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14-1007_DOTY BROTHERS CONSTRUCTION COMPANY_Personal Services Agreement PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of ' 2014, by and between the City of City of San Juan Capistrano (hereinafter referred to as the "City") and Doty Bros. Construction Company(hereinafter referred to as the "Contractor"). RECITALS: WHEREAS, City has on an unscheduled and irregular basis failures or damage to its water, sewer, and storm drain systems which require immediate repair to prevent loss of service, or prevent further damage to property; and, WHEREAS, City desires to retain the services of Contractor regarding the City's proposal to Provide On-Call Water Sanitary Sewer, and Storm Drain Maintenance Repair, and Replacements Services; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Contractor shall be determined by the need at the time of an event. The work selected will be taken from those equipment and labor options as set forth in Exhibit "A," described as the Contractor's Labor and Equipment Rates Schedules; attached and incorporated herein by reference. The procedures for requesting the services of the Contractor will be as described in Exhibit "B," described as the General Terms and Conditions. The Contractor agrees to perform the work as needed, when needed, for as long as needed, with no guarantee that its services will be employed in the course of the Agreement. To the extent that there are any conflicts between the provisions described in Exhibit "A," Exhibit "B" and the provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Terra. This Agreement shall commence on the effective date and shall terminate, no later than three and one-half years after the effective date unless the City and the Contractor agree to extend the contract. Section 3, Compensation. 3.1 Amount. The total amount of work offered in this contract is not to exceed $120,000 per year without an amendment. 1 WATER,SEWER,and STORM DRAIN SYSTEM ON-CALL REPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company 3.11 Labor and Equipment The City agrees to pay the Contractor for Labor and Equipment used, based on rates quoted in Exhibit "A." These labor and equipment rates are all inclusive of all costs of providing these services, and the City will not pay any additional markup or charges. The City may augment the Contractors forces with its own, and may choose to direct the work with its own supervisors. The Contractor will not receive any additional compensation in this event. 3.12 Materials and Hardware The City agrees to pay the Contractor for any materials and or hardware purchased by the contractor, on behalf of the City, based on the invoice of the Material Supplier plus 15%. This percentage covers all costs of the Contractor related to the purchasing and delivery of materials or hardware. The City may have on site, or may purchase and deliver to the site materials and hardware for the Contractors use. In this event the Contractor will not receive any additional compensation for this material or hardware provided by the City. 3.13 Sub-Contractors, Second Contractors If the City determines that the services of a specialty Sub-Contractor are required, the City and the Contractor will agree on the scope and the work before the Sub-Contractor is used. If a Sub-Contractor is used, the City agrees to pay the Contractor for any Sub-Contractor work, materials and or hardware used by the Sub-Contractor, on behalf of the City, based on the invoice of the Sub-Contractor plus 15%. This percentage covers all costs of the Contractor rated to the use of any Sub-Contractor materials or hardware. The City may have a Sub-Contractor or Second Contractor on site to work on the job. In this event the Contractor will work with the Sub-Contrator or Second Contractors but will not receive any additional compensation for the labor, equipment, material, or hardware provided by the City's Sub-Contractor, or Second Contractor. 3.14 Additional Markups. The City will NOT pay the contractor any additional markup for handling, overhead, management, office administration, profit, taxes, insurance, fuel, maintenance, storage or other expenses; as they are considered to be covered by the above terms. 3.15 Travel and Assembly Time. The City and the Contractor will agree on the on the length of travel time allowable for each event based on the timing and circumstances of the event requiring the services of the Contractor. 3.16 Work by Management Personnel. Project Management Personnel working as Forman, Operating Engineers, Teamsters, or Laborers will be paid as such. 2 WATER,SEWER,and STORM DRAIN SYSTEM ON-CALL.RPPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company 3.17 Fines and Penalties. Notwithstanding the payment terms of this Agreement, the City will NOT pay the contractor the cost of fines, penalties or other costs resulting from the Contractors failure to obey applicable laws in the execution of its assigned work, 3.2 Method of Payment. Subject to Section 3.1, Contractor shall submit invoices within a month or completion of any work based on total services which have been satisfactorily completed for such monthly period. The City will make payments based on approved invoices in accordance with this Section, within 30 days of submission. 3.3 Records of Expenses. Contractor shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. 3.4 Inflation Adjustments. One year after the effective date of the Agreement, the amounts given on Exhibit 'A" the Contractor's tabor and Equipment Rates Schedules will be adjusted for inflation based on the change in the California Consumer Price Index at the end of each year the Agreement is in force. Section 4. Independent Contractor. It is agreed that Contractor shall act and be an independent contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Contractor. City will deal directly with and will make all payments to Contractor. Section 6. Charges to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Contractor undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Contractor's fees, 3 WATER,SEWER,and STORM DRAIN SYSTEM ON-CALL REPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Contractor warrants that: (1) it is familiar with the work to be performed and the manner with which it proceeds; (2) it is familiar with the conditions which it may expect to encounter, and is aware of all conditions there, and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 3. Compliance with Law. Contractor shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Contractor. Section 11. [RESERVED. Section 12. [RESERVED]. Section 13. Indemni . To the fullest extent permitted by law, Contractor agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Contractor, Contractor's agents, officers, employees, subcontractors, or independent contractors hired by Contractor in the performance of the Agreement. The only exception to Contractor's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. 4 WATER,SEWER,and STORM DRAIN SYSTEM ON-CALL REPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Contractor, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. The Contractor's insurance will cover its Sub-Contractors. Contractor shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Contractor has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non- owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.3 Workers' Compensation. If Contractor intends to employ employees to perform services under this Agreement, Contractor shall obtain and maintain, during the term of this Agreement, Workers' Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Contractor shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired, or borrowed by Contractor. 5 WATER,SEWER,and STORM DRAIN SYSTEM ON-CALL REPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty(30)days'written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.6 Terms of Compensation. Contractor shall not receive any compensation until all insurance provisions have been satisfied. 14.7 Notice to Proceed. Contractor shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Contractor has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days` advance written notice of termination to Contractor. In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Keith Van Der Maaten, Public Works and Utilities Director To Contractor: Doty Bros. Construction Company 11232 E. Firestone Blvd. Norwalk, CA 90650 Section 17. Prevailing Wanes. The CITY has been advised that the Prevailing Wages Law applies to the work. CONTRACTOR shall be responsible for CONTRACTOR's compliance in all respects with 6 WATER,SEWER,and STORM DRAIN SYSTEM ON-CALL REPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company the prevailing wage rates to all the laborers involved, and with California Labor Code Section 1770 et seg., ,including the beeping of all records required by the provisions of Labor Code Section 1776 and the implementing administrative regulations. The CITY shall be a third party beneficiary of the forgoing covenant with rights to enforce the same as against the CONTRACTOR. Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Section 20, Counterparts and Facsimile signatures. This Agreement may be executed bythe 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. Section 21. Non-Exclusive Agreement The agreement is Nan-Exclusive. And, the City reserves the right to issue a similar of identical Agreement to this Agreement, to two or more Contractors. [SIGNATURE PAGE FOLLOWS] 7 WATER,SEWER,and STORM DRAIN SYSTEM ON-CALL REPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN IUAN CAPISTRANO By; SaV,rAII vato — Mayor CONTRACTOR E By. ATfES 11 3 i Maria Por �s, ° ity Clea APPROVED AS TO FORM.- , r., Ha"ns VanLigten, City Attorney 8 WATER,SEINER,and STORM DRAIN SYSTEM ON-CALL REPAIR,AND REPLACEMENT AGREEMENT; Doty Bros. Construction Company IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTI ANO By: Sam Allevate -- Mayor CONTRACT By: Henn A, B berVice President ATTEST: Maria Morris, City Clerk APPROVED AS TO ORM: Hans VanL!gten, City Attorney WATER,SEWER,and STORM DRAIN SYSTEM CSN-GALL REPAIR,AND REPLACEMENT AGREEMENT; Dusty Bros. Construction Company BR'Oso � Vir'-�'.' 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SEWER. and STORM DRAIN SYSTEM ON-CALL REPAIR, AND REPLACEMENT AGREEMENT 1. All work performed shall be completed in a competent manner according to standard practices of the industry. All persons engaged in the work, including Sub- Contractors, will be considered as employees of the Contractor. The Contractor will be held responsible for their work. The City will deal directly with and make all payments to the Contractor. 2. The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the City's property from any and all injury or loss arising in connection with the work assigned by this Agreement. The Contractor shall take all necessary precaution for the safety of employees on the job and shall comply with all applicable provisions of federal, state and municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. 3. The Contractor shall comply with all applicable federal, state and local laws, ordinances, regulations and codes and shall obtain and maintain throughout the term of this Agreement, all required permits, certificates and licenses, including a City of San Juan Capistrano's business license. 4. The Contractor shall be an independent contractor in performing services for the City as part of the Agreement. Contractor and Contractor's agents, employees, Sub- Contractors and other persons acting on the Contractor's behalf are not employees of the City. 5. Contractor is required to possess a current City Business License prior to commencement of work. Contractor shall possess a valid State of California Class A (General Engineering)or C-36 (Pipeline or Mechanical) contractor's License. 6. Except as the City may specify in writing, Contractor and its agents, employees and Sub-Contractors shall have no authority, expressed or implied, to act on behalf of City in any capacity as agents or otherwise to bind the City to any obligation whatsoever. 7. The Contractor agrees that all persons employed by Contractor shall be treated equally by Contractor without regard to or because of race, color, religion, ancestry, national origin, handicap, sex, marital status, or age and in compliance with all anti- discrimination laws of the United States of America, the State of California, and the City. Exhibit Tto SCOPE OF WORK A. Perform as directed by the City on an On-Call basis: repair, replacement, and or maintenance work on water, sewer, and storm drainage systems. The work may involve scheduled or emergency work. B. The work may occur during regular working hours, after hours, or on weekends. When the City requires services it will simultaneously call one or more contractors to perform the work. It will select one or more contractors to supply equipment, personnel, and material based on the specific work, and the availability of the needed equipment, personnel, and material from a single Contractor, Equipment Supplier, or Material Supplier or in any combination. C. Daily reports will be prepared and submitted to the City per section 3-3.3 of the Green Book. All work will be performed in compliance with the City's standard specifications and the requirements of the City of San Juan Capistrano. D. The Contractor will be responsible for supplying all labor, equipment, and materials as requested by City personnel to complete any job assigned by the City. The City will call Underground Service Alert (USA) for utility locations prior to the start of work. The Contractor shall verify the location of all utilities prior to construction and shall be held liable for all damages incurred due to his/her operations. The City will acquire all permits from the governing agencies as required. REQUIREMENTS A. Work will ordinarily be performed between the hours of 7:00 AM and 6:00 PM, Monday through Friday. During emergencies, work may be required at other than normal hours. The Contractor must receive the approval of the Utilities Director or his/her authorized representative prior to commencing work during hours outside those stated above. B. Contractor shall provide the City with the name of a Forman, or Supervisor as a contact person and a telephone number where he/she can be reached twenty-four (24) hours a day. This person or their equivalent must be available for emergency work scheduling at all times. Contractor shall be able to respond with a commitment of available resources, by telephone, to work requests within one half hour of notification by City. Contractor shall be able to deliver to San Juan Capistrano the Labor, and Equipment within one hour of making a commitment under normal circumstances. C. All employees of Contractor shall wear a uniform or shirt that clearly identifies the company. 2 D. All employees of Contractor shall wear colored safety vests, helmets, eye and ear protection as required by OSHA whenever working in or for the City. E. Contractor must be able to provide a list of employee's names, dates worked and hours worked on each date if requested by the City. PERSONNEL The Contractor shall use and fumish all labor necessary for the satisfactory performance for the work set forth in this contract. A. The Contractor agrees to require his laborers to present a neat appearance at all times while engaged in the performance of their duties and maintain good bearing and deportment toward the public. Should for any reason an employee be unsatisfactory in the opinion of the City, the Contractor, when notified in writing, shall cause that employee to be removed from the job and replaced by a satisfactory laborer. B. The Contractor shall require each of his employees to adhere to basic standards of working attire. These are basically uniforms, with the Contractor's company name or insignia clearly visible, proper shoes and other gear required by State Safety Regulations, and proper wearing of clothing. Shirts shall be worn at all times, buttoned and tucked in. EQUIPMENT A. The Contractor shall use and furnish, as requested by the City, equipment necessary for the satisfactory performance of the work set forth in this contract. B. Contractor shall display the name of his firm on any vehicles used by the Contractor's employees to cant' supplies and equipment. The firm name shall be in letters large enough to be easily legible from a distance of fifty(50)feet. C. All equipment used by the Contractor shall be kept in a neat and clean appearance, maintained in top mechanical condition and properly adjusted, from an operational standpoint and from a safety standpoint. D. The City will provide storage for Contractor's equipment while it is needed. Equipment may be stored in the public right of way if it is safe, or may be moved to a nearby site available to the City. The Contactor will remove the equipment from the City upon the City's request to do so. 3 MATERIALS A. The Contractor shall furnish all material, as requested by the City, for the performance of the work. B. The City will provide storage for Contractor's materials and hardware until it is installed. Material and Hardware Equipment may be stored in the public right of way if it is safe, or may be moved to a nearby secure site available to the City. The Contactor will use Material or Hardware supplied by the City upon the City's request to do so. SUPERVISION A. The Contractor shall provide such adequate supervision as to furnish continuous surveillance of workmanship and adherence to schedules by the laborers performing the work under contract. B. The Contractor shall submit such reports as the City may require insuring compliance with scheduled work. C. The Contractor's field supervisor shall be onsite while work is in progress. EMERGENCY MEDICAL FACILITY A. The Contractor is required to designate a twenty-four (24) hour emergency medical facility to provide emergency medical treatment/care for its Employees and the Employees of its Sub-Contractors in the event of injury to any of the Contractor's employees. It will be the responsibility of the Contractor's crew supervisor/lead worker to transport or make arrangements for the transportation of any injured employee to and from the designated emergency medical facility or any similar medical facility. The Contractor must provide the City with one (1) copy of the "Proposer Emergency Medical Facility Designation and Procedure Sheet" at the beginning of this Agreement, and every year there-after. The Contractor will also maintain on file with the City a copy of its most current Illness and Injury Prevention Plan (IIPP). AUTHORIZATION OF WORK A. Work will not be performed without prior approval and only as authorized by a City representative. 4 PROGRESS OF WORK A. Work shall proceed in an orderly manner. Repair work shall be completely finished prior to Contractor's re-assignment of Contractor's personnel. Any exceptions shall be approved by the City representative. ALTERATIONS A. The City reserves the right to increase or decrease the quantity of any item or portion of the work or to omit portions of the work as may be deemed necessary or advisable by the City. The City representative may make such alterations or deviations, additions to, or omissions from these specifications, as may be determined during the progress of the work to be necessary and advisable for the proper completion thereof. Such alterations or deviations, additions or omissions shall in no way affect or make void this Agreement. Upon written order of a City representative, Contractor shall proceed with the work as increased, decreased or altered. ACCEPTANCE OF WORK DONE A. The City representative will make inspections and determine that the work has been completed. BILLING FORM A. Contractor shall provide a billing form and progress payment form approved by the City. METHOD OF WORK A. All sewer and storm drain work shall be performed per the Standard Specifications for Public Works Construction (Green Book), Latest Edition. B. All water system work shall be performed per the City's Standard Specifications for Construction for Domestic Water and Recycled Water,Facilities, Latest Edition. C. The Contractor shall be responsible and shall take necessary precautions to prevent public trespass into areas of work, during and following construction, until that time that the area is opened again to the public for their use. D. Rubbish and construction debris shall be disposed of to an approved dump site. After removal operations have been completed, the grounds shall be left in a neat and presentable condition, satisfactory to the City representative. E. When saw cutting, all water and residue shall be detained and vacuumed prior to entrance into the storm drain. Vacuumed construction water shall be properly 5 disposed of. The Contractor is subject to severe fines and penalties, should he/she allow construction water to enter the storm drain or creek system. F. The Contractor shall provide street sweeping as directed by the City to meet the requirements of the City of San Juan Capistrano National Pollution Discharge Elimination System Program (NPDES). G. The Contractor shall provide storm drain pollution protection per the City NPDES Program. 6