15-215 Kwik-Way, Fabrication ServicesAGREEMENT BETWEEN THE CITY OF CUPERTINO AND KWIK-WAY
INDUSTRIES LLC FOR FABRICATION SERVICES
THIS AGREEMENT, for reference dated November 25, 2015, is by and between
CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and
Kwik-Way Industries LLC, a California Corporation (California corporation,
partnership, sole propriet;r, individual) whose address is 185 Warren Ave. Morgan
Hill, CA 95037 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 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 Fabrication
Services, in accordance with the Specifications detailed in estimate #125, dated 3/10/2015
hereinafter referred to as Exhibit "A".
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM:
The Contractor shall begin work within fifteen (15) working days after receiving
notice from the Fleet Supervisor to commence the work, and shall diligently prosecute
the work to completion before the expiration of Sixty (60) 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 Specifications,
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Contractor Agreement
Special Provisions and Plans 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 of $17,300.QO dollars, Contractor hereby acknowledges receipt
of a 50% deposit ($8,650.00). 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 upon
satisfactory completion of the work.
4. 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 the City nor have any contractual relationship with City.
5. INDEPENDENT PARTIES:
City and Contractor intend that the relationship between them created by this
Agreement is that of an 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 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.
6. 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.
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7. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination 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 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.
8. 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
performance 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, expert 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 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.
9. PROHIBITION AGAINST TRANSFERS:
Contractor shall nofassign, 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
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money by Contractor from City under this Agreement may be assigned to a bank, trust
company or other financial institution 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.
10. 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
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.
11. 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.
4. REPQRTS:
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 the City pursuant to this Agreement.
No report, information nor other data given to or prepared or assembled by
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Contractor Agreelllent
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 form as City may require, furnish reports
concerning the status of services required under this Agreement.
13. 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 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.
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.
5. 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
10300 Torre Avenue
Cupertino CA 95014
Contractor Agreement
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Attention: Chris Mertens
All notices, demands, requests, or approvals from City to Contractor shall be
addressed to Contractor at:
Kwik-Way Industries LLC
185 Warren Ave.
Morgan Hill, CA 95037
-(408) 930-2242
15. 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 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 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.
16. COMPLIANCES:
Contractor shall comply with all state or federal laws and all ordinances, rules and
regulations enacted or issued by City, including all laws regarding worker's
compensation insurance. In addition, and without limitation, Contractor shall comply
with all state, federal, or local regulation regarding the removal and disposal of
hazardous waste.
17. 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
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Contractor Agreement
California.
18. 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.
19. WAIVER:
A waiver by City of any breach of any term, 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.
20. 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.
21. 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. H 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.
22. 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
AgreementP.O. No.: 'J-ol b -4L\ '-\
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
on the day and year first above written.
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Contractor Agreement
CONTRACTOR
Kwik~Way Industries, LLC
Title 0 ti/ I"'-e ;JY"I
Date I j 'h:J / Ul/46 rr
CITY OF CUPERTINO
A Municipal Corporation
ByGZb
Timm Borden, Director of Public Works
Date t /z__f // ~
RAPPROVAL:
APPROVED AS TO FORM:
By Dill~ ~ Car_gl KQlftde, City Attorney
ATTEST: ~ SI& Jf z.-(2--/(,,
Grace Schmidt, City Clerk
Contract Amount: $17,300.00
4cco..,..,.._-4 -~ 6 )o -B~ ·-£t..t9, 700-?o'J....
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Contractor Agreement