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HomeMy WebLinkAboutAgreement - Golden Bay Fence plus Iron Works, Inc. - Contract No. 24SCR1259 - Furnish and Install 3,630' of 6' High Galvanized Chain Link Fence - Signed 2023-09-11DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above- described services. SCR WA shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR'S services. C. Employment of Assistants CONTRACTOR may, at the CONTRACTOR'S own expense, employ such assistants as CONTRACTOR deems necessary to perfonn the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. SCRWA may not control, direct, or supervise CONTRACTOR'S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR'S services. A. Consideration ARTICLE 4. COMPENSATION In consideration for the services to be performed by CONTRACTOR, SCR WA agrees to pay CONTRACTOR the amounts set forth in Exhibit "D" ("Payment Schedule"). In no event however shall the total compensation paid to CONTRACTOR exceed $98065.00. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "D". No payment will be made unless CONTRACTOR has first provided SCR WA with a written receipt of invoice describing the work performed and any approved direct expenses ( as provided for in Exhibit "A", Section IV) incurred during the preceding period. If SCRWA objects to all or any portion of any invoice, SCRWA shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for SCR WA not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. -2- DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for SCRWA, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR'S costs of doing business. SCR WA shall not be responsible for any expenses incurred by CONTRACTOR in performing services for SCR WA, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services tmder this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from SCR WA. B. Workers' Compensation CONTRACTOR agrees to provide workers' compensation insurance for CONTRACTOR'S employees and agents and agrees to hold harmless, defend with counsel acceptable to SCR WA and indemnify SCR WA, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONTRACTOR'S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by SCRWA (which approval shall not be unreasonably withheld), indemnify and hold harmless SCRWA, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRACTOR'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to SCR WA, obtain and maintain throughout the term of this Agreement: ( a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to SCRWA'S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming SCR WA, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to -3- DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of SCRW A, which SCR WA may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONTRACTOR is not SCRWA'S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that: •SCRWA will not withhold FICA (Social Security) from CONTRACTOR'S payments; •SCR WA will not make state or federal unemployment insurance contributions on CONTRACTOR'S behalf; •SCR WA will not withhold state or federal income tax from payment to CONTRACTOR; •SCR WA will not make disability insurance contributions on behalf of CONTRACTOR; •SCRWA will not obtain workers' compensation insurance on behalf of CONTRACTOR. ARTICLE 6. OBLIGATIONS OF SCRWA A. Cooperation of SCRWA SCRWA agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by SCRW A of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR'S duties under this Agreement. B. Assignment SCR WA may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR's Business/ Death of CONTRACTOR. CONTRACTOR shall notify SCR WA of the proposed sale of CONTRACTOR' s business no later than thirty (3 0) days prior to any such sale. SCR WA shall have the option of terminating this -4- DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C Agreement within thirty (3 0) days after receiving such notice of sale. Any such SCR WA termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after SCRWA'S receipt of such notice of sale. If CONTRACTOR is an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. Termination by SCRWA for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, SCRWA, at SCRWA'S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONTRACTOR'S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR'S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by SCR WA, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit "C" which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if SCRWA terminates this Agreement due to CONTRACTOR'S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies SCR WA may have, CONTRACTOR shall reimburse SCR WA, within ten (10) days after demand, for any and all costs and expenses incurred by SCR WA in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts SCRWA would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should SCRW A fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR'S option, may terminate this Agreement if such default is not remedied by SCRWA within thirty (30) days after demand for such payment is given by CONTRACTOR to SCRW A. D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incm no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to SCR WA all work done -5- DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONTRACTOR's duties by any new CONTRACTOR hired by the SCR WA to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ("the Act") in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to SCR WA, indemnify and hold harmless the SCRW A, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the SCR WA which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the SCRW A, obligating every contractor or subcontractor under a contract or subcontract to the SCRWA for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, -6- DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C national ongm, ancestry of any employee, applicant for employment, or any potential subcontractor. F.Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no SCR WA employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G.Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for SCR WA and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of SCRWA prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon SCR WA. H.Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I.Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J.Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. -7- DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONTRACTOR agrees that waiver by SCR WA of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: By: Name: SCRWA: South County Regional Wastewater Authority By: Name: Title: Title: Social Security or Taxpayer Identification Number --94--3166951 ------ ATTEST: SCR WA Secretary Approved as to Form Legal Counsel -8- DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C Jimmy Forbis City Administrator EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit "B", Scope of Services ("Services"). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign Oscar Calix, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written "Notice to Proceed", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, John Edgar shall be the designated SCRWA contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. ("Notices") of this Exhibit "A". B. COMPLETION OF SERVICES When SCR WA determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, SCRWA shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, SCR WA shall make this determination within two (2) weeks of such request, or if SCRWA determines that CONTRACTOR has not completed all of such Services as required by this Agreement, SCR WA shall so inform CONTRACTOR within this two (2) week period. III.PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. A-1 DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C Direct expenses are charges and fees not included in Exhibit "B". SCRWA shall be obligated to pay only for those direct expenses which have been previously approved in writing by SCRW A. CONTRACTOR shall obtain written approval from SCRWA prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and SCRWA expressly relies upon CONTRACTOR'S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to SCR WA. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by SCRWA for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the SCRW A. The SCRWA'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to SCRWA in accordance with applicable law for all damages to SCRWA caused by CONTRACTOR'S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR SCRWA, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to SCRW A by CONTRACTOR, all of which shall be made available to SCR WA at the SCRWA's offices within five (5) business days after SCRWA's request. A-2 DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C D. CONFIDENTIALITY OF MATERJAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of SCR WA, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry ( other than that which becomes generally known as the result of CONTRACTOR'S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use SCRWA'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of SCR WA. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of SCRWA or incur any obligation in the name of SCRWA. F. OWNERSHIP OF MATERJAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared ( or caused to be prepared) under this Agreement shall be the property of SCR WA, but CONTRACTOR may retain and use copies thereof subject to Section V.D of this Exhibit "A". SCRWA shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the SCR WA project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and SCRWA shall indemnify CONTRACTOR from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. H. NOTICES. Notices are to be sent as follows: A-3 DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C ENTITY: SCRWA 1500 Southside Drive, Gilroy, California 95020 CONTRACTOR: 4104 B Street, Stockton, CA 95207 I. FEDERAL FUNDING REQUIREMENTS. D If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations ( 49 CPR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CPR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. A-4 DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C EXHIBIT "B" SCOPE OF SERVICES 1. Requirements a. Contractor shall furnish and install all fencing materials needed. This is to include 3 gates and 3630 feet of fence.(as referenced below) b.Fence is to be install along south side of ND Ponds. See Photo below c.Contractor is to keep site work area clean and free of hazards. d.Contractor will read and understad all SCR W A's site-specific health and safety policies while at the facility or on SCRWA's property. B-1 Fence and Gate Specification Furnish and Install 3630 feet of 6 feet high galvanized chain link fence with no barbwire including three 20 feet double drive gates. Installation starts at administration building parking lot fence and continues west along existing drainage channel to existing fence along Union Pacific railroad tracks, as depicted in red highlight section of the Figure above. DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C EXHIBIT "C" MILESTONE SCHEDULE C-1 Work to be completed in time frame referenced in Article 1. DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C EXHIBIT "D" PAYMENT SCHEDULE Payment is to be made net 30 on sign off on completion of the project. D-1 DocuSign Envelope ID: 7F5E2EF1-716B-4CA2-9DC9-A5F75FA5DA5C