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HomeMy WebLinkAbout20-S-01 BMY Construction Group.pdfENVIRONMENTAL COMPLIANCE CENTER FRESNO, CA AGREEMENT SECTION 005213 - 1 CONTRACT # 20-S-01 AGREEMENT THIS AGREEMENT is made at Fresno, in Fresno County, California, by and between BMY Construction Group, Inc., hereinafter “Contractor”, and the County of Fresno, hereinafter “Owner”. WITNESSETH, the Contractor and the Owner, for the consideration hereinafter named, agree as follows: ARTICLE I. The Contractor agrees to furnish all labor, equipment and materials, including tools, implements, and appliances required, and to perform all the work in a good and workmanlike manner, free from any and all liens and claims of mechanics, materialmen, subcontractors, artisans, machinists, teamsters, and laborers required for: Environmental Compliance Center Contract No. 20-S-01 Located at 310 South West Avenue, Fresno, California, all in strict compliance with the plans, drawings, and specifications therefore prepared by the Director of the Fresno County Department of Public Works and Planning and his authorized representatives, hereinafter called the Project Manager, and other contract documents relating thereto. ARTICLE II. The Contractor and the Owner agree that the Advertisement (Notice to Bidders), the Wage Scale, the Proposal hereto attached, the Instructions to Bidders, the General Conditions of the contract, the Technical Specifications, the Drawings, and the Addenda and Bulletins thereto, the Contract Bonds and Certificates of Liability and Workers Compensation Insurance, and the Contract Change Orders, together with this Agreement form the Contract Documents, and they are as fully a part of the contract as if hereto attached or herein repeated. The Specifications and Drawings are intended to cooperate so that any work exhibited in the drawings and not mentioned in the specifications, or vice versa, is to be executed the same as if both are mentioned in the specifications and set forth in the drawings, to the true intent and meaning of the said drawings and specifications when taken together. Provided, however, that no part of said specifications that is in conflict with any portion of this Agreement, or that is not actually descriptive of the work to be done thereunder, or of the manner in which the said work is to be executed, shall be considered as any part of this Agreement, but shall be utterly null and void, and anything that is expressly stated, delineated or shown in or upon the specifications or Detailed Scope of Work shall govern and be followed, notwithstanding anything to the contrary in any other source of information or authority to which reference may be made. ARTICLE III. The Contractor agrees that the work under the contract shall be completed as determined by the Owner within Two Hundred (200) CALENDAR DAYS from the date shown in the Notice to Proceed. Time of performance shall be deemed as of the essence hereof and it is agreed that actual damages to the Owner from any delay in completion beyond the date provided for herein, or any extension thereof until the work is completed or accepted, shall be all provable damages plus liquidated damages in the amount of Five Hundred and 00/100 DOLLARS ($500.00) per day; that said liquidated damage was arrived at by a studied estimate of loss to the Owner in the event of a delay considering the following damage items which are extremely difficult or impossible to determine: Additional construction expense resulting from delay of completion including, but not limited to, engineering, inspection, rental and utilities; provided, however, the Owner may conditionally accept the work and occupy and use the same if there has been such a degree of completion as shall in its opinion render the same safe, fit and convenient for the use for which it is intended and in such cases the Contractor and Surety shall not be ENVIRONMENTAL COMPLIANCE CENTER FRESNO, CA AGREEMENT SECTION 005213 - 2 CONTRACT # 20-S-01 charged for liquidated damages for any period subsequent to such conditional acceptance and occupation by the Owner but Owner may assess actual damages caused by failure of total completion during such period. The time during which the Contractor is delayed in said work by the acts or neglects of the Owner or its employees or those under it by contract or otherwise, or by the acts of God which the Contractor could not have reasonably foreseen and provided for, or by storms and inclement weather which delays the work, or by any strikes, boycotts, or like obstructive action by employee or labor organizations, or by any general lockouts or other defensive action by employers, whether general, or by organizations of employers, shall be added to the time for completion as aforesaid. ARTICLE IV. COMPENSATION: The Owner agrees to make payments on account thereof as provided in the General Conditions in the total amount of TWO MILLION SIX HUNDRED AND SIXTY THOUSAND AND 00/100 DOLLARS ($2,660,000.00) in current funds for the performance of the contract which sum is computed as follows: THE TOTAL SUM COST OF THE SITE AND SHADE STRUCTURE, OFFICE/STORAGE BUILDING, WAREHOUSE BUILDING, AND ALL ASSOCIATED SITE WORK AS SHOWN ON THE DRAWINGS. ARTICLE V. The Contractor and the Owner agree that changes in this Agreement or in the work to be done under this Agreement shall become effective only when written in the form of a supplemental agreement or change order and approved and signed by the Owner and the Contractor. It is specifically agreed that the Owner shall have the right to request any alterations, deviations, reductions, or additions to the contract, plans, and/or specifications and the amount of the cost thereof shall be added to or deducted from the amount of the contract price aforesaid by fair and reasonable valuations thereof. This contract shall be deemed completed when the work is finished in accordance with all Contract Documents as amended by such changes. No such change or modification shall release or exonerate any surety upon any guaranty or bond given in connection with this contract. ARTICLE VI. In the event of a dispute between the Owner or Project Manager and the Contractor as to an interpretation of any of the specifications or as to the quality of sufficiency of material or workmanship, the decision of the Project Manager shall for the time being prevail and the Contractor, without delaying the job, shall proceed as directed by the Project Manager without prejudice to a final determination by negotiation, arbitration by mutual consent or litigation and should the Contractor be finally determined to be either wholly or partially correct, the Owner shall reimburse him for any added costs he may have incurred by reason of work done or material supplied beyond the terms of the contract as a result of complying with the Project Manager's directions as aforesaid. In the event the Contractor shall neglect to prosecute the work properly or fail to perform any provisions of this contract, the Owner, after three days' written notice to the Contractor, may, without prejudice to any other remedy it may have, make good such deficiencies and may deduct the cost thereof from the payment then or thereafter due to the Contractor, subject to final settlement between the parties as in this paragraph hereinabove provided. ARTICLE VII. TERMINATION: If the Contractor should be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, or if he or any of his subcontractors should persistently violate any of the provisions of the contract, or if he should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper material, or if he should fail to make prompt payment to subcontractors or for material or labor or persistently disregard laws, ordinances or the instructions of the Project Manager, then the Owner may, upon the certificate of the Project Manager, when sufficient cause ENVIRONMENTAL COMPLIANCE CENTER FRESNO, CA AGREEMENT SECTION 005213 - 3 CONTRACT # 20-S-01 exists to justify such action, serve written notice upon the Contractor and his surety of its intention to terminate the contract, such notice to contain the reasons for such intention to terminate the contract, and unless within five (5) days after the serving of such notice, such violations shall cease and satisfactory arrangements for correction thereof be made, the contract shall, upon the expiration of said five days, cease and terminate. In the event of any such termination, the Owner shall immediately serve written notice thereof upon the surety and the Contractor, and the surety shall have the right to take over and perform the contract, provided, however, that if the surety within ten (10) days after the serving upon it of notice of termination does not give the Owner written notice of its intention to take over and perform the contract or does not commence performance thereof within the ten (10) days stated above from the date of the serving of such notice, the Owner may take over the work and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Contractor and his surety shall be liable to the Owner for any excess cost occasioned the Owner thereby, and in such event the Owner may without liability for so doing, take possession of and utilize in completing the work, such materials, appliances, plant and other property belonging to the Contractor as may be on the site or the work and necessary therefore. In such case, the Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed the expense of finishing the work, including compensation for additional managerial and administrative services, such excess shall be paid to the Contractor. If such expense shall exceed such unpaid balance, the Contractor shall pay the difference to the Owner. The expense incurred by the Owner as herein provided, and damage incurred through the Contractor's default, shall be certified by the Project Manager. ARTICLE VIII. The Contractor and his subcontractors shall comply with Sections 1770 – 1780 of the California Labor Code and the provisions of Sections 2.52 and 2.55 of the General Conditions concerning the payment of wages to all workers and mechanics, and the employment and payment of apprentices by the Contractor or any subcontractor for all work performed under this Agreement. ARTICLE IX. The Contractor and his subcontractors shall comply with Sections 1810 to 1815 of the California Labor Code and the provisions of Section 2.51 of the General Conditions, concerning hours of work and payment of overtime compensation for all work performed under this Agreement. The Board of Supervisors hereby specifies that portions of the work can only be performed outside the regular working h ours as defined in the applicable collective bargaining agreement filed with the Director of Industrial Relations in accordance with Labor Code Section 1773.1, and that the overtime requirements for Saturdays, and holidays are hereby waived for these portions of the work, as more particularly described in the specifications. However, this exemption shall not negate the overtime provisions specified in Labor Code Section 1815. ARTICLE X. INDEMNIFICATION: To the fullest extent permitted by law, Contractor agrees to and shall indemnify, save, hold harmless and at County’s request, defend County and its officers, agents and employees, and the Project Manager and their respective officers, agents and employees, from any and all costs and expenses, attorney fees and court costs, damages, liabilities, claims and losses occurring or resulting to County, or the Project Manager in connection with the performance, or failure to perform, by Contractor, its officers, agents or employees under this Agreement, and from any and all costs and expenses, attorney fees and court costs, damages, liabilities, claims and losses occurring or resulting to any person, firm or corporation ENVIRONMENTAL COMPLIANCE CENTER FRESNO, CA AGREEMENT SECTION 005213 - 4 CONTRACT # 20-S-01 who may be injured or damaged by the performance, or failure to perform, of Contractor, its officers, agents or employees under this Agreement. In addition, Contractor agrees to indemnify County for Federal, State of California and/or local audit exceptions resulting from non- compliance herein on the part of Contractor. In any and all claims against the County, the Project Manager, or any of their respective officers, agents or employees, initiated by any employee of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation set forth in the immediately preceding paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under workmen’s compensation acts, disability benefit acts or other employee benefit acts. ARTICLE XI. INSURANCE: Without limiting the Owner’s right to obtain indemnification from Contractor or any third parties, Contractor, at its sole expense, in accordance with the provisions of Section 2.40 of the General Conditions, shall maintain in full force and effect the following insurance policies throughout the term of this Agreement, excepting only those policies for which a longer term is specified: A. Course of Construction (Builder’s All Risk) Insurance, with scope and amount of coverage as specified in Section 2.40 E.1 of the General Conditions. B. Commercial General Liability Insurance, with scope and amount of coverage as specified in Section 2.40 E.2 of the General Conditions. C. Automobile Liability Insurance, with scope and amount of coverage as specified in Section 2.40 E.2 of the General Conditions. D. Professional Liability Insurance, with scope and amount of coverage as specified in Section 2.40 E.3 of the General Conditions. E. Worker's Compensation Insurance, with scope and amount of coverage as specified in Section 2.40 E. 4 of the General Conditions. The Certificate of Insurance shall be issued in triplicate, to the County of Fresno, and all other participating agencies, whether or not said agencies are named herein, who contribute to the cost of the work or have jurisdiction over areas in which the work is to be performed and all officers and employees of said agencies while acting within the course and scope of their duties and responsibilities. ARTICLE XII. MISCELLANEOUS PROVISIONS: 1. AUDITS AND INSPECTIONS: The Contractor shall at any time during business hours, and as often as the Owner may deem necessary, make available to the Owner for examination all of its records and data with respect to the matters covered by this Agreement. The Contractor shall, upon request by the Owner, permit the Owner to audit and inspect all of such records and data necessary to ensure Contractor's compliance with the terms of this Agreement. If this Agreement exceeds ten thousand dollars ($10,000.00), Contractor shall be subject to the examination and audit of the Auditor General for a period of three (3) years after final payment under contract (Government Code Section 8546.7). ENVIRONMENTAL COMPLIANCE CENTER FRESNO, CA AGREEMENT SECTION 005213 - 5 CONTRACT # 20-S-01 2. INDEPENDENT CONTRACTOR: In performance of the work, duties, and obligations assumed by Contractor under this Agreement, it is mutually understood and agreed that Contractor, including any and all of Contractor officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venture, partner, or associate of the Owner. Contractor and Owner shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters of the subject thereof. Because of its status as an independent contractor, Contractor shall have absolutely no right to employment rights and benefits available to Owner’s employees. Contractor shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, Contractor shall be solely responsible and save Owner harmless from all matters related to payment of Contractor’s employees, including compliance with social security, withholding, and all other regulations governing such matters. It is acknowledged that during the term of this Agreement, Contractor may be providing services to others unrelated to the Owner or to this Agreement. 3. DISCLOSURE OF SELF-DEALING TRANSACTIONS: This provision is only applicable if the Contractor is operating as a corporation (a for-profit or non-profit corporation) or if during the term of the agreement, the Contractor changes its status to operate as a corporation. Members of the Contractor’s Board of Directors shall disclose any self-dealing transactions that they are a party to while Contractor is providing goods or performing services under this agreement. A self-dealing transaction shall mean a transaction to which the Contractor is a party and in which one or more of its directors has a material financial interest. Members of the Board of Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit A and incorporated herein by reference, and submitting it to the Owner prior to commencing with the self-dealing transaction or immediately thereafter. ARTICLE XIII. The Contractor represents that he has secured the payment of Workers Compensation in compliance with the provisions of the Labor Code of the State of California and Paragraphs B.3, C.3 and E.4 of Article 2.40 of the General Conditions, and that he will continue so to comply with such statutory and contractual provisions for the duration and entirety of the performance of the work contemplated herein. This Contract, 20-S-01, was awarded by the Board of Supervisors on July 13, 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. ENVIRONMENTAL COMPLIANCE CENTER FRESNO, CA AGREEMENT SECTION 005213 - 6 IN Wlll:iESS WHEREOF, they have executed this Agreement this /&.±- St~ .2021 day of Name: L=g/C. L . Title: fMstDeNt: FOR ACCOUNTING USE ONLY 9015 / 8150 / 91440 COUNTY OF FRESN 0 (OvvNER) Steve Brandau, airman 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 By: /\~ ~ '~ Depuy r-- END OF SECTION CONTRACT # 20-S-01