19-0116_KIMCO STAFFING SERVICES, INC DBA ADVANTEX PROFESSIONAL SERVICES_Professional Services Agreement CITY OF SAN JUAN CAPISTRANO
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made and entered into as of January 16, 2019, by and between the City of
San Juan Capistrano, a municipal corporation organized and operating under the laws of the
State of California with its principal place of business at 32400 Paseo Adelanto, San Juan
Capistrano, CA 92675 ("City"), and Kimco Staffing Services and Kimco Staffing Services, Inc.,
dba Advantex Professional Services, a Corporation with its principal place of business at 1901
Main Street, Ste 125, Irvine CA 92614 (hereinafter referred to as "Service Provider"). City and
Service Provider are sometimes individually referred to as "Party" and collectively as "Parties" in
this Agreement.
RECITALS
A. City is a public agency of the State of California and is in need of professional
services for the following project:
Temporary staffing services (hereinafter referred to as "the Project").
B. Service Provider is duly licensed, as required, and has the necessary
qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain
Service Provider to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Services.
Service Provider shall provide the City with the services described in the Scope of
Services attached hereto as Exhibit "A."
2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in
accordance with the Schedule of Charges set forth in Exhibit "B."
b. In no event shall the total amount paid for services rendered by Service
Provider under this Agreement exceed the sum of $150,000 annually, up to a maximum of five
years. Periodic payments shall be made within 30 days of receipt of an invoice which includes a
detailed description of the work performed. Payments to Service Provider for work performed
will be made on an agreed-upon basis.
3. Additional Work.
If changes in the work seem merited by Service Provider or the City, and informal
consultations with the other party indicate that a change is warranted, it shall be processed in
the following manner: a letter outlining the changes shall be forwarded to the City by Service
Provider with a statement of estimated changes in fee or time schedule. An amendment to this
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Agreement shall be prepared by the City and executed by both Parties before performance of
such services, or the City will not be required to pay for the changes in the scope of work. Such
amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
4. Maintenance of Records.
Books, documents, papers, accounting records, and other evidence pertaining to costs
incurred shall be maintained by Service Provider and made available at all reasonable times
during the contract period and for four (4) years from the date of final payment under the
contract for inspection by City.
5. Time of Performance.
Service Provider shall perform its services in a prompt and timely manner and shall
commence performance upon receipt of written notice from the City to proceed ("Notice to
Proceed").
6. Delays in Performance.
a. Neither City nor Service Provider shall be considered in default of this Agreement
for delays in performance caused by circumstances beyond the reasonable control of the non-
performing party. For purposes of this Agreement, such circumstances include but are not
limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and
other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a
reasonable time of being prevented from performing, give written notice to the other party
describing the circumstances preventing continued performance and the efforts being made to
resume performance of this Agreement.
7. Compliance with Law.
a. Service Provider shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Service Provider shall assist the City, as requested, in obtaining and
maintaining all permits required of Service Provider by federal, state and local regulatory
agencies.
c. If applicable, Service Provider is responsible for all costs of clean up and/ or
removal of hazardous and toxic substances spilled as a result of his or her services or
operations performed under this Agreement.
8. Standard of Care
Service Provider's services will be performed in accordance with generally accepted
professional practices and principles and in a manner consistent with the level of care and skill
ordinarily exercised by members of the profession currently practicing under similar conditions.
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9. Assignment and SubService Provider
Service Provider shall not assign, sublet, or transfer this Agreement or any rights under
or interest in this Agreement without the written consent of the City, which may be withheld for
any reason. Any attempt to so assign or so transfer without such consent shall be void and
without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall
contain a provision making them subject to all provisions stipulated in this Agreement. Nothing
contained herein shall prevent Service Provider from employing independent associates, and
subService Providers as Service Provider may deem appropriate to assist in the performance of
services hereunder.
10. Independent Service Provider
Service Provider is retained as an independent contractor and is not an employee of
City. No employee or agent of Service Provider shall become an employee of City. The work to
be performed shall be in accordance with the work described in this Agreement, subject to such
directions and amendments from City as herein provided.
11. Insurance. Service Provider shall not commence work for the City until it has
provided evidence satisfactory to the City it has secured all insurance required under this
section. In addition, Service Provider shall not allow any subcontractor to commence work on
any subcontract until it has secured all insurance required under this section.
a. Commercial General Liability
(i) The Service Provider shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less than specified herein,
Commercial General Liability Insurance, in a form and with insurance companies acceptable to
the City.
(ii) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
(1) Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent.
(iii) Commercial General Liability Insurance must include coverage
for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion
deleted
(7) Contractual Liability with respect to this Contract
(8) Broad Form Property Damage
(9) Independent Service Providers Coverage
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(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one
insured against another; (3) products/completed operations liability; or (4) contain any other
exclusion contrary to the Agreement.
(v) The policy shall give City, its officials, officers, employees,
agents and City designated volunteers additional insured status using ISO endorsement forms
CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
b. Workers' Compensation/Employer's Liability
(i) Service Provider certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured against
liability for workers' compensation or to undertake self-insurance in accordance with the
provisions of that code, and he/she will comply with such provisions before commencing work
under this Agreement.
(ii) To the extent Service Provider has employees at any time during
the term of this Agreement, at all times during the performance of the work under this
Agreement, the Service Provider shall maintain full compensation insurance for all persons
employed directly by him/her to carry out the work contemplated under this Agreement, all in
accordance with the "Workers' Compensation and Insurance Act," Division IV of the Labor Code
of the State of California and any acts amendatory thereof, and Employer's Liability Coverage in
amounts indicated herein. Service Provider shall require all subService Providers to obtain and
maintain, for the period required by this Agreement, workers' compensation coverage of the
same type and limits as specified in this section.
c. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate
for bodily injury, personal injury, and property
damage
(ii) Defense costs shall be payable in addition to the limits.
(iii) Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
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d. Evidence Required
Prior to execution of the Agreement, the Service Provider shall file with the City
evidence of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's
equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25-
S or equivalent), together with required endorsements. All evidence of insurance shall be
signed by a properly authorized officer, agent, or qualified representative of the insurer and
shall certify the names of the insured, any additional insureds, where appropriate, the type and
amount of the insurance, the location and operations to which the insurance applies, and the
expiration date of such insurance.
e. Policy Provisions Required
(i) Service Provider shall provide the City at least thirty (30) days
prior written notice of cancellation of any policy required by this Agreement, except that the
Service Provider shall provide at least ten (10) days prior written notice of cancellation of any
such policy due to non-payment of premium. If any of the required coverage is cancelled or
expires during the term of this Agreement, the Service Provider shall deliver renewal
certificate(s) including the General Liability Additional Insured Endorsement to the City at least
ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy shall each contain a
provision stating that Service Provider's policy is primary insurance and that any insurance,
self-insurance or other coverage maintained by the City or any named insureds shall not be
called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than
the effective date of this Agreement. Service Provider shall maintain such coverage
continuously for a period of at least three years after the completion of the work under this
Agreement. Service Provider shall purchase a one (1) year extended reporting period A) if the
retroactive date is advanced past the effective date of this Agreement; B) if the policy is
cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a
retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages shall contain or be endorsed to
waiver of subrogation in favor of the City, its officials, officers, employees, agents, and
volunteers or shall specifically allow Service Provider or others providing insurance evidence in
compliance with these specifications to waive their right of recovery prior to a loss. Service
Provider hereby waives its own right of recovery against City, and shall require similar written
express waivers and insurance clauses from each of its subService Providers.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Service Provider from
liability in excess of such coverage, nor shall it limit the Service Provider's indemnification
obligations to the City and shall not preclude the City from taking such other actions available
to the City under other provisions of the Agreement or law.
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f. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A:VII and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance
Code or any federal law.
g. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Service Provider, and any approval of said insurance by the City,
is not intended to and shall not in any manner limit or qualify the liabilities and obligations
otherwise assumed by the Service Provider pursuant to this Agreement, including but not
limited to, the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Service Provider or
City will withhold amounts sufficient to pay premium from Service Provider payments. In the
alternative, City may cancel this Agreement.
(iii) The City may require the Service Provider to provide complete
copies of all insurance policies in effect for the duration of the Project.
(iv) Neither the City nor any of its officials, officers, employees, agents
or volunteers shall be personally responsible for any liability arising under or by virtue of this
Agreement.
j. SubService Provider Insurance Requirements. Service Provider shall not
allow any subcontractors or subService Providers to commence work on any subcontract until
they have provided evidence satisfactory to the City that they have secured all insurance
required under this section. Policies of commercial general liability insurance provided by such
subcontractors or subService Providers shall be endorsed to name the City as an additional
insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same
coverage. If requested by Service Provider, City may approve different scopes or minimum
limits of insurance for particular subcontractors or subService Providers.
12. Indemnification.
a. To the fullest extent permitted by law, Service Provider shall defend (with
counsel of City's choosing), 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
acts, errors or omissions, or willful misconduct of Service Provider, its officials, officers,
employees, subcontractors, Service Providers or agents in connection with the performance of
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the Service Provider's services, the Project or this Agreement, including without limitation the
payment of all damages, expert witness fees and attorney's fees and other related costs and
expenses. Service Provider's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by Service Provider, the City, its officials, officers, employees, agents,
or volunteers.
b. If Service Provider's obligation to defend, indemnify, and/or hold harmless
arises out of Service Provider's performance of "design professional" services (as that term is
defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code
section 2782.8, which is fully incorporated herein, Service Provider's indemnification obligation
shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness,
or willful misconduct of the Service Provider, and, upon Service Provider obtaining a final
adjudication by a court of competent jurisdiction, Service Provider's liability for such claim,
including the cost to defend, shall not exceed the Service Provider's proportionate percentage of
fault.
13. California Labor Code Requirements.
a. Service Provider is aware of the requirements of California Labor Code
Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and
the performance of other requirements on certain "public works" and "maintenance" projects
("Prevailing Wage Laws"). If the services are being performed 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, Service Provider agrees to fully comply with such Prevailing
Wage Laws. Service Provider 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 Service Provider and all subService Providers 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.
b. If 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 Service
Provider and all subService Providers performing such services must be registered with the
Department of Industrial Relations. Service Provider shall maintain registration for the duration
of the Project and require the same of any subService Providers, as applicable. This Project
may also be subject to compliance monitoring and enforcement by the Department of Industrial
Relations. It shall be Service Provider'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.
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c. This Agreement may also be subject to compliance monitoring and
enforcement by the Department of Industrial Relations. It shall be Service Provider's sole
responsibility to comply with all applicable registration and labor compliance requirements. Any
stop orders issued by the Department of Industrial Relations against Service Provider or any
subcontractor that affect Service Provider's performance of services, including any delay, shall
be Service Provider's sole responsibility. Any delay arising out of or resulting from such stop
orders shall be considered Service Provider caused delay and shall not be compensable by the
City. Service Provider 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 Service Provider or any subcontractor.
14. Verification of Employment Eligibility.
By executing this Agreement, Service Provider 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, and shall require all subService Providers and
sub-subService Providers to comply with the same.
15. Laws and Venue.
This Agreement shall be interpreted in accordance with the laws of the State of
California. If any action is brought to interpret or enforce any term of this Agreement, the action
shall be brought in a state or federal court situated in the County of Orange, State of California.
16. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work
under this Agreement by giving ten (10) calendar days written notice to Service Provider. In
such event, City shall be immediately given title and possession to all original field notes,
drawings and specifications, written reports and other documents produced or developed for
that portion of the work completed and/or being abandoned. City shall pay Service Provider the
reasonable value of services rendered for any portion of the work completed prior to
termination. If said termination occurs prior to completion of any task for the Project for which a
payment request has not been received, the charge for services performed during such task
shall be the reasonable value of such services, based on an amount mutually agreed to by City
and Service Provider of the portion of such task completed but not paid prior to said termination.
City shall not be liable for any costs other than the charges or portions thereof which are
specified herein. Service Provider shall not be entitled to payment for unperformed services,
and shall not be entitled to damages or compensation for termination of work.
b. Service Provider may terminate its obligation to provide further services
under this Agreement upon thirty (30) calendar days' written notice to City only in the event of
substantial failure by City to perform in accordance with the terms of this Agreement through no
fault of Service Provider.
17 Documents. Except as otherwise provided in "Termination or Abandonment,"
above, all original field notes, written reports, Drawings and Specifications and other
documents, produced or developed for the Project shall, upon payment in full for the services
described in this Agreement, be furnished to and become the property of the City.
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18. Organization
Service Provider shall assign Joy Peterson, Sr. Sales Executive, as Project Manager.
The Project Manager shall not be removed from the Project or reassigned without the prior
written consent of the City.
19. Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described
above.
20. Notice
Any notice or instrument required to be given or delivered by this Agreement may be
given or delivered by depositing the same in any United States Post Office, certified mail, return
receipt requested, postage prepaid, addressed to:
CITY: SERVICE PROVIDER:
City of San Juan Capistrano Kimco Staffing Services and Kimco Staffing
32400 Paseo Adelanto Services, Inc., dba Advantex Professional
Services.
San Juan Capistrano, CA 92675 1901 Main Street, Ste 125
Attn: Sam Penrod, Human Resources and Irvine, CA 92614
Risk Manager Attn: Joy Peterson, Sr. Sales Executive
and shall be effective upon receipt thereof.
21. Third Party Rights
Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than the City and the Service Provider.
22. Equal Opportunity Employment.
Service Provider represents that it is an equal opportunity employer and that it shall not
discriminate against any employee or applicant for employment because of race, religion, color,
national origin, ancestry, sex, age or other interests protected by the State or Federal
Constitutions. 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.
23. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and
Service Provider as to those matters contained herein, and supersedes and cancels any prior or
contemporaneous oral or written understanding, promises or representations with respect to
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those matters covered hereunder. Each party acknowledges that no representations,
inducements, promises or agreements have been made by any person which are not
incorporated herein, and that any other agreements shall be void. This Agreement may not be
modified or altered except in writing signed by both Parties hereto. This is an integrated
Agreement.
24. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not
render the provisions unenforceable, invalid or illegal.
25. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in
interest, executors, administrators and assigns of each party to this Agreement. However,
Service Provider shall not assign or transfer by operation of law or otherwise any or all of its
rights, burdens, duties or obligations without the prior written consent of City. Any attempted
assignment without such consent shall be invalid and void.
26. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either party,
unless such waiver is specifically specified in writing.
27. Time of Essence
Time is of the essence for each and every provision of this Agreement.
28. City's Right to Employ Other Service Providers
City reserves its right to employ other Service Providers, including engineers, in
connection with this Project or other projects.
29. Prohibited Interests
Service Provider maintains and warrants that it has not employed nor retained any
company or person, other than a bona fide employee working solely for Service Provider, to
solicit or secure this Agreement. Further, Service Provider 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
Service Provider, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. 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 director, official, 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.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND Kimco Staffing Services and Kimco Staffing Services, Inc., dba Advantex Professional
Services.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN JUAN CAPISTRANO Kimco Staffing Services and Kimco Staffing
Services, Inc., dba Advantex Professional Services.
By: By:
*tilt .
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- ja iegel
City anager Its: CFO
Printed Name:Karim Sheikh
,t YtQSS 01-41V --17€)43
ATTEST:
By:
Clerk
APPROVED AS TO FORM:
By: /
Icy A or ey
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EXHIBIT A
Scope of Services
Temporary staffing services, based on the needs of the City, as agreed upon by City and
Service Provider.
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EXHIBIT B
Schedule of Charges/Payments
Service Provider will invoice City on a basis agreed upon by City and Service Provider, in writing.
Upon such written agreement, the terms and provisions of this Agreement will be incorporated by
reference into each and every such writing.
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