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HomeMy WebLinkAboutContracts & Agreements_76-2020NPS -2.2 (2/26/20) AGREEMENT FOR RELOCATION OF WATER PIPELINES This agreement for the relocation of two water pipelines ("Agreement") is made and entered in this 17th day of April, 2020 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and Tryco General Engineering ("Contractor") City and Contractor are sometimes individually referred to herein as a "Party" and, together, as the "Parties " In consideration of the mutual promises contained herein, City and Contractor agree as follows ARTICLE 1 — ENGAGEMENT OF CONTRACTOR 1.1 City hereby engages Contractor to perform water pipeline relocation services for two water pipelines located, generally, at Orange Street and at Sixth Street, where those respective streets each cross the railroad rights-of-way of the San Bernardino County Transportation Authority (the "Services") 1 2 The Services shall be performed by Contractor in a professional manner, and Contractor represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other practicing professional contractors in the industry providing like and similar types of Services ARTICLE 2 — RESPONSIBILITIES OF CONTRACTOR 2.1 The Services that Contractor shall perform are more particularly described within the plans and specifications set forth in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by reference 2.2 Contractor shall comply with all applicable federal, state, and local laws and regulations in the performance of the Services including, but not limited, to all applicable Labor Code, prevailing wage, and non-discrimination laws, including the Americans with Disabilities Act Pursuant to Labor Code section 1773 2, copies of the prevailing rates of per diem wages as determined by the Director of the California Department of Industrial Relations for each craft, classification, or type of worker needed to undertake the Services are on file at City's Municipal Utilities and Engmeering Department, located at the Civic Center, 35 Cajon Street, Suite 15A (Mailing P 0 Box 3005), Redlands, California 92373. 2 3 Contractor acknowledges that if it violates the Labor Code provisions relating to the payment of prevailing wages, that City may enforce such provisions by withholding payments to Contractor, or its subcontractors, pursuant to Labor Code section 1771 6 2 4 If Contractor executes an agreement with a subcontractor to perform any portion of the Services, Contractor shall comply with Labor Code sections 1775 and 1777 7, and shall provide the subcontractor with copies of the provisions of Labor Code sections 1771, 1775, 1776, 1777 5, 1813, and 1815 Contractor acknowledges that the statutory provisions establishing penalties for failure to comply with state wage and hour laws and to pay prevailing wages may be enforced by City pursuant to Labor Code sections 1775 and 1813 1 L \cakrjm\Agreements\TRYCO Agmement.NPS-2.2 4 17 20.doc ja NPS -2.2 (2/26/20) 2 5 Contractor and its subcontractors shall comply with the provisions of Labor Code section 1776 regarding payroll records maintenance, certifications, retention, and inspection 2.6 Contractor acknowledges that eight (8) hours constitute a legal day's work pursuant to Labor Code section 1810 2 7 Contractor shall comply with the provisions of Labor Code section 1777 5 as to apprenticeships, and Labor Code sections 1771, 1775, 1776, 1777 5, 1813 and 1815. 2 8 Pursuant to Public Contract Code section 7103.5(b), Contractor offers and agrees to assign to City all rights, title and interest in and to all causes of action it may have under section 4 of the Clayton Act (15 U S C section 15) or under the Cartwright Act (Chapter 2 (commencing with section 16700) of Part 2 of Division 7 of the Business and Professions Code), ansing from purchases of goods, work, or materials pursuant to this Agreement. ARTICLE 3 — RESPONSIBILITIES OF CITY 3.1 City shall make available to Contractor information in its possession that may assist Contractor in performing the Services 3 2 City designates Rudolph Chow, Municipal Engmeering and Utilities Director, as City's representative with respect to performance of the Services, and such person shall have the authonty to transmit instructions, receive information, interpret, and define City's policies and decisions with respect to performance of the Services. ARTICLE 4 — PERFORMANCE OF SERVICES 4 1 Contractor shall perform and complete the Services, to the reasonable satisfaction of City and in a prompt and diligent manner, on or before May 21, 2020 4 2 Contractor's failure to complete the Services within the time allowed will result m damages being sustained by City Such damages are, and will continue to be, impracticable and extremely difficult to determine Accordingly, Contractor shall pay to City, or have withheld from monies due to Contractor, the sum of five hundred dollars ($500) for each consecutive calendar day in excess of the specified time for completion of the Services Execution of this Agreement shall constitute agreement by City and Contractor that five hundred dollars ($500) per day is the estimated damage to City caused by the failure of the Contractor to complete the Services within the allowed time Such sum is liquidated damages and shall not be construed as a penalty, and may be deducted from payments due the Contractor if such delay occurs ARTICLE 5 — CONSIDERATION FOR AGREEMENT/NOTICE TO PARTIES 5.1 Contractor acknowledges and agrees that Contractor shall perform the Services at no cost to City, and that City has no obligation to make any payment of money to Contractor for Contractor's performance of the Services. The express purpose for City's and 2 L•\cakljm\Agreements\TRYCO Agreement.NPS-22 4 17 20.doc jn NPS -2.2 (2/26/20) Contractor's entry into this Agreement is foi City to permit Contractor to perform certain corrective actions made necessary as a result of work previously performed by Contractor for City in connection with the water pipelines that are the subject of this Agreement 5 2 Any notice or other communication required pursuant to this Agreement, shall be in wnting Any such notice shall be deemed delivered (i) on the date of delivery in person, (ll) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overmght courier, or (iv) on the date sent by facsimile or email, if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail, in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this Section 5.2. City City Clerk City of Redlands 35 Cajon Street P O. Box 3005 (mailing) Redlands, CA 92373 jdonaidson@cityofredlands org Phone. (909) 798-7531 Fax• (909) 798-7535 Contractor Try Kirtley, President Tryco General Engineering PO Box 391 Rim Forest, CA 92378 Trykirtley@yahoo.com Phone. (909) 337-3336 Fax• (909) 337-9172 ARTICLE 6 — INSURANCE AND INDEMNIFICATION 6 1 The following insurance coverage required by this Agreement shall be maintained by Contractor for the duration of its performance of the Services Contractor shall not perform any Services unless and until the required insurance listed below is obtained by Contractor Contractor shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services. Insurance policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days pnor written notice to City A. Workers' Compensation and Employer's Liability insurance m the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Contractor is self-insured or exempt from the workers' compensation laws of the State of California Contractor shall execute and provide City with Exhibit "B," titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, pnor to performance of the Services B Comprehensive General Liability insurance with carriers acceptable to City in the mimmum amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate, for public liability, property damage and personal injury is required City shall be named as an additional insured and such Insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. C Business Auto Liability coverage, with minimum limits of One Million Dollars 3 L•\ca\djm\Agreements\TRYCO Agreement.NPS-2.2 4 17.20.doc o NPS -2.2 (2/26/20) ($1,000,000) per occurrence, combined single limit bodily injury liability and property damage liability. This coverage shall include all Contractor owned vehicles used in connection with Contractor's provision of the Services, hired and non -owned vehicles, and employee non -ownership vehicles. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City 6 2 Contractoi shall defend, indemnify, and hold harmless City, and its elected officials, employees, and agents from and against any and all claims, losses or liability, including attorneys' fees, arising from injury or death to persons or damage to property occasioned by any negligent act or omission by, or the willful misconduct of, Contractor, or its officers, employees and agents in performing the Services The obligations of Contractor under this Section 6.2 shall survive any expiration or earlier termination of this Agreement ARTICLE 7 — CONFLICTS OF INTEREST 7 1 Contractor covenants and represents that it does not have any investment or interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property or investment that would be affected m any manner or degree by the performance of Contractor's Services Contractor further covenants and represents that in the performance of its duties hereunder, no person having any such interest shall perform any Services under this Agreement. 7 2 Contractor agrees it is not a designated employee within the meaning of the Political Reform Act because Contractor A Does not make a governmental decision whether to (i) approve a rate, rule or regulation, or adopt or enforce a City law, (ii) issue, deny, suspend or revoke any City permit, license, application, certification, approval, order or similar authonzation or entitlement, (iii) authorize City to enter into, modify or renew a contract, (iv) grant City approval to a contract that requires City approval and to which City is a party, or to the specifications for such a contract, (v) grant City approval to a plan, design, report, study or similar item, (vi) adopt, or grant City approval of, policies, standards or guidelines for City or for any subdivision thereof B. Does not serve in a staff capacity with City and in that capacity, participate m making a governmental decision or otherwise perform the same or substantially the same duties for City that would otherwise be performed by an individual holding a position specified m City's Conflict of Interest Code under Government Code section 87302 7 3 In the event City determines that Contractor must disclose its financial interests, Contractor shall complete and file a Fair Political Practices Commission Form 700, 4 L:\ca\djm\Agreement.\TRYCO Agreement.NPS-2.2 4 17 20.doc jn NPS -2.2 (2/26/20) Statement of Economic Interests, with City's City Clerk's office pursuant to the written instructions provided by the City Clerk ARTICLE 8 — GENERAL CONSIDERATIONS 8 1 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, mcluding fees for the use of in-house counsel by a Party 8 2 Contractor shall not assign any of the Services, except with the prior written approval of City and in strict compliance with the terms and conditions of this Agreement Any assignment or attempted assignment without such prior written consent may, m the sole discretion of City, results in City's immediate termination of this Agreement 8 3 Contractor is for all purposes under this Agreement an independent contractor and shall perform the Services as an independent contractor Neither City nor any of its agents shall have control over the conduct of Contractor or Contractor's employees, except as herein set forth Contractor shall supply all necessary tools and instrumentalities required to perform the Services Assigned personnel employed by Contractor are for its account only, and in no event shall Contractor or personnel retained by it be deemed to have been employed by City or engaged by City for the account of, or on behalf of City Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Contractor have any authority, express or implied, to bmd City to any obligation 8 4 This Agreement may be terminated as follows A By City's City Manager, in his sole discretion, by providing not less than two City busmess days pnor notice by facsimile or email B By Contractor, in the event Contractor provides not less than two (2) City business days written notice to City that City is allegedly in material breach of this Agreement, and such breach subsequently remains uncured by City twenty (20) days after City's receipt of such notice from Contractor. C If this Agreement is terminated by City pursuant to this Section 8.4, an adjustment to Contractor's compensation shall be made, but (i) no amount shall be allowed for anticipated profit or unperformed Services, and (it) any payment due Contractor at the time of termination may be adjusted to the extent of any additional costs to City occasioned by any default by Contractor Upon receipt of a termination notice, Contractor shall immediately discontinue its provision of the Services and, within five (5) calendar days of the date of the termination notice, dehver or otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data, design calculations, drawmgs, specifications, reports, estimates, summanes and such other information and materials as may have been accumulated by Contractor m 5 L.\ca\dbm\Agreements\TRYCO Agreement.NPS-22 4 17 20.doc jn NPS 2.2 (2/26/20) performing the Services Contractor shall be compensated on a pro -rata basis for Services completed up to the date of termination D By mutual written agreement of City's City Manager and Contractor 8 5 Contractor shall maintain books, ledgers, invoices, accounts and other records and documents evidencing costs and expenses related to the Services for a period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor pursuant to this Agreement Such books shall be available at reasonable times for examination by City at the office of Contractor 8 6 This Agreement, including the Exhibits incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals, or verbal agreements relating to such matters are superseded by this Agreement Except as otherwise provided for herein, any amendment to this Agreement shall be in writing, and approved and signed by City's City Manager and Contractor 8 7 This Agreement shall be governed by and construed in accordance with the laws of the State of California 8 8 If one or more of the sentences, clauses, paragraphs or sections contained in this Agreement is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair, or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would deprive a Party of a material benefit of its bargain under this Agreement IN WITNESS WHEREOF, duly authorized representatives of City and Contractor have signed in confirmation of this Agreement City of Redlands Tryco General Engineering By Ciera✓ " ' 1 Charles Duggan, Jr ATTEST tanager /0)uti2eit Donaldson, City Clerk 6 L.1cu\drm\.Agreements\TRYCO Agreement.NPS 2.2 4 17 20.doc,ln NPS -2.2 (2/26/20) EXHIBIT "A" SCOPE OF SERVICES Tryco General Engineering will relocate two water pipelines at Orange Street and Sixth Street, where those respective streets each cross the railroad rights-of-way of the San Bernardino County Transportation Authority Plan sheets and details are attached to this Exhibit "A " 7 L:\ca\djm\Agreements\TRYCO Agreement.NPS 2.24 17 20.docjn 1360 1355 1350 1345 1340 1335 8+60 Ij WREN• EW (EC NT Sr sem 1. 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INA ▪ .00 1.7 1•00n44 401IS NOV.[ ttv IO NPS -2.2 (2/26/20) EXHIBIT "B" WORKERS' COMPENSATION INSURANCE CERTIFICATION Every employer, except the State, shall secure the payment of compensation in one or more of the following ways (a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State (b) By securing from the Director of Industrial Relations, a certificate of consent to self -insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his or her employees CHECK ONE ;/ I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work and activities required or permitted under this Agreement (Labor Code §1861) I affirm that at all times, in performing the work and activities required or permitted under this Agreement, I shall not employ any person m any manner such that I become subject to the workers' compensation laws of California However, at any time, if I employ any person such that I become subject to the workers' compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, or a certification of workers' compensation insurance I certify under penalty of perjury under the laws of the State of California that the information and representations made in this certificate are true and correct. TRYCO GENERAL ENGINEERING ry rtley, President 8 L:\ca\djm\Agreements\TRYCO Agreement.NPS 2.2 4 17.20.doc jn Date- zo