18-0330_EMPIRE PIPE CLEANING AND EQUIPMENT, INC._Maintenance Services AgreementCITY OF SAN JUAN CAPISTRANO
MAINTENANCE SERVICES AGREEMENT
SEWER AND STORM DRAIN VIDEO INSPECTION AND CLEANING SERVICES
PARTIES AND DATE.
This Agreement is made and entered into this 30th day of March 2018 by and
between the City of San Juan Capistrano, a municipal corporation organized under the
laws of the State of California with its principal place of business at 32400 Paseo
Adelanto, San Juan Capistrano, California 92675 ("City") and Empire Pipe Cleaning and
Equipment Inc., a Corporation with its principal place of business at 17800 N. Neville
Street, Orange CA 92865 ("Contractor"). City and Contractor are sometimes individually
referred to as "Party" and collectively as "Parties" in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain
maintenance services required by the City on the terms and conditions set forth in this
Agreement. Contractor represents that it is experienced in providing Sewer and Storm
Maintenance services to public clients, that it and its employees or subcontractors have
all necessary licenses and permits to perform the Services in the State of California, and
that is familiar with the City. Contractor shall not subcontract any portion of the work
required by this Agreement, except as expressly stated herein, without prior written
approval of City. Subcontracts, if any, shall contain a provision making them subject to all
provisions stipulated in this Agreement.
2.2 Project.
City desires to engage Contractor to render such services for the Sewer and Storm
Drain Video Inspection and Cleaning Services project ("Project") as set forth in this
Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to
furnish to the City all labor, materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately supply the Sewer and Storm Drain
Maintenance services necessary for the Project ("Services"). The Services are more
particularly described in Exhibit "A", attached hereto and incorporated herein by
reference. All Services shall be subject to, and performed in accordance with, this
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Agreement, the exhibits attached hereto and incorporated herein by reference, and all
applicable local, state and federal laws, rules and regulations.
3.1.2 Term. This Agreement shall be effective on March 30, 2018,
retroactively from the signature date of this Agreement, and shall be for a term of three
(3) years and three (3) months. The Parties may, by mutual, written consent, extend the
term of this Agreement for two (2) one-year extensions. Should both extensions be
granted, this Agreement shall terminate on June 30, 2023.
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The
Services shall be performed by Contractor or under its supervision. Contractor will
determine the means, methods and details of performing the Services subject to the
requirements of this Agreement. City retains Contractor on an independent contractor
basis and not as an employee. Contractor retains the right to perform similar or different
services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Contractor shall also not be
employees of City and shall at all times be under Contractor's exclusive direction and
control. Contractor shall pay all wages, salaries, and other amounts due such personnel
in connection with their performance of Services under this Agreement and as required
by law. Contractor shall be responsible for all reports and obligations respecting such
additional personnel, including, but not limited to: social security taxes, income tax
withholding, unemployment insurance, disability insurance, and workers' compensation
insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference.
Contractor represents that it has the professional and technical personnel required to
perform the Services in conformance with such conditions. In order to facilitate
Contractor's conformance with the Schedule, City shall respond to Contractor's submittals
in a timely manner. Upon request of City, Contractor shall provide a more detailed
schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work by Contractor
shall be subject to the approval of City.
3.2.4 City's Representative. The City hereby designates the Assistant
Utilities Director, or his or her designee, to act as its representative for the performance
of this Agreement ("City's Representative"). City's Representative shall have the power
to act on behalf of the City for all purposes under this Agreement. Contractor shall not
accept direction or orders from any person other than the City's Representative or his or
her designee.
3.2.5 Contractor's Representative. Contractor hereby designates Craig
Van Thyne, or his or her designee, to act as its representative for the performance of this
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Agreement ("Contractor's Representative"). Contractor's Representative shall have full
authority to represent and act on behalf of the Contractor for all purposes under this
Agreement. The Contractor's Representative shall supervise and direct the Services,
using his best skill and attention, and shall be responsible for all means, methods,
techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.6 Coordination of Services. Contractor agrees to work closely with City
staff in the performance of Services and shall be available to City's staff, consultants and
other staff at all reasonable times.
3.2.7 Standard of Care; Performance of Employees. Contractor shall
perform all Services under this Agreement in a skillful and competent manner, consistent
with the standards generally recognized as being employed by professionals in the same
discipline in the State of California. Contractor represents and maintains that it is skilled
in the professional calling necessary to perform the Services. Contractor warrants that all
employees and subcontractors shall have sufficient skill and experience to perform the
Services assigned to them. Finally, Contractor represents that it, its employees and
subcontractors have all licenses, permits, qualifications and approvals of whatever nature
that are legally required to perform the Services, including a City Business License, and
that such licenses and approvals shall be maintained throughout the term of this
Agreement. As provided for in the indemnification provisions of this Agreement,
Contractor shall perform, at its own cost and expense and without reimbursement from
the City, any services necessary to correct errors or omissions which are caused by the
Contractor's failure to comply with the standard of care provided for herein. Any employee
of the Contractor or its sub -contractors who is determined by the City to be uncooperative,
incompetent, a threat to the adequate or timely completion of the Project, a threat to the
safety of persons or property, or any employee who fails or refuses to perform the
Services in a manner acceptable to the City, shall be promptly removed from the Project
by the Contractor and shall not be re-employed to perform any of the Services or to work
on the Project.
3.2.8 Period of Performance. Contractor shall perform and complete all
Services under this Agreement within the term set forth in Section 3.1.2 above
("Performance Time"). Contractor shall perform the Services in strict accordance with any
completion schedule or Project milestones described in Exhibits "A" or "B" attached
hereto, or which may be provided separately in writing to the Contractor. Contractor
agrees that if the Services are not completed within the aforementioned Performance
Time and/or pursuant to any such completion schedule or Project milestones developed
pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that
the City will suffer damage.
3.2.9 Disputes. Should any dispute arise respecting the true value of any
work done, of any work omitted, or of any extra work which Contractor may be required
to do, or respecting the size of any payment to Contractor during the performance of this
Agreement, Contractor shall continue to perform the Work while said dispute is decided
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by the City. If Contractor disputes the City's decision, Contractor shall have such
remedies as may be provided by law.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Contractor
shall keep itself fully informed of and in compliance with all local, state and federal laws,
rules and regulations in any manner affecting the performance of the Project or the
Services, including all Cal/OSHA requirements, and shall give all notices required by law.
Contractor shall be liable for all violations of such laws and regulations in connection with
Services. If the Contractor performs any work knowing it to be contrary to such laws, rules
and regulations and without giving written notice to the City, Contractor shall be solely
responsible for all costs arising therefrom. City is a public entity of the State of California
subject to certain provisions of the Health & Safety Code, Government Code, Public
Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions
of the law applicable to the public contracts of a municipality are a part of this Agreement
to the same extent as though set forth herein and will be complied with. These include
but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours'
labor shall constitute a legal day's work and that no worker shall be permitted to work in
excess of eight (8) hours during any one calendar day except as permitted by law.
Contractor shall defend, indemnify and hold City, its officials, officers, employees and
agents free and harmless, pursuant to the indemnification provisions of this Agreement,
from any claim or liability arising out of any failure or alleged failure to comply with such
laws, rules or regulations.
3.2.10.1 Employment Eligibility; Contractor. By executing this
Agreement, Contractor verifies that it fully complies with all requirements and restrictions
of state and federal law respecting the employment of undocumented aliens, including,
but not limited to, the Immigration Reform and Control Act of 1986, as may be amended
from time to time. Such requirements and restrictions include, but are not limited to,
examination and retention of documentation confirming the identity and immigration
status of each employee of the Contractor. Contractor also verifies that it has not
committed a violation of any such law within the five (5) years immediately preceding the
date of execution of this Agreement, and shall not violate any such law at any time during
the term of the Agreement. Contractor shall avoid any violation of any such law during the
term of this Agreement by participating in an electronic verification of work authorization
program operated by the United States Department of Homeland Security, by
participating in an equivalent federal work authorization program operated by the United
States Department of Homeland Security to verify information of newly hired employees,
or by some other legally acceptable method. Contractor shall maintain records of each
such verification, and shall make them available to the City or its representatives for
inspection and copy at any time during normal business hours. The City shall not be
responsible for any costs or expenses related to Contractor's compliance with the
requirements provided for in Section 3.2.10 or any of its sub -sections.
3.2.10.2 Employment Eligibility; Subcontractors, Sub -
subcontractors and Consultants. To the same extent and under the same conditions as
Contractor, Contractor shall require all of its subcontractors, sub -subcontractors and
consultants performing any work relating to the Project or this Agreement to make the
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same verifications and comply with all requirements and restrictions provided for in
Section 3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply. Each person
executing this Agreement on behalf of Contractor verifies that they are a duly authorized
officer of Contractor, and understands that any of the following shall be grounds for the
City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors,
sub -subcontractors or consultants to meet any of the requirements provided for in
Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning
compliance with such requirements (including in those verifications provided to the
Contractor under Section 3.2.10.2); or (3) failure to immediately remove from the Project
any person found not to be in compliance with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder,
Contractor certifies that it is aware of the provisions of Section 3700 of the California
Labor Code which require every employer to be insured against liability for Workers'
Compensation or to undertake self-insurance in accordance with the provisions of that
Code, and agrees to comply with such provisions before commencing the performance
of the Services.
3.2.10.5 Equal Opportunity Employment. Contractor represents
that it is an equal opportunity employer and it shall not discriminate against any
subcontractor, employee or applicant for employment because of race, religion, color,
national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but
not be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination.
3.2.10.6 Air Quality. Contractor must fully comply with
all applicable laws, rules and regulations in furnishing or using equipment and/or
providing services, including, but not limited to, emissions limits and permitting
requirements imposed by the California Air Resources Board (CARB). Contractor shall
specifically be aware of the CARB limits and requirements' application to "portable
equipment", which definition is considered by CARB to include any item of equipment with
a fuel -powered engine. Contractor shall indemnify City against any fines or penalties
imposed by CARB or any other governmental or regulatory agency for violations
of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others
for whom Contractor is responsible under its indemnity obligations provided for in this
Agreement.
3.2.10.7 Water Quality.
(A) Management and Compliance. To the extent
applicable, Contractor's Services must account for, and fully comply with, all local, state
and federal laws, rules and regulations that may impact water quality compliance,
including, without limitation, all applicable provisions of the Federal Water Pollution
Control Act (33 U.S.C. §§ 1300); the California Porter -Cologne Water Quality Control Act
(Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental
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Protection Agency and the State Water Resources Control Board; the City's ordinances
regulating discharges of storm water; and any and all regulations, policies, or permits
issued pursuant to any such authority regulating the discharge of pollutants, as that term
is used in the Porter -Cologne Water Quality Control Act, to any ground or surface water
in the state.
(B) Liability for Non -Compliance. Failure to comply with the
laws, regulations and policies described in this Section is a violation of law that may
subject Contractor or City to penalties, fines, or additional regulatory requirements.
Contractor shall defend, indemnify and hold the City, its officials, officers, employees,
volunteers and agents free and harmless, pursuant to the indemnification provisions of
this Agreement, from and against any and all fines, penalties, claims or other regulatory
requirements imposed as a result of Contractor's non-compliance with the laws,
regulations and policies described in this Section, unless such non-compliance is the
result of the sole established negligence, willful misconduct or active negligence of the
City, its officials, officers, agents, employees or authorized volunteers.
(C) Training. In addition to any other standard of care
requirements set forth in this Agreement, Contractor warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Services assigned
to them without impacting water quality in violation of the laws, regulations and policies
described in this Section. Contractor further warrants that it, its employees and
subcontractors will receive adequate training, as determined by City, regarding the
requirements of the laws, regulations and policies described in this Section as they may
relate to the Services provided under this Agreement. Upon request, City will provide
Contractor with a list of training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Contractor shall not commence
Work under this Agreement until it has provided evidence satisfactory to the City that it
has secured all insurance required under this Section. In addition, Contractor shall not
allow any subcontractor to commence work on any subcontract until it has provided
evidence satisfactory to the City that the subcontractor has secured all insurance required
under this Section.
3.2.11.2 Minimum Requirements. Contractor shall, at its
expense, procure and maintain for the duration of the Agreement insurance against
claims for injuries to persons or damages to property which may arise from or in
connection with the performance of the Agreement by the Contractor, its agents,
representatives, employees or subcontractors. Contractor shall also require all of its
subcontractors to procure and maintain the same insurance for the duration of the
Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of In Coverage shall be at
least as broad as the latest version of the following: (1) General Liability. Insurance
Services Office Commercial General Liability coverage (occurrence form CG 0001); (2)
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Automobile Liability. Insurance Services Office Business Auto Coverage form number CA
0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability:
Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement,
including but not limited to endorsements or provisions limiting coverage for (1)
contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability
for claims or suits by one insured against another.
(B) Minimum Limits of Insurance. Contractor shall maintain
limits no less than: (1) General Liability. $5,000,000 per occurrence for bodily injury,
personal injury and property damage. If Commercial General Liability Insurance or other
form with general aggregate limit is used including, but not limited to, form CG 2503, either
the general aggregate limit shall apply separately to this Agreement/location or the
general aggregate limit shall be $6,000,000; (2) Automobile Liability. $1,000,000 per
accident for bodily injury and property damage; and (3) Workers' Compensation and
Employer's Liability. Workers' Compensation limits as required by the Labor Code of the
State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury
or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At
least fifteen (15) days prior to the expiration of any such policy, evidence showing that
such insurance coverage has been renewed or extended shall be filed with the City. If
such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days
after receipt of written notice of such cancellation or reduction of coverage, file with the
City evidence of insurance showing that the required insurance has been reinstated or
has been provided through another insurance company or companies. In the event any
policy of insurance required under this Agreement does not comply with these
specifications or is canceled and not replaced, the City has the right but not the duty to
obtain the insurance it deems necessary and any premium paid by the City will be
promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay
premium from Contractor payments. In the alternative, the City may suspend or terminate
this Agreement.
(D) Additional Insured. The City of San Juan Capistrano,
its officials, officers, employees, agents, and volunteers shall be named as additional
insureds on Contractor's and its subcontractors' policies of commercial general liability
and automobile liability insurance using the endorsements and forms specified herein or
exact equivalents.
3.2.11.3 Insurance Endorsements. The insurance policies shall
contain the following provisions, or Contractor shall provide endorsements on forms
supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall
include or be endorsed (amended) to state that: (1) using ISO CG forms 20-10 and 20-
37, or endorsements providing the exact same coverage, the City of San Juan
Capistrano, its officials, officers, employees, agents, and volunteers shall be covered as
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additional insured with respect to the Services or ongoing and complete operations
performed by or on behalf of the Contractor, including materials, parts or equipment
furnished in connection with such work; and (2) using ISO form 20-01, or endorsements
providing the exact same coverage, the insurance coverage shall be primary insurance
as respects the City, its officials, officers, employees, agents, and volunteers, or if excess,
shall stand in an unbroken chain of coverage excess of the Contractor's scheduled
underlying coverage. Any excess insurance shall contain a provision that such coverage
shall also apply on a primary and noncontributory basis for the benefit of the City, before
the City's own primary insurance or self-insurance shall be called upon to protect it as a
named insured. Any insurance or self-insurance maintained by the City, its officials,
officers, employees, agents, and volunteers shall be excess of the Contractor's insurance
and shall not be called upon to contribute with it in any way. Notwithstanding the minimum
limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the
specified minimum limits of coverage shall be available to the parties required to be
named as additional insureds pursuant to this Section 3.2.11.3(A).
(B) Automobile Liability. The automobile liability policy
shall include or be endorsed (amended) to state that: (1) the City, its officials, officers,
employees, agents, and volunteers shall be covered as additional insureds with respect
to the ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by the Contractor or for which the Contractor is responsible;
and (2) the insurance coverage shall be primary insurance as respects the City, its
officials, officers, employees, agents, and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the Contractor's scheduled underlying coverage.
Any insurance or self-insurance maintained by the City, its officials, officers, employees,
agents, and volunteers shall be excess of the Contractor's insurance and shall not be
called upon to contribute with it in any way. Notwithstanding the minimum limits set forth
in Section 3.2.11.2(8), any available insurance proceeds in excess of the specified
minimum limits of coverage shall be available to the parties required to be named as
additional insureds pursuant to this Section 3.2.11.3(B).
(C) Workers' Compensation and Employer's Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its
officials, officers, employees, agents, and volunteers for losses paid under the terms of
the insurance policy which arise from work performed by the Contractor.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided,
reduced or canceled except after thirty (30) days (10 days for nonpayment of premium)
prior written notice by certified mail, return receipt requested, has been given to the City;
and (B) any failure to comply with reporting or other provisions of the policies, including
breaches of warranties, shall not affect coverage provided to the City, its officials, officers,
employees, agents, and volunteers. Any failure to comply with reporting or other
provisions of the policies including breaches of warranties shall not affect coverage
provided to the City, its officials, officers, employees, agents and volunteers, or any other
additional insureds.
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3.2.11.4 Separation of Insureds; No Special Limitations; Waiver
of Subrogation. All insurance required by this Section shall contain standard separation
of insureds provisions. In addition, such insurance shall not contain any special limitations
on the scope of protection afforded to the City, its officials, officers, employees, agents,
and volunteers. All policies shall waive any right of subrogation of the insurer against the
City, its officials, officers, employees, agents, and volunteers, or any other additional
insureds, or shall specifically allow Contractor or others providing insurance evidence in
compliance with these specifications to waive their right of recovery prior to a loss.
Contractor hereby waives its own right of recovery against City, its officials, officers,
employees, agents, and volunteers, or any other additional insureds, and shall require
similar written express waivers and insurance clauses from each of its subcontractors.
3.2.11.5 Deductibles and Self-Insurance Retentions. Any
deductibles or self-insured retentions must be declared to and approved by the City.
Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self-insured retentions as respects the City, its
officials, officers, employees, agents, and volunteers, or (2) the Contractor shall procure
a bond guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
3.2.11.6 Subcontractor Insurance Requirements. Contractor
shall not allow any subcontractors to commence work on any subcontract relating to the
work under the Agreement until they have provided evidence satisfactory to the City that
they have secured all insurance required under this Section. If requested by Contractor,
the City may approve different scopes or minimum limits of insurance for particular
subcontractors. The Contractor and the City shall be named as additional insureds on all
subcontractors' policies of Commercial General Liability using ISO form 20 38, or
coverage at least as broad.
3.2.11.7 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in
California, and satisfactory to the City.
3.2.11.8 Verification of Coverage. Contractor shall furnish City
with original certificates of insurance and endorsements effecting coverage required by
this Agreement on forms satisfactory to the City. The certificates and endorsements for
each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf, and shall be on forms provided by the City if requested. All
certificates and endorsements must be received and approved by the City before work
commences. The City reserves the right to require complete, certified copies of all
required insurance policies, at any time.
3.2.11.9 Reportinq of Claims. Contractor shall report to the City, in
addition to Contractor's insurer, any and all insurance claims submitted by Contractor in
connection with the Services under this Agreement.
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3.2.12 Safety. Contractor shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out its Services, the Contractor
shall at all times be in compliance with all applicable local, state and federal laws, rules
and regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life-saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.13 Bonds.
3.2.13.1 Performance Bond. Not required.
3.2.13.2 Payment Bond. Not required.
3.2.13.3 Bond Provisions. Should, in City's sole opinion, any
bond become insufficient or any surety be found to be unsatisfactory, Contractor shall
renew or replace the affected bond within 10 days of receiving notice from City. In the
event the surety or Contractor intends to reduce or cancel any required bond, at least
thirty (30) days prior written notice shall be given to the City, and Contractor shall post
acceptable replacement bonds at least ten (10) days prior to expiration of the original
bonds. No further payments shall be deemed due or will be made under this Agreement
until any replacement bonds required by this Section are accepted by the City. To the
extent, if any, that the total compensation is increased in accordance with the Agreement,
the Contractor shall, upon request of the City, cause the amount of the bonds to be
increased accordingly and shall promptly deliver satisfactory evidence of such increase
to the City. To the extent available, the bonds shall further provide that no change or
alteration of the Agreement (including, without limitation, an increase in the total
compensation, as referred to above), extensions of time, or modifications of the time,
terms, or conditions of payment to the Contractor, will release the surety. If the Contractor
fails to furnish any required bond, the City may terminate this Agreement for cause.
3.2.13.4 Surety Qualifications. Only bonds executed by an
admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be
accepted. The surety must be a California -admitted surety with a current A.M. Best's
rating no less than A:VIII and satisfactory to the City. If a California -admitted surety insurer
issuing bonds does not meet these requirements, the insurer will be considered qualified
if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and
proof of such is provided to the City.
3.2.14 Accounting Records. Contractor shall maintain complete and
accurate records with respect to all costs and expenses incurred under this Agreement.
All such records shall be clearly identifiable. Contractor shall allow a representative of
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City during normal business hours to examine, audit, and make transcripts or copies of
such records and any other documents created pursuant to this Agreement. Contractor
shall allow inspection of all work, data, documents, proceedings, and activities related to
the Agreement for a period of three (3) years from the date of final payment under this
Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates
and amounts set forth in Exhibit "A" attached hereto and incorporated herein by reference.
The total compensation shall not exceed the total amount in the City's adopted fiscal year
operating budgets for sanitary sewer and storm drain video inspection and cleaning
maintenance services, without written approval of the City Manager. Extra Work may be
authorized, as described below, and if authorized, will be compensated at the rates and
manner set forth in this Agreement.
3.3.2 Payment of Compensation. Contractor shall submit to the City a
monthly itemized statement which indicates work completed and hours of Services
rendered by the Contractor. The statement shall describe the amount of Services and
supplies provided since the initial commencement date, or since the start of the
subsequent billing periods, as appropriate, through the date of the statement. City shall,
within 45 days of receiving such statement, review the statement and pay all approved
charges thereon.
3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for
any expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Contractor perform Extra Work. As used herein, "Extra Work" means any
work which is determined by City to be necessary for the proper completion of the Project,
but which the parties did not reasonably anticipate would be necessary at the execution
of this Agreement. Contractor shall not perform, nor be compensated for, Extra Work
without written authorization from City's Representative.
3.3.5 Labor Code Compliance.
3.3.5.1 Contractor is aware of the requirements of California
Labor Code Section 1720, et sec., and 1770, et sec., as well as California Code of
Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on "public
works" and "maintenance" projects. Since the Services are being performed as part of an
applicable "public works" or "maintenance" project, as defined by the Prevailing Wage
Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully
comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the
prevailing rates of per diem wages in effect at the commencement of this Agreement.
Contractor shall make copies of the prevailing rates of per diem wages for each craft,
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classification or type of worker needed to execute the Services available to interested
parties upon request, and shall post copies at the Contractor's principal place of business
and at the project site. Contractor shall defend, indemnify and hold the City, its officials,
officers, employees and agents free and harmless from any claims, liabilities, costs,
penalties or interest arising out of any failure or alleged failure to comply with the
Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors
to comply with all California Labor Code provisions, which include but are not limited to
prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of
apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections
1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment
of contractors and subcontractors (Labor Code Section 1777.1). The requirement to
submit certified payroll records directly to the Labor Commissioner under Labor Code
section 1771.4 shall not apply to work performed on a public works project that is exempt
pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.3.5.2 Since the Services are being performed as part of an
applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections
1725.5 and 1771.1, the Contractor and all subcontractors must be registered with the
Department of Industrial Relations. Contractor shall maintain registration for the duration
of the Project and require the same of any subcontractor. This Project may also be subject
to compliance monitoring and enforcement by the Department of Industrial Relations. It
shall be Contractor's sole responsibility to comply with all applicable registration and labor
compliance requirements. Notwithstanding the foregoing, the contractor registration
requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to
work performed on a public works project that is exempt pursuant to the small project
exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.3.5.3 This Agreement may also be subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be
Contractor's sole responsibility to comply with all applicable registration and labor
compliance requirements. Any stop orders issued by the Department of Industrial
Relations against Contractor or any subcontractor that affect Contractor's performance of
Services, including any delay, shall be Contractor's sole responsibility. Any delay arising
out of or resulting from such stop orders shall be considered Contractor caused delay and
shall not be compensable by the City. Contractor shall defend, indemnify and hold the
City, its officials, officers, employees and agents free and harmless from any claim or
liability arising out of stop orders issued by the Department of Industrial Relations against
Contractor or any subcontractor.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. City may, by written notice to Contractor,
terminate the whole or any part of this Agreement at any time and without cause by giving
written notice to Contractor of such termination, and specifying the effective date thereof,
at least three months before the effective date of such termination. Upon termination,
Contractor shall be compensated only for those services which have been adequately
ATTACHMENT 1
Page 12 of 23
rendered to City, and Contractor shall be entitled to no further compensation. Contractor
may not terminate this Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided
herein, City may require Contractor to provide all finished or unfinished Documents and
Data and other information of any kind prepared by Contractor in connection with the
performance of Services under this Agreement. Contractor shall be required to provide
such document and other information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in
whole or in part as provided herein, City may procure, upon such terms and in such
manner as it may determine appropriate, services similar to those terminated.
3.5 General Provisions.
3.5.1 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
Contractor:
Empire Pipe Cleaning and Equipment Inc.
1788 N. Neville Street
Orange, CA 92865
Attn: Craig Van Thyne, Vice President
City:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Steve May, Director of Public Works and Utilities.
Such notice shall be deemed made when personally delivered or when
mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid
and addressed to the party at its applicable address. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.2 Indemnification.
3.5.2.1 Scope of Indemnity. To the fullest extent permitted by
law, Contractor shall defend, indemnify and hold the City, its officials, officers, employees,
volunteers and agents free and harmless from any and all claims, demands, causes of
action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to
property or persons, including wrongful death, in any manner arising out of, pertaining to,
or incident to any alleged acts, errors or omissions of Contractor, its officials, officers,
employees, subcontractors, consultants or agents in connection with the performance of
the Contractor's Services, the Project or this Agreement, including without limitation the
ATTACHMENT 1
Page 13 of 23
payment of all consequential damages, expert witness fees and attorneys' fees and other
related costs and expenses. Notwithstanding the foregoing, to the extent Contractor's
Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited,
to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to,
or relate to the negligence, recklessness, or willful misconduct of the Contractor.
3.5.2.2 Additional Indemnity Obligations. Contractor shall
defend, with Counsel of City's choosing and at Contractor's own cost, expense and risk,
any and all claims, suits, actions or other proceedings of every kind covered by Section
3.5.2.1 that may be brought or instituted against City or its officials, officers, employees,
volunteers and agents. Contractor shall pay and satisfy any judgment, award or decree
that may be rendered against City or its officials, officers, employees, volunteers and
agents as part of any such claim, suit, action or other proceeding. Contractor shall also
reimburse City for the cost of any settlement paid by City or its officials, officers,
employees, agents or volunteers as part of any such claim, suit, action or other
proceeding. Such reimbursement shall include payment for City's attorneys' fees and
costs, including expert witness fees. Contractor shall reimburse City and its officials,
officers, employees, agents, and/or volunteers, for any and all legal expenses and costs
incurred by each of them in connection therewith or in enforcing the indemnity herein
provided. Contractor's obligation to indemnify shall survive expiration or termination of
this Agreement, and shall not be restricted to insurance proceeds, if any, received by the
City, its officials officers, employees, agents, or volunteers.
3.5.3 Governing Laws Government Code Claim Compliance. This
Agreement shall be governed by the laws of the State of California. Venue shall be in
Orange County, California. In addition to any and all contract requirements pertaining to
notices of and requests for compensation or payment for extra work, disputed work,
claims and/or changed conditions, Contractor must comply with the claim procedures set
forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City.
Such Government Code claims and any subsequent lawsuit based upon the Government
Code claims shall be limited to those matters that remain unresolved after all procedures
pertaining to extra work, disputed work, claims, and/or changed conditions have been
followed by Contractor. If no such Government Code claim is submitted, or if any
prerequisite contractual requirements are not otherwise satisfied as specified herein,
Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.
3.5.4 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.5.5 City's Right to Employ Other Contractors. City reserves right to
employ other contractors in connection with this Project.
3.5.6 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.5.7 Assignment or Transfer. Contractor shall not assign, hypothecate or
transfer, either directly or by operation of law, this Agreement or any interest herein
ATTACHMENT 1
Page 14 of 23
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
3.5.8 Construction; References; Captions. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for or
against any Party. Any term referencing time, days or period for performance shall be
deemed calendar days and not work days. All references to Contractor include all
personnel, employees, agents, and subcontractors of Contractor, except as otherwise
specified in this Agreement. All references to City include its officials, officers, employees,
agents, and volunteers except as otherwise specified in this Agreement. The captions of
the various articles and paragraphs are for convenience and ease of reference only, and
do not define, limit, augment, or describe the scope, content or intent of this Agreement.
3.5.9 Amendment; Modification. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.10 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the other
Party any contractual rights by custom, estoppel or otherwise.
3.5.11 No Third Party Beneficiaries. Except to the extent expressly provided
for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation
assumed by the Parties.
3.5.12 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.5.13 Prohibited Interests. Contractor maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Contractor, to solicit or secure this Agreement. Further, Contractor
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Contractor, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. Contractor further agrees to file, or shall cause its employees
or subcontractors to file, a Statement of Economic Interest with the City's Filing Officer as
required under state law in the performance of the Services. For breach or violation of
this warranty, City shall have the right to rescind this Agreement without liability. For the
term of this Agreement, no member, officer or employee of City, during the term of his or
her service with City, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
ATTACHMENT 1
Page 15 of 23
3.5.14 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.15 Attorneys' Fees and Costs. If any action in law or equity, including
an action for declaratory relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing Party shall be entitled to recover from the losing party
attorney's fees and costs in an amount determined to be reasonable by a court of
competent jurisdiction.
3.5.16 Authority to Enter Agreement. Contractor has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement.
Each Party warrants that the individuals who have signed this Agreement have the legal
power, right, and authority to make this Agreement and bind each respective Party.
3.5.17 Counterparts. This Agreement may be signed in counterparts, each
of which shall constitute an original. It is further agreed that facsimile and/or photocopies
of authentic signatures shall be considered as originals.
3.5.18 Entire Agreement. This Agreement contains the entire Agreement of
the parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed
by both parties.
[SIGNATURES ON NEXT PAGE]
ATTACHMENT 1
Page 16 of 23
SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND
EMPIRE PIPE CLEANING AND EQUIPMENT INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the
28th day of March, 2018
CITY OF SAN JUAN CAPISTRANO
Approved By:
7 i el, Cit Manager
4-
Datall I^
r
A s
Man o is, ity Clerk
Approved As To Form:
City Alfforney
EMPIRE PIPE CLEANING AND
EQUIPMENT INC.
Craig Van Thyne, Vice President
Print Name c
C
Print Title
y�io%2o �
Date
61147.02100130584204.1 17
ATTACHMENT 1
Page 17 of 23
EXHIBIT "A"
SCOPE OF SERVICES AND FEE SCHEDULE
ATTACHMENT 1
Page 18 of 23
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ATTACHMENT 1
Page 20 of 23
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EXHIBIT "B"
SCHEDULE OF SERVICES (SEE FEE SCHEDULE)
CONTRACTOR'S HOURLY RATE SHEETS
ATTACHMENT 1
Page 21 of 23
E .. D 11-C
Pipe Clean.i�n�
Ey u•i.p • • C m1t ,
c��a� r,3v-rss�z
1788 N. Neville St
Orange, CA 92865
EPCE 2018 Hourly Rate Schedule
City of San Juan Capistrano
Combination Truck Cleaning
Normal Hours 8AM to 3 PM $300.00 I Hour
Portal to Portal 4 hour minimum
CCTV Inspection Truck $245.00 I Hour
Normal Hours 8AM to 3 PM
Portal to Portal 4 hour minimum
Emergency Callout — First 2 hours $800.00
After Hours, Weekends, and holidays
Outside of 8AM to 3 PM Mon — Fri
Combination Cleaning Truck — Hour $300.00
CCTV Truck — Hour $245.00
Double Time Cleaning Truck
First Two Hours $1200.00
Each Hour $400.00
Double Time CCTV Truck
First Two Hours $1200.00
Each Hour $325.00
Contact Information
Empire Pipe Cleaning & Equipment, Inc.
Craig Van Thyne, Vice -President or Dan Jacobson, Project Manager
1788 N. Neville St
Orange, CA 92865
Contractor's License 363528 C36, C42
Tel 714-639-8352 (24 -Hour On Call) Fax 714-283-8578
Craig@ Em pirepipecleaning.com www.empirepipecleaning.com
ATTACHMENT 1
Page 22 of 23
Empire Pipe Cleaning and Equipment, Inc.
IE ,ja.ire 1788 N. Neville St
F*1peCleane 54, Orange, California 92865
ECjTLllhP # enJt, �m PH: (714) 639 8352
(714) b39-8152 City of San Juan Capistrano
Sewer and Storm Drain Video Inspection & Cleaning
Hourly Rates for Project
Hourly Ratesfor ftject
Staff Title Description Hourly Rate
Submitted By: Craig R. Van Thyne, Vice President
ATTACHMENT 1
Page 23 of 23
Oversees the company
Craig Van Thyne
Vice President
operations, contracts, and
$200.00
equipment resources
Project Manager and field
Dan Jacobson
Project Manager
operations, coordination
$150.00
of schedules, primary
customer City contact.
Optional -PE will be
Jake Hester
P. E.
responsible for analyzing
$150.00
the inspection results.
Assists in GIS Consultation
Processes all incoming
reports and verifies
Office Staff
Office Support
contract compliance.
$38.00
Provides a QAQC on all
inspections.
CCTV Inspector -Laborer
Field Operations
PACP Certified CCTV
$64.75
Inspectors
Sewer and Storm Pipe
Assists with all operations
Tradesman
Field Operations
as needed.
$35.75
Overhead mark up of 33% to be added on top of hourly rates
Submitted By: Craig R. Van Thyne, Vice President
ATTACHMENT 1
Page 23 of 23