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CITY OF FONTANA
ON-CALL MAINTENANCE SERVICES AGREEMENT
DE-25-78-MS
1. Parties And Date.
This Agreement is made and entered into this _____ day of _____________, 20___ by and between the City of Fontana, a municipal corporation organized under the laws of the State of California with its principal place of business at 8353 Sierra Avenue, Fontana, California 92335 (“City”) and Petrochem Materials Innovation, LLC, a limited liability company with its principal place of business at 6168 Innovation Way, Carlsbad, California 92009 (“Contractor”).
City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
2. Recitals.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement and in the task order(s) to be issued pursuant to this Agreement and executed by the City and Contractor (“Task Order”). Contractor represents that it is experienced in providing Rubberized Emulsion Aggregate Slurry (REAS) Emulsions services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
2.2 Project.
City desires to engage Contractor to render such services for the REAS project (“Project”) as set forth in this Agreement on an on-call, as-needed basis. There is no guarantee of any of work under this Agreement other than what is speci fied herein or that the not-to-exceed compensation amount set forth herein will be spent.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the maintenance services necessary for the Project (“Services”). The types of Services to be provided are described in Exhibit “A ” attached hereto DRAFT
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and incorporated herein by reference and in the individual Task Orders issued by the City. No Services shall be performed unless authorized by this Agreement or by a fully executed Task Order in the form attached hereto as Exhibit “C”. All Services shall be subject to, and performed in accordance, with this Agreement, any relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall commence on the date first set forth above and expire January 8, 2027 from the commencement date, unless earlier terminated as provided herein . Contractor shall complete the Services within the term of thi s Agreement, and shall meet any other established schedules and deadlines set forth in the Task Order (s). All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement . The Parties may, by mutual, written consent, further extend the term of this Agreement for additional two (2) 12 month periods.
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subor dinates; Independent Contractor . The Services shall be performed by Contractor or u nder its supervision . Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee .
Contractor retains the right to perform similar or different services for others during the term of this Agreement . Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control . Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the specific schedule that shall be set forth in this Agreement and any T ask Order(s) (“Schedule of Services”).
Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions . In order to facilitate Contractor’s conformance with each Schedule, the City shall respond to Contractor’s submittals in a timely m anner. Upon the City’s request, Contractor shall provide a more detailed schedule of anticipated performance to meet the relevant Schedule of Services as set forth in each Task Order.
3.2.3 Conformance to Appli cable Requirements . All work undertaken by Contractor shall be subject to the approval of City.
3.2.4 City’s Representative . The City hereby designates the Jeff K im, Engineering Manager or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on DRAFT
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behalf of the City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.2.5 Contractor’s Representative . Contractor hereby designates [INSERT CONTRACTOR REPRESENTATIVE N AME], or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”) .
Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement . The Contractor’s Re presentative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services und er this Agreement and as described in the relevant Task Order.
3.2.6 Coordination of Services . Contractor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
3.2.7 Standard of Care; Performance of Employees . Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California . Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services . Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to per form the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including any requi red business license, and that such licenses and approvals shall be maintained throughout the term of this Agreement . As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein . Any employee of the Contractor or its sub -contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.8 Period of Performance . Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in this Agreement and any Task Order issued by the City, or which may be provided separately and agreed upon in writing by the Parties . Contractor shall be responsible for the cost of any damages suffered by the City by reason of delay caused by Contractor, its employees or subcontractors, if any.
3.2.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payment to Contractor during the performance of this Agreement, DRAFT
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Contractor shall continue to perform the Services while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.
3.2.10 Laws and Regulations; Employee/Labor Certifications . Contractor shall keep itself fully informed of and in compliance with all local, state and fe deral laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law . Contractor shall be liable for all violations of such laws and regul ations in connection with Services . If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the p ublic contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with . These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law . Contractor shall defend, indemnify and hold City, its officials, officers, employees and agen ts free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Contractor . By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as m ay be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor. Contractor also verifies th at it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement . Contractor shall avoid any violat ion of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization p rogram operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method . Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours . The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.2.10 or any of its sub-sections.
3.2.10.2 Employment Eligibility; Subcontractors, Sub-
subcontractors and consultants. To the same extent and under the same conditions as Contractor, Contractor shall requi re all of its subcontractors, sub -subcontractors and consultants, if any, performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.
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3.2.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontracts, sub - subcontractors or consultants, if any, to meet any of the requirements provided for in Sections
3.2.10.1; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in complia nce with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.2.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, if any, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age . Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3.2.10.6 Air Quality . Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Boa rd (CARB) . Contractor shall specifically be aware of the CARB limits and requirements application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel -powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, it subcontractors or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.
3.2.10.7 Water Quality.
(A) Management and Compliance . To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); laws, rules and regulations o f the Environmental Protection Agency and the State Water Resources Control Board, the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter -Cologne Water Quality Control Act, to any ground or surface water in the state.
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(B) Liability for Non -Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violat ion of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements . Contractor shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless, pursuant to the i ndemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence or willful misconduct of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in thi s Agreement, Contractor warrants that all employees and subcontractors, if any, shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors, if any, will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement . Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Minimum Scope and Limits of Insurance . Contractor shall procure and maintain for the duration of the Agreement, and for 5 years thereafter, insurance against claims for injuries or death to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Con tractor, his agents, representatives, employees, or subcontractors.
3.2.11.2 Coverage. Coverage shall be at least as broad as the following:
(A) Commercial General Liability (CGL) . Insurance Services Office (ISO) Commercial General Liability Coverage (Occurrence Form C G 00 01) including products and completed operations, property damage, bodily injury, personal and advertising injury with limit of at least five million dollars ($5,000,000) per occurrence or the full per occurrence limits of the policies available, which ever is greater. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Project/location (coverage as broad as the ISO CG 25 03, or ISO CG 25 04 endorsement provided to City) or the general aggregate limit shall be twice the required occurrence limit. (B) Automobile Liability. Insurance Services Office (ISO) Business Auto Coverage (Form CA 00 01), covering Symbol 1 (any auto) with limit of one million dollars ($1,000,000) for bodily injury and property damage each accident. (C) Workers' Compensation Insurance . The Contractor shall provide workers’ compensation coverage as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident f or DRAFT
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bodily injury or disease. Waiver of Subrogation (also known as Transfer of Rights of Recovery Against Others to Us): The Contractor hereby agrees to waive rights of subrogation to obtain endorsement necessary to affect this waiver of subrogation in fav or of the City, its officers, employees, and authorized volunteers, for losses paid under the terms of this coverage which arise from work performed by the Named Insured for the City; this provision applies regardless of whether or not the City has received a waiver of subrogation from the insurer. (D) Contractor’s Pollution Liability . (Optional: if Project involves environmental hazards) with limits no less than $5,000,000 per occurrence or claim, and $10,000,000 policy aggregate.
If the Contractor maintains b roader coverage and or/higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum of insurance and coverage shall be available to the City.
3.2.11.3 Other Required Provisions . The Commercial General Liability policy, Automobile Liability policy and Contractors Pollution (if necessary) are to contain, or be endorsed to contain, the following provisions:
(A) Additional Insured Status. City, its officers, employees, and authorized volunteers are to be given insured status (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 for the Commercial General Liability policy) with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability c overage can be provided in the form of an endorsement to the Contractor’s insurance.
(B) Primary Coverage and Non -Contributory Coverage . For any claims related to this Project, the Contractor’s insurance coverage shall be primary, at least as broad as ISO CG 2 0 01 04 13 for the Commercial General Liability policy, as respects to the City, its officers, employees, and authorized volunteers. Any insurance or self -insurance maintained by the City, its officers, employees, and authorized volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. (C) Waiver of Subrogation . All policies shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.
3.2.11.4 Notice of Cancellation . Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
3.2.11.5 Acceptability of Insurers . Insurance is to be placed with insurers having a current A.M. Best rat ing of no less than A: VII or equivalent or as otherwise approved by City.
The Contractor agrees and he/she will comply with such provisions before commencing work.
All of the insurance shall be provided on policy forms and through companies satisfactory to DRAFT
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City. The City reserves the right to obtain complete, certified copies of all required insurance policies, including the policy declarations page with endorsement number. Failure to continually satisfy the Insurance requirements is a material breach of contract.
3.2.11.6 Responsibility for Work . Until the completion and final acceptance by City of all the work under and implied by this Agreement, the work shall be under the Contractor’s responsible care and charge. The Contractor shall rebuild, repair, restore and make good all injuries, damages, re -erections, and repairs occasioned or rendered necessary by causes of any nature whatsoever.
3.2.11.7 Deductibles and Self -Insured Retentions . Insurance deductibles or self -insured retentions must be declared by the Contracto r, and approved by the City. At the election of City the Contractor shall either cause the insurer to reduce or eliminate such self -insured retentions as respects the City, its officers, employees, and authorized volunteers or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or the City.
3.2.11.8 Verification of Coverage - Evidences of Insurance .
Contractor shall furnish the City with copies of certificates and amendatory endorsements effecting coverage required by this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all require d insurance policies, including policy Declaration pages and Endorsement pages, required by these specifications, at any time. Failure to continually satisfy the Insurance requirements is a material breach of contract.
3.2.11.9 Continuation of Coverage . The Contrac tor shall, upon demand of City deliver evidence of coverage showing continuation of coverage for at least (5) years after completion of the Project. Contractor further waives all rights of subrogation under this Agreement When any of the required coverage s expire during the term of this Agreement, the Contractor shall deliver the renewal certificate(s) including the general liability additional insured endorsement and evidence of waiver of rights of subrogation against City to City at least ten (10) days prior to the expiration date.
3.2.11.10 Sub-Contractors. In the event that the Contractor employs other Contractors (sub-contractors) as part of the work covered by this Agreement, it shall be the Contractor’s responsibility to require and confirm that each sub -contractor meets the minimum insurance requirements specified above (via as broad as ISO CG 20 38 04 13). The Contractor shall, upon demand of City, deliver to City copies such policy or policies of insurance and the receipts for payment of premiums thereon.
3.2.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property . In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, DRAFT
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and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed . Safety precautions as applicable shall include, but shall not be limite d to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, if any, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined spac e procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safe ty measures.
3.2.13 Bonds.
3.2.13.1 Performance Bond . If required by law or otherwise specifically requested by City in Exhibit “A” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, no t-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.2 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “A” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not -to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.
3.2.13.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments sh all be deemed due or will be made under this Agreement until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, up on request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.
3.2.13.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California-admitted surety with a current A.M. Best’s rating no less than A:VIII and satisfactory to the City. If a California -admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with DRAFT
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Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.2.14 Accounting Records . Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement . All such records shall be clearly identifiable . Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement . Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receiv e compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “B” attached hereto and incorporated herein by reference . The maximum compensation for Services to be provided pursuant to each Task Order shall be set forth in the relevant Task Order. The cost of travel time, bonds, insurance, office support, accounting, regulatory compliance, and other business expenses are covered under the allowed percentage of Overhead and Profit ent ered on Exhibit “B;” and will not be allowed as a direct expense. The total compensation to be provided under this Agreement, in the aggregate, shall not exceed [***INSERT WRITTEN DOLLAR AMOUNT***] ($[***INSERT NUMERICAL DOLLAR AMOUNT***]) without written approval of City’s [***INSERT TITLE***] Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation . Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequen t billing periods, as appropriate, through the date of the statement . City shall, within 30 days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for an y expenses unless authorized in writing by City.
3.3.4 Extra Work . At any time during the term of this Agreement, City may request that Contractor perform Extra Work . As used herein, “Extra Work” means any work which is determined by City to be necessary for t he proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement .
Contractor shall not perform, nor be compensated for, Extra Work without written authorization from City’s Representative.
3.3.5 California Labor Code Requirements
3.3.5.1 Contractor 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 DRAFT
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(“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 m ore, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor 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 Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (La bor 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 subcontracto rs (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.
3.3.5.2 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 Contractor and all subcontractors performin g such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. 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.
3.3.5.3 This Agreem ent may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop or ders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination . City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination . Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other DRAFT
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information of any kind prepared by Contractor in connection with the performance of Services under this Agreement . Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in whole or in par t as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.5 General Provisions.
3.5.1 Delivery of Notices . All notices permitted or required under this Agreement shall be give n to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor:
Petrochem Materials Innovation, LLC
6188 Innovation Way
Carlsbad, California 92009
Attn: [INSERT NAME AND TITLE]
City:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: Jeff Kim, Engineering Manager
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address . Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.2 Indemnification.
3.5.2.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and 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 alleged acts, errors or omissions of Contractor, its officials, officers, employees, subcontractors, if any, consultants or agents in connection with the performance of the Contractor’s Services, the Project, this Agreement, or any Task Order, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses, except for any claims, demands, causes of action, costs, expenses, liabilities, losses, DRAFT
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damage or injuries arising through the sole negligence or willful misconduct of the City, or its officials, officers, employees, agents or independent contractors.
3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with Counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all claims, suits, actions or other proceedings of every kind covered by Section 3.5.2.1 that may be brought or instituted against the City or its officials, officers, employees, volunteers and agents .
Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City or its officials, officers, employees, volunteers and agents as part of any such claim, suit, action or other proceeding, except for any judgments, awards or decrees arising through the sole negligence or wil lful misconduct of City, or its officials, officers, employees, agents or independent contractors. Contractor shall also reimburse City for the cost of any settlement paid by the City or its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding, except for any costs of settlements arising through the sole negligence or willful misconduct of the City, or its officials, officers, employees, agents or independent contractors. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees . Contractor shall reimburse the City and its officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided, except for any legal expenses and costs arising through the sole negligence or willful misconduct of the City, or its officials, officers, employees, agents or independent contractors . Contractor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials officers, employees, agents, or volunteers.
3.5.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California . Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation o r payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor . If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.
3.5.4 Time of Essence . Time is of th e essence for each and every provision of this Agreement.
3.5.5 City’s Right to Employ Other Contractors . City reserves right to employ other contractors in connection with this Project.
3.5.6 Successors and Assigns . This Agreement shall be binding on the successors and assigns of the parties.
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3.5.7 Assignment or Transfer . Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.8 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, subcontractors, if any, and agents of Contractor, except as otherwise specified in this Agreement. All references to City include its officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, a ugment, or describe the scope, content or intent of this Agreement.
3.5.9 Amendment; Modification . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.10 Waiver. No waiver of any defau lt shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition . No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
3.5.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.12 Invalidity; Severability . If any portion of this Agreement is declared invalid, illegal, o r otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.13 Prohibited Interests . Contractor maintains and warrants that it has not employed nor retained any company or person, other th an a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors, if any, to file, a Statem ent of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no 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.
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3.5.14 Cooperation; Further Acts . The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.15 Attorney’s Fees . If either party commences an act ion against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.
3.5.16 Authority to Enter Agreement . Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agree ment have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.17 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.5.18 Entire Agreement. This Agreement contains the e ntire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements . This Agreement may only be modified by a writing signed by both parties..
[signatures on following page]
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SIGNATURE PAGE FOR ON-CALL MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF FONTANA
AND [***INSERT CONTRACTOR NAME***]
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the [***INSERT DAY***] day of [***INSERT MONTH***], [***INSERT YEAR***].
CITY OF FONTANA
[INSERT NAME]
[INSERT TITLE]
Date
[INSERT CONTRACTOR NAME]
Signature
Name
Title
Date
Federal ID No. ______________
Business License Number ___________
(City of _________________)
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EXHIBIT “A”
SCOPE OF SERVICES
[***INSERT SCOPE OF SERVICES***]
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EXHIBIT “B”
COMPENSATION
[***INSERT RATES & AUTHORIZED REIMBURSABLE EXPENSES***]
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EXHIBIT “C”
SAMPLE TASK ORDER FORM
CITY OF FONTANA
TASK ORDER
Task Order No. ______
Agreement: [INSERT NAME OF AGREEMENT]
Contractor: [INSERT NAME OF CONTRACTOR]
The Contractor is hereby authorized to perform the following work subject to the provisions of the Agreement identified above:
List any attachments: [INSERT ATTACHMENTS, IF ANY]
Dollar Amount of Task Order: Not to exceed $_____,_____.00 Completion Date: ____________, 20___
The undersigned Contractor hereby agrees that it will provide all equipment, furnish all materials, except as may be otherwise noted above, and perform all serv ices for the work above specified in accordance with the Agreement identified above and will accept as full payment therefore the amount shown above.
CITY OF FONTANA [INSERT CONTRACTOR NAME]
Dated: Dated:
By: By:
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