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DRAFT AGREEMENT FOR AS-NEEDED
ROADWAY SIGNING AND STRIPING SERVICES
(CITY OF BURBANK and STERNDAHL ENTERPRISES)
This agreement (“Agreement”) is effective as of ____________, 20__, and is between the City of Burbank (“City”) and Sterndahl Enterprises, Inc., a California corporation (“Contractor”), collectively referred to as the “Parties.”
1. Recitals. This Agreement is entered into with respect to the following facts:
1.1. The City is a charter city. Section 1205 of the Charter of the City of Burbank authorizes the City Manager to recommend, and the City Council to by resolution dispense with competitive bidding when it is in the best interest of the City.
1.2. The City has historically used the p ricing for roadway striping services offered by Contractor to the City of Los Angeles, which was determined to be the lowest responsive and responsible contract after a competitive bidding process conducted by the City of Los Angel es. This approach allowed the City to obtain competitive rates without undergoing a time and resource intensive competitive solicitation process of its ow n, and “piggyback” off the competitive solicitation process conducted by the City of Los Angeles.
1.3. The City desires to continue using Contractor for roadway striping services due to their competitive rates and the need for immediate service, and to memorialize such agreement into this Agreement.
1.4. In accordance with the City charter and municipal code, the City Council has found approval of this agreement to be the best value and in the best interest of the City.
1.5. Contractor represents it is qualified to perform all of the work required to complete the project will perform all such work in the time and manner set forth in the Contract Documents set forth below.
2. Contract Documents. This Agreement consists of the following documents (“Contract Documents”), all of which are made a part of this Contract:
2.1. Notice to Proceed
2.2. This Contract
2.3. Verification of California Contractor’s License
2.4. Certificate of DIR Contractor Registration
2.5. Attachment 1 - Bonds (Faithful Performance and Payment)
2.6. Attachment 2 - Workers’ Compensation Certification
2.7. Attachment 3 - Injury and Illness Prevention Program (IIPP) Certification
2.8. Attachment 4 - PWC 100 Project Worker Classification Form
2.9. Attachment 5 – Subcontractors List
2.10. Exhibit A – Specifications
2.11. Exhibit B - Compensation
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2.12. Exhibit C – Insurance
3. Term. This Agreement is effective for a period of one (1) year from the effective date of this Agreement, which will begin on the last dated signatory below.
4. Work.
4.1. The work (“Work”) to be performed by Contractor is described in the Contract Documents set forth in Exhibit A ( Specifications), which is made a part of this Agreement. Contractor will be compensated for Work done in accordance with the rates outlined in Section 6 below.
4.2. In completing the Work, Contractor must employ, at a minimum, the applicable generally accepted professional standards of its industry in existence at the time of performance as utilized by persons engaging in similar work.
4.3. Except as specifically provided in the Contract Documents, Contractor must furnish, at its sole e xpense, all of the labor, materials, tools, equipment, services and transportation necessary to perform all of the Work.
4.4. Contractor must perform all of the Work in strict accordance with the Contract Documents.
5. Time to Perform the Work.
5.1. Time is of the e ssence with respect to Contractor’s Work. Contractor agrees to diligently pursue performance of the Work within the time specified by the Contract Documents.
5.2. Contractor will be excused from any delay in performance or failure to perform due to causes beyond the control of Contractor. Such causes include, but are not limited to, acts of God, acts of terrorism, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather.
5.3. If Contractor is delayed by any cause beyond Contractor’s control, City may, but is not required to, grant a time extension for the completion of the Work. If delay occurs, Contractor must notify City in writing within 48 hours of the cause and the extent of the delay and how such delay interferes with Contractor’s performance of the Work.
6. Compensation and Payment.
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6.1. Subject to any limitations provided in the Contract Documents, City agrees to pay Contractor as full consideration for the faithful performance of all of the Work the compensation set forth in Exhibit B (“Compensation”), which is made a part of this Agreement.
6.2. Contractor must furnish City with a Pay Estimate for the Work performed in accordance with the Contract Documents & striping plans provided by the City of Burbank. Contractor may not submit a Pay Estimate more often than once every 30 days.
6.3. City will review each Pay Estimate and determine whether the Work performed is in accordance with the Contract Documents. The Director of Public Works (“Director”) may require Contractor to provide a release of all undisputed amounts contained in the Pay Estimate.
6.4. If City disputes any item on a Pay Estimate, City will give Contractor notice stating the reasons for the dispute. The Parties will meet and confer in good faith to attempt to resolve the dispute.
Except as to any charges for the Work performed that City disputes and the City’s standard five-percent retention of the approved progress payment, City will cause Contractor to be paid within 30 days of the date of the invoice or the date that Contractor furnishes City with a release of all undisputed amounts, whichever occurs later.
6.5. In the event there is any claim specifically excluded by Contractor from the operation of any release, City may retain an amount not to exceed the amount of the excluded claim.
7. Labor Code and Prevailing Wage Requirements.
7.1. Contractor agrees to comply with the requirements of California Labor Code sections 1810 through 1815. Eight hours of labor constitutes a legal day’s work per Labor Code section 1810. Contractor will forfeit the statutory penalty to City for each worker employed in the execution of this Agreement by Contractor or any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Labor Code sections 1810 through 1815.
7.2. Copies of the determination of the Director of the Department of Industrial Relations of the prevailing rate of per diem wages for each craft, classification or type of worker Attachment 2 - page 3
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needed to execute this Agreement are available for download from the State website: http://www.dir.ca.gov/OPRL/dprewagedetermination.htm.
7.3. Contractor must post at the work site, or if there is no regular work site then at its principal office, for the duration of the Contract, a copy of the determination by the Director of the Department of Industrial Relations of the specified prevailing rate of per diem wages. (Labor Code § 1773.2.) When applicable, copies of the prevailing rate of per diem wages will be on file at City’s Financial Services Department – Purchasing Division and available to Contractor and any other interested party upon request. Copies are also available on the Internet at
http://www.dir.ca.gov/DLSR/PWD.
7.4. Contractor, and any subcontractor engaged by Contractor, may pay not less than the specified prevailing rate of per diem wages to all workers employed in the execution of the contract. (Labor Code § 1774.) Contractor is responsible for compliance with Labor Code section 1776 relative to the retention and inspection of payroll records.
7.5. Contractor must comply with all provisions of Labor Code section 1775. Under Section 1775, Contractor will forfeit the statutory penalty t o City for each worker employed in the execution of the Agreement by Contractor or any subcontractor for each calendar day, or portion thereof, in which the worker is paid less than the prevailing rates. Contractor may also be liable to pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate.
7.6. Nothing in this Agreement prevents Contractor or any subcontractor from employing properly registered apprentices in the execution of the Agreement. Contractor is responsible for compliance with Labor Code section 1777.5 for all apprenticeable occupations. This statute requires that contractors and subcontractors must submit contract award information to the applicable joint apprenticeship committee, must employ apprentices in apprenticeable occupations in a ratio of not less than one hour of apprentice’s work for every five hours of labor performed by a journeyman (unless an exception is granted under § 1777.5), must contribute to the fund or funds in each craft or trade or a like amount to the California Apprenticeship Council, and that contractors and subcontractors must not discriminate among otherwise qualified employees as apprentices solely on the ground of sex, race, religion, creed, national origin, ancestry or color. Only apprentices defined in Labor Code section 3077, who are in training under apprenticeship standards and who have written apprentice contracts, may be employed on public works in apprenticeable occupations.
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7.7. Contractor has reviewed and agrees to comply with any applicable provisions for any public work subject to Department of Industrial Relations (DIR) Monitoring and Enforcement of prevailing wages, includ ing the registration requirements of Labor Code Section 1771.1(a). City hereby notifies Contractor that Contractor is responsible for submitting certified payroll records directly to the State Compliance Monitoring Unit (CMU). For further information conce rning compliance monitoring please visit the website location at: http://www.dir.ca.gov/dlse/cmu/cmu.html.
7.8. Contractor must comply with Labor Code section 1771.1(a), which provides that Contractor may award any contracts and subcontracts for work that qualifies as a “public work” only to subcontractors which are at that time registered and qualified to perform public work pursuant to Labor Code section 1725.5. Contrac tor must obtain proof of such registration from all such subcontractors.”
7.9. If federal funds are used to pay for the Work, Contractor and any subcontractor agree to comply, as applicable, with the labor and reporting requirements of the Davis - Bacon Act (40 USC § 276a-7), the Copeland Act (40 USC § 276c and 18 USC §874), and the Contract Work Hours and Safety Standards Act (40 USC § 327 and following).
8. Non-Discrimination. Contractor, its officers, agents, employees, and subcontractors may not discriminate in the employment of persons to perform the Work in violation of any federal or state law prohibiting discrimination in employment, including based on the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, of any person, except as provided under Cali fornia Government Code section 12940. Contractor is responsible for compliance with this section.
9. General Legal Compliance.
9.1. In performing the Work, Contractor must comply with all applicable statutes, laws and regulations, including, but not limited to, OSHA requirements and the municipal code.
Contractor must, at Contractor’s sole expense, obtain all necessary permits and licenses required for the Work, and give all necessary notices and pay all fees and taxes required by law, including, without limitation, any business license tax imposed by City.
9.2. Contractor must maintain a valid California Contractor’s License(s) and Department of Industrial Relation (DIR) Contractor Registration throughout the term of this Agreement.
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10. Clayton and Cartwright Act Assignments. In entering into this Agreement or a contract with a subcontractor to supply goods, services, or materials pursuant to this Agreement for the Project, Contractor and any subcontractor will be deemed to have offered and agreed to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700 of Part 2 of Division 7 of the Californi a Business and Professions Code), arising from purchases of goods, services, or materials for the Project. This assignment will be deemed made and will become effective at the time City tenders final payment to Contractor, without further acknowledgement b y the Parties.
11. Independent Contractor. Contractor is and will at all times remain as to City a wholly independent contractor. Neither City nor any of its officers, employees, or agents will have control over the conduct of Contractor or any of Contractor’s officers, employees, agents or subcontractors, except as expressly set forth in the Contract Documents. Contractor may not at any time or in any manner represent that it or any of its officers, employees, agents, or subcontractors are in any manner officers, employees, agents or subcontractors of City.
12. Indemnification.
12.1. Contractor agrees to the fullest extent permitted by law to (1) immediately defend and (2) indemnify City from and against, any and all claims and liabilities, regardless of the nature or type, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Contractor, or its officers, employees, agents, or subcontractors committed in performing any Work under this Agreement or the failure to comply with any of the obligations of this Agreement (collectively, “Claims”).
The Claims subject to Contractor’s duties to defend and indemnify include, without limitation, all claims, actions, causes of action, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, of any person, except as provided under California Government Code section 12940. Contractor is responsible for compliance with this section.
12.2. Contractor’s duty to defend is a separate and distinct obligation from Contractor’s duty to indemnify. Contractor is obligated to defend City in all legal, equitable, administrative, or special proceedings, with counsel approved by Ci ty, immediately upon tender to Contractor of the Claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination that persons other than Contractor are responsible for the Claim does not relieve Contractor from its separate and distinct obligation to defend under this section. The Attachment 2 - page 6
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obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense counsel if Contractor asserts that liability is caused in whole or in part by the negligence or willful misconduct of any City indemnified party. If it is finally adjudicated that liability was caused by the comparative active negligence or willful misconduct of any City indemnified party, then Contractor may submit a claim to City for reimbursement of reasonable attorneys’ fees and defense costs in proportion to the established comparative liability of the City indemnified party.
12.3. Contractor agrees that its defense and indemnification obligation under this section, includes the reasonable costs of attorneys’ fees incurred by the City Attorney’s office to monitor and consult with Contractor regarding the defense of any Claims, including providing dir ection with regard to strategy, preparation of pleadings, settlement discussions, and attendance at court hearings, mediations, or other litigation related appearances. City will use its best efforts to avoid duplicative attorney work or appearances in ord er to keep defense costs to a reasonable minimum.
12.4. Contractor agrees that settlement of any Claim will require the consent of City. City agrees that its consent will not be unreasonably withheld provided that Contractor is financially able (based on demons trated assets) to fulfill its obligation to indemnify City for the costs of any such settlement as required under this Agreement.
12.5. Contractor’s obligation to indemnify City applies unless it is finally adjudicated that the liability was caused by the sole active negligence or sole willful misconduct of a City indemnified party. If a Claim is finally adjudicated and a determination made that liability was caused by the sole active negligence or sole willful misconduct of a City indemnified party, then Contra ctor’s indemnification obligation will be reduced in proportion to the established comparative liability.
12.6. For the purposes of this section, “City” includes City’s officers, officials, employees and agents. The provisions of this section will survive the expiration or earlier termination of this Agreement.
13. Insurance. Contractor agrees to have and maintain in full force and effect during the term of this Agreement the insurance coverages listed in Exhibit C (“Insurance”), which is made a part of this Agreement.
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14. Notice.
14.1. All written notices required or permitted to be given under this Agreement will be deemed made when received by the other Party at its respective address as follows:
For City of Burbank:
Artin Megerdichian, Principal Civil Engineer
150 N. Third St. 3rd Floor
Burbank, CA 91502
[email protected]
(818) 238-3942
For Sterndahl Enterprises
Ron Holder, Vice President
11861 Branford St.
Sun Valley, CA 91352
[email protected]
818-834-8199
14.2. Notice will be deemed effective on the date personally delivered or transmitted by facsimile or email. If the notice is mailed, notice will be deemed given three days after deposit of the same in the custody of the United States Postal Service, postage prepaid, for first class delivery, or upon delivery if using a major courier service with tracking capabilities.
14.3. Any Party may change its notice information by giving notice to the other Pa rty in compliance with this section.
15. City Rights of Termination and to Complete the Work.
15.1. The occurrence of any of the following is a default by Contractor under this Contract:
15.1.1. Contractor refuses or fails to prosecute the Work or any part thereof with such diligence as will insure its completion within the time specified or any permitted extension.
15.1.2. Contractor fails to complete the Work on time.
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15.1.3. Contractor is adjudged bankrupt or makes a general assignment for the benefit of creditors, or a receiv er is appointed on account of Contractor’s insolvency.
15.1.4. Contractor fails to supply enough properly skilled workers or proper materials to complete the Work in the time specified.
15.1.5. Contractor fails to make prompt payment to any subcontractor or for material or labor.
15.1.6. Contractor fails to abide by any applicable laws, ordinances o r instructions of City in performing the Work.
15.1.7. Contractor breaches or fails to perform any obligation or duty under the Agreement.
15.2. Upon the occurrence of a default by Contractor, City will serve a written notice of default on Contractor specifying the nature of the default and the steps needed to correct the default. Unless Contractor cures the default within 10 days after the service of such notice, or satisfactory arrangements acceptable to City for the correction or elimination of such default are made, as determined by City, City may thereafter terminate this Agreement by serving written notice on Contractor. In such case, Contractor will not be entitled to receive any further payment, except for Work actually completed prior to such termination in accordance with the provisions of the Contract Documents.
15.3. The City may terminate this agreement for convenience at any time by the City after giving thirty (30) days written notice to the vendor.
16. Project Documents . All data, drawings, maps, models, notes, photographs, reports, studies and other documents (collectively, “Project Documents”) prepared, developed or discovered by Contractor in the course of pe rforming any of the Work under this Agreement will become the sole property of City. Upon the expiration or termination of this Contract, Contractor must turn over all original Project Documents to City in its possession but may retain copies of any of the Project Documents it may desire.
17. General Provisions.
17.1. Authority to Execute. Each Party represents and warrants that all necessary action has been taken by such Party to authorize the undersigned to execute this Agreement and to bind it to the performance of its obligations.
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17.2. Assignment. Contractor may not assign this Agreement without the prior written consent of City, which consent may be withheld in City’s sole discretion since the experience and qualifications of Contractor were material considerations for this Agreement.
17.3. Binding Effect. This Agreement is binding upon the heirs, executors, administrators, successors and permitted assigns of the Parties.
17.4. Waiver. Waiver by any Party of any term, condition, or covenant of this Agreement will not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement will not constitute a waiver of any other provision, or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any Work performed by Contractor will not constitute a waiver of any of the provisions of this Agreement.
17.5. Interpretation. This Agreement will be interpreted, construe d and governed according to the laws of the State of California. Each party has had the opportunity to review this Agreement with legal counsel. The Agreement will be construed simply, as a whole, and in accordance with its fair meaning. It will not be interpreted strictly for or against either party.
17.6. Severability. If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement will not be affected and the Agreement will be read and construed without the invalid, void or unenforceable provision.
17.7. Venue. In the event of litigation between the parties, venue in state trial courts will be in the County of Los Angeles. In the event of litigation in a U.S. District Court, venue will be in the Central District of California, in Los Angeles.
17.8. Certification. Contractor certifies that it is not identified on a list created under the Iran Contracting Act, Public Contract Code 2200 et seq. (the “Act”) as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.
17.9. Integrated Agreement. This Contract, including the Agreement Documents, is the entire, complete, final and exclusive expression of the Parties with respect to the Work to be performed under this Agreement and supersedes all other agreements or understandings, whether oral or written, between Contractor and City prio r to the execution of this Agreement.
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17.10. Modification of Agreement. No amendment to or modification of this Agreement will be valid unless made in writing and approved by Contractor and by the City Council or City Manager, as applicable. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver will be void.
17.11. Execution Counterparts. This Agreement may be executed in counterparts and each such duplicate counterpart shall constitute an original, any one of which may be used for any purpose without the production of its duplicate counterpart.
Moreover, each counterpart shall be deemed for all purposes to be an original, and all such counterparts together shall constitute one and the same instrument, binding and all Parties hereto. Transmission by facsimile, electronic mail, and /or other validated instantaneous electronic transmission to one Party of a true copy of a counterpart duly executed by the other Party shall constitute valid delivery of such counterpart, and shall be valid, binding and effective for all purposes.
Notwithstanding the foregoing, the authority unde r this Section to execute this Agreement with an electronic signature shall be limited to a physical (“wet ink”) signature placed on a counterpart to this Agreement by a Party and transmitted electronically as described in this Section to the other Party.
CITY OF BURBANK, a municipal corporation
By
City Manager
ATTEST: Contractor
____________________________ By
City Clerk Signature and Title
By
Signature and Title
CSLB License No. ______________________
DIR Registration No. ____________________
Approved as to form:
City Attorney
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Date:
By:
Title:
CONTRACTOR SHALL EXECUTE THE APPLICABLE ACKNOWLEDGEMENT ON THE FOLLOWING PAGE.
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) CORPORATE ACKNOWLEDGMENT
On this _____ day of ____________________, 20____, before me, the undersigned, a Notary Public in and for the said County and State, personally appeared known to me to be the President - Vice President and Secretary - Assistant Secretary, respectively, of the Corporation that executed the within instrument and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors.
PARTNERSHIP ACKNOWLEDGMENT
On this _____ day of _________ ___________, 20____, before me, the undersigned, a Notary Public in and for the said County and State, personally appeared known to me to be one of the partners of the partnership that executed the within instrument and acknowledged to me that such partnership executed the same.
INDIVIDUAL ACKNOWLEDGMENT
On this _____ day of ____________________, 20____, before me, the undersigned, a Notary Public in and for the said County and State, personally appeared known to me to be the person whose name is subs cribed to the within instrument and acknowledged to me that he executed the same.
JOINT VENTURE ACKNOWLEDGMENT
On this _____ day of ____________________, 20____, before me, the undersigned, a Notary Public in and for the said County and State, personally appeared known to me to be one of the presidents of the companies, of the joint venture that executed the within instrument and acknowledged to me that such joint venture executed the within instrument pursuant to its by-laws or a resolution of its constituent companies.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
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(SEAL)
Notary Public in and for the
County and State
My commission expires:
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