AGR-6863 - SULZER ELECTRO MECHANICAL SERVICES (US) INC - FY 2019-2020 ELECTRICAL ON-CALL MAINTENANCE SERVICES AGREEMENT FOR WATER DIVISIONR-b863
MAINTENANCE SERVICES AGREEMENT
Electrical On-Call Services for Water Division]
TffiS MAINTENANCE SERVICE§S AGREEMENT(the"AgreemenY')is made at Orange,
Califomia, on this aq, day of 01""a Y201+J by and between the CIT'I'OF ORANGE, a municipal
corporation ("City") and SULZER ELECTRO MECHANICAL SERVICES (US) INC., a Delawaze
corporation ("Conhactor") with its principal office for purposes of this Agreement at 620 S. Rancho
Ave., Colton, CA 92324, who agee as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Contractor
shall provide ro the reasonable satisfaction of Ciry the services set forth in Exhibit "A", which is
attached hereto and incorporated herein by this reference. As a material inducement to City to enter
into this Agreement, Contractor represents and warrants [hat it has thoroughly investigated and
considered the scope of services and fully understands the difficulties and restrictions in perfocming
the work. Contractor represents that it is experienced in performing the work and will follow the
highest professional standards in performance of the work. All services provided shall conform to all
federal, state and local laws,rules and regulations and to the best professional standards and practices.
The terms and conditions set forth in this Agreement shall control over any terms and wnditions in
Exhibit "A" to the contrary.
Tuan Cao, Senior Civil Engineer ("City's Project Manager"), shall be the person to whom
Contractor will report for the performance of services hereundev It is understood that Contractor's
perfoimance hereunder shall be under the direction and supervision of City's Project Manager (or
his/her designee),that Contractor shall coordinate its services hereunder with City's Project Manager
to the extent required by City's Project Manager, and that all performances required hereunder by
Contractor shall be performed to the satisfaction of City's Project Manager and the City Manager.
2. Total Compensation,Annual Compensation and Fee Schedule.
a. Contractor's total compensation for all services performed under this
Agreement, shall not exceed TWENTY-FIVE THOUSAND DOLLARS and 00/100 ($25,000.00)
without the prior written authorization of City.
b. The above fee shall include all costs, including, but not limited to, all clerical,
administrative, overhead, insurance, reproduction, telephone, travel, auto and equipmen[ ren[al, and
all related expenses.
3. Pavment.
a. As scheduled services are wmpleted,Contractor shall submit to City an invoice
for the services completed, authorized expenses and authorized extra work actually performed or
incurred.
b. All such invoices shall state the basis for the amount invoiced, including
services completed, the number of hours spent and any extra work performed.
c. City will pay Contractor the amount invoiced within thirty (30) days after the
approval of the invoice.
d. Payment shall constitute payment in full for all services, authorized costs and
authorized ex4a work covered by that invoice.
4. Chanee Orders. No payment for extra services caused by a change in the scope or
complexity of work, or for any other reason, shall be made unless and until such extra services and a
price therefor have been previously authorized in writing and approved by City as an amendment to
this Agreement. The amendment shall set forth the changes of work,extension of time,and adjustment
of the compensation to be paid by City[o Contracroc'
5. Licenses. Contractor represents that it and any subcontractors it may engage, possess
any and all licenses which aze required under state or federal law to perform the work contemplated
by this Agreement and that Contractor and its subcontractors shall maintain all appropriate licenses,
including a City of Orange business license, at its cost, during the performance of this Agreement.
6. Indeaenden[Contractor. At all times during the term of this Agreement, Contractor
shall be an independen[ contractor and no[ an employee of City. City shall have the right to control
Contractor only insofar as the result of Contractor's services rendered pursuant to this Agreement.
City shall not have the right to conlro]the means by which Contractor accomplishes services rendered
pursuant ro this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities,
materials and equipment which may be required for fumishing services pursuant to [his A eement.
Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from
all matters relating to the payment of its subcontractors, agents and employees, including compliance
with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and
regulations of any nature whatsoever. Contractor acknowledges that Contractor and a y
subcontractors, agents or employees employed by Contractor shall not, uader any circumstances, be
considered employees of City, and that they shall not be entitled to any of the benefits or rights
afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay,
Public Employees Retuement System benefits, or health, life, dental, long-term disability or workers'
compensation insurauce benefits.
7. Contractor Not Aeent. Except as City may specify in writing, Conhactor shall have
no authority, express or implied, to act on behalf of City in any capaciry whatsoever as an agent.
Contractor shall have no authority,express or implied, to bind City to any obligation whatsoever.
8. Desienuted Persons. Except as otherwise authorized by City's Project Manager, only
the employees of Contractor shall perform work provided for under this Agreement. It is understood
by the parties that clerical and other nonprofessional work may be performed by persons other than
those designated.
9. Assignment or Subcontractin¢. No assi unent or subcontracting by Contractor of
any part of this Agreement or of funds to be received under this Agreement shall be of any force or
effect unless the assignment has had the prior wri[ten approval of City. City may terminate this
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Agreement ra[her than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his/her designee.
10. Term. The term of this Agreement shall be for one (1) year, commencing on July 1,
2019, and ending on June 30, 2020.
11. Time Is of Great Imuortance. Tune is of grea[ importance in this Agreement.
Contractor shall make all commercially reasonable efforts necessary and incidental to the prosecution
of Contractor's work.
12. Reserved.
13. Delays and Extensions of Time. Contractor's sole remedy for delays outside its
control, other than those delays caused by City, shall be an extension of time. No matter what the
cause of the delay, Contractor must document any delay and request an exteasion of time in writing at
the[ime of the delay to the satisfaction of City. My extensions granted shall be limited to [he length
of the delay outside Connactor's control. If Conhactor believes that delays caused by Ciry will cause
it to incur additional costs, it must specify, in writing,why the delay has caused additional costs to be
incurred and the exact amount of such cost at the time the delay occurs. No additional costs can be
paid that exceed the not to exceed amount stated in Section 2.a, above,absent a written amendmen[to
this Agreement.
14. Reserved.
15. Eaual Emnlovment Opportunitv. During the perfoimance of this Agreement,
Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for
employment because of race, color,religion,sex, national origin,mental or physical disability, or any
other basis prohibited by applicable law. Contractor shall ensure that applicants aze employed, and
that employees are treated during employment, without regard to [heir race, color, religion, sex,
national origin, mental or physical disability, or any other basis prohibited by applicable law. Such
actions shall include, but not be limi[ed to the following: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of
compensation and selection for training, including apprenticeship. Contractor agrees to post in
conspicuous places, available [o employees and applicants for employmen[, a notice se[[ing forth
provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees placed
by, or on behalf of Contractor, sta[e that all qualified applicants will receive consideration for
employment withou[regard to race, color,religion, sex, national origin, men[al or physical disability,
or any other basis prohibited by applicable law.
c Contractor shall cause the foregoing paragraphs (a) and(b) to be inserted in all
subcontracts for any work covered by this Agreemen[,provided that the foregoing provisions shall not
apply to subcontracts for standard commercial supplies or raw materials.
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16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a contractor to influence any decision of City in
which Contractor knows or has reason to ]mow that Contractor, its officers, partners, or employees
have a financial interest as defined in Section 87103 of the Govemment Code.
17. Indemnitv and Limitarion of Liabilitv.
a. To the fullest extent permitted by law, Contractor agrees to indemnify, defend
and hold City, its Ciry Council and each member thereof, and the officers, officials, agents and
employees of Ciry(collectively the"Indemnitees") entirely harmless from all liability arising out of:
1) Any and all claims under worker's compensation acts and other
employee benefit acts with respect to Contractor's employees or subcontractor's employees azising
out of Contractor's work under this Agreement; and
2) Any claim, loss, injury to or death of persons or damage to property to
the extent ariributable to the willful misconduct of Conhactor or the negligent act,neglect, default, or
omission other than a professional ac[ or omission of Contractor, or person, firm or corporation
employed by Con[ractor, either directly or by independent contract but not for any loss, injury, death
or damage caused by the active negligence or willful misconduct of City. Contractor, at Contractor's
own expense, cost and risk,shall indemnify any and all claims,actions, suits or other proceedings that
may be brought or instituted against the Indemnitees on any such claim or liability covered by this
subpazagraph, and shall pay or satisfy anyjudgment that may be rendered against We Indemnitees, or
any of them, in any action, suit or other proceedings as a result of coverage under this subparagraph.
b. To the fullest extent permitted by law, Conuactor agrees to indemnify and hold
Indemnitees en[irely harmless from all liability arising out of any claim, loss, injury to or death of
persons or damage to property to the extent attributable to a negligent professional act or omission in
the performance of professional services pursuant to this Agreement.
c. Except for the Indemnitees, [he indemnifications provided in this Agreement
shall not be construed to extend any thud party indemnification rights of any kind to any person or
entity which is not a sigiatory to this Agreement.
d. The indemni[ies set forth in this section shall survive any closing,rescission, or
temvnation of this Agreement, and shall continue to be binding and in full force and effect ro the
extent permitted by law with respect to Consultant and its successors.
e. Notwithstanding anything to the contrary in this Agreement, including all
documents making pazt thereof, and to the maYunum extent permitted by law, in no event shall either
party be liable to the other,by way of indemnity, or by reason of any breach of contract or of statutory
duty or by reason of tort(including but not limited to negligence)for any loss of profit,loss of contracts
or eamings, delay damages, interruption or loss of production, loss of use, loss of opportunity or
business, indirect, punitive, special, incidental or consequential damages whatsoever that may be
suffered by the other party. The remedies of City set forth herein are exclusive, and Con[ractor's
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liability with respect to any con4act,indemnity,tort(including negligence),under any warranty,strict
liability or otherwise shall not exceed one hundred percent (100%) of the contract price or purchase
order value or portion thereof upon which such liability is based, unless claims arise from goss
negligence or willful misconduct of Contractor.
18. Insurance.
a. Contrac[or shall cany workers' compensation insurance as required by law for
the protection of its employees during the progress of the work. Contractor understands that it is an
independent contractor and not entitled to any worker's compensation benefits under any City
program.
b. Contractor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: Five Million Dollazs ($5,000,000) per occurrence/annual aggregate. Said insurance shall
cover bodily injury, death and proper[y damage and be written on an occurrence basis.
c. Contractor shall maintain during the life of this Agreement, the following
minimum amount of automotive liability insurance: Five Million Dollars ($5,000,000 per
occurrence/annual aggregate. Said inswance shall cover bodily injury,death and propeRy damage for
all owned, non-owned and hired vehicles and be written on an occurrence basis.
d. Any insurance proceeds in excess of or broader than the minimum required
wverage and/or minimum requued limits which are applicable to a given loss shall be available to
City. No representation is made that the minimum insurance requirements of this Agreemen[ are
sufficient ro cover the obligations of Contractor under this Agreement.
e. Each policy of general liability and automotive liability shall provide that City,
its officers, officials, agents, and employees are declared to be additional insureds under the terms of
the policy,but only with respect to the work performed by Contractor under this Agreement. A policy
endorsement to that effect shall be provided to City along with the certificate of insurance, which
endorsement shall be on Insurance Services Office, Inc. Focm CG 20 10 04 13 and CG 20 37 04 13.
The minimum coverage required by Subsection 18.6 and c, above, shall apply to City as an additional
insured.
f.The insurance policies maintained by Contractor shall be primary insurance and
no insurance held or owned by City shall be called upon[o cover any loss under the policy. ConVactor
will determine its own needs in procurement of insurance to cover liabilities other than as stated above.
g. Before Contractor performs any work or prepazes or delivers any materials,
Contractor shall fiunish certificates of insurance and endorsements, as required by City, evidencing
the aforemen[ioned minimum insurance coverages on forms acceptable to Ciry, which shall provide
that the insurance in force will not be canceled or allowed to lapse without at least ten(10)days' prior
written notice to City.
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h. All insurance maintained by Contractor shall be issued by companies admitted
to conduct the pertinent line of insurance business in California and having a rating of Grade A- or
better and Class VIII or better by the latest edition of Best's Key Rating Guide.
i.Contractor shall immediately notify City if any required insurance lapses or is
otherwise modified and cease performance of this Agreement unless otherwise directed by City. In
such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs
and any and all damages resulting therefrom,by way of set-off from any sums owed Con[ractor.
j.Contractor agrees that in the event of loss due m any of the perils for which it
has agreed to provide insurance, ConVactor shall look solely to i[s insurance for recovery. Contractor
hereby grants to City, on behalf of any insurer providing insurance to either Contractor or Ciry with
respect to the services of Contractor herein,a waiver of any right to subrogation which any such insurer
may acquire against City by virtue of the payment of any loss under such insurance,
k. Contractor shall include all subcontractors,if any, as insureds under i[s policies
or shall furnish separate certificates and endorsements for each subcontractor to City for review and
approval. All coverages for subcontractors shall be subject to all of the requirements stated herein.
19. Termina[ian. City may for any reason terminate this Agceement by giving ConVactor
not less than five (5) days' written notice of intent to terminate. Upon receipt of such notice,
Contractor shall immediately cease work, unless the notice from City provides otherwise. Upon the
termination of this Agreement, City shaU pay Contractor for services satisfactorily provided and all
allowable reimbursements incurred to the da[e of termination in compliance with this Agreement,
unless termina[ion by City shall be for cause, in which event City may withhold any disputed
compensation. City shall not be liable for any claim of lost profits.
20. Maintenance and Iasnection of Recards. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete
books, documents, papers, accounting rewrds, and other information (collectively, the "records")
pertaining to the costs of and completion of services performed under this Agreement. City and its
authorized representatives shall have access to and the right to audit and reproduce any of Contractor's
records regarding the services provided under [his Agreemenk Contractor shall maintain all such
records for a period of at least three (3) years after termination or comple[ion of this Agreement.
Contractor agrees to make available all such records for inspecuon or audit at its offices during normal
business hours and upon three (3) days' notice from City, and copies thereof shall be fiunished if
requested. City's right to audit shall exclude records pertaining to the composition of agreed rates,
sums,prices, and mark-up percentages and any other proprietary information.
21. Campliance with all Laws/Immieration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. Contractor represents and warrants that Contractor:
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1) Has complied and shall at all times during the term of this Agreement
comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders,
including,without limitation, the Immigration Refomi and Control Act of 1986 (IRCA); and
2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in[he United States or under the terms of this
Agreement; and
3) Has properly maintained, and shall at all times during the term of this
Agreement properly maintain, all related employment documentation records including, without
limitation, the completion and maintenance of the Form I-9 for each of Contractor's employees; and
4) Has responded, and shall at all times during the term of this Agreement
respond, in a timely fashion to any govemment inspection requests relating to immigrarion law
compliance and/or Form I-9 compliance and/or worksite enforcement by the Department of Homeland
Securiry, the Department of Labor, or the Social Security Administration.
c. Conhactor shall require all subcontractors to make the same representations and
warranties as set forth in Subsection 21.b.
d. Contractor shall, upon request of Ciry,provide a list of all employees working
under this Agreement and shall provide,to the reasonable satisfacrion of City,verification that all such
employees are eligible to work in the United States. All costs associated with such verification shall
be bome by Contractor. Once such request has been made, Contractor may not change employees
working under this Agreement without written notice to City,accompanied by the verification required
herein for such employees.
e. Contractor shall require all subcontractors to make the same verification as set
forth in Section d.
f.If Contractor or subcontractor lmowingly employs an employee providing work
under this Agreement who is not authorized to work in the United States, and/or fails to follow federal
laws to determine the status of such employee,that shall constitute a matedal breach of this Agreement
and may be cause for immediate termination of this Agreement by City.
g. Contractor agrees to indemnify and hold City, its officials, and employees
harmless for, of and from any loss, including but not limited to fines, penalties and corrective
measures, City may sustain by reason of Contractor's failure to comply with said laws, rules and
regulations in connection with the performance of this Agreement.
22. Governine Law and Venue. This Agreement shall be construed in accordance with
and governed by the laws of the State of California and Contractor agrees to submit to the jurisdiction
of Califomia courts. Venue for any dispute arising under this Agreement shall be in Orange Counry,
Califomia.
23. Intearadon. 'I'his Agreement constitutes [he entire agreement of the parties. No other
agreement, oral or written, pertaining [o the work to be performed under this Agreement shall be of
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any force or effect unless it is in writing and signed by both parties. Any work performed which is
inconsistent with or in violation of the provisions of this Agreement shall no[be compensated.
24. Notice. Except as otherwise provided herein,all notices required under this Agreement
shall be in writing and delivered personally,by e-mail, or by first class mail,postage prepaid, to each
party at the address listed below. Either party may change the notice address by notifying the other
pazry in writing. Notices shall be deemed received upon receipt of same or within 3 days of deposit
in the U.S. Mail,whichever is earlier. No[ices sent by e-mail shall be deemed received on the date of
the e-mail transmission.
CONTRACTOR" CITY"
Sulzer Electro Mechanical Services (LJS) Inc. City of Orange
Colton Service Center 300 E. Chapman Avenue
620 S. Rancho Ave. Orange, CA 92866-1591
Colton, CA 92324
Attn.: Gary Patton, Service Center Manager Attn.: 7ose M. Diaz
Telephone No.: (909) 825-7971 Ext. 141 Telephone No.: (714) 288-2475
E-Mail Address: gary.patton@sulzer.com E-Mail Address: jdiaz@cityoforange.org
25. Counteroar[s. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrumen[. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
Remainder ofpage intentinnally left blank;signatures on nert pageJ
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IN WITNESS of this Agreement, the parties have entered into this Agreement as of the yeaz
aud day first above written.
CONTRACTOR"CI1'P"
SULZER ELECTRO MECHANICAL CIT'Y OF ORANGE, a municipal coiporation
SERVICES (US) INC.,a Delawaze corporation
BY: G gY.
Printed N e: c Otto, City Manager
Title:
By: / Y.1,(11N.-d/^2h APPROVED AS TO FORM:
PrintedName: SSa TYY P/
Title: S2C/A/U lT/eqSUY A
Mary E. Bii ing,
Senior Assistant City Attom
NOTE:The Cily requires tlte fo[loiving signature(s) on behalf of the Coi:iractor:
I) The Chairman of the Board, the President ar a Vice-President, AND (2) the
Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an
Assistant Treasurer. If only olie corporate ojficer exists or one corporate officer
ho/ds more than one corporate offrce,please so indicate. OR
The corparate offtcer itaneed in a carporafe resolution as attthorized to enter into this
AgreemenG A copy of the corporate resolution, certifred by Hae Secretary c[ose in
tiine to the execu6on of Uie Agreenient, must be provided ta the City.
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5 U LZ E R Sulzer Electro Mechanical Services (US)
Inc.
Colton Service Cenrer
620 5 Rancho Ave
Colton,CA 92324
Telephone: 909-825-7671
FAX:909-825-6312
July 9, 2019
Tuan Cao, P.E.
Senior Civil Engineer
City of Orange
189 South Water Street
Orange, CA 92866
Subject: Electrical control maintenance and repair
Mr. Tuan:
Sulzer EMS would like to submit the below quotation to City of Orange for field service
labor by a joumeyman electric. We would suggest you allocate $25,000 for this
quotation, which would be used per your instruction as needed. Suizer EMS charges
would be for materials and actual time used. There is no obligation for City of Orange to
expend the full amount allocated.
2019-2020 rate schedule:
Labor, Field Service, electrical control (straight time rate) $159.14/hr
Labor, ditto (overtime rate) 233.50/hr
COST SUMMARY
Item 1 Field service labor, 25,000.00
electrical controls
Hopefully this meets the City's needs. Please call with questions.
Gary Patton
Service Center Manager
Sulzer Electro Mechanical Services (US) Inc.
SULZER CONFIDENTIAL