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HomeMy WebLinkAboutWestern Water Constructors 2016-05-09( / I 2oz CITY OF UKIAH Mendocino County, California AGREEMENT FOR SITE DEVELOPMENT FOR WELL 4 & WELL 9 Specification No. 16-02 THIS AGREEMENT, made this 9th day of May, 2016, but and between the City of Ukiah, Mendocino County, California, hereinafter called the City and Western Water Constructors, Inc., hereinafter called the Contractor, WITNESSED: WHEREAS, the City has caused to be prepared in accordance with law, specifications, drawings and other contract 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 WITNESSED: Article 1. Work to be Done and Contract Days Allowed. That the Contractor shall provide all necessary machinery, tools, apparatus and other means of construction; shall furnish all materials (as described), 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 Project Manager. The Contractor shall complete the work within one -hundred sixty (160) working 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 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. 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 compensation for all material and appliances necessary to the work, for all labor and use of tools and other 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. SITE DEVELOPMENT FOR WELL 4 & WELL 9 470 Spec. No. 16-02 • 4 Article III. Labor Discrimination. Attention is directed to Section 1735 of the Labor Code, which reads as follows: "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 Contractor will 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 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. (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. SITE DEVELOPMENT FOR WELL 4 & WELL 9 471 Spec. No. 16-02 Such monies may be recovered from the Contractor. The City may deduct any such damages from any monies due the Contractor. 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. 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 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 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 opportunity for employment. (5) The Contractor shall notify the City of opposition to the anti -discrimination clause by individuals, 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. 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 2. Wage Scales 3. General Conditions 4. Technical Specifications 5. Proposal 6. Fair Employment Practices Certification 7. Agreement SITE DEVELOPMENT FOR WELL 4 & WELL 9 472 Spec. No. 16-02 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 , 201 CITY OF UKIAH, MENDOCINO COUNTY, CALIFORNIA By: Attest: By: Attest: Title: 6 MA • G ITY • F UKIAH CITY CLERK, CITY OF UKIAH osh Mc rva-President STEWATER CONSTR /i RS Ken Kreischer -Secretary it The foregoing contract is approved as to form and legality this 7 day of -Jo, 201 CITY A Y, CIT OF KIA� SITE DEVELOPMENT FOR WELL 4 & WELL 9 473 Spec. No. 16-02 INDEMNIFICATION AGREEMENT This Indemnification Agreement is made and entered in Ukiah, California, on May 9th, 2016, by and between the City of Ukiah (Ukiah) and Western Water Constructors, Inc. (Contractor) Contractor is Performing Site Development for Well 4 and Well 9 per Specification No. 16-02 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 performance of the work. Accordingly, Contractor agrees as follows: 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 other costs of defending against any claim of damage or loss which arises out of the Contractor's negligent or wrongful performance 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. WESTERN WAT ' CONSTRUC, INC. BY: hi/— TITLE: Josh McGarva-President SITE DEVELOPMENT FOR WELL 4 & WELL 9 474 Spec. No. 16-02 C,otk, J(/o_ /5)6 -las ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION ESCROW # 1190 To: Banner Bank Corporate Escrow Dept 1750 Howe Avenue, Suite 100 Sacramento, CA 95825 The undersigned delivers herewith, or will cause to be delivered to Banner Bank, a State chartered bank, Corporate Escrow Services, hereinafter called Escrow Agent, the papers, money or property hereinafter described to be held and disposed of by Escrow Agent in accordance with the following instructions and upon the terms and conditions herein set forth, to which the undersigned hereby agree. This Escrow Agreement is made the 10th of June, 2016, is entered into by and between City of Ukiah, whose address is 300 Seminary Avenue, Ukiah, CA 95482-5400, hereinafter called "Owner"; Western Water Constructors, Inc. whose address is 707 Aviation Blvd, Santa Rosa, CA 95403 hereinafter called "Contractor", and Banner Bank, a State chartered bank, whose address is 1750 Howe Avenue, Suite 100, Sacramento, California 95825, hereinafter called "Escrow Agent". For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows: (1) EQUAL HOUSING LENDER Pursuant to Section 22300 of the Public Contract code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner and Contractor for the Site Development for Well 4 and Well 9 in the amount of ***One Million Eight Hundred Eighty -Five Thousand Dollars and No Cents*** ($1,885,000.00) dated May 6, 2016 (hereinafter referred to as "Contract"). Alternatively, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the Owner within 10 days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name of City of Ukiah, and shall designate the Contractor as the beneficial owner. 1750 Howe Ave. • Sacramento, CA 95825-3368 Phone: 916-648-2100 • bannerbank.com Member FDIC, Equal Housing Lender (2) The Owner shall make progress payments to the Contractor for those funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. When the Owner makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created under this Contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the Escrow Agent directly. (4) Contractor shall be responsible for paying all fees for the expenses incurred by the Escrow Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment terms shall be determined by the Owner, Contractor and Escrow Agent. (3) (5) The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the Owner. (6) Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor. (7) (8) (9) The Owner shall have a right to draw upon the securities in the event of default by the Contractor. Upon seven days' written notice to the Escrow Agent from the Owner of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by Owner. Upon receipt of written notification from the Owner certifying that the Contract is final and complete, and that the Contractor has complied with all requirements and procedures applicable to the Contract, Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges. Escrow Agent shall rely upon the written notification from the Owner and the Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement and the Owner and Contractor shall hold Escrow Agent harmless from Escrow Agent's release and disbursement of the securities and interest as set forth above. (10) The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of the Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows: On behalf of the Owner: City of Ukiah Authorized Sign Name j, 5,.,„ 3 ; sr o �y Authorized Signer Title CA--VV-V\ e,� r 300 Seminary Avenue Ukiah, CA 95482-5400 On behalf of the crow Agent: Banner Ba k 1 Kathleen T mas, Senior Vice President Division Ma er, Northern California Corporate Escrow Dept 1750 Howe Avenue, Suite 100 Sacramento, CA 95825 On behalf o Wester the C tractor: ate onstructors, Inc. Ken eischer, Chief Financia 707 Aviation Blvd Santa Rosa, CA 95403 At the time the escrow account is opened, the Owner and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officer on the date first set forth above. City of Uk_ah 61/blkttLad1t) Authorized Signer Name K l 7" I tv LP4,v1-E1 Authorized Signer Title e...41"1( C LCR Western : er C . uctors, Inc. Ken eischer, Chief Financial