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Home My WebLink About20-J-07 Durham Construction.pdf Contract No.: #20-J-06 20-J-07 20-J-08 Agreement 00 52 13-1 JOB ORDER CONTRACTS A G R E E M E N T 1 2 3 THIS AGREEMENT made at Fresno, in Fresno County, California, by and 4 between Durham Construction Company, hereinafter “Contractor”, and the County of 5 Fresno, hereinafter “Owner”. 6 7 WHEREAS: This Agreement, together with other Contract Documents (as 8 defined hereinbelow), shall establish an indefinite quantity Job Order Contract pursuant to 9 which Contractor shall perform an ongoing series of individual projects at different 10 locations throughout the County of Fresno. The construction work and services performed 11 by Contractor under this Agreement shall be carried out pursuant to individual Work 12 Orders. All capitalized terms not defined in this Agreement shall have the meanings set 13 forth in the General Conditions referenced hereinbelow and incorporated herein by 14 reference. 15 16 WITNESSETH, the Contractor and the Owner, for the consideration hereinafter 17 named, agree as follows: 18 19 20 ARTICLE I. The Contractor agrees to furnish all labor, equipment and materials, including 21 tools, implements, and appliances required, and to perform all the work in a good and 22 workmanlike manner, free from any and all liens and claims of mechanics, materialmen, 23 subcontractors, artisans, machinists, teamsters, and laborers required for Job Order 24 Contract No. 20-J-06, also referred to herein as the “Contract”. 25 20-J-07 26 20-J-08 27 All goods and services provided shall be in strict compliance with the Construction Task 28 Catalog®, Technical Specifications and Contracting Requirements therefore prepared by 29 the Director of the Fresno County Department of Public Works and Planning and his 30 authorized representatives, hereinafter “Project Manager”, and other contract documents 31 relating thereto. 32 33 34 ARTICLE II. The Contractor and the Owner agree that the Advertisement (Notice to 35 Bidders), the Wage Scale, the Proposal hereto attached, the Instructions to Bidders, the 36 General Conditions of the contract, the Technical Specifications, the Construction Task 37 Catalog® and the Addenda and Bulletins thereto, the Contract Bonds and Certificates of 38 Liability and Workers Compensation Insurance, and the Work Orders, together with this 39 Agreement, form the Contract Documents, and they are as fully a part of the contract as if 40 hereto attached or herein repeated. But no part of said specifications that is in conflict with 41 any portion of this Agreement, or that is not actually descriptive of the work to be done 42 thereunder, or of the manner in which the said work is to be executed, shall be considered 43 as any part of this Agreement, but shall be utterly null and void, and anything that is 44 expressly stated, delineated or shown in or upon the specifications or Detailed Scope of 45 Work shall govern and be followed, notwithstanding anything to the contrary in any other 46 source of information or authority to which reference may be made. 47 48 49 ARTICLE III. The Contractor agrees that the work under the contract shall be completed 50 as determined by the Owner as set forth in the individual Work Orders. Time of 51 performance shall be deemed as of the essence hereof and it is agreed that actual 52 damages to the Owner from any delay in completion beyond the date provided for herein, 53 Contract No.: #20-J-06 20-J-07 20-J-08 Agreement 00 52 13-2 JOB ORDER CONTRACTS or any extension thereof until the work is completed or accepted, shall be all provable 1 damages plus liquidated damages as identified in the individual Work Orders ranging 2 from Two Hundred Fifty and 00/100 DOLLARS ($250.00) to Five Thousand and 3 00/100 DOLLARS ($5000.00) per day; that said liquidated damage was arrived at by a 4 studied estimate of loss to the Owner in the event of a delay considering the following 5 damage items which are extremely difficult or impossible to determine: Additional 6 construction expense resulting from delay of completion including, but not limited to, 7 engineering, inspection, rental and utilities; provided, however, the Owner may 8 conditionally accept the work and occupy and use the same if there has been such a 9 degree of completion as shall in its opinion render the same safe, fit and convenient for 10 the use for which it is intended and in such cases the Contractor and Surety shall not be 11 charged for liquidated damages for any period subsequent to such conditional 12 acceptance and occupation by the Owner but Owner may assess actual damages 13 caused by failure of total completion during such period. The time during which the 14 Contractor is delayed in said work by the acts or neglects of the Owner or its employees 15 or those under it by contract or otherwise, or by the acts of God which the Contractor 16 could not have reasonably foreseen and provided for, or by storms and inclement 17 weather which delays the work, or by any strikes, boycotts, or like obstructive action by 18 employee or labor organizations, or by any general lockouts or other defensive action 19 by employers, whether general, or by organizations of employers, shall be added to the 20 time for completion as aforesaid. 21 22 23 ARTICLE IV. COMPENSATION: The Owner agrees to make payments on account 24 thereof as provided in the General Conditions. 25 26 The Contract is an indefinite-quantity contract for construction work and services. The 27 Minimum Contract Value of Work Orders that the Contractor is guaranteed the 28 opportunity to perform under this Contract is $25,000. The Maximum Contract Value is 29 $5,185,091.94. At the discretion of the Owner and if deemed to be in the public interest, 30 the Maximum Contract Value of this Contract may be increased to the limit allowable by 31 Public Contract Code during the Term of the Agreement. 32 33 The Contractor shall perform all work required, necessary, proper for or incidental to 34 completing the Detailed Scope of Work called for in each individual Work Order issued 35 pursuant to this Contract for the Unit Prices set forth in the Construction Task Catalog ® 36 and the following Adjustment Factors: 37 38 1. County / State-funded Projects – Normal Working Hours (7:00am to 5:00pm Monday 39 through Friday) 40 41 42 2. County / State-funded Projects – Other Than Normal Working Hours (5:00pm to 43 7:00am Monday through Friday, and all day Saturday, Sunday, and Holidays) 44 45 46 3. Federally-funded Projects – Normal Working Hours (7:00am to 5:00pm Monday 47 through Friday) 48 49 50 4. Federally-funded Projects – Other Than Normal Working Hours (5:00pm to 7:00am 51 Monday through Friday, and all day Saturday, Sunday, and Holidays) 52 53 Contract No.: #20-J-06 20-J-07 20-J-08 Agreement 00 52 13-3 JOB ORDER CONTRACTS 1 5. County / State-funded Projects in Secure Facilities – Normal Working Hours (7:00am 2 to 5:00pm Monday through Friday) 3 4 5 6. County / State-funded Projects in Secure Facilities – Other Than Normal Working 6 Hours (5:00pm to 7:00am Monday through Friday, and all day Saturday, Sunday, 7 and Holidays) 8 9 10 ARTICLE V. TERM: The Term of the Job Order Contract shall be for one (1) year, or 11 when issued Work Orders totaling the Maximum Contract Value have been completed, 12 whichever occurs first. All Work Orders shall be issued, but not necessarily completed 13 within one calendar year after the commencement date of this Agreement. 14 15 All Work Orders for which a Notice to Proceed is issued by the County Contract Manager 16 during the term of this Contract shall be valid and in effect notwithstanding that the 17 Detailed Scope of Work may be performed, payments may be made, and the guarantee 18 period may continue, after the Contract Term has expired. All terms and conditions of 19 the Contract apply to each Work Order. No notices to proceed will be issued after 5:00, 20 P.M. on the final day of the Contract Term. 21 22 23 ARTICLE VI. The Contractor and the Owner agree that changes in this Agreement shall 24 become effective only when written in the form of an amendment approved and signed 25 by the Owner and the Contractor. 26 27 The Contractor and the Owner agree that the Owner shall have the right to request any 28 alterations, deviations, reductions or additions to the Detailed Scope of Work of the 29 individual Work Orders or specifications or any of them, and the amount of the cost 30 thereof shall be handled by issuance of a Supplemental Work Order. 31 32 This contract shall be deemed completed when the work of all individual Work Orders is 33 finished in accordance with all Contract Documents as amended by such changes. No 34 such change or modification shall release or exonerate any surety upon any guaranty or 35 bond given in connection with this contract. 36 37 38 ARTICLE VII. In the event of a dispute between the Owner or Project Manager and the 39 Contractor as to an interpretation of any of the specifications or as to the quality of 40 sufficiency of material or workmanship, the decision of the Project Manager shall for the 41 time being prevail and the Contractor, without delaying the job, shall proceed as directed 42 by the Project Manager without prejudice to a final determination by negotiation, 43 arbitration by mutual consent or litigation and should the Contractor be finally determined 44 to be either wholly or partially correct, the Owner shall reimburse him for any added costs 45 he may have incurred by reason of work done or material supplied beyond the terms of 46 the contract as a result of complying with the Project Manager's directions as aforesaid. 47 In the event the Contractor shall neglect to prosecute the work properly or fail to perform 48 any provisions of this contract, the Owner, after three days' written notice to the 49 Contractor, may, without prejudice to any other remedy it may have, make good such 50 deficiencies and may deduct the cost thereof from the payment then or thereafter due to 51 the Contractor, subject to final settlement between the parties as in this paragraph 52 hereinabove provided. 53 Contract No.: #20-J-06 20-J-07 20-J-08 Agreement 00 52 13-4 JOB ORDER CONTRACTS 1 2 ARTICLE VIII. TERMINATION: If the Contractor should be adjudged a bankrupt, or if 3 he should make a general assignment for the benefit of his creditors, or if a receiver 4 should be appointed on account of his insolvency, or if he or any of his subcontractors 5 should persistently violate any of the provisions of the contract, or if he should 6 persistently or repeatedly refuse or should fail, except in cases for which extension of 7 time is provided, to supply enough properly skilled workmen or proper material, or if he 8 should fail to make prompt payment to subcontractors or for material or labor or 9 persistently disregard laws, ordinances or the instructions of the Project Manager, then 10 the Owner may, upon the certificate of the Project Manager, when sufficient cause exists 11 to justify such action, serve written notice upon the Contractor and his surety of its 12 intention to terminate the contract, such notice to contain the reasons for such intention 13 to terminate the contract, and unless within five (5) days after the serving of such notice, 14 such violations shall cease and satisfactory arrangements for correction thereof be 15 made, the contract shall, upon the expiration of said five days, cease and terminate. 16 17 In the event of any such termination, the Owner shall immediately serve written notice 18 thereof upon the surety and the Contractor, and the surety shall have the right to take 19 over and perform the contract, provided, however, that if the surety within ten (10) days 20 after the serving upon it of notice of termination does not give the Owner written notice 21 of its intention to take over and perform the contract or does not commence performance 22 thereof within the ten (10) days stated above from the date of the serving of such notice, 23 the Owner may take over the work and prosecute the same to completion by contract or 24 by any other method it may deem advisable for the account and at the expense of the 25 Contractor, and the Contractor and his surety shall be liable to the Owner for any excess 26 cost occasioned the Owner thereby, and in such event the Owner may without liability 27 for so doing, take possession of and utilize in completing the work, such materials, 28 appliances, plant and other property belonging to the Contractor as may be on the site 29 or the work and necessary therefore. In such case, the Contractor shall not be entitled 30 to receive any further payment until the work is finished. 31 32 If the unpaid balance of the contract price shall exceed the expense of finishing the work, 33 including compensation for additional managerial and administrative services, such 34 excess shall be paid to the Contractor. If such expense shall exceed such unpaid 35 balance, the Contractor shall pay the difference to the Owner. The expense incurred by 36 the Owner as herein provided, and damage incurred through the Contractor's default, 37 shall be certified by the Project Manager. 38 39 40 ARTICLE IX. The Contractor and his subcontractors shall comply with Sections 1770 – 41 1780 of the California Labor Code and the provisions of Sections 2.52 and 2.55 of the 42 General Conditions concerning the payment of wages to all workers and mechanics, 43 and the employment and payment of apprentices by the Contractor or any subcontractor 44 for all work performed under this Agreement. 45 46 47 ARTICLE X. The Contractor and his subcontractors shall comply with Sections 1810 to 48 1815 of the California Labor Code and the provisions of Section 2.51 of the General 49 Conditions, concerning hours of work and payment of overtime compensation for all 50 work performed under this Agreement. 51 52 53 Contract No.: #20-J-06 20-J-07 20-J-08 Agreement 00 52 13-5 JOB ORDER CONTRACTS ARTICLE XI. INDEMNIFICATION: To the fullest extent permitted by law, Contractor 1 agrees to and shall indemnify, save, hold harmless and at County’s request, defend 2 County and its officers, agents and employees, and the Project Manager and their 3 respective officers, agents and employees, from any and all costs and expenses, 4 attorney fees and court costs, damages, liabilities, claims and losses occurring or 5 resulting to County, or the Project Manager in connection with the performance, or failure 6 to perform, by Contractor, its officers, agents or employees under this Agreement, and 7 from any and all costs and expenses, attorney fees and court costs, damages, liabilities, 8 claims and losses occurring or resulting to any person, firm or corporation who may be 9 injured or damaged by the performance, or failure to perform, of Contractor, its officers, 10 agents or employees under this Agreement. In addition, Contractor agrees to indemnify 11 County for Federal, State of California and/or local audit exceptions resulting from non-12 compliance herein on the part of Contractor. 13 14 In any and all claims against the County, the Project Manager, or any of their respective 15 officers, agents or employees, initiated by any employee of the Contractor, any 16 Subcontractor, anyone directly or indirectly employed by any of them or anyone for 17 whose acts any of them may be liable, the indemnification obligation set forth in the 18 immediately preceding paragraph shall not be limited in any way by any limitation on the 19 amount or type of damages, compensation or benefits payable by or for the Contractor 20 or any Subcontractor under workmen’s compensation acts, disability benefit acts or other 21 employee benefit acts. 22 23 24 ARTICLE XII. INSURANCE: Without limiting the Owner’s right to obtain indemnification 25 from Contractor or any third parties, Contractor, at its sole expense, in accordance with 26 the provisions of Section 2.40 of the General Conditions, shall maintain in full force and 27 effect the following insurance policies throughout the term of this Agreement, excepting 28 only those policies for which a longer term is specified: 29 30 31 A. Commercial General Liability Insurance, with scope and amount of coverage 32 as specified in Section 2.40 E.2 of the General Conditions. 33 34 B. Automobile Liability Insurance, with scope and amount of coverage as specified in 35 Section 2.40 E.2 of the General Conditions. 36 37 C. Professional Liability Insurance, with scope and amount of coverage as specified in 38 Section 2.40 E.3 of the General Conditions. 39 40 D. Worker's Compensation Insurance, with scope and amount of coverage as 41 specified in Section 2.40 E. 4 of the General Conditions. 42 43 The Certificate of Insurance shall be issued in triplicate, to the COUNTY OF FRESNO, 44 and all other participating agencies, whether or not said agencies are named herein, 45 who contribute to the cost of the work or have jurisdiction over areas in which the work 46 is to be performed and all officers and employees of said agencies while acting within 47 the course and scope of their duties and responsibilities. 48 49 50 ARTICLE XIII. MISCELLANEOUS PROVISIONS: 51 52 Contract No.: #20-J-06 20-J-07 20-J-08 Agreement 00 52 13-6 JOB ORDER CONTRACTS 1. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time 1 during business hours, and as often as the OWNER may deem necessary, make 2 available to the OWNER for examination all of its records and data with respect to the 3 matters covered by this Agreement. The CONTRACTOR shall, upon request by the 4 OWNER, permit the OWNER to audit and inspect all of such records and data necessary 5 to ensure CONTRACTOR'S compliance with the terms of this Agreement. 6 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be 7 subject to the examination and audit of the Auditor General for a period of three (3) years 8 after final payment under contract (Government Code Section 8546.7). 9 10 2. INDEPENDENT CONTRACTOR. 11 12 In performance of the work, duties, and obligations assumed by CONTRACTOR 13 under this Agreement, it is mutually understood and agreed that CONTRACTOR, 14 including any and all of CONTRACTOR officers, agents, and employees will at all times 15 be acting and performing as an independent contractor, and shall act in an independent 16 capacity and not as an officer, agent, servant, employee, joint venture, partner, or 17 associate of the OWNER. CONTRACTOR and OWNER shall comply with all applicable 18 provisions of law and the rules and regulations, if any, of governmental authorities having 19 jurisdiction over matters of the subject thereof. Because of its status as an independent 20 contractor, CONTRACTOR shall have absolutely no right to employment rights and 21 benefits available to OWNER’s employees. CONTRACTOR shall be solely liable and 22 responsible for providing to, or on behalf of, its employees all legally-required employee 23 benefits. In addition, CONTRACTOR shall be solely responsible and save OWNER 24 harmless from all matters related to payment of CONTRACTOR’s employees, including 25 compliance with social security, withholding, and all other regulations governing such 26 matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may 27 be providing services to others unrelated to the OWNER or to this Agreement. 28 29 3. DISCLOSURE OF SELF-DEALING TRANSACTIONS 30 31 This provision is only applicable if the CONTRACTOR is operating as a 32 corporation (a for-profit or non-profit corporation) or if during the term of the agreement, 33 the CONTRACTOR changes its status to operate as a corporation. 34 35 Members of the CONTRACTOR’s Board of Directors shall disclose any self-36 dealing transactions that they are a party to while CONTRACTOR is providing goods or 37 performing services under this agreement. A self-dealing transaction shall mean a 38 transaction to which the CONTRACTOR is a party and in which one or more of its 39 directors has a material financial interest. Members of the Board of Directors shall 40 disclose any self-dealing transactions that they are a party to by completing and signing 41 a Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit A and 42 incorporated herein by reference, and submitting it to the OWNER prior to commencing 43 with the self-dealing transaction or immediately thereafter. 44 45 46 ARTICLE XIV. The Contractor represents that he has secured the payment of Workers 47 Compensation in compliance with the provisions of the Labor Code of the State of 48 California and Paragraphs B.3, C.3 and E.4 of Section 2.40 of the General Conditions, 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 and that he will continue so to comply w ith such statutory and contractual provisions for the duration and entirety of the performance of the work contemplated herein . This Contract, 20-J-07, was awarded by the Board of Supervisors on May 11, 2021. It has been reviewed by the Department of Public Works and Planning and is in proper order for signature of the Chairman of the Board of Supervisors. IN WITNESS WHEREOF, they have executed this Agreement this ~u,'1-b day of '1'<) 7 , 2021 Dvll-\~40\ Constrdt-'t\f> N C0-1 .DJc. COUNTY OF FRESNO --'-~------~...,..,.,..,--:----"-----(CONTRACTOR) (OWNER) oa .. ob:l2o1Q By (T~D-No.) Title Qf:£i ~ e V\ .,.- FOR ACCOUNTING USE ONLY VARIOUS ORGS. 0001/8830/10000/7295 0001/43601150/10000/7295 0001/8852/10000/7295 Contract No.: #20 J 06 20-J-07 20 J 08 By j~ Steve Brandau, Chairman of the Board of Supervisors of the County of Fresno ATTEST: Bernice E. Seidel Clerk of the Board of Supervisors County of Fresno, State of California END OF SECTION Agreement 00 52 13-7 JOB ORDER CONTRACTS