HomeMy WebLinkAboutHull, David J 2022-03-25; Amendment 2 2022-08-23 COU No. 2122-201-A2
SUPPLEMENT TO ADDENDUM TO PROPERTY PURCHASE-SALE/EXCHANGE
AND DEVELOPMENT AGREEMENT AND JOINT ESCROW INSTRUCTIONS,
DATED MARCH 25, 2022.
This Supplement to Addendum to Property Purchase-Sale/Exchange and Development
Agreement and Joint Escrow Instructions Dated March 25, 2022 ("Supplement") is entered on
the date last executed below by and between David J. Hull, individually and as Trustee of the
David J. Hull Living Trust, and D&J Investments, LLC, a California limited liability company
(collectively "Hull" or "Developer"), on the one hand, and the City of Ukiah ("City"), on the
other hand. The effective date of this Supplement is August 23, 2022. RECITALS:
1. On March 25, 2022, Hull and City entered into the Property Purchase-Sale/Exchange
And Development Agreement And Joint Escrow Instructions ("Agreement").
2. On August 23, 2022, Hull and City augmented the Agreement by way of that document
entitled Addendum To Property Purchase-Sale/Exchange And Development Agreement And
Joint Escrow Instructions, Dated March 25, 2022 ("Addendum").
3. In the Addendum, Hull and City modified the portion of Section 2.2.5 of the Agreement
providing for the construction of Electrical Infrastructure, as defined and described in the
Agreement, to include Hull's purchase, trenching, and installation of the Additional Conduit, as
defined in Recital No. 2 of the Addendum ("Modified Project"), and the City's payment
obligations related thereto, as defined and prescribed in the Addendum.
4. As a result of the Addendum and Modified Project and the City's obligation to pay for its
share of Modified Project costs, the City has determined that the all of the work on Electrical
Infrastructure required by Section 2.2.5, including but not limited to the Modified Project
(collectively "¶2.2.5 Electrical Infrastructure Project"), comes within the definition of"Public
Works" in Labor Code Section 1720, which requires the payment of prevailing wages under
Labor Code Section 1771.
5. Hull contracted with T&T Paving, Inc., dba Valley Paving ("Valley Paving"), which has
a current registration (No. 1000008895) as a General Engineering, Parking/Highway/
Improvement contractor with the California Department of Industrial Relations, as the general
contractor for the¶2.2.5 Electrical Infrastructure Project.
6. This Supplement is intended to implement the prevailing wage requirements that apply to
Public Works.
AGREEMENT:
Based on the foregoing Recitals, which are incorporated into the terms of this Supplement by
reference, and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Hull and the City hereby agree as follows.
1. The City's payment obligation/ share of costs for the Modified Project, as stated in the
Addendum, shall additionally include payment to Hull for any increase in labor costs resulting
Supplement to Addendum to Exchange Agreement
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from the application of prevailing wage rates to all work performed on the¶2.2.5 Electrical
Infrastructure Project.
2. Hull shall attach to and incorporate into Hull's contract with Valley Paving the Prevailing
Wage Addendum attached to this Supplement as Attachment A. The provisions of Attachment A
shall apply to all work performed by Valley Paving on the¶2.2.5 Electrical Infrastructure
Project from and after the date such work commenced, except that,to the extent allowed by law,
no penalty of any type shall result to Hull or Valley Paving for the non-payment of prevailing
wages for work on the T. 2.2.5 Electrical Infrastructure Project for time periods predating this
Supplement, so long as supplemental payments for such periods are made as required in Section
2.1 of Attachment A; and, if despite making such supplemental payments as required in that
Section 2.1 Hull or Valley Paving incur penalties due to the failure to pay prevailing wages on
the¶2.2.5 Electrical Infrastructure Project for the time period August 23, 2022 to the date this
Supplement is executed, City's payment obligation/share of costs as provided in section 1 to
this Supplement shall include an additional sum equal to the amount of penalties so levied;
provided Hull and Valley Paving cooperate with the City in challenging the imposition of such
penalties at City's request. Hull and City each acknowledge that: the¶2.2.5 Electrical
Infrastructure Project was not subject to prevailing wage requirements, until August 23, 2022,
the effective date of the Addendum; and, from that date until November 1, 2022,Valley Paving
was not informed that public funds were paying for part of the project costs and the parties'
failure to recognize the application of the prevailing wage rates to the project costs was a good
faith mistake,which is promptly being corrected through this Supplement.
WHEREFORE,this Supplement is executed on the date(s) stated below.
CITY OF UKIAH DAVID J. HULL, Individually, as Trustee of the DAVID J.
HULL LIVING TRUST, and as managing member of D&J
By: INVEST TS, LL
Sage Sangiacomo,
City Manager By:
David J. H#7
ATTEST:
Kristine Lawler(Nov 22,2022 08:48 PST)
Kristine Lawler, City Clerk
*END*
Supplement to Addendum to Exchange Agreement
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ATTACHMENT A - PREVAILING WAGE ADDENDUM
Date:
Valley Paving agrees to comply with the following requirements.
1. Payment of Prevailing Wages to Workers and Related Requirements.
1.1 "Modified Project" means the purchase,trenching for, and installation of
an additional 2-inch conduit and an additional 4-inch conduit as described in the
Addendum to Property Purchase-Sale/Exchange and Development Agreement and Joint
Escrow Instructions, Dated March 25, 2022 ("Addendum"), a copy of which has been
provided to Valley Paving.
1.2 As a result of the Modified Project all of the work performed by Valley
Paving under the portion of Section 2.2.5 of the Property Purchase-Sale/Exchange and
Development Agreement and Joint Escrow Instructions, dated March 25, 2022
("Original Contract"), providing for the installation of Electrical Infrastructure, as
defined in the Original Agreement and the Addendum (in combination"¶ 2.2.5
Electrical Infrastructure Work") is a public works project subject to the prevailing wage
and related requirements contained in Division 2, Part 7, Chapter 1, Articles 1-3 of the
California Labor Code, commencing with Section 1720, and is subject to compliance
monitoring and enforcement by the Department of Industrial Relations ("DIR"). A copy
of the Original Contract, describing the Electrical Infrastructure Work has been provided
to Valley Paving.
1.3 The Labor Commissioner through the Division of Labor Standards
Enforcement(DLSE) may at any time require Valley Paving and any of its
subcontractors to furnish electronic certified payroll records directly to DLSE. Valley
Paving and any of its subcontractors are required to furnish electronic certified payroll
records directly to the Division of Labor Standards Enforcement ("DLSE") every thirty
(30) days, commencing when work on the Modified Project commenced.
1.4 Valley Paving is required to post job notices at the job site as prescribed
by regulations (currently 8 CCR §16451(d)).
2. Use of Employees.
2.1. Valley Paving and any subcontractors shall pay all mechanics and laborers
employed by there to work upon the site of the work unconditionally and without
subsequent deductions or rebate on any account the full amounts due at the time of
payment at wage rates not less than those contained in the applicable prevailing wage
determination, regardless of any contractual relationship which may be alleged to exist
between the Valley Paving and subcontractors and such laborers and mechanics. The first
payment after this Attachment A is incorporated into the construction contract of wages
to workers and mechanics performing work oil the T2.2.5 Electrical Infrastructure Work
Prevailing Wage Addendum- 1
shall supplement any previous wage payments ("Supplemental Payments"), if necessary,
to pay said workers at not less than the prevailing wage rates for all work they have
performed on the¶2.2.5 Electrical Infrastructure Work.
2.2. On and after the date this Exhibit A is incorporated into the construction
contract... Valley Paving shall comply with the California Labor Code Section 1775. In
accordance with said Section 1775, Valley Paving shall forfeit as a penalty to the City,
$50.00 for each calendar day or portion thereof, for each workman paid less than the
stipulated prevailing rates for such work or craft in which such workman is employed for
any work done under the Contract by him or her or by any subcontractor under him or her
in violation of the provisions of the Labor Code and in particular, Labor Code Sections
1770 to 1780, inclusive. (This penalty shall not apply to Supplemental Payments.) In
addition to said penalty and pursuant to Section 1775, the difference between such
stipulated prevailing wage rates and the amount paid to each workman for each calendar
day or portion thereof for which each workman was paid less than the stipulated
prevailing wage rate shall be paid to each workman by Valley Paving.
2.3. Pursuant to the provision of Section 1770 of the Labor Code of the State of
California, City has ascertained the general prevailing rate of wages (which rate includes
employer payments for health and welfare, vacation, pension and similar purposes)
applicable to the work to be done, for straight time work. The holiday wage rate listed
shall be applicable to all holidays recognized in the collective bargaining agreement of
the particular craft, classification, or type of workers concerned. Copies of the General
Prevailing Wage Determination are on file in the office of the City Engineer and are
available to Valley Paving on request. Valley Paving shall post the wage determination
at the site of work in a prominent place where the workers can easily see it.
2.5. Travel and Subsistence Payments.
Valley Paving shall make travel and subsistence payments to each worker needed
to execute the work in accordance with the requirements in Section 1773.8 of the Labor
Code (Chapter 880, Statutes of 1968).
2.6. Apprentices.
Attention is directed to the provisions in Sections 1777.5 (Chapter 1411, Statutes
of 1968) and 1777.6 of the California Labor Code concerning the employment of
apprentices by Valley Paving or any subcontractor under it. Valley Paving and any
subcontractor under it shall comply with the requirements of said sections in the
employment of apprentices.
Information relative to apprenticeship standards, wage schedules and other
requirements may be obtained from the Director of Industrial Relations, ex officio the
Administrator of Apprenticeship, San Francisco, California, or from the Division of
Apprenticeship Standards and its branch offices.
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Copies of Labor Code Sections 1771 (requiring prevailing wages), 1775 (imposing
penalties,including a$50 per day,per worker forfeiture, for failure to pay prevailing
wages), 1776 (requiring a contractor to maintain available for inspection certified payroll
records), 1777.5 (requiring certain apprenticeship programs), 1813 (imposing penalties
for failure to make records available for inspection) and 1815 (requiring time and 1/2 for
overtime) are available at the Department of Industrial Relations website at
http://www.dir.ca.go
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