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HomeMy WebLinkAboutAgree-F.M. Thomas Air ConditioningNPS-2.1 (8.22) AGREEMENT TO PERFORM NON-PROFESSIONAL SERVICES FOR EQUIPMENT AND SUPPLIES This agreement for Heating and Air Conditioning Maintenance Services at the Citrus Center ("Agreement") is made and entered in this 3r1 day of October, 2023 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and F.M. Thomas Air Conditioning, Inc., a California corporation ("Contractor"). City and Consultant 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 heating and air conditioning services for City (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 — SERVICES OF CONTRACTOR 2.1 The Services that Contractor shall perform are more particularly described in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by this reference. 2.2 Contractor shall comply with applicable federal, state and local laws and regulations in the performance of this agreement including, but not limited to, any applicable State prevailing wage laws. ARTICLE 3 — RESPONSIBILITIES OF CITY 3.1 City shall make available to Contractor information in its possession that may reasonably assist Contractor in performing the Services. 3.2 City designates Tabitha Crocker, Director, as City's representative with respect to performance of the Services, and such person shall have the authority 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 in a prompt and diligent manner in accordance with the schedule set forth in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by this reference. 4.2 The term of this Agreement shall be for a period of one (1) year commencing as of the Effective Date, unless terminated earlier as provided herein. I:\cmo\AgreementsWM Thomas Air Conditioning, Inc FY22.0259.docx-jm NPS-2.1 (8.22) 4.3 If Contractor's Services include deliverable electronic visual presentation materials, such materials shall be delivered in a form, and made available to City, consistent with City Council -adopted policy for the same. It shall be the obligation of Contractor to obtain a copy of such policy from City staff. ARTICLE 5 — PAYMENTS TO CONTRACTOR 5.1 Total compensation for Contractor's performance of the Services shall not exceed the amount of Fifty Thousand Dollars ($50,000.00). City shall pay Contractor on a time and materials basis up to the not to exceed amount in accordance with Exhibit "B," titled "Fee Schedule Title," which is attached hereto and incorporated herein by this reference. 5.2 Contractor shall submit monthly invoices to City describing the Services performed during the preceding month. Contractor's invoices shall include a brief description of the Services performed, the dates the Services were performed, the number of hours spent and by whom. City shall pay Contractor no later than thirty (30) days after receipt and approval by City of Contractor's invoice. 5.3 Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile or electronic mail transmission (including PDF), 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: CITY City Clerk City of Redlands 35 Cajon Street P.O. Box 3005 (mailing) Redlands, CA 92373 jdonaldson@cityofredlands.org (909) 798-7531 CONTRACTOR Thomas Feyka, President F.M. Thomas Air Conditioning, Inc. 231 Gemini Avenue Brea, CA 92821 tfeyka@fmthomas.com 800-660-0891 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 prior written notice to City. I:\cmo\Agreements\FM Thomas Air Conditioning, Inc FY22-0259.docx-jm 2 NPS-2,1 (8.22) A. Workers' Compensation and Employer's Liability insurance in 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 "C," titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, prior to performance of the Services. B. Comprehensive General Liability insurance with carriers acceptable to City in the minimum 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 ($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 Contractor shall defend, indemnify, and hold harmless City and its elected and appointed officials, employees and agents from and against any and all claims, losses and 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. 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 in 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 authorization 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; I:\cmo\Agreements\FM Thomas Air Conditioning, Inc FY22-0259.docx jm 3 NPS-2.1 (8.22) (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 in 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 in 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, Statement of Economic Interests, with the 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, including 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, in 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 bind City to any obligation. 8.4 This Agreement may be terminated by City, in its sole discretion, by providing not less than ten (10) days prior written notice to Contractor of City's intent to terminate. If this Agreement is terminated by City, an adjustment to Contractor's compensation shall be made, but (1) no amount shall be allowed for anticipated profit or unperformed Services, and (2) 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) days of the date of the termination notice, deliver or otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data, drawings, specifications, reports, summaries and such other information and materials as may have been accumulated by Contractor in performing the !:\cmo\Agreements\FM Thomas Air Conditioning, Inc FY22-0259.docx jm 4 NPS-2.1 (8.22) Services. Contractor shall be compensated on a pro-rata basis for Services completed up to the date of termination. 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, approved by City and signed by City and Contractor. 8.7 This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws provisions. The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in San Bernardino County, California, and the federal courts located in Riverside County, 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 ANDS By: ddie Tejeda, Mayor ATTEST: e Donaldson, City Clerk I:\cmo\Agreements\FM Thomas Air Conditioning, Inc FY22-0259.docx jm 5 F.M. THOMAS AIR COND TIONING, INC. By: �r Thomas Feyka,' a Jdent NPS-2.1 (8.22) EXHIBIT "A" SCOPE OF SERVICES Provide on -call air conditioning & heating monthly maintenance and as needed repairs for the Citrus Center, located at 300 E. State Street, Redlands, CA 92373. Hourly rates shall include all costs for the services described. All overhead costs, including but not limited to, travel, trip charges, chemicals, equipment maintenance, etc. shall be included in hourly rates provided as quote. Prices shall remain in effect for the term of the contract. "Quoted" or "Bid" jobs shall utilize the same hourly rates and parts mark up as provided in quote for FCS06302023KG. C-20 HVAC License is required. DIR registration is required at time of bid and throughout the life of this Agreement. A response time of 4 hours from initial contact with city is required for all service calls. Contractor will provide all documentation the EPA may require regarding compliance with the Clean Air Act. Prevailing wage rates must be paid and billed for any repairs in excess of $1000.00. I:\cmo\Agreements\FM Thomas Air Conditioning, Inc FY22-0259.docx jm 6 EXHIBIT "B" FEE SCHEDULE TITLE CITRUS CENTER HEATING & AIR CONDITIONING SERVICES FCS06302023KG HOURS OF WORK Monday through Friday 8:00 AM to 5:00 PM A ESTIMATED HOURS 200 FEE/COST PROPOSAL B. PREVAILING WAGE HOURLY RATE $160.00 D. '.. TOTAL FOR PREVAILING WAGE RATES $32,000.00 E. NON - PREVAILING WAGE RATES $160.00 NPS-2.I (8.22) TOTAL FOR NON- PREVAILING WAGE RATES $32,000.00 Monday through Friday 5:01 PM to 7:59 AM 100 $185.00 $18,500.00 $185.00 $18,500.00 Saturday or Sunday 8:00 AM to 8:00 A.M. (24 Hours) Holidays 8:00 AM to 8:00 A.M. (24 Hours) MARK UP %20 75 50 $215.00 $215.00 TOTAL $16,125.00 $10,750.00 $77,375.00 $16,125.00 $10,750.00 TOTAL $16,125.00 $10,750.00 $77,375.00 CONTRACTOR NAME: F.M. Thomas Air Conditioning, Inc. CONTACT: Thomas Feyka CONTRACTOR ADDRESS: 231 Gemini Ave. CITY: Brea STATE: CA ZIP: 92821 EMAIL: TFeyka@fmthomas.com DIR#: 1000003383 PHONE: 800-600-0891 I:\cmo\AgreementsWM Thomas Air Conditioning, Inc FY22-0259.docx jm 7 NPS-2.1 (8.22) EXHIBIT "C" 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 in 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. F.M. THO IR C DT TONING, INC. By: Thomas Feyka, P I:\cmo\Agreements\FM Thomas Air Conditioning, Inc FY22-0259.docx jm 8 Date: