HomeMy WebLinkAboutAgreement A-20-105 with Magness Construction.pdf-1-
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AGREEMENT
THIS AGREEMENT for specialized and emergency general contracting services (the “Agreement”)
is made and entered into this _____ day of __________ 2020, by and between the COUNTY OF FRESNO,
a Political Subdivision of the State of California, hereinafter referred to as "COUNTY", and Ron Magness, a
sole proprietor doing business as Magness Construction, whose address is 22092 Auberry Road, Clovis,
CA 93619, hereinafter referred to as "CONTRACTOR".
WITNESSETH:
WHEREAS, the COUNTY requires general contracting services and emergency general contracting
services in order to provide municipal water and sewer services, and operate and maintain water and
sewer treatment facilities within Special Districts; and
WHEREAS, such general contracting services may include, but not be limited to; road repairs,
painting, concrete repair, emergency water and sewer line repair, step tank excavation and confined space
work; and
WHEREAS, emergency services may be required when demanded by circumstances, in order to
meet minimum health and safety standards for water and sewer services.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein
contained, the parties hereto agree as follows:
1.OBLIGATIONS OF THE CONTRACTOR
A.CONTRACTOR shall provide all services (including but not limited to, labor,
material, equipment, transportation and taxes) related to general and emergency contractor services for
the following county service areas and county waterworks districts:
1.County Service Area No. 1 (Tamarack)
2.County Service Area No. 5 (Wildwood Island)
3.County Service Area No. 10 (Cumorah Knolls)
4.County Service Area No. 10A (Mansionette Estates)
5.County Service Area No. 14 (Belmont Manor)
6.County Service Area No. 23 (Exchequer Heights)
Agreement No. _____________
10th March
20-10519-1635
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7. County Service Area No. 30 (El Porvenir)
8. County Service Area No. 31B (Shaver Lake)
9. County Service Area No. 32 (Cantua Creek)
10. County Service Area No. 34 (Millerton New Town)
11. County Service Area No. 34A (Brighton Crest)
12. County Service Area No. 34B (Ventana Hills)
13. County Service Area No. 34C (Bella Vista)
14. County Service Area No. 34D (Renaissance at Bella Vista)
15. County Service Area No. 34F (The Vistas)
16. County Service Area No. 34G (Granville)
17. County Service Area No. 35 (All Road Zones)
18. County Service Area No. 43W (Raisin City)
19. County Service Area No. 44A (Friant Mobile Home Park)
20. County Service Area No. 44C (Riverview Ranch)
21. County Service Area No. 44D (Monte Verdi)
22. County Service Area No. 47 (Quail Lake)
23. County Service Area No. 49 (O’Neil’s Farming)
24. Waterworks District No. 37 (Mile High)
25. Waterworks District No. 38 (Sky Harbour)
26. Waterworks District No. 40 (Shaver Springs)
27. Waterworks District No. 41W (Shaver Lake)
28. Waterworks District No. 41S (Shaver Lake)
29. Waterworks District No. 42 (Alluvial/Fancher)
B. CONTRACTOR shall perform the services in accordance to all standard
contractor, mechanical, plumbing and building codes as described in the California Building Standards
under Title 24 of the California Code of Regulations. CONTRACTOR shall charge for services rendered
at the rates hereafter set forth in Section 5, COMPENSATION.
C. Services shall be performed on an as-needed basis upon notification by the
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COUNTY Representative, as defined in Section 2.B. below. The notification may be given by telephone
call, email or other writing. Upon notification by the COUNTY Representative, CONTRACTOR shall
provide to the COUNTY Representative a date and time of the CONTRACTOR’s estimated arrival at the
job site. The contact person for the CONTRACTOR is: Ron Magness: Telephone: (559) 593-3599; (559)
322-9591; Email: ronmagmel@gmail.com.
2. OBLIGATIONS OF THE COUNTY
A. COUNTY shall compensate the CONTRACTOR as provided in Section 5 of this
agreement.
B. The COUNTY Representative shall work with the CONTRACTOR in carrying out
the provisions of this Agreement. The COUNTY Representative is the COUNTY Director of the
Department of Public Works and Planning or his or her designee. The CONTRACTOR shall
communicate and coordinate with the COUNTY Representative, who will provide the following services:
1) Examine documents submitted to the COUNTY and work with the
CONTRACTOR and timely render decisions pertaining to those documents; and
2) Provide communication between the CONTRACTOR and COUNTY
officials and commissions (including Fresno County Department of Public Works and Planning).
C. COUNTY shall give reasonably prompt consideration to all matters submitted by
the CONTRACTOR for approval to the end that there will be no substantial delays in the
CONTRACTOR’s program of work. An approval, authorization, or request given by the COUNTY to the
CONTRACTOR will only be binding upon the COUNTY under the terms of this Agreement if the
approval, authorization, or request is in writing and signed on behalf of the COUNTY by the COUNTY
Representative or a designee.
3. TERM
The term of this Agreement shall be for a period of three (3) years, commencing on April 1, 2020
through and including March 31, 2023. This Agreement may be extended for two (2) additional consecutive
twelve (12) month periods upon written approval of both parties no later than thirty (30) days prior to the first
day of the next twelve (12) month extension period. The Director of Public Works and Planning, or his or
her designee is authorized to execute such written approval on behalf of COUNTY based on
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CONTRACTOR’S satisfactory performance.
4. TERMINATION
A. Non-Allocation of Funds - The terms of this Agreement, and the services to be
provided hereunder, are contingent on the approval of funds by the appropriating government agency.
Should sufficient funds not be allocated, the services provided may be modified, or this Agreement
terminated, at any time by giving the CONTRACTOR thirty (30) days advance written notice.
B. Breach of Contract - The COUNTY may immediately suspend or terminate this
Agreement in whole or in part, where in the determination of the COUNTY there is:
1) An illegal or improper use of funds;
2) A failure to comply with any term of this Agreement;
3) A substantially incorrect or incomplete report submitted to the COUNTY;
4) Improperly performed service.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach
of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such
payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default.
The COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any
funds disbursed to the CONTRACTOR under this Agreement, which in the judgment of the COUNTY were
not expended in accordance with the terms of this Agreement. The CONTRACTOR shall promptly refund
any such funds upon demand.
C. Without Cause - Under circumstances other than those set forth above, this
Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written notice of an
intention to terminate to CONTRACTOR.
5. COMPENSATION:
COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation as
follows:
TYPE OF SERVICE RATE PER CALL OUT (2 Workers Required, $65/HR for each)
Regular (Non-Emergency) $130.00/HR (2 x $65)
Emergency
Regular Rate + Emergency $150 One-Time Fee to Interrupt Work
on their Current Job, plus the Cost of the Balance of their Shift
Confined Space $165.00/HR (1 x $65 + 1 x $100)
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Notwithstanding any other provision in this Agreement, the total compensation for services shall be
limited for the term of the Agreement to an annual maximum of $50,000 for each one-year period of the
Agreement and shall not exceed a maximum cumulative total of $150,000 during the initial three-year term
of the Agreement. If this Agreement is extended for the maximum two (2) additional one-year renewal
periods as provided in section 3 herein above, then the maximum cumulative amount of compensation for
services under this Agreement shall not exceed $250,000 during the entirety of the extended five-year term
of this Agreement. It is understood that all expenses incidental to CONTRACTOR'S performance of
services under this Agreement shall be borne by CONTRACTOR. For invoicing and compensation
purposes, the CONTRACTOR shall use the costs and rates specified in Attachment A to this Agreement.
The costs and rates listed in Section 5, COMPENSATION shall remain in effect for the duration of this
Agreement.
6. INVOICING:
A. Payments will be made by the COUNTY upon receipt and approval of the
CONTRACTOR’s invoices. CONTRACTOR shall submit to the County of Fresno Department of Public
Works and Planning a separate invoice in duplicate for each special district, or facility serviced. Invoices
shall clearly identify the county service area, county waterworks district, or facility where the work was
performed, and a cost breakdown based on the service provided and prices stated in Section 5.
COMPENSATION. CONTRACTOR shall send all invoices by United States Mail to:
Fresno County Department of Public Works and Planning
Resources Division, Special Districts Administration
2220 Tulare Street, Sixth Floor
Fresno, CA 93721
B. Upon receipt of a proper invoice, the COUNTY Department of Public Works and
Planning may take a maximum of five (5) COUNTY business days to review, approve, and submit it to
the COUNTY Auditor-Controller/Treasurer-Tax Collector for payment. Unsatisfactory or inaccurate
invoices will be returned to the CONTRACTOR for correction and resubmittal. Payment will be issued to
CONTRACTOR within 40 calendar days of the date the Auditor-Controller/Treasurer-Tax Collector
receives the approved invoice.
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7. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations
assumed by CONTRACTOR under this Agreement, CONTRACTOR, including any and all of the
CONTRACTOR'S officers, agents, and employees is at all times 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 COUNTY. COUNTY has no right to control or
supervise or direct the manner or method by which CONTRACTOR performs its work and function
under this Agreement. COUNTY retains the right to administer this Agreement in order to verify that
CONTRACTOR is performing its obligations in accordance with the terms and conditions of this
Agreement. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the
rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject
thereof.
Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right
to employment rights and benefits available to COUNTY 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 COUNTY harmless from all matters relating
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 COUNTY or to this Agreement.
8. MODIFICATION: Any matters of this Agreement may be modified from time to time by the
written consent of all the parties without, in any way, affecting the remainder.
9. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement
nor their rights or duties under this Agreement without the prior written consent of the other party.
10. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at
COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and
expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses occurring or
resulting to COUNTY 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 (including
attorney’s fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm,
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or corporation who may be injured or damaged by the performance, or failure to perform, of
CONTRACTOR, its officers, agents, or employees under this Agreement.
11. INSURANCE
Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third
parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance
policies throughout the term of the Agreement:
A. Commercial General Liability
Commercial General Liability Insurance with limits of not less than Two Million Dollars
($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00). This
policy shall be issued on a per occurrence basis. COUNTY may require specific coverages including
completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal
liability or any other liability insurance deemed necessary because of the nature of this contract.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage should include
any auto used in connection with this Agreement.
C. Professional Liability
If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W.,
M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual aggregate.
D. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California Labor
Code.
Additional Requirements Relating to Insurance
CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance naming
the County of Fresno, its officers, agents, and employees, individually and collectively, as additional
insured, but only insofar as the operations under this Agreement are concerned. Such coverage for
additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained
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by COUNTY, its officers, agents and employees shall be excess only and not contributing with insurance
provided under CONTRACTOR's policies herein. This insurance shall not be cancelled or changed without
a minimum of thirty (30) days advance written notice given to COUNTY.
a. CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents, and
employees any amounts paid by the policy of worker’s compensation insurance required by this
Agreement. CONTRACTOR is solely responsible to obtain any endorsement to such policy that may be
necessary to accomplish such waiver of subrogation, but CONTRACTOR’s waiver of subrogation under
this paragraph is effective whether or not CONTRACTOR obtains such an endorsement.
b. Within thirty (30) days from the date CONTRACTOR signs this Agreement, CONTRACTOR
shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as
required herein, to the County of Fresno, (Resources Division, Special Districts Administration, 2220 Tulare
Street, Sixth Floor, Fresno, CA. 93721), stating that such insurance coverage have been obtained and are
in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any
premiums on the policies; that such Commercial General Liability insurance names the County of Fresno,
its officers, agents and employees, individually and collectively, as additional insured, but only insofar as
the operations under this Agreement are concerned; that such coverage for additional insured shall apply
as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers,
agents and employees, shall be excess only and not contributing with insurance provided under
CONTRACTOR's policies herein; and that this insurance shall not be cancelled or changed without a
minimum of thirty (30) days advance, written notice given to COUNTY.
c. In the event CONTRACTOR, fails to keep, insurance coverage in effect at all times as
herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this
Agreement upon the occurrence of such event.
d. All policies shall be issued by admitted insurers licensed to do business in the State of
California, and such insurance shall be purchased from companies possessing a current A.M. Best, Inc.
rating of “A” FSC VII or better.
12. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business
hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for
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examination, all records and data with respect to the matters covered by this Agreement. The
CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY 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).
13. NOTICES: The persons and their addresses having authority to give and receive notices
under this Agreement include the following:
COUNTY CONTRACTOR
Department of Public Works and Planning Magness Construction
Resources Division, Special Districts Administration 22092 Auberry Road
2220 Tulare Street, Sixth Floor Clovis, CA 93619
Fresno, CA 93721 Attention: Ron Magness, Owner
All notices between the COUNTY and CONTRACTOR provided for or permitted under this
Agreement must be in writing and delivered either by personal service, by first-class United States mail, by
an overnight commercial courier service, or by telephonic facsimile transmission. A notice delivered by
personal service is effective upon service to the recipient. A notice delivered by first-class United States
mail is effective three COUNTY business days after deposit in the United States mail, postage prepaid,
addressed to the recipient. A notice delivered by an overnight commercial courier service is effective one
COUNTY business day after deposit with the overnight commercial courier service, delivery fees prepaid,
with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by
telephonic facsimile is effective when transmission to the recipient is completed (but, if such transmission is
completed outside of COUNTY business hours, then such delivery shall be deemed to be effective at the
next beginning of a COUNTY business day), provided that the sender maintains a machine record of the
completed transmission. For all claims arising out of or related to this Agreement, nothing in this section
establishes, waives, or modifies any claims presentation requirements or procedures provided by law,
including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
beginning with section 810).
14. GOVERNING LAW: Venue for any action arising out of or related to this Agreement shall
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only be in Fresno County, California.
The rights and obligations of the parties and all interpretation and performance of this Agreement
shall be governed in all respects by the laws of the State of California.
15. COMPLIANCE WITH LAWS:
CONTRACTOR shall comply with all applicable Federal, State, and local laws, ordinances,
regulations, and Fresno County Charter Provisions in effect at the time of CONTRACTOR’s performance of
services under this Agreement.
16. 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 COUNTY prior to commencing with the self-dealing transaction or
immediately thereafter.
17. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the
CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous
Agreement negotiations, proposals, commitments, writings, advertisements, publications, and
understanding of any nature whatsoever unless expressly included in this Agreement.
18. SEVERABILITY:
If any provision of this agreement is found or deemed to be invalid, this agreement shall
be construed as not containing that provision and all other provisions which are otherwise lawful shall
remain in full force and effect, and to this end the provisions of this agreement are hereby declared to be
severable.
1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
2 first hereinabove written .
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f+---,!~~~-----,~~~~----
7 l+--------------
Name & Title
8
22092 Auberry Road
9 !+-------------
Clovis, CA 93619
10 !+--------------
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Mailing Address
FOR ACCOUNTING USE ONLY:
Fund : 0801
18 Subclass : 16900
ORG : 9140
19 Account: 7205/7220/7295
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COUNTY OF FRESNO
Ernest Buddy Mend es , Ch a,ffn an cf 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
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EXHIBIT A
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”), members
of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must disclose any
self-dealing transactions that they are a party to while providing goods, performing services, or both
for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1)Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2)Enter the board member’s company/agency name and address.
(3)Describe in detail the nature of the self -dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a.The name of the agency/company with which the corporation has the transaction; and
b.The nature of the material financial interest in the Corporation’s transaction that the
board member has.
(4)Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5)Form must be signed by the board member that is involved in the self -dealing transaction
described in Sections (3) and (4).
EXHIBIT A
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a):
(5) Authorized Signature
Signature: Date: