16-0701_AGE WELL SENIOR SERVICES_Agreement CITY OF SAN JUAN CAPISTRANO
AGREEMENT WITH AGE WELL SENIOR SERVICES, INC.
FOR SERVICES OVER$30,000
(Insurance Required)
THIS AGREEMENT, is made and effective as of July 1, 2016, between the City
of San Juan Capistrano, a municipal corporation ("City") and Age Well Senior Services,
Inc. ("Contractor"). In consideration of the mutual covenants and conditions set forth
herein the parties agree as follows:
1. TERM. This Agreement shall commence on July 1, 2016, and shall remain
and continue in effect until tasks described herein are completed, but in no event later
than June 30, 2020, unless sooner terminated pursuant to the provisions of this
Agreement. Such terms maybe extended for up to five (5) additional years upon written
agreement of both parties to this Agreement.
2. SERVICES. Contractor shall perform the tasks described and set forth in
Exhibit A, attached hereto and incorporated herein as though set forth in full. Contractor
shall complete the tasks according to the schedule of performance which is also set forth
in Exhibit A.
3. PERFORMANCE. Contractor shall at all times faithfully, competently and to
the best of his or her ability, experience, and talent, performs all tasks described
herein. Contractor represents to the City that it has the qualifications necessary to
perform the tasks described herein. Contractor shall employ, at a minimum, generally
accepted standards and practices utilized by persons engaged in providing similar
services are required of Contractor hereunder in meeting its obligations under this
Agreement.
4. PAYMENT.
a. The City agrees to pay Contractor monthly, in accordance with the
payment rates and terms and the schedule of payments as set forth in Exhibit A, attached
hereto and incorporated herein by this reference as though set forth in full, based upon
actual time spent on the above tasks. This amount shall not exceed fifty thousand nine
hundred sixty-eight dollars and seventy-five cents ($50,968.75) from July I, 2016
through June 30, 2017 and fifty thousand nine hundred sixty-eight dollars and seventy-
five cents ($50,968.75) annually through June 30, 2020 for a total of two hundred three
thousand eight hundred seventy-five dollars ($203,875.00) for the total term of the
Agreement unless additional payment is approved as provided in this Agreement. Any
terms or conditions set forth on Exhibit A which does not describe the work to be
performed, the payment rates and terms, or the payment schedule have not been
agreed to by the City and shall not be deemed a part of this Agreement.
b. Contractor shall not be compensated for any services rendered in
connection with its performance of this Agreement which are in addition to those set forth
herein, unless such additional services are authorized in advance and in writing by the
City Council or, if pursuant to its authority, the City Manager, or his or her designee.
Contractor shall be compensated for any additional services in the amounts and in the
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manner as agreed to by City Manager or the City's representative and Contractor at
the time City's written authorization is given to Contractor for the performance of said
services.
c. Contractor shall submit invoices monthly for actual services
performed. Invoices shall be submitted on or about the first business day of each
month, for services provided in the previous month. Payment shall be made within
thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City
disputes any of Contractor's fees it shall give written notice to Contractor within 30
days of receipt of an invoice of any disputed fees set forth on the invoice.
d. Notwithstanding the above provisions, Contractor shall not be
paid for any work performed until it has submitted to the City a fully completed and
executed Internal Revenue Service Fom1 W-9.
5. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE.
a. The City may at any time, for any reason, with or without cause,
suspend or terminate this Agreement, or any portion hereof, by serving upon the
Contractor at least ten (10) days prior written notice of termination. City shall not be
obligated to explain its reasons for termination. Upon receipt of said notice, the
Contractor shall immediately cease all work under this Agreement, unless the notice
provides otherwise. If the City suspends or terminates a portion of this Agreement,
such suspension or termination shall not make void or invalidate the remainder of
this Agreement.
b. Age Well Senior Services, may at any time, for any reason, with
or without cause, suspend or terminate this Agreement, or any portion hereof, upon
written notice by Age Well Senior Services, to the City at least thirty (30) days prior to
the written notice of termination.
c. In the event this Agreement is terminated pursuant to this
Section, the City shall pay to Contractor the actual value of the work performed up
to the time of termination, provided that the work performed is of value to the City.
Upon termination of the Agreement pursuant to this Section, the Contractor will
submit an invoice to the City pursuant to Section 3.
6. DEFAULT OF CONTRACTOR.
a. The Contractor's failure to comply with the provisions of this
Agreement shall constitute default. In the event that Contractor is in default for
cause under the terms of this Agreement, City shall have no obligation or duty to
continue compensating Contractor for any work performed after the date of default
and can terminate this Agreement immediately by written notice to the Contractor. If
such failure by the Contractor to make progress in the performance of work
hereunder arises out of causes beyond the Contractor's control, and without fault or
negligence of the Contractor, it shall not be considered a default.
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b. If the City Manager or his or her delegate determines that the
Contractor is in default in the performance of any of the terms or conditions of this
Agreement, it shall serve the Contractor with written notice of the default. The
Contractor shall have (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Contractor
fails to cure its default within such period of time, the City shall have the right,
notwithstanding any other provision of this Agreement, to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equity or under this Agreement.
7. OWNERSHIP OF DOCUMENTS. Contractor shall maintain complete and
accurate records with respect to sales, costs, expenses, receipts, vehicle
maintenance and repair records, and other such information required by City that
relate to the performance of services under this Agreement. Contractor shall
maintain adequate records of services provided in sufficient detail to permit an
evaluation of services. All such records shall be maintained in accordance with
generally accepted accounting principles and shall be clearly identified and readily
accessible. Contractor shall provide free access to the representatives of City or its
designees at reasonable times to such books and records, shall give City the right to
examine and audit said books and records, shall permit the City to make transcripts
there from as necessary, and shall allow inspection of all work, data, documents,
proceedings and activities related to this Agreement. Such records, together with
supporting documents, shall be maintained for a period of four (4) years after receipt of
final payment.
8. INDEMNIFICATION. The Contractor agrees to defend, indemnify, protect
and hold harmless the Orange County Transportation Authority (OCTA), the City of San
Juan Capistrano , its officers, officials, employees and volunteers from and against any
and all claims, demands, losses, defense costs or expenses, or liability of any kind or
nature which the City, its officers, officials, employees, and volunteers may sustain or
incur or which may be imposed upon them for injury to or death of persons, or damage
to property arising out of Contractor's negligent or wrongful acts or omissions in
performing or failing to perform under the terms of this Agreement, excepting only
liability arising out of the negligence of the City.
9. INSURANCE REQUIREMENTS.
a. Contractor shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the work hereunder by the Contractor, its
agents, representatives, or employees.
b. Contractor agrees to provide insurance in accordance with the
requirements set forth in Exhibit B. If Contractor uses existing coverage to comply
with these requirements and that coverage does not meet the requirements set forth
herein, Contractor agrees to amend, supplement or endorse the existing coverage to do
so.
10. INDEPENDENT CONTRACTOR.
a. Contractor is and shall at all times remain as to the City a wholly
independent contractor. The personnel performing the services under this Agreement
on behalf of Contractor shall at all times be under Contractor's exclusive direction and
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control. Neither City nor any of its officers, employees or agents shall have control
over the conduct of Contractor or any of Contractor's officers, employees or agents,
except as set forth in this Agreement. Contractor shall not at any time or in any
manner represent that it or any of its officers, employees or agents are in any manner
officers, employees or agents of the City. Contractor shall not incur or have the
power to incur any debt, obligation or liability whatever against City, or bind City in
any manner.
b. No employee benefits shall be available to Contractor in connection
with the performance of this Agreement. Except for the fees paid to Contractor as
provided in the Agreement, City shall not pay salaries, wages, or other compensation to
Contractor for performing services hereunder for City. City shall not be liable for
compensation or indemnification to Contractor for injury or sickness arising out of
performing services hereunder.
11. LEGAL RESPONSIBILITIES. The Contractor shall keep itself informed
of State and Federal Laws and regulations which in any manner affect those employed
by it or in any way affect the performance of its service pursuant to this Agreement.
The Contractor shall at all times observe and comply with all such laws and
regulations. The City, and its officers and employees, shall not be liable at law or in
equity occasioned by failure of the Contractor to comply with this section.
12. RELEASE OF INFORMATION.
a. All information gained by Contractor in performance of this
Agreement shall be considered confidential and shall not be released by Contractor
without City's prior written authorization. Contractor, its officers, employees, agents or
subcontractors, shall not without written authorization from the City Manager or unless
requested by the City Attorney, voluntarily provide declarations, letters of support,
testimony at depositions, response to interrogatories or other inforn1ation concerning the
work perforn1 ed under this Agreement or relating to any project or property located
within the City. Response to a subpoena or court order shall not be considered
"voluntary" provided Contractor gives City notice of such court order or subpoena.
b. Contractor shall promptly notify City should Contractor, its officers,
employees, agents or subcontractors be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, request for
admissions or other discovery request, court order or subpoena from any person
regarding this Agreement and the work performed thereunder or with respect to any
project or property located within the City. City retains the right, but has no obligation, to
represent Contractor and/or be present at any deposition, hearing or similar proceeding.
Contractor agrees to cooperate fully with City and to provide City with the opportunity to
review any response to discovery requests provided by Contractor. However, City's right
to review any such response does not imply or mean the right by City to control, direct,
or rewrite said response.
13. NOTICES. Any notices which either party may desire to give to the other
party under this Agreement must be in writing and may be given either by (i) personal
service, (ii) delivery by a reputable document delivery service, such as but not limited to,
Federal Express, that provides a receipt showing date and time of delivery, or (iii)
mailing in the United States Mail, certified mail, postage prepaid, return receipt
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requested, addressed to the address of the party as set forth below or at any other
address as that party may later designate by Notice:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: City Manager
To Contractor: Age Well Senior Service, Inc.
24461 Ridge Route Drive,Suite 220
Laguna Hills, CA 92653
Attention: Chief Operating Officer
14. ASSIGNMENT Contractor shall not assign the performance of this
Agreement, nor any part thereof, nor any monies due hereunder, without prior written
consent of the City. Because of the personal nature of the services to be rendered
pursuant to this Agreement, only Age Well Senior Services, Inc. shall perform the
services described in this Agreement. Age Well Senior Services, Inc. may use
contractors, under their direct supervision, to perform some of the services under this
Agreement. Upon termination of this Agreement, Contractor's sole compensation shall
be payment for actual services performed up to, and including, the date of termination
or as may be otherwise agreed to in writing between the City Council and the
Contractor.
15. LICENSES. At all times during the term of this Agreement, Contractor shall
have in full force and effect, all licenses required of it by law for the performance of
the services described in this Agreement.
16. GOVERNING LAW. The City and Contractor understand and agree that
the laws of the State of California shall govern the rights, obligations, duties and
liabilities of the parties to this Agreement and also govern the interpretation of this
Agreement.
17. LITIGATION. Any litigation concerning this Agreement shall take place in
the municipal, superior, or federal district court with geographic jurisdiction over the
City of San Juan Capistrano. In the event such litigation is filed by one party against
the other to enforce its rights under this Agreement, the prevailing party, as
deteml ined by the Court's judgment, shall be entitled to reasonable attorney fees and
litigation expenses for the relief granted.
18. ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties relating to the obligations of the parties described
in this Agreement. All prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged into this Agreement and
shall be of no further force or effect. Each party is entering into this Agreement based
solely upon the representations set forth herein and upon each party's own independent
investigation of any and all facts such party deems material.
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19. AUTHORITY TO EXECUTE THIS AGREEMENT. The person or persons
executing this Agreement on behalf of Contractor warrants and represents that he or
she has the authority to execute this Agreement on behalf of the Contractor and has
tile authority to bind Contractor to the perfornlance of its obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CONTRACTOR CITY OF SAN JUAN CAPISTRANO
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arily/►�tty Da - By: : - eg- Date
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Attest:
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By: Daniel C. Palumbo Date By: Maria • a j Date
Title: COO City Clerk
Approve As to Form:
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By: Jeff BalIin✓✓✓92 Date
City Attorney
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EXHIBIT A
TASKS TO BE PERFORMED AND
PAYMENT
1. City entered into that certain cooperative agreement with Orange County
Transportation Authority ("OCTA") for the Senior Mobility Program to provide
certain senior transportation services.
2. City desires to use the services of Contractor to provide senior transportation
services to be funded by the agreement between the City and OCTA.
3. Age Well Senior Services will provide trips to the Community Center and other
approved locations throughout San Juan Capistrano Monday through Friday
utilizing Age Well Senior Services drivers and vehicles. Wheelchair accessible
vehicles must be available at all times. Age Well Senior Services may on
occasion use the services of a third party taxi company if Age Well vehicles are
out of service.
4. Taxi Program: Taxi services to and from the San Juan Capistrano Community
Center for the nutrition program and other programs, Monday through Friday.
Taxi services shall be provided through a subcontract between Contactor and
California Yellow Cab Company.
5. Trip Rate. The trip rate for senior transportation services shall be $12.73 per
one-way trip for the period of July 1, 2016 through July 1, 2017. The trip rate will
be $13.11 from July 1, 2017 through June 30, 2018, $13.50 from July 1 , 2018
through June 30, 2019 and $13.91 from July 1 , 2019 through June 30,
2020.
6. Contractor agrees to perform the services for City in a manner satisfactory to
City.
7. Survey: Transportation services and demand will be assessed regularly to
ensure the mobility needs of the residents are met and the program is operating
efficiently. Survey results will be used to evaluate whether the transportation
program is adequate or needs revision.
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EXHIBIT B
INSURANCE REQUIREMENTS
The following coverages will be provided by Contractor and maintained on behalf
of the City and in accordance with the requirements set forth herein.
Commercial General Liability/Umbrella. Primary insurance shall be provided on
ISO- CGL form No. CG 00 01 11 85 or 88 or equivalent forms, as determined by
Risk Management staff. Total limits shall be no less than $5,000,000.00 per
occurrence and $6,000,000.00 general aggregate. City and its employees and agents
shall be added as additional insureds using ISO additional insured endorsement form
CG 20 10 II 85, or equivalent form, as determined by Risk Management staff (in no
event will City accept an endorsement form with an edition date later than 1990).
Coverage shall apply on a primary non-contributing basis in relation to any other
insurance or self-insurance, primary or excess, available to City or any employee or
agent of City. Coverage shall not be limited to the vicarious liability or supervisory role
of any additional insured.
Umbrella Liability Insurance (if necessary to meet limits requirements) shall apply
to bodily injury/property damage, personal injury/advertising injury, at a minimum, and
shall include a "drop down" provision providing primary coverage above a maximum
$25,000.00 self-insured retention for liability not covered by primary policies but
covered by the umbrella policy. Coverage shall be following form to any underlying
coverage. Coverage shall be provided on a "pay on behalf basis, with defense
costs payable in addition to policy limits. There shall be no cross liability exclusion.
Policies shall have concurrent starting and ending dates.
Business Auto/Umbrella Liability Insurance. Primary coverage shall be
written on ISO Business Auto Coverage form CA 00 01 06 92 including symbol 1
(Any Auto). Limits shall be no less than $5,000,000.00 per accident. Starting and
ending dates shall be concurrent. If Contractor owns no autos, a non-owned auto
endorsement to the General Liability policy described above is acceptable.
Workers' Compensation /Employer's Liability. shall be written on a policy
Form providing workers' compensation statutory benefits as required by law. Employer's
liability limits shall be no less than one million dollars per accident or disease.
Employer's liability coverage shall be scheduled under any umbrella policy described
above. Unless otherwise agreed, this policy shall be endorsed to waive any right of
subrogation as respect to the City, its employees or agents.
Professional Liability Insurance. Coverage shall be written on a policy form
that provides professional liability insurance, errors and omissions or equivalent
coverage appropriate to the Contractor's occupation or service. The policy limit shall
be no less than $1,000,000.00 per claim and in the aggregate.
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Contractor and City further agree as follows:
1. This Exhibit supersedes all other sections and provisions of this Agreement to
the extent that any other section or provision conflicts with or impairs the
provisions of this Exhibit.
2. Nothing contained in this Exhibit is to be construed as affecting or altering the
legal status of the parties to this Agreement. The insurance requirements set
forth in this Exhibit are intended to be separate and distinct from any other
provision in this Agreement and shall be interpreted as such.
3. All insurance coverage and limits provided pursuant to this agreement shall
apply to the full extent of the policies involved, available or applicable. Nothing
contained in this Agreement or any other agreement relating to the City or its
operations limits the application of such insurance coverage.
4. Requirements of specific coverage features or limits contained in this Exhibit are
not intended as a limitation on coverage, limits or other requirements, or a waiver
of any coverage normally provided by any insurance. Specific reference to a
given coverage feature is for purposes of clarification only and is not intended by
any party to be all inclusive, or to the exclusion of other coverage, or a waiver of
any type.
5. For purposes of insurance coverage only, this Agreement will be deemed to have
been executed immediately upon any party hereto taking any steps that can be
deemed to be in furtherance of or towards, performance of this Agreement.
6. All general or auto liability insurance coverage provided pursuant to this
Agreement, or any other agreements pertaining to the performance of this
Agreement shall not prohibit Contractor, and Contractor's employees, or
agents, from waiving the right of subrogation prior to a loss. Contractor
hereby waives all rights of subrogation against City.
7. Unless otherwise approved by City, Contractor's insurance shall be written by
insurers authorized to do business in the State of California and with a minimum
"Best's" Insurance Guide rating of "A+." Age Well Senior Services, Inc.
retains Worker's Compensation Insurance through Non-Profits
United, a self-insured non-profit pool.
8. In the event any policy of insurance required under this Agreement does not
comply with these requirements 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 Contractor.
9. Contractor agrees to provide evidence of the insurance required herein,
satisfactory to City, consisting of certificate(s) of insurance evidencing all of the
coverages required and an additional insured endorsement to Contractor's
general liability and umbrella liability policies (if any) using ISO form CG 20 10
11 85 or equivalent form, as determined by Risk Management staff. Contractor
shall also provide a waiver of subrogation endorsement to Contractor's workers'
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compensation policy applicable to the City. Certificate(s) are to reflect that the
insurer will provide 30-day's notice of any cancellation of coverage and all
policies must be endorsed accordingly. Contractor agrees to require its insurer
to modify such certificates to delete any exculpatory wording stating that failure
of the insurer to mail written notice of cancellation imposes no obligation and to
delete the word "endeavor" with regard to any notice provisions. Contractor
agrees to provide complete copies of policies to City upon request.
10. Contractor shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Such proof will be furnished at
least two weeks prior to the expiration of the coverages.
11. Contractor's insurance presented in compliance with these specifications shall not
include self-insured retentions or deductibles unless declared to the City and
approved by the City Manager. The City may require evidence of financial
security if deductibles or self-insured are part of the Contractor's liability program.
12. Any actual or alleged failure on the part of City or any other additional insured
under these requirements to obtain proof of insurance required under this
Agreement or to inform Contractor of noncompliance with any insurance
requirements in no way waives any right or remedy of City or any additional
insured, in this or any other regard.
13. Contractor agrees to require all Sub Contractors or other parties hired for this
project to provide general liability insurance naming as additional insureds all
parties to this Agreement. Contractor agrees to obtain certificates evidencing
such coverage and make reasonable efforts to ensure that such coverage is
provided as required here. Contractor agrees to require that no contract used by
any Sub Contractor or contracts Contractor enters into on behalf of City, will
reserve the right to charge back to City the cost of insurance required by this
agreement Contractor agrees that upon request all agreements with Sub
Contractors or others with whom Contractor contracts with on behalf of City, will
be submitted to City for review. Failure of City to request copies of such
agreement will not impose any liability on City, or its employees.
13a. Contractor agrees to include indemnity provisions identical to those in Section 8 of
this agreement, in a written agreement with each and every subcontractor.
14. If Contractor is a Limited Liability Company, general liability coverage must be
amended so that the Limited Liability Company and its Managers, Affiliates,
employees, agents, and other persons necessary or incidental to its operation
are insureds.
15. Contractor agrees to provide immediate notice to the City of any claim or loss
against Contractor that includes City as a defendant. City assumes no obligation
or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
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16. It is agreed that insurance provided pursuant to these requirements will not be
limited to coverage for the vicarious liability or supervisory role of any additional
insured. All insurance coverage and limits provided are intended to apply to the
full extent of the policies. Nothing contained in this agreement limits the
application of such insurance coverage.
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