16-009 Con-Quest Contractors, Inc., Storm Drain Manhole Raising ServicesAGREEMENT BETWEEN THE CITY OF CUPERTINO AND CON-QUEST
CONTRACTORS INC FOR STORM DRAIN MANHOLE RAISING SERVICES
THIS AGREEMENT, for reference dated January 5, 2016, is by and between CITY OF
CUPERTINO, a municipal corporation (hereinafter refen-ed to as "City"), and
Con-Quest Contractors, a California corporation whose address is
290 Toland Street, San Francisco California 94124 hereinafter called the Contractor, and is made
with reference to the following:
RECiTALS:
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to ca!Ty on its business as it is now being conducted
under the Constitution and the statutes of the State of California and the Cupertino Municipal
Code.
B. City and Contractor desire to enter into an agreement for Manhole Raising
Services, in accordance with Exhibit A, dated January 5, 2016.
NOW, THEREFORE, it is mutually agreed by and between the undersigned paiiies as
follows:
1. TERM:
The Contractor shall begin work within five (5) working days after receiving notice from
the Engineer to commence the work, and shall diligently prosecute the work to completion
before February 22, 2016.
2. SERVICES TO BE PERFORMED:
Contractor agrees, at its own cost and expense, to furnish all labor, tools, equipment,
materials, except as otherwise specified, and to do all work strictly in accordance with Exhibit A
dated January 5, 2016 hereby refen-ed to and expressly made a part hereof with the same force
and effect as if the same were fully incorporated herein.
3. COMPENSATION TO CONTRACTOR:
Contractor shall be compensated for services perfonned pursuant to this Agreement in the
amount and manner set forth in Contractor's bid, which is attached hereto as Exhibit "A" and
incorporated herein by this reference. Total compensation will be limited to $11,025. Payment
will be made in the same manner that claims of a like character are paid by the City, with checks
drawn on the treasury of the City, to be taken from the stonn drain maintenance fund.
4. TIME IS OF THE ESSENCE:
Contractor and City agree that time is of the essence regarding the performance of this
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Agreement.
It is agreed by the paiiies to the Agreement that in case all the work called for under the
Agreement is not completed before or upon the expiration of the time limit as set fmih in
paragraph 1 above, damage will be sustained by the City, and that it is and will be impracticable
to detennine the actual damage which the City will sustain in the event of and by reason of such
delay. It is therefore agreed that the Contractor~will pay to the City the sum of Seventy Five
Dollars ($75) per day for each and every day's delay beyond the time prescribed to complete the
work; and the Contractor agrees to pay such liquidated damages as herein provided, and in case
the same are not paid, agrees that the City may deduct the amount thereof from any money due
or that may become due the Contractor under the Agreement.
It is further agreed that in case the work called for under the Agreement is not finished
and completed in all parts and requirements within the time specified, the City shall have the
right to extend the time for completion or not, as may seem best to serve the interest of the City;
and if it decides to extend the time limit for the completion of the Agreement, it shall further
have the right to charge the Contractor, his or her heirs, assigns, or sureties, and to deduct from
the final payment for the work, all or any paii, as it may deem proper, of the actual costs and
overhead expenses which are directly chargeable to the Agreement, and which accrue during the
pe1iod of such extensions.
The Contractor shall not be assessed with liquidated damages dming any delay in the
completion of the work caused by an act of God or of the public enemy, acts of the City, fire,
flood, epidemic, quarantine restriction, stiikes, freight embargoes, and unusually severe weather
or delays of subcontractors due to such causes; provided that the Contractor shall, within one (1)
day from the beginning of such delay, notify the City in writing of the causes of delay. The City
shall asce1iain the facts and the extent of the delay, and its findings of the facts thereon shall be
final and conclusive.
5. STANDARD OF CARE:
Contractor agrees to perfonn all services hereunder in a maimer cmmnensurate with the
prevailing standards of like professionals in the San Francisco Bay Area and agrees that all
services shall be performed by qualified and experienced personnel who are not employed by the
City nor have any contractual relationship with City.
6. INDEPENDENT PARTIES:
City and Contractor intend that the relationship between them created by this Agreement
is that of employer-independent contractor. 111e manner and means of conducting the work are
under the control of Contractor, except to the extent they are limited by statute, rule or regulation
and the express tem1s of this Agreement. No civil service status or other right of employment
will be acquired by virtue of Contractor's services. None of the benefits provided by City to its
employees, including but not limited to unemployment insurance, workers' compensation plans,
vacation and sick leave are available from City to Contractor, its employees or agents.
Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or
other purposes nonnally associated with an employer-employee relationship from any fees due
Contractor. Payments of the above items, if required, are the responsibility of Contractor.
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7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Contractor assumes any and all responsibility for verifying the identity and employment
authorization of all of its employees perfonning work hereunder, pursuant to all applicable IRCA
or other federal, or state rules and regulations. Contractor shall inde1m1ify and hold City
hannless from and against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Contractor.
8. NON-DISCRIMINATION:
Consistent with City's policy that harassment and disc1imination are unacceptable
employer/employee conduct, Contractor agrees that harassment or discrimination directed
toward a job applicant, a City employee, or a citizen by Contractor or Contractor's employee pn
the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated. Contractor agrees that any
and all violations of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
Contractor shall, to the fullest extent allowed by law, indemnify, defend, and hold
harmless the City and its officers, officials, agents, employees and volunteers against any and all
liability, claims, stop notices, actions, causes of action or demands whatsoever from and against
any of them, including any injury to or death of any person or damage to property or other
liability of any nature, arising out of, pertaining to, or related to the perfonnance of this
Agreement by Contractor or Contractor's employees, officers, officials, agents or independent
contractors. Contractor shall not be obligated under this Agreement to indemnify City to the
extent that the damage is caused by the sole or active negligence or willful misconduct of City,
its agents or employees. Such costs and expenses shall include reasonable attorneys' fees of
counsel of City's choice, expe1i fees and all other costs and fees of litigation.
Contractor agrees to obtain executed indemnity agreements with provisions identical to
those set forth here in these sections from each and every subcontractor or any other person or
entity involved by, for, with, or on behalf of Contractor in the perfonnance of this agreement. If
Contractor fails to obtain such indemnity obligations from others as required here, Contractor
agrees to be fully responsible according to the tenns of this section.
10. INSURANCE:
On or before the commencement of the tenns of this Agreement, Contractor shall furnish
City with certificates showing the type, amount, class of operations covered, effective dates and
dates of expiration of insurance coverage in compliance with paragraphs 1 OA, B, C and D. Such
ce1iificates, which do not limit Contractor's inde1m1ification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this ce1iificate be canceled
or coverage reduced before the expiration date thereof, the insurer affording coverage shall
provide thi1iy (30) days' advance written notice to the City of Cupertino by certified mail,
"Attention: City Manager." It is agreed that Contractor shall maintain in force at all times
du1ing the performance of this Agreement all appropiiate coverage of insurance required by this
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Agreement with an insurance company that is acceptable to City and licensed to do insurance
business in the State of California. Endorsements miming the City as additional insured shall be ·
submitted with the insurance ce1iificates.
A. COVERAGE:
Contractor shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Cmmnercial general liability coverage in the following minimum limits:
Bodily Injury: $1,000,000
each occurrence
$2,000,000
aggregate -all other
Prope1iy Damage: $500,000 each occurrence
$1, 000, 000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $2,000,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
Comprehensive automobile liability coverage in the
following minimum limits:
Bodily injury: $500,000 each occurrence
Property Damage: $500,000 each occurrence
or
Combined Single Limit: $1,000,000 each occurrence
B. SUBROGATION WAIVER:
Contractor agrees that in the event of loss due to miy of the perils for which it has agreed
to provide comprehensive general and automotive liability insurance, Contractor shall look
solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer
providing-comprehensive general and automotive liability insurance to either Contractor or City
with respect to the services of Contractor herein, a waiver of m1y right to subrogation which any
such insurer of said Contractor may acquire against City by virtue of the payment of any loss
under such insurance.
C. FAILURE TO SECURE:
If Contractor at any time dming the tenn hereof should fail to secure or maintain the
foregoing insurance, City shall be pennitted to obtain such insurance in the Contractor's name or
as an agent of the Contractor and shall be compensated by the Contractor for the costs of the
insurance premiums at the maximum rate permitted by law and computed from the date written
notice is received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees, and volunteers shall
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be named as an additional insured under all insurance coverages, except worker' s compensation
insurance. The naming of an additional insured shall not affect any recovery to which such
additional insured would be entitled under this policy if not named as such additional insured.
An additional insured named herein shall not be held liable for any premium, deductible portion
of any loss, or expense of any nature on this policy or any extension thereof. Any other
insurance held by an additional insured shall not be required to contribute anything toward any
loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to protect
Contractor. Contractor is advised to consult Contractor's insurance broker to detennine adequate
coverage for Contractor.
11. BONDS:
No bonds are required.
12. PROHIBITION AGAINST TRANSFERS:
Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any
interest therein, directly or indirectly, by operation of law or otherwise, without prior written
consent of City. Any attempt to do so without said consent shall be null and void, and any
assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such
attempted assignment, hypothecation or transfer. However, claims for money by Contractor
from City under this Agreement may be assigned to a bank, trust company or other financial
institution without prior w1itten consent. W1itten notice of such assignment shall be promptly
furnished to City by Contractor.
The sale, assigmnent, transfer or other disposition of any of the issued and outstanding
capital stock of Contractor, or of the interest of any general paiiner or joint venturer or syndicate
member or cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy,
which shall result in changing the control of Contractor, shall be construed as an assignment of
this Agreement. Control means fifty percent (50%) or more of the voting power of the
corporation.
13. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and subcontractors
whose names are listed in Contractor's bid shall be used in the perforn1ance of this Agreement.
Requests for additional subcontracting shall be submitted in writing, desc1ibing the scope
of work to be subcontracted and the name of the proposed subcontractor. Such request shall set
forth the total p1ice or hourly rates used in preparing estimated costs for the subcontractor's
services. Approval of the subcontractor may, at the option of City, be issued in the fonn of a
Work Order.
In the event that Contractor employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to cmTy
general and automobile liability insurance in reasonable conforn1ity to the insurance canied by
Contractor. In addition, any work or services subcontracted hereunder shall be subject to each
provision of this Agreement.
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14. PERMITS AND LICENSES:
Contractor, at its sole expense, shall obtain and maintain during the tenn of this
Agreement, all appropriate pennits, ce1iificates and licenses, including a City Business License,
that may be required in c01mection with the perfonnance of services hereunder.
15. REPORTS:
Each and every report, draft, work product, map, record and other document reproduced,
prepared or caused to be prepared by Contractor pursuant to or in connection with this
Agreement shall be the exclusive prope1iy of City. Consultant may retain a copy of any rep01i
furnished to the City pursuant to this Agreement.
No report, infornrntion nor other data given to or prepared or assembled by Contractor
pursuant to this Agreement shall be made available to any individual or organization by
Contractor without prior approval by City.
Contractor shall, at such time and in such forn1 as City may require, furnish reports
concerning the status of services required under this Agreement.
16. RECORDS:
Contractor shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such information required by City that relate to the performance of
services under this Agreement.
Contractor shall maintain adequate records of services provided in sufficient detail to
permit an evaluation of services. All such records shall be maintained in accordance with
generally accepted accounting principles and shall be clearly identified and readily accessible.
Contractor shall provide free access to such books and records to the representatives of City or
its designees at all proper times, and gives City the right to examine and audit same, and to make
transcripts therefrom as necessary, and to allow inspection of all work, data, documents,
proceedings and activities related to this Agreement. Such records, together with suppmiing
documents, shall be kept separate from other documents and records and shall be maintained for
a period of tlu·ee (3) years after receipt of final payment.
If supplemental examination or audit of the records is necessary due to concerns raised by
City's preliminary examination or audit of records, and the City's supplemental examination or
audit of the records discloses a failure to adhere to appropriate internal financial controls, or
other breach of contract or failure to act in good faith, then Contractor shall reimburse City for
all reasonable costs and expenses associated with the supplemental examination or audit.
17. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on the
second business day after the deposit thereof in the United States Mail, postage prepaid,
registered or ce1iified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Contractor to City shall be addressed to
City at:
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City of Cupertino
10300 Torre Avenue
Cupertino CA 95014
Attention: Roger Lee, Assistant Director of Public Works
All notices, demands, requests, or approvals from City to Contractor shall be addressed to
Contractor at:
Con-Quest Contractors, Inc.
290 Toland Street
San Francisco, CA 94124
18. URBAN RUNOFF MANAGEMENT:
The Contractor shall avoid creating excess dust when breaking asphalt or concrete and
during excavation and grading. If water is used for dust control, contractor shall use as little as
necessary. Contractor shall take all steps necessary to keep wash water out of the streets, gutters
and st01m drains.
The Contractor shall develop and implement erosion and sediment control to prevent
pollution of st01m drains. Such control includes but is not limited to:
A. Use storm drain inlet protection devices such as sand bag barriers, filter fabric
fences, block and gravel filters. (Block stonn drain inlets prior to the start of the rainy season
(October 15), in site de-wateling activities and saw-cutting activities; shovel or vacuum saw-cut
slmry and remove from the site).
B. Cover exposed piles of soil or construction mate1ial with plastic sheeting. All
construction matelials must be stored in containers.
C. Sweep and remove all mateiials from paved surfaces that drain to streets, gutters
and storm drains plior to rain as well as at the end of the each work day. At the completion of
the project, the street shall be washed and the wash water shall be collected and disposed of
offsite in an appropriate location.
D. After breaking old pavement, Contractor shall remove all debris to avoid contact
with rainfall or runoff.
E. Contractor shall maintain a clean work area by removing trash, litter, and debris at
the end of each work day. Contractor shall also clean up any leaks, drips, and other spills as they
occur.
The objective is to ensure that the City and County of Santa Clara County-Wide Clean
Water Program is adequately enforced. These controls should be implemented prior to the staii
of construction, up-graded as required, maintained during construction phases to provide
adequate protection, and removed at the encl of construction.
These recommendations are intended to be used in conjunction with the States Best
Management Practices Municipal and Construction Handbooks, local program guidance
materials from municipalities, Section 7.1.01 of the Standard Specifications and any other
approptiate documents on stonn water quality controls for construction.
Failure to comply with this program will result in the issuance of noncompliance notices,
citations, project stop orders or fines. The fine for noncompliance of the above program is two
hundred and fifty dollars ($250.00) per occ1mence per clay. The State under the Federal Clean
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Water Act can also impose a fine on the contractor, pursuant to Cal. Water Code '13385.
19. TERMINATION:
In the event Contractor fails or refuses to perfonn any of the provisions hereof at the time
and in the manner required hereunder, Contractor shall be deemed in default in the perfonnance
of this Agreement. If such default is not cured within a period of two (2) days after receipt by
Contractor from City of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, City may tem1inate the Agreement forthwith by giving to
the Contractor w1itten notice thereof.
City shall have the option, at its sole discretion and without cause, of te1111inating this
Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon
tennination of this Agreement, each paiiy shall pay to the other pmiy that portion of
compensation specified in this Agreement that is earned and lmpaid prior to the effective date of
tem1ination.
20. COMPLIANCES:
Contractor shall comply with all state or federal laws and all ordinances, rnles and
regulations enacted or issued by City. Specifically, and without limitation, Smart Cover
Systems shall comply with all state, federal, or local regulation regarding the removal and
disposal of hazardous waste.
A. PREVAILING WAGES: To the extent applicable, Smart Cover Systems shall comply
with the City's Labor Compliance Program and all other requirements set forth in Labor Code
section 1770 et seq. Contractor shall pay prevailing wages. Contractor will submit monthly
ce1iified payroll records to the City for all employees and sub. Contractor in a preapproved
fonnat or a City provided fom1. Any delay in remitting ce1iified payroll reports to the City upon
request from the City will result in either delay and/or .forfeit of outstanding payment to
Contractor.
B. WORKING DAY: To the extent applicable, Contractor shall comply with California
Labor Code Section 1810, et seq. which provides that work perfonned by employees of
Contractor in excess of 8 hours per day, and 40 hours dming any one week, must be
compensated as oveiiime, at not less than 1 Yi times the basic rate of pay.
C. PAYROLL RECORDS: To the extent applicable, Contractor shall comply with California
Labor Code Section 1776 which requires ce1iified payroll records be maintained with the name,
address, social security number, work classification, straight time and ove1iime hours worked
each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker,
or other employee employed by him or her in connection with this Agreement. The Payroll
Records shall be made available for inspection as provided in California Labor Code Section
1776.
D. APPRENTICES: To the extent applicable, Contractor shall comply with California Labor
Code Section 1777.5 regarding apprentices.
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21. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of another
jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders,
rules, and regulations of the authorities having jurisdiction over this Agreement (or the
successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed
with the courts of the County of Santa Clara, State of California.
22. ADVERTISEMENT:
Contractor shall not post, exhibit, display or allow to be posted, exhibited, displayed any
signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services
perfonned under this Agreement unless prior w1itten approval has been secured from City to do
otherwise.
23. WAIVER:
A waiver by City of any breach of any tenn, covenant, or condition contained herein,
shall not be deemed to be a waiver of any subsequent breach of the same or any other term,
covenant, or condition contained herein, whether of the same or a different character.
24. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be
held to vary the provisions hereof. Any modification of this Agreement will be effective only by
written execution signed by both City and Contractor.
25. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement shall be
deemed to be enacted herein, and the Agreement shall be read and enforced as though each were
included herein. If through mistake or otherwise, any such provision is not inserted or is not
conectly inse1ied, the Agreement shall be amended to make such insertion on application by
either pmiy.
26. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the Agreement
and in no way affect, limit or amplify the tenns or provisions of this Agreement.
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P.o. No.: d-ol & -t..\ lS
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the
day and year first above written.
CONTRACTOR
Con-Quest Contractors, Inc.
CITY OF CUPERTINO
A Municipal Corporation
APPROVED AS TO FORM: ~
ATTEST: G.cteSJL.U L -n-1 b
City Clerk
Contract Amount: $11,025
Account No. : 100-85-818
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LJE:ST
General Engineering Contractors Lie.# 818668
Date: January 5, 2016
To: City of Cupertino
Attn: Roger Lee
Assistant Director of Public Works
Re: Raising manhole frame and cover at various locations
Dear Mr. Lee,
Please accept this as Con-Quest Contractors, lnc.'s official proposal to raise 7 existing manhole frame and
covers to grade. Our price for this work is Eleven Thousand Twenty Five Dollars and Zero Cents
($11 ,025).
The 7 locations of work are as follows:
ADDRESS/CROSS STREET TYPE OF WORK
6189 Shadvqrove Dr. Raise manhole in AC
Foothill Blvd ®Alpine Raise manhole in AC
Foothill Blvd (a) Stevens Creek Blvd Raise manhole in AC
Pruneridge rm Wolfe Raise manhole in AC
10571 S. Foothill Blvd. Raise manhole in AC
1258 S. Stellinq Rd. Raise manhole in AC
Homestead Rd (CV, Bluejay Raise manhole in earth park strip
Included in the work is demo of existing collar, raising and pouring new concrete collar up to 2" below finish
grade and installation of temp paving. Final paving to be done by others.
Please contact me at your earliest convenience to discuss any questions or concerns.
Respectfully,
CON-QUEST CONTRACTORS, INC:.
Alex Baranoff
Project Manager
290 TOLAND ST.
SAN FRANCISCO, CA 9 41 24
PHONE 415.206.0524
FAX 41 5.206.0528