17-0718_E. STEWART & ASSOCIATES, INC._Agenda Report_E14TO:
FROM:
City of San Juan Capistrano
.Agenda Report
Honorable Mayor and Members of the City Council
~ Siegel, City Manager
SUBMITTED BY: Steve May, Public Works & Utilities Director _L~
PREPARED BY: Noreen Swiontek, Senior Management Analyst
DATE: July 18, 2017
7/18/2017
E14
SUBJECT: Consideration of Amendment No.1 to the Maintenance Services
Agreement with E. Stewart & Associates Inc ., for Sewer Manhole
Maintenance
RECOMMENDATION:
Approve and authorize the City Manager to execute Amendment No.1 to the
Maintenance Services Agreement with E. Stewart & Associates Inc. for sewer manhole
maintenance, in an amount not to exceed $50,000 and extending the term to June 30,
2018.
DISCUSSION/ANALYSI S:
E. Stewart and Associates Inc. was awarded a Maintenance Services Agreement for
sewer maintenance for Fiscal Year 2015-2016 and for 2016-2017 based on informal
competitive bidding in accordance with the City 's Purchasing Policy. In both years, the
bids submitted by E. Stewart and Associates Inc. were half of the next highest bidders.
Staff recommends extending the Agreement for one year under the same terms of
$2,000 per month for 12 months, plus a $1,000 contingency (4%). Amendment No. 1
would extend the term of the Agreement to June 30, 2018, and would increase the
compensation from $25,000 for the one year term to $50,000 for the extended two year
term (Attachment 1 ).
The City has eleven sewer manhole locations that are considered "hot-spot manholes ."
These locations are known to collect debris and have higher than average flows that
require frequent inspections by a minimum of two qualified laborers, three times per
week. The current Agreement and the recommended Amendment No . 1 provide for
these services.
City Council Agenda Report
July 18, 2017
Page 2 of 2
FISCAL IMPACT :
Funding for the one year term of this Amendment 1 is included in the adopted Sewer
Operations budget for Fiscal Year 2017-2018.
ENVIRONMENTAL IMPACT:
This action is not subject to the California Environmental Quality Act ("CEQA") pursuant
to Section 15060(c)(3) of CEQA Guidelines because the activity is not a project as
defined in Section 15378 of the CEQA Guidelines, California Code of Regulations, Title
14, Chapter 3, and the activity has no potential for resulting in physical change to the
environment, directly or indirectly.
PRIOR CITY COUNCIL REVIEW :
• Not Applicable
COMMISSION REVIEW AND RECOMMENDATIONS:
• On June 20, 2017, the Utilities Commission voted unanimously to recommend that
the City Council approve Amendment No.1 to the Maintenance Services Agreement
with E. Stewart & Associates Inc. for Sewer Manhole Maintenance. The Utilities
Commission appointed Commissioner Hunt as the representative and Vice
Chairman Miller as the alternate representative to attend the City Council meeting to
represent the views of the Commission on the recommendation provided.
NOTIFICATION:
E. Stewart & Associates Inc.
ATTACHMENT:
Attachment 1 -Draft Amendment No. 1 with original Agreement
AMENDMENT NO. 1
TO THE MAINTENANCE SERVICES AGREEMENT
BETWEEN
1. Parties and Date.
THE CITY OF SAN JUAN CAPISTRANO
AND
E. ~TEW ART & ASSOCIATES, INC.
This Amendment No. 1 to the Maintenance Services Agreement is made and entered into as
of this day of July, 2017, by and between the City of San Juan Capistrano, a municipal --.
organization 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 E. Stewart &
Associates, Inc., a California Corporation with its principal place of business at I 000 Calle Negocia,
San Clemente, California 92673 (Contractor). City and Contractor are sometimes individually
referred to as "Party" and collectively as "Parties."
2. Recitals.
2.1 ContJ·actor. The City -and Contractor have entered into an agreement entitled
"Maintenance Services Agreement" dated June 16, 2016, ("Agreement") for the purpose of retaining
the services of Contractor to provide sewer manhole site inspection, debris removal, and gas reading
services.
2.2 Amendment Purpo e. The City and Contractor desire to amend the Agreement to
extend the term ofthe Agreement arid increase the not-to-exceed .compensation amount
2.3 Amendment Authority. This Ainendm~nt No. 1 is authorized pursuant to Section 3 of
the Agreement.
3. Terms.
3.1 Amendment. Set_tion 3 .1.2 of the Agreement is hereby amended in its entirety to read
as follows:
3.1.2 Term. The term of this Agreement shall be from July 1, 2016 to June 30,2018,
unless earlier terminated as provided herein. Contractor shall complete the Services within the term
of this Agreement, and shall meet any other established schedules and deadlines. The Parties may,
by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Amendment. Section 3.3 .1 of the Agreement is hereby amended in its entirety to read
as follows:
Attachment 1
Page 1 of 22
3.3.1 Compen arion. Contractor shall receive compensation, including authorized
reimbursements, for all Services rendered under this Agreement at the rates set forth in
Exhibit "A" attached hereto and incorporated herein by reference. The total compensation
shall not exceed Fifty Thousand Dollars ($50,000) without written approval of the City
Manager. Extra Work may be authorized and if authorized, will be compensated at the rates
and manner set forth in-this Agreement.
3.3 Continuing Effect of Agreement. Except as amended by this Amendment No. I, all
other provisions of the Agreement remain in full force and effect and shall govern the actions of the
parties under this Amendment No. I. From and after the date of this Amendment No. 1, whenever
the term "Agreement" appears in the Agreement, it shall mean the Agreement as amended by this
Amendment No. I.
3.4 Adeauate Consideration. The Parties hereto irrevocably stipulate and agree that they
have each received adequate and independent consideration for the performance of the obligations
they have undertaken pursuant to this Amendment No. 1.
3.5 Severabili1Y. If any portion of this Amendment No. 1 is declared invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
3.6 Counterparts. This Agreement may be executed by the Parties in counterparts, which
counterparts shall be construed together and have the same effect as if all the Parties had executed
the same instrument. Counterpart signatures may be transmitted by facsimile, email, or other
electronic means and have the same force and effect as if they were original signatures.
[Signatures on Next Page]
Attachment 1
Page 2 of 22
SIGNATURE PAGE FOR AMENDMENT NO.1
TO THE MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND
E. STEW ART & ASSOCIATES, INC.
CITY OF SAN JUAN CAPISTRANO
Approved By:
E. STEWART & ASSOCIATES, INC.
Benjamin Siegel
City Manager
Date
Attested By:
Maria Morris, City Clerk
Approved As To Form:
~
Signature
Name
Title
Date
Page 3 of3 Attachment 1
Page 3 of 22
E. Stewart and Associates, I nc.
1000 Calle Negocio
San Clemente, CA 92673
June 6, 2017
Tom Johnson
Water Distribution Supervisor
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
(949) 498-9250
FAX (949) 498-4961
Proposal for Sewer Stations Inspections and Cleanout
2 men with equipment-12 hours per week
48 hours per month at $41.66 per hour
$2,000.00
Please call, should you have questions or require further information.
Sincerely,
Ed Stewart
Attachment 1
Page 4 of22
CITY OF SAN JUAN CAPISTRANO
MAINTENANCE SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this J.J,&_ day of June 2016, 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 E. Stewart & Associates, Inc. a CORPORATION, with its
principal place of business at 1000 Calle Negocio, San Clemente, California 92673
("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 manhole site
inspection, debris removal, and gas reading 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 plans of 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 manhole
inspection project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 e nc ral Scope of Servic es . 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 professional sewer manhole inspection, gas
readings, debris clearing and cleaning maintenance services necessary for the Project
("Services"). The Services are more particularly described in Exhibit "A" attached hereto and
Attachment 1
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incorporated herein by reference. All Services shall be subject to, and performed in accordance
with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all
applicable local, state and federal laws, rules and regulations.
3.1.2 Tenn. The tenn of this Agreement shall be from July 1, 2016 to June 30,
20 17, unless earlier terminated as provided herein. Contractor shall complete the Services within
the term of this Agreement, and shall meet any other established schedules and deadlines. The
Parties may, by mutual, written consent, extend the term of this Agreement if necessary to
complete the Services.
3.2 Responsibilities of Contractor.
3.2.1 Subordinates; Independent ontractor. 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 tenn of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "A" attached hereto and incorporated herein by reference.
Contractor represents that it has the professional and technical personnel required to perform the
Services in confonnance with such conditions. In order to facilitate Contractor's confonnancc
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 Applic, ble Requirements. All work prepared by
Contractor shall be subject to the approval of City.
3.2.4 ily Representative. The City hereby designates Tom Johnson, Utilities
Superintendent 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'
his or her designee, to act as
("Contractor's Representative").
Representative. Contractor hereby designates Ed Stewart, or
its representative for the performance of this Agreement
Contractor's Representative shall have full authority to
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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 aJl reasonable times.
3.2 .7 Standard f Care ; Performance of E mploye es. Contractor shaJI perform
all Services under this Agreement in a skillful and competent manner, consistent with the
standards generaJly 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 wan-ants 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, quahfications 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 con-ect 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 P eriod 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" attached hereto, or which may be provided
separately in writing to the Contractor. Contractor agrees that if the Services arc 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 wi11 suffer damage.
3.2.9 D isputes. 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 by the City. If
Contractor disputes the City's decision, Contractor shall have such remedies as may be provided
by law.
3 .2.1 0 Laws a nd Regu la tion s ; Em p loyee/La bor e rti fi c a tion s . 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
3
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Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable
for alJ 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 aJI 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 pennitted to work in excess of eight (8) hours during any one calendar day except as
pennitted 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 .2.1 0.1 Employment Eligibllity; 'ontractor. 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 tenn 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 3.2.1 0 or any of its sub-sections.
3.2.1 0.2 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 same verifications
and comply with all requirements and restrictions provided for in Section 3 .2.1 0.1.
3.2.1 0.3 mployment Eligibility ; Failure to omJ>lv. Each person
executing this Agreement on behalf of Contractor verifies that they arc a duly authorized officer
of Contractor, and understands that any of the following shall be grounds for the City to
tenninate 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 .2.1 0.1
or 3 .2.1 0.2; (2) any misrepresentation or material omission concerning compliance with such
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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.
3.2.1 0.5 Equa l Opportunity E mpl oyment. 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.
3.2.1 0.6 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 pennitting 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.
3.2.1 0.7 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 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) Liab ilit y for Non-ompliance . 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
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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) T rainiu g. 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 omp l iance. 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 Requirem ents . 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 perfonuance 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 Scop e of In s ur ance . 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) Automobile Liability:
Insurance Services Office Busin.ess 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: (I) General Liability: $1,000,000 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 shal1 apply separately to this Agreement/location or the general aggregate limit
shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident
for bodily injury and property damage; and (3) Workers' Compensation and Employer 's
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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; ancellation 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 (1 0) 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 lnsured. 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 inc1ude
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 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(8), any avai1ab1e 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,
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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(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(B).
(C) Workers' Comp ensati on and E mployer's Lia bility
Coverage . The insurer shaH 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 Cove rages . 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 (1 0 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.
3.2.11.4 Separation of Ins ur eds: No Specia l Li mit at io ns: Waiver of
Sub r ga tio n. 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-Ins urance 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.
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3 .2.11.6 Subcontractor lnsurance 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:VIll, licensed to do business in
California, and satisfactory to the City.
3.2.11.8 Verification f overage . 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 Reporting of I aims. Contractor shall report to the City, in
addition to Contractor's insurer, any and all insurance claims submitted by Contractor m
connection with the Services under this Agreement.
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 sha11 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. 1 3 Accoun ting Records. Contractor shall maintain complete and accurate
records with respect to a11 costs and expenses incurred under this Agreement. All such records
shall be clearly identifiable. Contractor shall allow a representative of 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.
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3.3 Fees and Payments.
3.3.1 Com pensa ti o n. Contractor shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth
in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation
shall not exceed Twenty-five Thousand Dollars ($25,000) 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 Payme nt o f Compe nsat ion. Contractor shall submit to City a monthly
itemized statement which indicates work completed and hours of Services rendered by
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.
Contractor shall not be reimbursed for any
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 Prev a ilin g Wages . Contractor is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et ~., 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. If the Services are being perforn1ed as part of an applicable "public
works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if 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, 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 claim or
liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.3.6 Regislra ti on. If the Services are being perfmmed 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
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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.
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
seven (7) days before the effective date of such termination. Upon termination, Contractor shall
be compensated only for those services which have been adequately rendered to City, and
Contractor shaU be entitled to no further compensation. Contractor may not terminate this
Agreement except for cause.
3.4.2 Effect ofTermination. lfthis Agreement is terminated as provided herein,
City may require Contractor to provide aU 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 shaU 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 tenns and in such manner as it may
determine appropriate, services similar to those terminated.
3.5 General Provisions.
3.5.1 Delivery of Notices. AU 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:
City:
E. Stewart & Associates, Inc.
1000 Calle Negocio
San Clemente, CA 92673
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Tom Johnson, Utilities Superintendent
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.
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3.5.2 Indemnification .
3.5.2.1 Scope f 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 hannlcss from any and all claims, demands, causes of action,
costs, expenses, liability, Joss, 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 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 Indemnit y Obliga ti ons . 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 sha11 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 Gove rnin g La w ; Gov ernm ent Code omplian ce . 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.
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3.5.5 City s Right to Employ Other C ontractors. City reserves right to employ
other contractors in connection with this Project.
3.5.6 Successors a nd Ass igns . This Agreement shall be binding on the
successors and assigns of the parties.
3.5.7 Ass ignm e nt or T ransfe r. Contractor shall not assign, hypothecate or
transfer, either directly or by operation of law, this Agreement or any interest herein 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 o nst ructi o n ; R e fe re nce s ; a ption s . 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
tenn 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 ofContractor, 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 Amendm e nt ; Modi fi c ation. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.1 0 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 Part y Be nefi c iaries. 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 lnva Jjdit y; Severa bility . 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
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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.
3.5.14 Cooperation; ·urth er 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 Attorn eys' f ees and Cost s. 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 Author it y t Ent er Agreement. Contractor has all requisite power and
authority to conduct its business and to execute, deliver, and perfonn 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 This Agreement may be signed in counterparts, each of
3.5.18 E nti re 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]
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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND E. STEW ART & ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the
__ day of June, 2016.
CITY OF SAN JUAN CAPISTRANO
Approved By:
Date
15
E. STEWART & ASSOCIATES, INC.
Signature
Name
Title
Date
Attachment 1
Page 19 of 22
SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND E. STEWART & ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the
__ day of June, 2016.
CITY OF SAN JUAN CAPISTRANO
Approved By :
1 IAAA Benjamin Siegel
/)'I'""' '-City Manager
Date
Attested By:
Maria Morris, City Clerk
Approved As To Form :
Jeff Ballinger, City Attorney
E. STEWART & ASSOCIATES, INC.
~.~.N~--~
Signature
~w t:<J ~e~t=
15
Name
Title
~~/~/~
Date
Attachment 1
Page 20 of22
EXHIBIT "A''
SCOPE OF SERVICES
SEWER MANHOLE INSPECTION, GAS READINGS, DEBRIS CLEARING AND CLEANING
The City of San Juan Capistrano has eleven (11) sewer manhole locations that are considered
"hot spot manholes ." These locations are known to collect or build up debris and have a higher
than average flow that require frequent inspections .
Contractor shall provide inspection to each of the eleven (11) sewer manhole locations listed
below, three (3) times per week. Each inspection requires the manhole be opened, checked
with a gas detector for any dangerous gases, readings recorded on maintenance forms,
manhole cleaned and cleared of debris, and a report submitted to the City monthly.
To achieve these results, Contractor shall provide a minimum of two (2) qualified laborers with
the necessary equipment. Services shall be performed every Monday, Wednesday, and Friday.
Contractor shall notify City staff immediately upon discovery of any additional maintenance or
repair needs.
SEW ER MANHO LE SERVICE LOCAT IONS
1. Mobile Home Park-814 MH106
2. Costco-816 MH103
3. AAMCO-816 MH163
4. Golf Course-D11 MH131
5. Golondrina-D11 MH129
6. La Zanja-08 MH107
7. Marbella-D8-MH116
8. Rosenbaum Lift Station
9. De La Vista Lift Station
10. Ramos-C10 MH103
11 . Descanso (Dance Hall)-012-114
RATE SCHEDULE I COMPENSATION
E. Stewart and Associates, Inc. shall complete the scope of work outlined within a not to exceed
cost of $2000.00 per month. The rate is for two (2) men with equipment at an hourly rate of
$41 .66 per hour for an estimated 48 hours per month.
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May 26,2016
Tom Johnson
E. Stewart and Associates, Inc.
1000 Calle Negocio
San Clemente, CA 92673
(949) 498-9250 .
FAX (949) 498-4961
Water Distribution Supervisor
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
J>roposa l for Sewer Stations Clcanout
2 men with equipment -12 hours per week
48 hours per month at $41.66 per hour
$2 ,000.00
Please call, should you have questions or require further information.
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Page 22 of 22