HomeMy WebLinkAboutFieldstone Construction Company 2013-02-22 i _ . __. _. _. _ _ . - . _ __. _
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CITY OF UKIAH
Mendocino County, California l
AGREEMENT
FOR I
ORCHARD SUBSTATION LANDSCAPE CONSTRUCTION
Specification No. 12-13
THIS AGREEMENT, made this 13`"day of December,2012, by and between the City of Ukiah, Mendocino County,
California, hereinafter called the City and Fieldstone Construction Company, hereinafter called the Contractor,
WITNESSETH:
WHEREAS, the City has caused to be prepared in accordance with law, specifications,drawings and other contract I
documents for the work herein described and shown and has approved and adopted these contract documents,
specifications and drawings and has caused to be published in the manner and for the time required by law a notice
to bidders inviting sealed proposals for doing the work in accordance with the terms of this contract and
WHEREAS, the Contractor, in response to the notice to bidders, has submitted to the City a sealed proposal �
accompanied by a proposal guaranty In an amount of not less than 10 percent of the bid price for the construction
of the proposed work in accordance with the terms of this contract and
WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined and canvassed the '�
proposals submitted and as a result has determined and declared the Contractor to be the lowest and best regular
responsible bidder for the work and for the sums named in the proposal,
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
Article 1 Work to be Done and Contract Davs Allowed.
That the Contractor shall provide all necessary machinery, tools, apparatus and other means of construction, shall
furnish all materials, superintendence, overhead, expenses, all labor and expenses of whatever nature necessary
for completion of the work in conformity with the Special Provisions and other contract documents hereto attached
and according to such instructions as may be given by the Engineer. The Contractor shall complete the work within
sixty (60) calendar days. Contract days shall be counted starting with the 10th day following receipt of notice that
the contract has been executed by the City. Contractor, at his or her option, may begin work prior to start of I
counting contract days, however, in no event shall the Contractor start work without giving notification to the
Engineer at least 72 hours prior to the start of work, without obtaining an encroachment permit from the City, or
without having submitted certificates of insurance that have been accepted and approved by the Engineer I
Article II. Contract Prices. �
That the City shall pay the Contractor the prices stated in the proposal submitted by the Contractor, for complete
performance of the contract by the Contractor. The Contractor hereby agrees to accept the prices as full I
compensation for all material and appliances necessary to the work, for all labor and use of tools and other
Orchard Substation Landscape Construction 36 Spea No. 12-13
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implements necessary to execute the work contemplated in this contract; for all loss or damage arising out of the
nature of the work or from the action of the elements, or from any unforeseen obstructions or difficulties which may
be encountered in the prosecution of the work; for all risks of every description connected therewith; for all
expenses of the work, as herein specified;for all liability and other insurance,for all overhead and other expenses
incident to the work;all according to the Contract Drawings, the Special Provisions,the Details,the instructions and
the requirements of the City. �
Article III. Labor Discrimination. I
Attention is directed to Section 1735 of the Labor Code, which reads as follows:
i "No discrimination shall be made in the employment of persons upon public works because of the race,
color, national origin or ancestry, or religion of such persons and every contractor for public works violating
this section is subject to all the penalties imposed for a violation of this chapter."
In connection with the performance of work under this contract, the Contractor agrees as follows:
(a) The Contractor will not willfully discriminate against any employee or an applicant for employment
because of race, color, religion, ancestry, or national origin.The Contractorwill take affirmative action
to ensure that applicants are employed and that employees are treated during employment without
regard to their race, color, religion, ancestry, or national origin. Such action shall include, but not be
limited 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.The Contractor agrees to post in conspicuous places, available to
employees and applicants for employment, notices to be provided by the awarding authority setting
forth the provisions of this Fair Employment Practice section.
(b) The Contractor will send to each labor union or representative of workers with which he or she has a
collective bargaining agreement or other contract or understanding, a notice, to be provided by the
awarding authority, advising the said labor union or worker's representative of the Contractor's
commitments under this section, to employees and applicants for employment.
(c) The Contractor will permit access to his or her records of employment, employment advertisements,
application forms and other pertinent data and records by the Fair Employment Practices
Commission, City of Ukiah or any other appropriate agency of the State of California designated by
the awarding authority, for the purposes of investigation to ascertain compliance with the Fair
Employment Practices section of this contract.
(d) A finding of willful violation of the Fair Employment Practices section of this Contract or of the Fair �
' Employment Practices Act shall be regarded by the awarding authority as a basis for determining the i
' Contractor to be not a "responsible bidder" as to future contracts for which such Contractor may
submit bids, for revoking the Contractor's pre-qualification rating, if any and for refusing to establish,
, reestablish or renew a pre-qualification rating for the Contractor.
The City of Ukiah shall deem a finding of willful receipt of written notice from the Fair Employment
Practices Act to have occurred upon that it has investigated and determined that the Contractor has
violated the Fair Employment Practices Act and has issued an order under Labor Code Section 1426
or obtained an injunction under Labor Code Section 1429.
Upon receipt of such written notice from the Fair Employment Practices Commission, the City shall
notify the Contractor that unless he or she demonstrates to the satisfaction of the awarding authority
within a stated period that the violation has been corrected, his or her pre-qualification rating will be
revoked at the expiration of such period.
Omhartl Substation Landscape Construction 37 Spec. No. 12-13
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(e) The Contractor agrees that should the City determine that the Contractor has not complied with the
Fair Employment Practices section of this Contract, then pursuant to Labor Code Section 1735 and
1775 the Contractor shall, as a penalty to the City,forfeit for each calendar day or portion thereof,for !
each person who was denied employment as a result of such non-compliance,the penalties provided
in the Labor Code for violation of prevailing wage rates. Such monies may be recovered from the
Contractor. The City may deduct any such damages from any monies due the Contractor.
(f) Nothing contained in this Fair Employment Practices section shall be construed in any manner of
fashion so as to prevent the City or the State of California from pursuing any other remedies that may
be available at law.
(g) Prior to awarding the Contract, the Contractor shall certify to the awarding authority that he or she has
or will meet the following standards for affirmative compliance,which shall be evaluated in each case I
by the awarding authority: '
(1) The Contractor shall provide evidence, as required by the City that he or she has notified all '
supervisors, foremen and other personnel officers in writing of the content of the anti-discrimination
clause and their responsibilities under it,
(2) The Contractor shall provide evidence, as required by the City, that he or she has notified all I
sources of employees' referrals (including unions, employment agencies, advertisements,
Department of Employment) of the content of the anti-discrimination clause.
(3) The Contractor shall file a basic compliance report, as required by the City. Willfully false
statements made in such reports shall be punishable as provided by law.The compliance report shall
also spell out the sources of the work force and who has the responsibility for determining whom to
hire, or whether or not to hire.
(4) Personally, or through his or her representatives, the Contractor shall, through negotiations with
the unions with whom he or she has agreements, attempt to develop an agreement which will:
a. Spell out responsibilities for nondiscrimination in hiring, referral, upgrading and training.
b. Otherwise implement an affirmative anti-discrimination program in terms of the unions'
specific areas of skill and geography to the end that qualified minority workers will be available
and given and equal opportuniry for employment.
(5) The Contractor shall notify the City of opposition to the anti-discrimination clause by individuals, I
firms or organizations during the period of its pre-qualification.
(h) The Contractor will include the provisions of the foregoing paragraphs 1 through 5 in every first tier
subcontract so that such provisions will be binding upon each such subcontractor.
(i) The "Fair Employment Practices Certification" must be completed and signed prior to the time of
submitting the bid.
Orchard Substation Lantlscape Construction 38 Spec. No. 12-13
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Article IV. Parts of the Contract.
That the complete contract consists of the following documents, all of which shall be considered a part of this
agreement.
1 Notice to Bidders I
2. Wage Rates
3, General Conditions
4. Technical Specifications ;
5. Proposal
6. Fair Employment Practices Certification
7. Agreement
8. Contract Bonds
9. Contract Drawings and Construction Details
10. Standard Drawings
11. Indemnification Agreement
IN WITNESS WHEREOF, this contract being executed in duplicate and the parties having caused their names to
be signed by authority of their duly authorized office this�day of�, 20�.
CITY OF UKIAH, MENDOCINO COUNTY, CALIFORNIA
By i{��x l ✓//..In�..-iln-�i�
�'Ef Y MANAGER, CITY OF UKI/�H
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Attest ��������ll.l �CI,GL �� �L� — �
�ITY CLERK, CITY OF UKIAH /
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By: i � `c �� r �� �-�° '
FIEL TO� O STR CTI N C PANY i � � � �� �
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Attest `�� � `� � ���
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Title_ � --�:,�4tiQ i � r e��1��, � �� �, y� ����u� �'—�
The foregoing contrect is apprqved as to form and legality this � day of � �i� 20 13
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���� t i�� ' r/,{.! y _ �t�i/ � 4
TY AT O EY, CITY OF UKIA I
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Orehard Substation Landscape Construction 39 Spea No. 12-13
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INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered in Ukiah, California, on �2 , � 3 , 20 �z by
and between the City of Ukiah (Ukiah) and ��+=�vsio-�� �,isr��.>...� �� (Contractor).
Contractor is(� f /� III /�
s�hWm? �-Y�'�k. �r[-�Nd �t76 ��'7+d� E� � �(C.X'�O/-�
S ��, 2 • for Ukiah.
As a condition of issuing the work order, attached hereto, Ukiah requires assurance that Contractor will protect
Ukiah from damage or damage claims which arise from its pertormance of the work.
Accordingly, Contractor agrees as follows: li
1. Indemnification. Contractor shall indemnify and hold harmless Ukiah and its officers, agents, and employees
from and against any claim, loss, or damage, including the legal and othercosts of defending against any claim of �
damage or loss which arises out of the Contractor's negligent or wrongful pertormance under the work order
attached hereto, except for claims, losses, or damages resulting from the sole and exclusive negligence or other
wrongful conduct of Ukiah or its officers, agents and employees.
FIELDSTONE CON�S�T�/
G'//-�
BY: / � ,� �- .
TITLE �L����,�o� ���e�L/-„[� ����''�l�
Orchard Substation Landscape Construction 40 Spea No. 12-13
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' ASSIGNMENT AND ASSUMPTION AGREEMENT 'I
This Assignment and Assumption Agreement is made in Ukiah, California, on May � I
2012 (`Gfrective Date"), betwcen the City of Ukiah, a general law city ("City°) and Pun Times,
i Inc. ('`Fun Timcs"), a California for-pro(it corporation, organized under and in compliance with
thc laws of the State of California. The City or Fun Times may be referred to herein as a "Party,"
and collectively, as the "Parties."
REC[TALS:
I. On May I, 2009, the City entered an Agreement for Ukiah Sports Complex
Concession Services ("Concession ContracY') with %ia A. Poya ("Poya") and Donald R.
Delahydc ("Delahoyde") DBA: The Pub, a California for-protit corporation. The Concession
Contract has a five year term, ending on April 30, 2014.
2. On March 20, 2012, Delahoyde sent Stephanie L. Young ofthe City a lctter indicating
that Poya and Delahoyde were partncrs undcr the Concession Contract and Poya was retiring and
his 50% parLnership interest has been purchased by Staci McGrew (`McGrew"). Thc Ictter also
indicated ihat Delahoyde and McGrew have formed a corporation named Fun Timcs, Inc. and �
want to continue the Concession Contract between the City and Pun Times.
3. The City is willing to assign the Concession Contract to Fun Times on the condition
that(a) Fun Times assume the obligations under the contract, (b) agree to modify Section 22 to
include prior City approval for any change in the ownership or control of Fun Times, and (c) �
Delahoyde and McGrew guarantee the performance of Pun "�imes.
AGREEMENT:
In consideration and reliance upon the above-recitals and the terms and conditions as �
stated herein, the Parties agree as follows.
� I. "I'he City approves the assignment ofthe Concession Contract to Fun Times.
2. Fun Times accepYS thc assignmcnt of the Concession Contract and assumes all of thc
obligations thereunder.
3. Fun Times agrees that lhe provisions in Section 22 ofthe Concession Contract require I
City approval of any change in the ownership and control of I�un Times as long as thc
Conccssion Contract remains in effect betwcen the Parties.
4. Fun Times agrees to accept full responsibility for assisting City on security of
complcx and enforcing all rulcs.
W I IEREFORE, thc Partics have entered this Assignment and Assumption Agreement on thc
Effectivc Datc. i
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GTY OF UKIAII �� FUN 'TIM@�, INC. �I
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�y: ;� �_ � - -- � �yr _ ' ', � �'� ��-�
Janc Chambers, City Managcr ponald Dclahoyde, President I
nTTE�'I'�i` — ,
' Gi Clerk
L l.d�st. F,�-cL.ir�
PERSONAL GUARANTti'
1=0R GOOD AND VALUABLG CONSIDERA"I'ION, and as a material inducement for the City
of Ukiah approving thc assignment of thc Agrcement lor Ukiah Sports Complcx Concession
Services ("Concession Contract"), dated May I, 2009, to Fun Times, Inc., il is hereby agroed,
effective as of .���'���, 2012, thal the undersigned ("Guarantor") promises as follows:
I. Guaranlor unconditionally guarantccs and promises to and for the benefit of thc
City of Ukiah (`City")that Fun Times shall perform the provisions of the above Assignment and
Assumption Agrecmcnt and the Concession Contract (collectively, "the Agreements").
2. Guarantor agrees ihat Guarantor shall be primarily bound, and jointly and
scvcrally liable, with Fun Times under the Agreements as though Guarantor were partics thereto.
Guarantor hereby covenants and agrees that if Fun Times shall at any time default on any tcrm ol�
the Agrcements, Guarantor shall pay any sum and provide any defense required under the
Agrecments to City, and shall fully satisfy all of the conditions and covenants of the Agrcemenis,
and will pay all damages that may arise out of, relate to, and occur by reason of the
nonperformance or breach of any of said covenants. Guarantor agrees that thc City may proceed �
against Guarantor directly and independently from Fun "I imes.
3. I f a Guarantor is more than one person, Guarantor's obligations are joint and scveral,
and arc independent of Fun Time's obligations. A separate action may be brought or prosecuted I�
by City against any Guarantor whether the action is brought or prosecuted against any other
Guarantor, or all, or whether any other Guarantor, or all, are joincd in the aclion.
4. 7'his Personal Guaranty ("Guaranty") is a continuing guaranty which applies to any �
renewal, cxlension, modification, or amcndment of ihc Agreements, without notice to or thc
consent of the Guarantoc Guarantor acknowledges that i[ is Guarantor's responsibility to �
communicate with Fun Times regarding thc status of thc ngreements. This Guaranty shall
guarantee the performance of all of the terms and conditions ofthe Agreements as moditied, I
amended, or extended. Assignment of thc Agrcements (as permitted by the Agrcements) shall
not affcct this Guaranty.
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5. The Guarantor waives the benefit of any statute of limitations affecting Guarantor's I
liability under this Guaranty.
6. This Guaranty shall nol be affectcd by City's failure or delay to enforce any
i of the provisions of the Agreements or any of its rights thereunder.
7. IC Pun Times defaults undcr the Agreements, City can proceed immediately against
Guarantor, or City can enforce against Guarantor or Fun Times, or both, any rights that City has
under the Agreemcnts, or pursuant to applicable laws. Tf the Agrecments are tcrminated and City �
has any rights, it can enforce those rights againsl Guarantor without�iving previous notice to
Fun 'I'imes or Guarantor, or without making any demand on eithcr of them. I
8. Guarantor waives the right to require City ta. (I) proceed against Fun Times; (2) �
procced against or exhaust any security that City holds from Fun Times; or 3) pursue any other I
rcmedy in City's power. Guarantor waives any dcfense by reason of any disability of Pun Times,
and waives any other defense bascd on the termination of Fun Times' liability from any cause.
Until all Fun Times' obligations to City have becn discharged in full, Guarantor has no right of
subrogation against Fun Times. Guarantor waives its right to enforce any remedies that City now
has, or may have, against Fun Times. Guarantor waives aIl prescntments, demands for
performance, notices of acceptance of this Guaranty, and waives all notices of the existence,
crcation, or incurring of new or additional obligations. I
9. If City disposes of its inierest in the Agreements, "City"as used in I
this Guaranty shall mean City's successors.
10. If City is required to enforce Guarantor's or Fun Times' obligations by legal
proceedings, Guarantor shall pay to City all costs incurred, including, without limitation, I
reasonablc attorneys' fees and costs. �
I I. Guarantor's obligations undcr this Guaranty shall be binding on Guarantor's
successors.
Each of the undersigned warrants and represents it has full authority to enter into this
Guaranty. This G rant�shall be deemed executed in the City of Ukiah, and shall be construed
and enforced und r the la s of the St e�f California. li
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GUARANTOR. t,���� '��'��`" '
ald Dclahoyde � Staci McGrcw
Guarantor Signalure: � �(,�� ����� C.y�/'�,`_ �
Date: �— l Z'— I �' Date: S—��Z � �--�
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