately licensed in the State of Califomia, and the result of which is that
the COUNTY is otherwise qualified to render professional services to CITY.
NOW THEREFORE, it is mutually agreed by and between CITY and COUNTY as follows:
1. The term of this Agreement shall be from the date signed by the County of San
Diego through June 30, 2022.
2. Compensation shall be in the amount not to exceed $48,750, for services through
June 30, 2022 and pursuant to the conditions contained in Exhibit A, which is
attached and incorporated by this reference.
3. COUNTY shall provide the services as described in Exhibit A.
4. All services provided by the COUNTY pursuant to this Agreement will be supervised
by the supervising industrial hygienist (or other equally qualified staff in the event
of a vacancy). COUNTY makes no other warranty concerning these services, and
disclaims all implied warranties that may legally be disclaimed.
5. Except for extensions pursuant to paragraph 17 below, this Agreement may only
be amended upon written mutual agreement between the CITY and the COUNTY.
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6. This Agreement does not obligate the COUNTY to detect violations of law or
regulations, or unsafe conditions created or allowed to continue in existence as a
result of CITY action or inaction, nor does it obligate the COUNTY to notify the
CITY of such violations or conditions whether or not known to the COUNTY.
7. COUNTY hereby agrees to defend and indemnify CITY, its agents, officers and
employees (hereinafter collectively referred to in this paragraph as "CITY
PARTIES"), from any claim, action or proceeding against CITY PARTIES, arising
out of the acts or omissions of COUNTY in the performance of this Agreement.
The obligation to defend and indemnify does not apply to CITY PARTIES' sole
negligence, gross negligence, or willful misconduct. At its sole discretion, CITY
PARTIES may participate at its own expense in the defense of any claim, action or
proceeding, but such participation shall not relieve COUNTY of any obligation
imposed by this Agreement. CITY PARTIES shall notify COUNTY promptly of any
claim, action or proceeding and cooperate fully in the defense.
8. CITY hereby agrees to defend and indemnify the COUNTY, its agents, officers and
employees (hereafter collectively referred to in this paragraph as "COUNTY
PARTIES") from any claim, action or proceeding against COUNTY PARTIES, arising
out of the acts or omissions of CITY in the performance of this Agreement. The
obligation to defend and indemnify does not apply to COUNTY PARTIES' sole
negligence, gross negligence, or willful misconduct. At its sole discretion, COUNTY
PARTIES may participate at its own expense in the defense of any such claim,
action or proceeding, but such participation shall not relieve CITY of any obligation
imposed by this Agreement. COUNTY PARTIES shall notify CITY promptly of any
claim, action or proceeding and cooperate fully in the defense.
9. COUNTY hereby agrees to defend itself, and the CITY hereby agrees to defend
itself, from any claim, action or proceeding arising out of the concurrent acts or
omissions of COUNTY and CITY. In such cases, COUNTY and CITY agree to retain
their own legal counsel, bear their own defense costs, and waive their right to seek
reimbursement of such costs, except as provided in paragraph 11 below.
10. Notwithstanding paragraph 9 above, in cases where COUNTY and CITY agree in
writing to a joint defense, COUNTY and CITY may appoint joint defense counsel
to defend the claim, action or proceeding arising out of the concurrent acts or
omissions of CITY and COUNTY. Joint defense counsel shall be selected by mutual
agreement of COUNTY and CITY. COUNTY and CITY agree to share the costs of
such joint defense and any agreed settlement in equal amounts, except as
provided in paragraph 11 below. COUNTY and CITY further agree that neither
party may bind the other to a settlement agreement without the written consent
of both COUNTY and CITY.
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11. Where a trial verdict or arbitration award allocates or determines the comparative
fault of the parties, COUNTY and CITY may seek reimbursement and/or
reallocation of defense costs, settlement payments, judgments and awards,
consistent with such comparative fault.
12. Either COUNTY or CITY may terminate this Agreement with thirty (30) days
advance written notice given by the Authorized Representative or his or her
designee.
13. The COUNTY's authorized representative shall be the Director or Assistant Director
of the Department of Environmental Health and the CITY's authorized
representative shall be the Safety Program Supervisor.
14. This Agreement and its Exhibits are the entire understanding of the parties, and
there are no other terms or conditions, written or oral, controlling this matter. In
the event of any conflict between the provisions of this Agreement and any of its
Exhibits, the provisions of this Agreement shall prevail.
15. This Agreement shall be governed by the laws of the State of California.
16. COUNTY is an independent contractor and no agency relationship, either express
or implied, is created by the execution of this Agreement.
17. This Agreement shall continue beyond the final date of the term as set forth in
paragraph 1 above, or in any agreed extension, pending renewal of the
Agreement, if CITY's Authorized Representative has notified COUNTY's Authorized
Representative of an intention to renew the Agreement, and neither party has
terminated this Agreement pursuant to paragraph 12 above. CITY shall pay for
such extended services at the rate or rates provided in a subsequent agreement,
or if no such agreement is reached, at the rates provided in this Agreement.
18. If compensation, as set forth in paragraph 2 above, is projected to be insufficient
to pay for services through the final date of this Agreement, COUNTY agrees to
continue to provide services pending amendment of the compensation terms of
this Agreement, provided that CITY provides COUNTY with a written notice to
proceed and agrees to compensate COUNTY for services in accordance with the
terms of this Agreement until an amendment to this Agreement is executed.
19. Nothing in this Agreement and no action by the COUNTY pursuant to this
Agreement shall shift responsibility for compliance with applicable law at CITY
facilities from the CITY to COUNTY.
20. Nothing in this Agreement and no action by the COUNTY pursuant to this
Agreement shall preclude the COUNTY from taking any enforcement action against
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the CITY in the COUNTY's capacity as a regulatory and enforcement agency. CITY
covenants that it will not assert that this Agreement provides or supports any
defense against any such COUNTY enforcement action.
21. Any notice permitted or required under this Agreement shall be in writing and
signed by the party giving or serving the same, and shall be served either by
personal delivery or certified mail to the following persons and at the following
addresses:
County:
County of San Diego
Traci N. Mitchell
Dept. of Environmental Health
5500 Overland Avenue, Suite 270
San Diego, Califomia 92123
858 505-6975
CITY:
City of Poway
Chris Hazeltine
City Manager
13325 Civic Center Drive
Poway, CA 92064
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IN WITNESS WHEREOF, the parties have executed this Agreement as the day and
year first above written.
CITY OF POWAY
Chris Hazeltine, City Manager
Name and Title
COUNTY OF SAN DIEGO:
Sig ature
Andrew Pntter, Clerk of the Rnard
Name and Tide
(
Date
/-2-1/4/1. 3- J
Date
Approved and/or authorized pursuant to
of San D • A• • inistrative Code §123.
.... 1L.;�� Date)2/ //24
Clerk o he Board Supervisors
APPROVED AS TO FORM ATTEST:
Date: 7/30/2020 Date: 5" I is IRO
ata
Alan Fenstermacher, City Attorney Carrie Gallagher, Interim City C
CITY OF POWAY CITY OF POWAY
APPROVED AS TO FORM AND LEGALITY
COUNTY COUNSEL
Date:
November 12, 2020
Geoffrey Holbrook
By Geoffrey Holbrook, Senior Deputy
COUNTY OF SAN DIEGO
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EXHIBIT A
STATEMENT OF WORK:
The COUNTY shall provide industrial hygiene -related services as requested and which relate
to CITY employee health and safety, subject to available COUNTY resources at the time a
request is received, including but not limited to services in the following areas:
1. Respiratory Protection Program
2. Ventilation System Design and Monitoring
3. Hazard Evaluations
4. Health and Safety Training
5. Hearing Conservation
6. Asbestos and Lead Management Services
7. Workstation Design and Ergonomic Training
8. Hazardous Waste/Materials Management
All services will be supervised by the supervising industrial hygienist (or other equally qualified
staff in the event of a vacancy).
The approach, scope, and methodology of the above services shall conform to the written
instructions of the CITY, but if such instructions are not issued or incomplete, services shall
take into account the requirements of regulating agencies such as the California Occupational
F. :::.Safety and Health Administration (Cal/OSHA), State and County Health Departments, and the
alifoilhia and Federal Environmental Protection Agency (EPA). If specific instructions are not
issued and specific regulations do not exist, the COUNTY shall take into account the published
_ recommendations of relevant government agencies or professional organizations.
COMPENSATION:
This is a full cost recovery agreement. The CITY shall be billed based on actual labor and
material costs plus laboratory costs incurred in the performance of the above services. The
full cost recovery rate is currently budgeted at $153 an hour plus laboratory costs. Actual
hourly costs, and billing, may vary from the budgeted hourly rate depending on actual costs
for services provided.
CITY shall compensate COUNTY for any actual labor and material costs incurred by COUNTY
pursuant to any request by CITY. This includes any labor and material costs incurred by
COUNTY in response to any request by CITY even if services are not completed for any
reason.
COUNTY shall invoice the CITY on a quarterly basis. The COUNTY's minimum billing increment
is 1/10th of an hour. The invoice shall reference the contract number and the dates of service
covered.
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