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1999-1005_ORANGE COUNTY STRIPING SERVICE, INC._AgreementAGREEMENT FOR CONTRACT SERVICES OF PAVEMENT MARKINGS - MAINTENANCE, INSTALLATION AND REMOVAL THIS AGREEMENT, made and entered into this 5th day of October , 1999, by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation of the State of California, hereinafter referred to as the "CITY," and ORANGE COUNTY STRIPING SERVICE, INCORPORATED, hereinafter called and refenQ to as the "CONTRACTOR" WITNESSETH WHEREAS, the CITY is in need of pavement markings maintenance, installation and removal; and WHEREAS, CONTRACTOR has represented itself to be highly qualified to provide pavement markings maintenance, installation and removal services to municipalities; and WHEREAS, the CITY has decided to accept CONTRACTOR'S proposal and award to CONTRACTOR a contract for pavement markings maintenance, installation and removal; and WHEREAS, CITY and CONTRACTOR desire to enter into this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto and upon the express terms and conditions hereinafter set forth, the parties agree as follows: Section 1. LIST OF ATTACHMENTS That the complete contract shall consist of and include the following documents, all of which shall be and are hereby incorporated by reference and made a part hereof as fully as if set out in full herein: 1) This Agreement; 2) Scope of Services (Attachment A); 3) Pavement Markings Costs (Attachment B); 4) Personnel/Labor Rate Schedule (Attachment C); 5) Equipment Rate Schedule (Attachment D); 6) Company Information (Attachment E). Section 2. GENERA,. The considerations of work shall be governed by the conditions contained herein. In general, the tasks delineated herein are to be performed with minimum direction and assistance from CITY. All work performed by CONTRACTOR, however, shall be subject to review and approval of the Director of Public Works, or his/her designee, at all times. Section 3. TIME OF BEGINNING AND COMPLETION OF SERVICES The services provided under this Agreement shall be for a period beginning October 5 1999 and ending June 30, 2000 . The contract shall be automatically renewed for two (2) one-year terms beginning July 1, 2000 unless either party desires to terminate the contract on each annual renewal date by giving the other party at least thirty (30) days' written notice prior to the annual renewal date. Section 4. SCOPE OF TASKS Subject to the terms and conditions of this Agreement, CONTRACTOR shall perform the tasks as set forth in this Agreement and all Attachments, attached and incorporated herein by reference. CONTRACTOR agrees to furnish all tools, equipment, apparatus, facilities, labor, services and materials and perform all work necessary to maintain, install and remove, in a good and workmanlike manner, all pavement markings as requested (on a case- by-case basis) by a work order from the Director of Public Works or his/her designee. CONTRACTOR agrees that all work engaged in for the performance of this Agreement shall conform to the current Standard Plans and Standard Specifications of the State of California, as most recently revised. Whenever a question as to the meaning of any portion of the specifications is in dispute or where there may be more than one interpretation given to any portion of the specifications, the interpretation by the CITY shall be final. It is understood and agreed that all said labor, services, materials, tools, apparatus, facilities and equipment shall be furnished and said work performed and completed by the CONTRACTOR as an independent CONTRACTOR, subject to the inspection and approval of the CITY, its Director of Public Works or his/her designated representatives. During the performance of this Agreement, CONTRACTOR shall have access to existing data in CITY files and CITY shall provide copies of any such data CONTRACTOR requests at no cost to CONTRACTOR. Section 5. TERMINATION OF AGREEMENT The CITY may, without cause, terminate the Agreement at any time prior to completion by CONTRACTOR of any of the services required hereunder. Fifteen (15) days' Notice of Termination of this Agreement shall be given in writing to CONTRACTOR and shall be sufficient to complete when same is deposited in the U.S. Mail, first class postage prepaid. In the event this Agreement is terminated by the CITY, CONTRACTOR shall be paid the value of services performed by him pursuant to this Agreement prior to the date of termination thereof such value to be the total to which he shall have become entitled, as determined by the Director of Public Works, less the amount of any payments previously made, but in no event exceeding the maximum contract amount stated in Section 7. Section 6. FAILURE TO PERFORM a. If the CONTRACTOR should neglect to execute the work properly or fail to perform any provisions of this contract, the CITY, after three (3) days' written notice to the CONTRACTOR, may, without prejudice to any other remedy it may have, make good such deficiencies and may deduct the cost thereof from any payment then or thereafter due the CONTRACTOR. b. The three (3) days' written notice requirements in Section "a" of this paragraph shall be waived if the City, in its discretion, determines that the public health, safety and welfare will be endangered by failure to take immediate action. Section 7. COMPENSATION Payments under this Agreement shall be in accordance with Attachment B, C and/or D attached hereto and made a part hereof. CONTRACTOR'S billings may be submitted on the CONTRACTOR'S forms and, at a minimum, shall contain the following: Title of project(s) Purchase order number Total approved purchase order amount Amount paid to date Amount requested Amount remaining on purchase order Breakdown of amounts by project type or account number. Applicable CITY work orders shall be attached to each billing. Three copes of itemized bills, clearly indicating the monthly period for which the billing is made, shall be submitted to: City of San Juan Capistrano Attn: Director of Administrative Services, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. Total cost to CITY/Agency for CONTRACTOR'S fees shall not exceed the amount appropriated by the City Council for the fiscal year in which this Agreement is in effect. Section 8. ANNUAL ADJUSTMENTS Renegotiation of the amounts and unit prices may be initiated by the CITY or CONTRACTOR as part of the Agreement for each one-year extension. The CONTRACTOR shall submit requested price changes to the City so that the CITY receives this request no later than thirty (30) days prior to the expiration of the current one-year term. Any change in reimbursement to the CONTRACTOR may be negotiated for each current year. Increases or decreases that are within the Consumer Price Index -Urban (CPI -U) for the Los Angeles -Anaheim -Long Beach area shall be approved by the Director of Public Works. Section 9. PUBLIC LIABILITY INSURANCE a. Comprehensive General Liability CONTRACTOR shall maintain, in full force and effect comprehensive general liability coverage, including premises operations, products/completed operations, broad form property damage and blanket contractual liability in the following minimum amounts: $500,000 property damage $500,000 injury to one person/any one occurrence/not limited to contractual period $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period b. Comprehensive Automobile Liability CONTRACTOR shall maintain in full force and effect comprehensive automobile liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: $500,000 property damage $500,000 injury to one person/any one occurrence/not limited to contractual period $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. C. 6v orker's Compensation If CONTRACTOR intends to employ employees to perform services under this Agreement, CONTRACTOR shall obtain and maintain during the life of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by State law. d. Time for Submitting Proof of Insurance CONTRACTOR shall submit proof of certificate of insurance requirements, under this Agreement, to the City Clerk's office establishing that the required insurance coverage has been secured by CONTRACTOR prior to beginning any work under this Agreement. e. Other The CITY shall be given notice, by certified mail, at least thirty (30) days prior to the effective date of any policy/policies termination, cancellation and/or coverage reduction. CONTRACTOR shall provide an endorsement to CITY establishing that CITY, its elected and appointed officials, employees and volunteers have been legally added as an additional insured for the general liability insurance required under this Agreement. The insurance coverage cited in the above paragraphs shall be a) primary to the City's insurance coverages; b) meet Best's A:VH rating, and c) insure the insurer is licensed to do business in California. The CONTRACTOR shall obtain a waiver of the insurer's right of subrogation against the CITY. CONTRACTOR shall not receive any compensation until all insurance provisions have been satisfied. The cost of insurance is to be included by the CONTRACTOR in his bid prices. Insurance coverage may be subject to annual negotiation for determination of adequacy. Section 10. HOLD HARMLESS AND DEFEND The CONTRACTOR agrees to defend and indemnify and save, free and harmless, the CITY and its authorized representatives and employees against any acts or omissions of CONTRACTOR, his agents or employees arising out of contractor's performance of any obligation under this agreement. It is agreed by the parties that this indemnity agreement is not limited in any way by the extent of any policy of insurance currently in force and held by either party. Nothing herein contained shall be construed as limiting in arty way the extent to which the CONTRACTOR may be held responsible for payment of damages to persons or property resulting from his operations or any operations of any subcontractors under him. Section 11. ASSIGNMENT OF CONTRACT Neither any part nor all of this Agreement may be assigned or subcontracted except as otherwise specifically provided herein or to which CITY, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void. Section 12. ATTORNEY'S FEES Should any litigation be commenced between the parties hereto concerning this Agreement or the rights and duties of either in relation thereto, the party prevailing in such litigation shall be entitled in addition to such other relief as may be granted, to a reasonable sum as and for his attorneys' fees in such litigation, which shall be determined by the court in such litigation or in a separate action brought for that purpose. Section 13. EXTENT AND MODIFICATION OF AGREEMENT This document represents the entire integrated agreement between the CITY and the CONTRACTOR and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the CITY and the CONTRACTOR. No additional fee shall be paid by CITY for additional services not included in this Agreement and/or associated work orders without the written approval of the CITY prior to undertaking such work. In the event of suspension of project by CITY, CONTRACTOR shall have the right to renegotiate fees if delay is greater than six (6) months. Section 14. INDEPENDENT CONTRACTOR At all times during the term of this Agreement, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR'S services rendered pursuant to this Agreement; however, CITY shall not have the right to control the means by which CONTRACTOR accomplishes services rendered pursuant to this Agreement. All persons employed to provide services under this Agreement shall be employees or contractors of CONTRACTOR and shall not be deemed employees of CITY for any reason or purpose. CONTRACTOR shall be responsible for providing workers' compensation insurance coverage for all persons employed thereby to perform services under this Agreement. Section 15. LICENSES, PERMITS. ETC. CONTRACTOR represents and warrants to CITY that he has all licenses, permits, recove...te full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. Section 20. EXPENSES CONTRACTOR acknowledges CITY is under no obligation to compensate CONTRACTOR for services rendered or expenses accrued under this Agreement in excess of the maximum compensation specified in Section 7, Section 21. CORRECTION OF WORK The performance of services by CONTRACTOR shall not relieve CONTRACTOR from any obligation to correct any incomplete, inaccurate or defective work at no further cost to CITY, when such inaccuracies are due to the negligence of CONTRACTOR, provided such work has not been accepted in writing by CITY. Section 22. ENDORSEMENT OF DOCUMENTS CONTRACTOR shall endorse all plans, data and other documentation submitted to CITY pursuant to this Agreement_ Section 23. OWNERSHIP OF DOCUMENTS All tracings, plans, specifications, maps or other documents prepared or obtained under the terms of this Agreement shall be delivered to and become the property of CITY and basic survey notes and sketches, charts, computations and other data prepared or obtained under this Agreement, shall be made available upon request to CITY without restriction or limitation on their use. Section 24. NON -DISCLOSURE The designs, plans, reports, investigation, materials and documents prepared or acquired by CONTRACTOR pursuant to this Agreement (including any duplicate copies kept by CONTRACTOR) shall not be shown to any other public or private person or entity, except as authorized by CITY. CONTRACTOR shall not disclose to any other public or private person or entity any information regarding the activities of CITY, except as authorized by CITY. Section 25. CONFLICT OF INTEREST For the duration of this Agreement, CONTRACTOR shall not act as consultant or perform services of any kind for any person or entity in regard to work as pertained herein without the prior written consent of CITY. Section 26. DISPUTES Unless otherwise specified herein., any dispute over a question of fact arising under this Agreement which cannot be resolved by agreement between the parties may be, by mutual consent of the parties, submitted to a "Board of Arbitration' consisting of three (3) arbitrators having expertise relating to this contract subject matter, one of whom shall be selected by each of the parties and the third by -the two members selected by the parties. Each of the parties shall pay the member selected by it and the compensation of the third member shall be paid equally by the parties. The parties shall be bound by the decision of the Board of Arbitration. Section 27. MAINTENANCE OF RECORDS CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records and other evidence pertaining to costs incurred and shall make such materials available at their respective offices at all reasonable times during the contract period and for three (3) years from the date of final payment under this Agreement for inspection by CITY, and copies thereof shall be fun fished, if requested. Section 28. COMPLIANCE WITH LAWS During the performance of this Agreement, CONTRACTOR agrees as follows: a. CONTRACTOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex, physical handicap or national origin. CONTRACTOR will take affirmative action to ensure that applicants are employed and that, during employment, employees are treated without regard to their race, color, religion, sex, physical handicap or national origin. Such action shall include, but not be limited to, the following Employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensations and selection for training, including apprenticeship. b. CONTRACTOR will, in all solicitations of advertisements for employees placed by or on behalf of CONTRACTOR, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, physical handicap or national origin. C. CONTRACTOR will perform the services herein contemplated in compliance with the Federal and California laws concerning minimum hours and wages (Davis -Bacon Act, 40 U.S.C.267a et seq. and California Labor Code, Sections 1171 et seq.), occupational health and safety (29 U.S.C. 651 et seq. and California Labor Code, Sections 6300 et seq.), fair employment practices (29 U.S.C. 201 et seq. and California Labor Code, Sections 1410 et seq.), Workers' Compensation Insurance and Safety in Employment (Divisions 4 and 5 of the California Labor Code) and all amendments thereto and all similar State or Federal laws to the extent they are applicable. d. CONTRACTOR will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to cL__.racts or subcontracts for standard coma__ _sial supplies or raw materials. CONTRACTOR shall not unilaterally alter the assignment of the above personnel without the authorization of the Director of Public Lands and Facilities or his designee. CITY shall have the unrestricted right to order the removal of any person/persons assigned by CONTRACTOR by giving oral or written notice to CONTRACTOR to such effect. Section 29. DISCLOSURE REOUIREMENTS/CONFLICT OF INTEREST Pursuant to Council Policy, it has been determined that the services to be rendered under the provisions of this Agreement are excluded by the requirement of filing a Financial Disclosure Statement by California Administrative Code Section 18700 (2)(A) and (B). CONTRACTOR certifies that, to the best of his knowledge, no CITY/Agency employee or office of any public agency interest in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would conflict in any manner or degree with the performance of this Agreement. CONTRACTOR represents that he presently has no interest and shall not acquire any interest, direct or indirect, which could conflict in any manner or degree with the faithful performance of this Agreement. CONTRACTOR is familiar with the provisions of Government Code Section 87100 and certifies that he does not know of any facts which constitute a violation of said provision. CONTRACTOR will advise the CITY/Agency if a conflict arises. IN WITNESS WHEREOF, the City Council of the City of San Juan Capistrano has caused this Agreement to be subscribed by its Mayor and City Clerk and said CONTRACTOR has executed or caused this Agreement to be executed by his duly authorized officer the day and year first herein above written. ORANGE COUNTY STRIPING SERVICE INC. APPROVED AS TO FORM: CONTRACTOR: 163 N. A 9 ST � GRAN/GE C,-92-666 C!/ — BY: _ c�— John Shaw, City Atto ey 9 ATTEST: CITY S JU BY: C Cheryl Johnson, City Clerk John Greiner, Mayor