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16-063 Harry L. Murphy, Sports Center lobby and Reception Area carpet Tile InstallationAGREEMENT BETWEEN THE CITY OF CUPERTINO AND Harry L. MURPHY inc. THIS AGREEMENT, for reference dated March 30 2016, is by and between CITY OF CUPERTINO (hereinafter referred to as "City"), a municipal corporation, and Harry L. Murphy (hereinafter referred to as "Conh·actor"), a California corporation whose address is 42 Bonaventura Drive San Jose , Ca. 95134 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 carry 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 Carpet Installation at Cupertino Sports Center, in accordance with the adopted Specifications, Special Provisions and Plans. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The Contractor shall begin work within thirty (30) working days after receiving notice from City to commence the work, and shall diligently prosecute the work to completion before the expiration of thirty (30) consecutive working days from the date of receipt of notice to begin work. 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 Specifications, Special Provisions and Plans, which are hereby referred 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 performed 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. Payment will be made in the same manner that claims of a like character are paid by City, with checks drawn on the treasury of City, to be taken from the 570-87-836-900-990 fund. Payment will be made by City in the following manner: On the first day of each month, Contractor shall submit a written estimate of the total amount of work done the previous month. Payment shall be made up to 95 % of the value of the work. City shall retain 5 % of the value of the work as partial security for the completion of the work by Contractor. Retained amounts will be paid to Contractor 35 days after the acceptance by City and the recording of the Notice of Completion with the Santa Clara County Recorder's office. Payment shall not be construed as Page 1 o f21 acceptance of defective work. No interest will be paid to Contractor on retained funds. 4. TIME IS OF THE ESSENCE: Contractor and City agree that time is of the essence regarding the performance of this Agreement. It is agreed by the parties 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 forth in paragraph 1 above, damage will be sustained by City, and that it is and will be impracticable to determine the actual damage which City will sustain in the event of and by reason of such delay. It is therefore agreed that the Contractor will pay to City the sum of Two Thousand Dollars ($ 2,000) 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 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, City shall have the right to extend the time for completion or not, as may seem best to serve the interest of 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 part, as it may deem proper, of the actual costs and overhead expenses which are directly chargeable to the Agreement, and which accrue during the period of such extensions. The Contractor shall not be assessed with liquidated damages during any delay in the completion of the work caused by an act of God or of the public enemy, acts of City, fire , flood , epidemic, quarantine restriction, strikes, freight embargoes, and w1usually 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 City in writing of the causes of delay. City shall ascertain 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 perform all services hereunder in a manner commensurate 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 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. The 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 terms of this Agreement. No civil service status or other right of employment Pa ge 2 of 21 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 normally associated with an employer-employee relationship from any fees due Contractor. Payments of the above items, if required, are the responsibility of Contractor. 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 performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Contractor shall indemnify and hold City harmless 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 discrimination are unacceptable employer/employee conduct, Contractor agrees that harassment or discrimination directed to ward a job applicant, a City employee, or a citizen b y Contractor or Contractor's employee on 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 sha ll , to the fullest extent allowed b y law, indemnify, defend, and hold harmless 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 performance of thi s 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, expert fees and all other costs and fees of litigation. Contractor agrees to obtain executed indemnity agreements wi th provisions identical to those set forth here in these sections from each and every subcontractor or any other person or entity involved b y, for, with, or on behalf of Contractor in the performance 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 terms of this section. 10. INSURANCE: On or before the commencement of the terms 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 paragraph lOA, B, C and D. Such certificates, which do not limit Contractor's indemnification, shall also contain substantially the following s tatement: "Should any of the above insurance covered by this certificate be canceled Page 3 of 21 or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to City by certified mail, "Attention: City Manager." It is agreed that Contractor shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming City as additional insured shall be submitted with the insurance certificates. Contractor shall complete the attached Document 00530 Insurance Forms. A. COVERAGE: Contractor shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California; Employers' Liability $1,000,000 per occurrence (2) General Liability: Commercial general liability coverage in the following minimum limits : Bodily Injury: $2,000,000 each occurrence $4,000,000 aggregate -all other Property Damage: $2,000,000 each occurrence $4,00 0,0 00 aggregate If submitted, combined single limit of $2,000,000 per occurrence; $4,000,000 in the aggregate will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automobile liability coverage in the following minimum limits: Bodily injury: $1,000,000 each occurrence Property Damage: $1,000,000 each occurrence or Combined Single Limit: $1,000,000 each occurrence B. SUBROGATION WAIVER: Contractor agrees that in the event of loss due to any 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 any right to subrogation which any such insurer of said Contractor may acquire against City b y virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Contractor at any time during the term hereof s hould fail to secure or Page 4 of 21 maintain the foregoing insurance, City shall be permitted 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 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 ad vised to consult Contractor's insurance broker to determine adequate coverage for Contractor. 11. BONDS: Bonds are not required for this agreement. 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, sub lessee, 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 instihition without prior written consent. Written notice of such assignment shall be promptly furnished to City by Contractor. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner 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 Pa ge S of 21 whose names are listed in Contractor's bid shall be used in the performance of this Agreement. Requests for additional subcontracting shall be submitted in writing, describing the scope of work to be subcontracted and the name of the proposed subcontractor. Such request shall set forth the total price 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 form 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 carry general and automobile liability insurance in reasonable conformity to the insurance carried by Contractor. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 14. PERMITS AND LICENSES: Contractor, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City Business License that may be required in connection with the performance 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 property of City . Consultant may retain a copy of any report furnished to City pursuant to this Agreement. No report, information or other data given to or prepared or assembled by Contractor pursuant to this Agreement shall be made available to any individual or organization b y Contractor without prior approval by City. Contractor shall, at such time and in such form 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 record s, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. Pa ge 6 of 21 If supplemental examination or audit of the records is necessary due to concerns raised by City 's preliminary examination or audit of records, and 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 certified, addressed as hereinafter provided . All notices, demands, requests, or approvals from Contractor to City shall be addressed to City at: City of Cupertino Attn: Chris Orr 10555 Mary Ave . Cupertino CA 95014 All notices, demands, requests, or approvals from City to Contractor shall be addressed to Contractor at: HARRY L. MURPHY inc. Attn: Randy Wadley 42 Bonaventura Drive San Jose, CA 95134 18. URBAN RUNOFF MANAGEMENT: The Contractor shall avoid creating excess dust as the work is being prosecuted. If water is u sed for dust control, contractor shall u se as little as necessary . Contractor shall take all steps necessary to k ee p wash water out of the streets, gutters, storm drains and streams. The Contractor shall d evelop and implement erosion and sediment control to prevent pollution of storm drains and streams . Such control includes but is not limited to: A Use s torm drain inlet protection devices such as sand bag barriers, filter fabric fences, block and gravel filters. (Block storm drain inlets prior to the start of the rainy season (October 15), in site de-watering activities and saw-cutting activities; shove l or vacuum saw-cut slurry and remove from the site). B. Co ver exposed piles of soil or construction material with plastic sheeting. All construction materials must be stored in containers. C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and s torm drains prior to rain as well as at the end of the each work day . At the completion of the proj ec t, the street shall be wash ed and the wash water shall be collec ted and disposed of offsite in an appropriate location. Pa ge 7 of 21 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 start of construction, up-graded as required, maintained during construction phases to provide adequate protection, and removed at the end of construction . These recommendations are intended to be used in conjunction with the State of California's Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, Section 7.1.01 of the Standard Specifications and any other appropriate documents on storm 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 occurrence per day. The State under the Federal Clean 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 perform any of the provisions hereof at the time and in the manner required hereunder, Contractor shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days after receipt b y Contractor from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Contractor written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 20. COMPLIANCES: Contractor shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. Specifically, and without limitation, Contractor shall comply with all state, federal, or local r egulation regarding the removal and disposal of hazardous waste . A. PREVAILING WAGES: To the extent applicable, Contractor 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 Page 8 of 21 monthly certified payroll records to City for all employees and subcontractors in a preapproved format or a City provided form. Any delay in remitting certified payroll reports to City upon request from City will result in either dela y 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 performed by employees of co n tractors in excess of 8 hours per da y, and 40 hours during any one week, must be com pensated as overtime, at not less tha n 1 V2 times the basic r ate of p ay. C. PAYROLL RECORDS: To the extent applicable, Contractor shall comply with California Labor Code Section 1776 which requires certified payroll records be maintained with the name, address, social security number, work classification, straight tim e and overtim e ho u rs wo r ked eac h day and week, and the ac tu a l pe r d ie m wages paid to each jo u rneyman, appren tice , worker, o r other emp loyee e m p loyed by h im or h er in connection with this Agreement. The Payro ll Records s h all be made available for inspectio n 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. 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 w hich may direct the application of laws of another juris diction. 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. 12. 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 performed under this Agreement unless prior written approval has been secured from City to do otherwise. 23 . WAIVER: A waiver by City of any breach of any term, co venant, 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 co venant 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. Page 9 o f 21 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 correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 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 terms or provisions of this Agreement. Pa ge 10 o f 21 P.O. No.: ______ _ IN WITNESS WHEREOF , the parties have caused the Agreement to be executed on the day and year first above written. CONTRACTOR Title __ P_re~s~id~e~n~t _____ _ Date March 30, 2016 Address: 42 Bonaventura Drive San Jose, CA.95134 CITY OF CUPERTINO RECOMMENDED FOR APPROVAL: By~~ C.. Hf{ 'S Printed Name Title ----------~ Contract Amount: $15,222 .00 Account No. : 570-87-836-900-990 DOCUMENT 00530 Pa ge 11 of 21 INSURANCE FORMS INSURANCE FORMS INSTRUCTIONS FOR ITEMS 3, 4 AND 5, THE FORMS PROVIDED BY THE CITY OF CUPERTINO MUST BE USED. FORMS OTHER THAN THESE WILL NOT BE ACCEPTED. ALL DOCUMENTS MUST BE ORIGINALS -SUBMIT IN TRIPLICATE 1. Insurance Agreement -Must be signed b y Contractor. 2. Certificate of Insurance to the City of Cupertino -must be completed by the insurance agent or must provide a certificate on the company's form. They must contain the same information. 3. Endorsement of Additional Insured and Primary Insurance and Notice of Cancellation -must be signed by the insurance agent for general liability and automobile liability only. 4. Comprehensive general liability/commercial general liability endorsement of aggregate limits of insurance per project -must be signed by the insurance agent for general liability only. 5. Waiver of subrogation endorsement worker's compensation insurance -must be signed b y the insurance agent for worker's compensation only. Page 12 of 21 FLOOR COVERINGS FAX BID TO: ATTN: PH: CITY OF CUPERTINO TY BLOOMQUIST (408) 460-1821 J_ b .......... 'fl' /) (' xr Ylf I / FX: (408) 777-3399 DATE: 03 /29/16 Harry L. Murphy , Inc . is happy to provide you with this competitive quotation. Harry L. Murphy , Inc. is a floor covering contractor specializing in institutional and industrial sheet vinyl, resilient tile, and carpeting since 1947. Here is the pertinent data for your project: JOB NAME/LOCATION: City of Cupertino Sport Center, Looby & Reception Area 2111 Stevens Creek Blvd., Cupertino, CA SCOPE OF WORK: Modular Carpet Tile Installation SECTION(S): 09680 , Modular Carpet Tile TOTAL PRICE: Fifteen thousand , two hundred and twenty-two dollars: ($15,222 .00). AS PER DISCUSSION AND PRODUCT SPECIFICATIONS, INSTALLED INCLUDING TAXES LICENSE #C-15145985 * UNION SHOP * BONDABLE * PRICE GOOD FOR 60 DAYS INCLUSIONS: Demo and Install Regular Hours Monday thru Friday; Normal Prep Work only. Removal and disposal of existing carpet and base. EXCLUSIONS: Excessive Preparation Work (i.e. floating, leveling or grinding of existing subfloor); Saturday, Sunday or Holiday premium rate. COMMENTS: Price is based on furnishing and installing Tandus Collins & Aikman "Expedition", #05187-61504 Starlight 24"x 24" Modular Carpet Tiles, with Burke-#701-P Black 4" Rubber Cove Base in Lobby and Reception area, and Meeting room ; and furnish and install "Walk-Off Foyer" Carpet Tile in entry to Lobby. 42 Bonaventura Drive Phone: ( 408) 955-1100 THANK YOU FOR CONSIDERING OUR QUOTATION, ESTIMATOR: M. Randy Wadley San Jose CA 95134 RWFAXBJO Fax: ( 408) 955-1111 CUPERTINO en ;;;r "'O -i 0 City of Cupertino Service Center 10555 Mary Avenue CUPERTINO , CA 95014 www.Cupertino.org VENDOR 2594-HARRY L MURPHY INC 0 HARRY L MURPHY INC g 42 BONAVENTURA DRIVE -m SAN JOSE, CA 95134 a REFERENCE# QUANTITY llJSll& DESCRIPTION 1.0000 Each m -i 0 City of Cupertino Service Center 10555 Mary Avenue CUPERTINO , CA 95014 www.Cupertino.org Purchase Order No. 2016-00000556 DATE 05/24/2016 PURCHASE ORDER NUMBER MUST APPEAR ON ALL INVOICES, SHIPPERS , BILL OF LADING AND CORRESPONDENCE DELIVER BY SHIP VIA FREIGHT TERMS PAGE 1 of1 ORIGINATOR: Chylene Osborne DESCRIPTION: New carpet Sports Center UNIT COST TOTAL COST 15,222 .0000 $15 ,222.00 570-87-836 900-990 -Capital Outlay Special Projects -PW 15 ,222 .00 ~ TOTAL DUE $15 ,222.00 • DATE 05/24/2016 Authorized Signature Special Instructions