HomeMy WebLinkAbout21-J-03 Executed Contract.pdf 1 AGREEMENT
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3
4 THIS AGREEMENT made at Fresno, in Fresno County, California, by and
5 between Durham Construction Company, Inc., hereinafter"Contractor", and the County of
6 Fresno, hereinafter "Owner".
7
8 WHEREAS: This Agreement, together with other Contract Documents (as
9 defined hereinbelow), shall establish an indefinite quantity Job Order Contract pursuant to
10 which Contractor shall perform an ongoing series of individual projects at different
11 locations throughout the County of Fresno. The construction work and services performed
12 by Contractor under this Agreement shall be carried out pursuant to individual Work
13 Orders. All capitalized terms not defined in this Agreement shall have the meanings set
14 forth in the General Conditions referenced hereinbelow and incorporated herein by
15 reference.
16
17 WITNESSETH, the Contractor and the Owner, for the consideration hereinafter
18 named, agree as follows:
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20
21 ARTICLE I. The Contractor agrees to furnish all labor, equipment and materials, including
22 tools, implements, and appliances required, and to perform all the work in a good and
23 workmanlike manner, free from any and all liens and claims of mechanics, materialmen,
24 subcontractors, artisans, machinists, teamsters, and laborers required for Job Order
25 Contract No. 21-J-02, also referred to herein as the "Contract".
26 21-J-03
27 21-J-04
28 All goods and services provided shall be in strict compliance with the Construction Task
29 Catalog°, Technical Specifications and Contracting Requirements therefore prepared by
30 the Director of the Fresno County Department of Public Works and Planning and his
31 authorized representatives, hereinafter "Project Manager", and other contract documents
32 relating thereto.
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34
35 ARTICLE II. The Contractor and the Owner agree that the Advertisement (Notice to
36 Bidders), the Wage Scale, the Proposal hereto attached, the Instructions to Bidders, the
37 General Conditions of the contract, the Technical Specifications, the Construction Task
38 Catalog° and the Addenda and Bulletins thereto, the Contract Bonds and Certificates of
39 Liability and Workers Compensation Insurance, and the Work Orders, together with this
40 Agreement, form the Contract Documents, and they are as fully a part of the contract as if
41 hereto attached or herein repeated. But no part of said specifications that is in conflict with
42 any portion of this Agreement, or that is not actually descriptive of the work to be done
43 thereunder, or of the manner in which the said work is to be executed, shall be considered
44 as any part of this Agreement, but shall be utterly null and void, and anything that is
45 expressly stated, delineated or shown in or upon the specifications or Detailed Scope of
46 Work shall govern and be followed, notwithstanding anything to the contrary in any other
47 source of information or authority to which reference may be made.
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49
50 ARTICLE III. The Contractor agrees that the work under the contract shall be completed
51 as determined by the Owner as set forth in the individual Work Orders. Time of
52 performance shall be deemed as of the essence hereof and it is agreed that actual
53 damages to the Owner from any delay in completion beyond the date provided for herein,
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1 or any extension thereof until the work is completed or accepted, shall be all provable
2 damages plus liquidated damages as identified in the individual Work Orders ranging
3 from Two Hundred Fifty and 00/100 DOLLARS ($250.00) to Five Thousand and
4 00/100 DOLLARS ($5000.00) per day; that said liquidated damage was arrived at by a
5 studied estimate of loss to the Owner in the event of a delay considering the following
6 damage items which are extremely difficult or impossible to determine: Additional
7 construction expense resulting from delay of completion including, but not limited to,
8 engineering, inspection, rental and utilities; provided, however, the Owner may
9 conditionally accept the work and occupy and use the same if there has been such a
10 degree of completion as shall in its opinion render the same safe, fit and convenient for
11 the use for which it is intended and in such cases the Contractor and Surety shall not be
12 charged for liquidated damages for any period subsequent to such conditional
13 acceptance and occupation by the Owner but Owner may assess actual damages
14 caused by failure of total completion during such period. The time during which the
15 Contractor is delayed in said work by the acts or neglects of the Owner or its employees
16 or those under it by contract or otherwise, or by the acts of God which the Contractor
17 could not have reasonably foreseen and provided for, or by storms and inclement
18 weather which delays the work, or by any strikes, boycotts, or like obstructive action by
19 employee or labor organizations, or by any general lockouts or other defensive action
20 by employers, whether general, or by organizations of employers, shall be added to the
21 time for completion as aforesaid.
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24 ARTICLE IV. COMPENSATION: The Owner agrees to make payments on account
25 thereof as provided in the General Conditions.
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27 The Contract is an indefinite-quantity contract for construction work and services. There
28 is no Minimum Contract Value for this Contract. If a contract is awarded, the Contractor
29 is not guaranteed to receive a specified minimum amount of work during the Contract
30 Term. The Maximum Contract Value is $5,185,091.94. The Contractor is not guaranteed
31 to receive this volume of Work Orders. The Owner has no obligation to issue Work
32 Orders in excess of the Minimum Contract Value.
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34 The Contractor shall perform all work required, necessary, proper for or incidental to
35 completing the Detailed Scope of Work called for in each individual Work Order issued
36 pursuant to this Contract for the Unit Prices set forth in the Construction Task Catalog°
37 and the following Adjustment Factors:
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39 1. County/ State-funded Projects— Normal Working Hours (7:00am to 5:00pm Monday
40 through Friday)
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43 2. County / State-funded Projects — Other Than Normal Working Hours (5:00pm to
44 7:00am Monday through Friday, and all day Saturday, Sunday, and Holidays)
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47 3. Federally-funded Projects — Normal Working Hours (7:00am to 5:00pm Monday
48 through Friday)
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50
51 4. Federally-funded Projects — Other Than Normal Working Hours (5:00pm to 7:00am
52 Monday through Friday, and all day Saturday, Sunday, and Holidays)
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2 5. County/State-funded Projects in Secure Facilities— Normal Working Hours (7:00am
3 to 5:00pm Monday through Friday)
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6 6. County / State-funded Projects in Secure Facilities — Other Than Normal Working
7 Hours (5:00pm to 7:00am Monday through Friday, and all day Saturday, Sunday,
8 and Holidays)
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10 Material price spike adjustment: For the purpose of this clause, a "major spike" is
11 defined as a spike in a specific material cost of more than 25% above what the cost of
12 that material was on the date the Construction Task Catalog®was issued.
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14 1. In the event a major spike occurs in a specific material cost, the Contractor may
15 submit a request for a price modification to a Unit Price or individual Job Order.
16 In order to initiate such a request, the Contractor shall:
17 a. identify the specific material that has experienced a major spike,
18 b. identify Pre-priced Task(s) or Job Orders that require the material
19 experiencing a major spike, and
20 c. demonstrate that the spike exists by submitting a minimum of three quotes
21 on material supplier letterhead to show that the current price meets the
22 "major spike" definition above.
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24 2. Fresno County, after review of a request, may elect to adjust the Unit Price or Job
25 Order by considering it a Non Pre-priced (NPP) item. The adjustment will be for
26 the difference between the material cost at the time the Construction Task
27 Catalog®was issued times the quantity stated in the Job Order. The adjustment
28 will not include any other markup, and the NPP adjustment factor will not apply.
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31 ARTICLE V. TERM: The Term of the Job Order Contract shall be for one (1) year, or
32 when issued Work Orders totaling the Maximum Contract Value have been completed,
33 whichever occurs first. All Work Orders shall be issued, but not necessarily completed
34 within one calendar year after the commencement date of this Agreement.
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36 All Work Orders for which a Notice to Proceed is issued by the County Contract Manager
37 during the term of this Contract shall be valid and in effect notwithstanding that the
38 Detailed Scope of Work may be performed, payments may be made, and the guarantee
39 period may continue, after the Contract Term has expired. All terms and conditions of
40 the Contract apply to each Work Order. No notices to proceed will be issued after 5:00,
41 P.M. on the final day of the Contract Term.
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44 ARTICLE VI. The Contractor and the Owner agree that changes in this Agreement shall
45 become effective only when written in the form of an amendment approved and signed
46 by the Owner and the Contractor.
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48 The Contractor and the Owner agree that the Owner shall have the right to request any
49 alterations, deviations, reductions or additions to the Detailed Scope of Work of the
50 individual Work Orders or specifications or any of them, and the amount of the cost
51 thereof shall be handled by issuance of a Supplemental Work Order.
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1 This contract shall be deemed completed when the work of all individual Work Orders is
2 finished in accordance with all Contract Documents as amended by such changes. No
3 such change or modification shall release or exonerate any surety upon any guaranty or
4 bond given in connection with this contract.
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7 ARTICLE VII. In the event of a dispute between the Owner or Project Manager and the
8 Contractor as to an interpretation of any of the specifications or as to the quality of
9 sufficiency of material or workmanship, the decision of the Project Manager shall for the
10 time being prevail and the Contractor, without delaying the job, shall proceed as directed
11 by the Project Manager without prejudice to a final determination by negotiation,
12 arbitration by mutual consent or litigation and should the Contractor be finally determined
13 to be either wholly or partially correct, the Owner shall reimburse him for any added costs
14 they may have incurred by reason of work done or material supplied beyond the terms
15 of the contract as a result of complying with the Project Manager's directions as
16 aforesaid. In the event the Contractor shall neglect to prosecute the work properly or
17 fail to perform any provisions of this contract, the Owner, after three days' written notice
18 to the Contractor, may, without prejudice to any other remedy it may have, make good
19 such deficiencies and may deduct the cost thereof from the payment then or thereafter
20 due to the Contractor, subject to final settlement between the parties as in this paragraph
21 hereinabove provided.
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24 ARTICLE VIII. TERMINATION: If the Contractor should be adjudged a bankrupt, or if
25 they should make a general assignment for the benefit of their creditors, or if a receiver
26 should be appointed on account of their insolvency, or if they or any of their
27 subcontractors should persistently violate any of the provisions of the contract, or if they
28 should persistently or repeatedly refuse or should fail, except in cases for which
29 extension of time is provided, to supply enough properly skilled workmen or proper
30 material, or if they should fail to make prompt payment to subcontractors or for material
31 or labor or persistently disregard laws, ordinances or the instructions of the Project
32 Manager, then the Owner may, upon the certificate of the Project Manager, when
33 sufficient cause exists to justify such action, serve written notice upon the Contractor
34 and their surety of its intention to terminate the contract, such notice to contain the
35 reasons for such intention to terminate the contract, and unless within five (5) days after
36 the serving of such notice, such violations shall cease and satisfactory arrangements for
37 correction thereof be made, the contract shall, upon the expiration of said five days,
38 cease and terminate.
39
40 In the event of any such termination, the Owner shall immediately serve written notice
41 thereof upon the surety and the Contractor, and the surety shall have the right to take
42 over and perform the contract, provided, however, that if the surety within ten (10) days
43 after the serving upon it of notice of termination does not give the Owner written notice
44 of its intention to take over and perform the contract or does not commence performance
45 thereof within the ten (10) days stated above from the date of the serving of such notice,
46 the Owner may take over the work and prosecute the same to completion by contract or
47 by any other method it may deem advisable for the account and at the expense of the
48 Contractor, and the Contractor and their surety shall be liable to the Owner for any
49 excess cost occasioned the Owner thereby, and in such event the Owner may without
50 liability for so doing, take possession of and utilize in completing the work, such
51 materials, appliances, plant and other property belonging to the Contractor as may be
52 on the site or the work and necessary therefore. In such case, the Contractor shall not
53 be entitled to receive any further payment until the work is finished.
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2 If the unpaid balance of the contract price shall exceed the expense of finishing the work,
3 including compensation for additional managerial and administrative services, such
4 excess shall be paid to the Contractor. If such expense shall exceed such unpaid
5 balance, the Contractor shall pay the difference to the Owner. The expense incurred by
6 the Owner as herein provided, and damage incurred through the Contractor's default,
7 shall be certified by the Project Manager.
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10 ARTICLE IX. The Contractor and their subcontractors shall comply with Sections 1770
11 — 1780 of the California Labor Code and the provisions of Sections 2.52 and 2.55 of the
12 General Conditions concerning the payment of wages to all workers and mechanics,
13 and the employment and payment of apprentices by the Contractor or any subcontractor
14 for all work performed under this Agreement.
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17 ARTICLE X. The Contractor and their subcontractors shall comply with Sections 1810
18 to 1815 of the California Labor Code and the provisions of Section 2.51 of the General
19 Conditions, concerning hours of work and payment of overtime compensation for all
20 work performed under this Agreement.
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23 ARTICLE XI. INDEMNIFICATION: To the fullest extent permitted by law, Contractor
24 agrees to and shall indemnify, save, hold harmless and at County's request, defend
25 County and its officers, agents and employees, and the Project Manager and their
26 respective officers, agents and employees, from any and all costs and expenses,
27 attorney fees and court costs, damages, liabilities, claims and losses occurring or
28 resulting to County, or the Project Manager in connection with the performance, or failure
29 to perform, by Contractor, its officers, agents or employees under this Agreement, and
30 from any and all costs and expenses, attorney fees and court costs, damages, liabilities,
31 claims and losses occurring or resulting to any person, firm or corporation who may be
32 injured or damaged by the performance, or failure to perform, of Contractor, its officers,
33 agents or employees under this Agreement. In addition, Contractor agrees to indemnify
34 County for Federal, State of California and/or local audit exceptions resulting from non-
35 compliance herein on the part of Contractor.
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37 In any and all claims against the County, the Project Manager, or any of their respective
38 officers, agents or employees, initiated by any employee of the Contractor, any
39 Subcontractor, anyone directly or indirectly employed by any of them or anyone for
40 whose acts any of them may be liable, the indemnification obligation set forth in the
41 immediately preceding paragraph shall not be limited in any way by any limitation on the
42 amount or type of damages, compensation or benefits payable by or for the Contractor
43 or any Subcontractor under workmen's compensation acts, disability benefit acts or other
44 employee benefit acts.
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47 ARTICLE XII. INSURANCE: Without limiting the Owner's right to obtain indemnification
48 from Contractor or any third parties, Contractor, at its sole expense, in accordance with
49 the provisions of Section 2.40 of the General Conditions, shall maintain in full force and
50 effect the following insurance policies throughout the term of this Agreement, excepting
51 only those policies for which a longer term is specified:
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1 A. Commercial General Liability Insurance, with scope and amount of coverage
2 as specified in Section 2.40 E.2 of the General Conditions.
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4 B. Automobile Liability Insurance, with scope and amount of coverage as specified in
5 Section 2.40 E.2 of the General Conditions.
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7 C. Professional Liability Insurance, with scope and amount of coverage as specified in
8 Section 2.40 E.3 of the General Conditions.
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10 D. Worker's Compensation Insurance, with scope and amount of coverage as
11 specified in Section 2.40 E. 4 of the General Conditions.
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13 The Certificate of Insurance shall be issued in triplicate, to the COUNTY OF FRESNO,
14 and all other participating agencies, whether or not said agencies are named herein,
15 who contribute to the cost of the work or have jurisdiction over areas in which the work
16 is to be performed and all officers and employees of said agencies while acting within
17 the course and scope of their duties and responsibilities.
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20 ARTICLE XIII. MISCELLANEOUS PROVISIONS:
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22 1. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time
23 during business hours, and as often as the OWNER may deem necessary, make
24 available to the OWNER for examination all of its records and data with respect to the
25 matters covered by this Agreement. The CONTRACTOR shall, upon request by the
26 OWNER, permit the OWNER to audit and inspect all of such records and data necessary
27 to ensure CONTRACTOR'S compliance with the terms of this Agreement.
28 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be
29 subject to the examination and audit of the Auditor General for a period of three (3) years
30 after final payment under contract (Government Code Section 8546.7).
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32 2. INDEPENDENT CONTRACTOR.
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34 In performance of the work, duties, and obligations assumed by
35 CONTRACTOR under this Agreement, it is mutually understood and agreed that
36 CONTRACTOR, including any and all of CONTRACTOR officers, agents, and
37 employees will at all times be acting and performing as an independent
38 contractor, and shall act in an independent capacity and not as an officer, agent,
39 servant, employee, joint venture, partner, or associate of the OWNER.
40 CONTRACTOR and OWNER shall comply with all applicable provisions of law
41 and the rules and regulations, if any, of governmental authorities having
42 jurisdiction over matters of the subject thereof. Because of its status as an
43 independent contractor, CONTRACTOR shall have absolutely no right to
44 employment rights and benefits available to OWNER's employees.
45 CONTRACTOR shall be solely liable and responsible for providing to, or on
46 behalf of, its employees all legally-required employee benefits. In addition,
47 CONTRACTOR shall be solely responsible and save OWNER harmless from all
48 matters related to payment of CONTRACTOR's employees, including
49 compliance with social security, withholding, and all other regulations governing
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1 such matters. It is acknowledged that during the term of this Agreement,
2 CONTRACTOR may be providing services to others unrelated to the OWNER or
3 to this Agreement.
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5 3. DISCLOSURE OF SELF-DEALING TRANSACTIONS
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7 This provision is only applicable if the CONTRACTOR is operating as a
8 corporation (a for-profit or non-profit corporation) or if during the term of the
9 agreement, the CONTRACTOR changes its status to operate as a corporation.
10
11 Members of the CONTRACTOR's Board of Directors shall disclose any self-
12 dealing transactions that they are a party to while CONTRACTOR is providing
13 goods or performing services under this agreement. A self-dealing transaction
14 shall mean a transaction to which the CONTRACTOR is a party and in which one
15 or more of its directors has a material financial interest. Members of the Board of
16 Directors shall disclose any self-dealing transactions that they are a party to by
17 completing and signing a Self-Dealing Transaction Disclosure Form, attached
18 hereto as Exhibit A and incorporated herein by reference, and submitting it to the
19 OWNER prior to commencing with the self-dealing transaction or immediately
20 thereafter.
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23 ARTICLE XIV. The Contractor represents that they have secured the payment of
24 Workers Compensation in compliance with the provisions of the Labor Code of the State
25 of California and Paragraphs B.3, C.3 and EA of Section 2.40 of the General Conditions,
26 and that they will continue so to comply with such statutory and contractual provisions
27 for the duration and entirety of the performance of the work contemplated herein.
28
29 This Contract, 21-J-03, was awarded by the Board of Supervisors on May 17,
30 2022. It has been reviewed by the Department of Public Works and Planning and
31 is in proper order for signature of the Chairman of the Board of Supervisors.
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Contract No.: #211—J 02 Agreement JOB ORDER CONTRACTS
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1 IN WITNESS WHEREOF, they have executed this Agreement this 7t'
2 day of June , 2022
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8 lD)kMm Con 5IYz-u tc CD zrVC COUNTY OF FRESNO
9 (CONTRACT ) N
11 o� -0(0 q -)-0
12 (Taxpayer Fe al I.D. No.)
13 -
14 By By
15 Brian Pacheco, Chairman
16 Title '+'e _ of the Board of Supervisors of the
17 4 County of Fresno
18
19 ATTEST:
20 Bernice E. Seidel
21 Clerk of the Board of Supervisors
22 County of Fresno, State of
23 California
24
25 FOR ACCOUNTING USE ONLY
26 VARIOUS ORGS. By
27 0001/8830/10000/7295 Deputy
28 000114360115011000017295
29 0001/8852110000/7295
30
31 END OF SECTION
Contract No.:#'trcr-i 02 Agreement JOB ORDER CONTRACTS
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CONTRACT INFORMATION
PROJECT NAME: General Building Job Order Contract
VENDOR NAME: Durham Construction Company, Inc.
BUDGET#: 43601150 ACCOUNT#: 7295 PROG/MEMO# 00014
PROJECT#Various ACTIVITY CODE#: 1223 AMT: $5,185,091.94
MULTI-DISTRIBUTIONS
BUDGET#: ACCOUNT#: PROG/MEMO#
PROJECT# ACTIVITY CODE#: AMT: $
BUDGET#: ACCOUNT#: PROG/MEMO#
PROJECT# ACTIVITY CODE#: AMT: $
EXPIRATION DATE: May 31, 2023
DO YOU WANT THIS CONTRACT ENCUMBERED? Y€s / NO
CONTACT PERSON: Iliana Martinez PHONE#: 04329
SPECIAL INSTRUCTIONS:
Contract No. 21-J-03