HomeMy WebLinkAboutReliabuilt Fence Company; 2015-01-30; PEM1174PEM 1174
AGREEMENT FOR TEMPORARY RIGHT-OF-WAY FENCE INSTALLATION,
MAINTENANCE, AND REMOVAL SERVICES RELATED TO THE POINSETTIA FIRE
REUABUILT FENCE COMPANY
THIS AGREEMENT is made and entered into as of the day of
TJa^^utxircJ , 2015, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and RELIABUILT FENCE COMPANY, a general partnership ("Contractor").
RECITALS
A. City requires the professional services of a company that is experienced in
temporary fence installation, maintenance, and removal.
B. Contractor has the necessary experience in providing professional sen/ices and
advice related to the siting, installation, maintenance, and removal of temporary fencing.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southem California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of five (5) years from the date first above
written. The City Manager may amend the Agreement to extend it for two (2) additional one (1)
year periods or parts thereof in an amount not to exceed seven thousand dollars ($7,000) per
Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance.
City needs, and appropriation of funds by the City Council. The parties will prepare a written
amendment indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be
ninety seven thousand six hundred forty dollars ($97,640). No other compensation for the
Services will be allowed except for items covered by subsequent amendments to this Agreement.
The City resen/es the right to withhold a ten percent (10%) retention until City has accepted the
work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
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6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide sen/ices under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election. City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically
noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorneys
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct 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 parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the sen/ices by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of Califomia. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:Vir'. OR with a surplus
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line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X".
10.1 Coveraqes and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk
Manager or City Manager approves a lower amount. These minimum amounts of coverage will
not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of the
insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted policies
contain aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liability, (if the use of an automobile is involved for Contractor's
work for City). $1,000,000 combined single-limit per accident for bodily injury and property
damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the Califomia Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
IXI If box is checked. Professional Liability
City'sWitiais Contractor's Initials Insurance requirement is waived.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial Generai
Liability which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to maintain
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the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete
and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carisbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of City and on behalf of Contractor under this Agreement.
For City For Contractor
Name Michael Grim Name Jorge Gutierrez
Title Senior Planner Title Reliabuilt Fence Company
Department Public Works Address 31916 Del Cielo Este #20
City of Carisbad Bonsall, CA 92003
Address 1635 Faraday Avenue Phone No. 760-295-8776
Carisbad, CA 92008 Email reliabuiltfence27@vahoo.com
Phone No. (760) 602-4623
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Sen/ices by Contractor. Contractor will at all times obsen/e and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's sen/ices
with all appiicabte laws, ordinances and regulations.
Contractor will be aware ofthe requirements ofthe Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Sen/ices the following procedure will
be used to resolve any questions of fact or interpretation not othenwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be fonwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be fonwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the wori< or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of termination. Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and ofthe percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the termination date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
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21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation
of this warranty. City will have the right to annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or othenwise recover, the full amount ofthe
fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part ofthe Agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 etseg.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of Califomia, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respective successors. Neither this Agreement or any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
RELIABUILT FENCE COMPANY, a
general partnership
CITY OF CARLSBAD, a municipal
corporation of the State of Califomia
By
Jorge Gutierrez / Owner - Partner
(print name/title)
By:
(sign here)
(print name/title)
City Manager cr Mayor or Diviaicin Dirastor
ac authoriaod by tho Gity Monogor
Kathryn B. Dodson
ATTEST:
BARBARA ENGLESON
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corooration. Agreement must be signed by one corporate officer from each of the following
two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
'Assistanf City Attorn^
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EXHIBIT "A"
SCOPE OF SERVICES
Provide and install approximately 7,000 linear feet of temporary fencing in the city of
Carlsbad right-of-way, adjacent to private property, at a cost of $12.27 per linear foot, including
all labor, materials and gates.
Fencing shall be six foot high, black vinyl coated chain link. All construction shall be in accordance
with San Diego Regional Drawings, Drawing Number M-5 and M-6, except as follows:
• Top and bottom tension wire only;
• Footing located only on corners and at gates;
• Bracing only where needed for stability;
• No barbed wire or extension arms/posts.
Fencing material shall be as follows:
• All gate posts shall be 2 3/8 inch diameter, 20 gauge;
• All end posts shall be 2/38 inch diameter, 16 gauge;
• All other posts shall be 17/8 inch diameter, 16 gauge;
• All chainlink shall be 11 gauge core wire with 9 gauge finish.
Fencing will include
• Up to six 16 foot wide double gates, 1 5/8 inch diameter frame, suitable for vehicular
access;
• Up to six four foot wide single gates, 15/8 diameter frame, suitable for pedestrian access.
Approximate fencing locations are shown as Locations 1 through 7 on Exhibit 1 attached.
Exact locations to be determined by the city and Contractor based upon existing site constraints
(e.g. slopes, vegetation, infrastructure) and effectiveness for access control.
Contractor to perform all DigAlert investigations and locate fencing accordingly.
Most fencing will remain for between three to five years, as determined by the city; some
locations may remain longer than others, up to a maximum period of seven years. Contractor is
responsible for removing and hauling away all fencing and related materials when directed by
the city. Contractor is responsible to maintain fencing and gates; maintenance shall be performed
within five calendar days after request by city or upon contractor's discovery.
Incremental payments shall be made as follows: 10% at start of project, 40% halfway through
installation, and the remaining 50% upon completion and acceptance of installation by city.
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Location Map
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PROJECT NAME
Poinsettia Fire Fencing Locations RFP
EXHIBIT
1
City Attorney Approved Version 1/30/13
Donna Heraty
From: Donna Heraty
Sent: Friday, January 30, 2015 2:42 PM
To: 'reliabuiltfence27@yahoo.com'
Cc: Rhonda Gasper-Heather; Shelley Collins; Sherry Freisinger
Subject: Form 700 - Conflict of Interest
Dear Consultant:
Regarding your agreement with the City of Carlsbad for Temporary Right-of-Way Fence Installation, Maintenance and
Removal Services -
// your agreement states: Contractor shall fiie a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interest in ali four
categories.
It has been determined by the City Clerk's Office that you are not required to file a Conflict of Interest Statement as
mentioned in your agreement with the City of Carisbad. A copy of this email will be added to your file memorializing this
decision.
Should you have any questions, please do not hesitate to contact me.
Kindest regards.
Ccityof Carlsbad
Shelley Collins, CMC
Assistant City Clerk
City Clerk's Office
City of Carlsbad
1200 Carlsbad Village Drive
Carisbad, CA 92008-1949
www.carisbadca.eov
760-434-2917 I Shellev.CollinsPcarisbadca.gov
Connectvv/f/;
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