229
quality, free from faults and defects for a period of one (1) year from the date of W.M. Lyles Co.'s scope of work completion.
10. All contractual correspondence and payments shall be directed to our Corporate Office at P.O. Box4377, Fresno, CA 93744.
Thank you for the opportunity in submitting this proposal W. M. Lyles Co.
n/-"* %,o.rn /"
Ruben Moreno Jr.
Project Executive
"Contractors are required by lawto be licensed and regulated bythe Contractor's State License Board.
Any questions concerning a contractor may be referred to the Register ofthe board, whose address is:
Contractor's State License Board, 9835 Goethe Road, P.O. Box 26000, Sac
230
ATTACHMENT 2
231
SERVICE PROVIDER AGREEMENT BETWEEN THE CITY OF'SANGER
AND CALIFORNIA BOILER
THIS AGREEMENT is made on February 15,2024, by and between the CITY OF SANGER, a municipal corporation of the State of California, ("City") and W.M. Lyles Co. ("Service Provider").
RECITALS
A.
for quotes.
The City is in need of rehabilitating the Industrial Trickle Filter and issued a request B. Service Provider submitted a quote and represents and warrants that it has the experience and qualifications to provide services under this Agreement.
C. After review and consideration, City desires to enter a contract with Service Provider to provide said services.
AGREEMENT
NOW, THEREFORE, the parties incorporate the foregoing recitals and agree as follows:
1. Services. Service Provider agrees to perform the services herein set forth at the compensation and upon the terms and conditions herein expressed, and Service Provider hereby agrees to perform such services for said compensation, and upon said terms and conditions City hereby authorizes Service Provider to commence work on February 16,2024.
2. Obligations. duties and responsibilities of Service Provider. It shall be the duty, obligation and responsibility of the Service Provider, in a skilled and professional manner, to perform, furnish and supply to the City the services and supplies in accordance with the service requirements set forth in EXHIBIT A titled "Remove and Reinstall Trickle Filter and Fabrication Work" attached hereto and incorporated by reference.
3. Compensation.
A. Palzment. Service Provider shall provide monthly linvoicesltrrr,rrl to the City for Services completed. Compensation shall be made for Services identified in the invoice that the City in its sole discretion, concludes has been satisfactorily performed. Payment shall be made within thirty (30) calendar days of receipt of each invoice unless the City notifies the Service Provider that a dispute as to the invoice exists. Compensation for this Agreement shall be on a time and materials basis with a budget price of $87,000.
B. Pa]'ment Limited to Satisfactory Services. Payments to Service Provider by City shall not excuse Service Provider from its obligation to replace unsatisfactory deliverables, including equipment, components, materials, or services even if the unsatisfactory character of such deliverables, equipment, components, materials, or Services may not have been apparent or detected at the time such payment was made.
232
Deliverables, equipment, components, materials, and services that do not conform to the requirements of this Agreement may be rejected by City and in such case must be replaced by Service Provider without delay at no cost to the City.
C. Withhold Palzments. If Service Provider fails to provide Services in accordance with Service Provider's obligation under this Agreement, the City may withhold any and all payments due Service Provider until such failure to perform is cured, and Service Provider shall not stop work as a result of the City's withholding of payments as provided herein.
D. Audit and Inspection of Records. Service Provider agrees to maintain and make available to the City, during regular business hours, accurate books and accounting records relating to its Services. Service Provider will permit City to audit, examine, and make excerpts and transcripts from such books and records, and to make audits of all invoices, materials, payrolls, records or personnel and other data related to all other matters covered by this Agreement, whether funded in whole or in part under this Agreement.
Service Provider shall maintain such data and records in an accessible location and condition for a period of not fewer than five years after final payment under this Agreement or until after final audit has been resolved, whichever is later. The State of California or any Federal agency having an interest in the subject matter of this Agreement shall have the same rights as conferred upon City by this Section. Service Provider shall include the same audit and inspection rights and record retention requirements in all subcontracts.
4. Effective Date and Term of Agreement. This Agreement shall be effective on September 7,2023, and shall continue in full force and effect through January 3I,2024, unless otherwise terminated earlier by one of the parties pursuant to Section 7 of this Agreement.
5. Independent Contractor. In the furnishing of the services provided herein, the Service Provider is acting as an independent contractor and not as an employee ofthe City. Service Provider acknowledges and agrees that at all times, Service Provider or any agent or employee of Service Provider shall be deemed at all times to be an independent contractor and is wholly responsible for the manner in which it performs the services and work requested by City under this Agreement. Service Provider, its agents, and employees will not represent or hold themselves out to be employees of the City at any time. Service Provider or any agent or employee of Service Provider shall not have employee status with City, not be entitled to participate in any plans, arrangements, or distributions by City pertaining to or in connection with any retirement, health or other benefits that City may offer its employees. Service Provider or any agent or employee of Service Provider is liable for the acts and omissions of itself, its employees, and its agents. Service Provider shall be responsible for all obligations and payments, whether imposed by federal, state, or local laws, including, but not limited to, FICA, income tax withholdings, unemplo;rment compensation, insurance, and other similar responsibilities related to Service Provider's performing services and work, or any agent or employee of Service Provider providing same.
Nothing in this Agreement shall be construed as creating an employment or agency relationship between City and Service Provider or any agent or employee of Service Provider. Any terms in this Agreement referring to direction from City shall be construed as providing for direction as to policy and the result of Service Provider's work only, and not as to the means by which such a result is obtained. City does not retain the right to control the means or the method by which
233
Service Provider performs work under this Agreement
6. Insurance and Indemnit)'.
6.1. Indemnification and Waivers. Service Provider shall indemni$r, defend, and hold harmless the City, its officers, employees, agents and volunteers ("City indemnitees"), from and against any andall causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels' fees and costs of litigation ("claims"), arising out of the Service Provider's performance of its obligations under this agreement or out of the operations conducted by Service Provider, except for such loss or damage arising from the sole negligence or willful misconduct of the City. In the event the City indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Service Provider's performance of this agreement, the Service Provider shall provide a defense to the City indemnitees, or at the City's option, reimburse the City indemnitees their costs of defense, including reasonable legal counsels' fees, incurred in defense of such claims.
6.2. Insurance. During the term of this Agreement, Service Provider shall maintain, keep in force and pay allpremiums required to maintain and keep in force liability and property damage insurance. The limits of such policy shall be as required by the City of Sanger. A copy of the City's requirements for such insurance coverage is attached hereto as EXHIBIT ptHrr,rzl.
7. Termination.
7.1 This Agreement may be terminated at any time by either party upon fifteen (15) calendar days written notice. In the event the Agreement is terminated by either party, Service Provider shall be compensated for services performed to the date of termination based upon the compensation rates and subject to the maximum amounts payable agreed to together with such additional services performed after termination which are authorizedin writing by the City representative to wind up the work performed to date oftermination.
7.2 City may immediately suspend or terminate this Agreement in whole or in part by written notice where, if in the determination of City, there is:
An illegal use of funds by Service Provider;
A failure by Service Provider to comply with any material term of thisAgreement;
A substantially incorrect or incomplete report submitted by Service Provider to City.
In no event shall any payment by City or acceptance by Service Provider constitute a waiver by such party of any breach of this Agreement or any default which may then exist on the part of either party. Neither shall such payment impair or prejudice any remedy available to either party with respect to such breach or default. City shall have the right to demand of Service Provider the repayment to City of any funds disbursed to Service Provider under this Agreement which, as determined by the appropriate court or arbitrator, a.
b.
c.
234
were not expended in accordance with the terms of this Agreement.
All notices shall be mailed to the City:
City of Sanger
Public Works
1700 7*'Street
Sanger, CA93657
To Service Provider:
W.M. Lyles Co.
Ruben Moreno Jr.
121 Olive Avenue
Fresno, CA 93728
8. Compliance with Laws.
8.1 Laws Incorporated by Reference. Service Provider will comply with all applicable federal, state, and local laws in performing this Agreement. The full text of the laws listed in this Section, including enforcement and penalty provisions, are incorporated by reference into this Agreement. Service Provider represents and warrants to the City that it has and will keep in effect during the term of this Agreement all licenses (including but not limited to, the City Sanger business license), permits, and approval of whatever nature which are legally required to perform Service Provider's services.
8.2 Prevailine Wages. Service Provider shall comply with State of California prevailing wages laws.
8.3 Conflict of Interest. By executing this Agreement, Service Provider certifies that it does not know of any fact which constitutes a violation of Title 9, Chapter 7 of the California Government Code (Section 87100 et seq.), or Title 1, Division 4, Chapter 1, Article 4 of the California Government Code (Section 1090 et seq.), and further agrees promptly to notiSr the City if it becomes awa.re of any such fact during the term of this Agreement.
8.4 Proprietary Information. In the performance of Services, Service Provider may have access to City's proprietary or confidential information, the disclosure of which to third parties may damage City. If City discloses proprietary or confidential information to Service Provider, such information must be held by Service Provider in confidence and used only in performing the Agreement. Service Provider shall exercise the same standard of care to protect such information as a reasonably prudent Service Provider would use to protect its own proprietary or confidential information.
8.5 Nondiscrimination Requirements. Service Provider shall comply with all state and federal laws in the administration of this Agreement.
235
8.6 Alcohol and Drug-Free Workplace. City reserves the rightto deny access to, or require Service Provider to remove from, City facilities personnel of any Service Provider or subcontractor who City has reasonable grounds to believe has engaged in alcohol abuse or illegal drug activity which in any way impairs City's ability to maintain safe work facilities or to protect the health and well-being of City employees and the general public. City shall have the right of final approval for the entry or re-entry of any such person previously denied access to, or removed from, City facilities. Illegal drug activity means possessing, furnishing, selling, offering, purchasing, using or being under the influence of illegal drugs or other controlled substances for which the individual lacks a valid prescription. Alcohol abuse means possessing, furnishing, selling, offering, or using alcoholic beverages, or being under the influence of alcohol.
8.7 Public Records Act. Contractor acknowledges that this Agreement and all records related to its formation, Contractor's performance of services, and City's payment are subject to the California Public Records Act, (California Government Code $6250 et seq.). Such records are subject to public inspection and copying unless exempt from disclosure under federal, state, or local law.
9. GENERAL PROVISIONS
9.I Notices. All notices and communications from the Service Provider shall be to Public Works Operations Manager. All written notices shall be provided and addressed as indicated above.
9.2 Assignment. Neither the City nor the Service Provider will assign its interest in this Agreement without the written consent of the other.
9.3 Entire Agreement. This contract sets forth the entire Agreement between the parties and supersedes all other oral or written provisions. Any changes to this Agreement requested by either City or Service Provider may only be affected if mutually agreed upon in writing by duly authorized representatives of the parties hereto. This Agreement shall not be modified or amended or any rights of a party to it waived except by such a writing.
9.4 Attorney's Fees. In the event that any action is brought to enforce the terms of this Agreement, the party found by the court to be in default agrees to pay reasonable attorney's fees to the successful party in an amount to be fixed by the Court.
9.5 Governing Law. The laws of the State of California shall govern the rights and obligations of the parties under this Agreement, including the interpretation of the Agreement. If any part of the Agreement is adjudged to be invalid or unenforceable, such invalidity shall not affect the full force and effect of the remainder of the Agreement.
10. Governing Law. Jurisdiction. Venue. The formation, interpretation, and performance of this Agreement shall be governed by the laws ofthe State of California. Venue for all litigation relative to the formation, interpretation, and performance of this Agreement shall be in the County of Fresno.
236
I 1. Waiver. In the event that either party waives any breach of this Agreement, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or any other term, condition, or obligation.
12. Severability. Should the application of any provision of this Agreement to any particular facts or circumstances be found by a court of competent jurisdiction to be invalid or unenforceable, then (a) the validity of other provisions of this Agreement shall not be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to the effect the intent of the parties and shall be reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
13. Counterparts. This Agreement may be executed in counterparts, each ofwhich shall be deemed an original, but all of which together shall constitute one and the same agreement. This Agreement shall be effective upon transmission by any Party to the other parties of a fully signed facsimile copy of the Agreement after the formal approval by the governing body of the City. In case of any conflict, the counterpart maintained by the City shall be deemed to be determinative.
IN WITNESS WHEREOX', the parties hereto have executed this Agreement.
CITY OF'SANGER SERVICE PROVIDER
By:
Greg Garner,Interim City Manager
Date:
ATTEST:
By:
Becky Padron, City Clerk
APPROVED AS TO FORM:
By:
By:
Date:
Hilda Cantri Montoy, City Auorney
237
EXHIBIT A
238
EXHIBIT B
Insurance Requirements for Contractors
Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide, and continuously maintain at its own expense during the term of the Agreement, and shall require any and all Subcontractors and Subconsultants of every Tier to obtain and maintain, policies of insurance of the type and amounts described below and in form satisfactory to the City.
Minimum Scope and Limits of Insurance
Contractor shall maintain limits no less than:
. $2,000,000 General Liability (including operations, products and completed operations) per occrilrence, $4,000,000 general aggregate, for bodily injury, personal injury and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as Insurance Services Office (ISO) Commercial General Liability coverage form CG 00 0l.General liability policies shall be endorsed using ISO forms CG 20 10 and CG 20 37 to provide that the City and its officers, officials, employees and agents shall be additional insureds under such policies.
. $2,000,000 Automobile Liability combined single limit per accident for bodily injury or property damage at least as broad as ISO Form CA 00 01 for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles. Automobile Liability policies shall be endorsed to provide that the City and its officers, officials, employees and agents shall be additional insureds under such policies.
' Worker's Compensation as required by the State of California and $1,000,000 Employer's Liability per accident for bodily injury or disease. Contractor shall submit to the City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City, it's offrcers, agents, employees, and volunteers.
Maintenance of Coverage
Contractor shall procure and maintain, for the duration of the contract, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Contractor, his agents, representatives, employees, subcontractors or subconsultants as specified in this Agreement.
Proof of Insurance
Contractor shall provide to the City certificates of insurance and endorsements, as required, as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsements must be approved by the City prior to commencement of performance. Current evidence of insurance shall be kept on file with the City at all times during the term of this Agreement. Agency reserves the right to require complete, certified copies of all required insurance policies, at any time.
Acceptable Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Ex.B-PageIof2
239
Insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and a Financial Size Category Class VII (or larger), in accordance with the latest edition of Best's Key Rating Guide.
Waiver of Subrogation
All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees, and volunteers, or shall specifically allow Contractor, or others providing insurance evidence in compliance with these specifications, to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City and shall require similar written express waivers and insurance clauses from each of its subconsultants or subcontractors.
Enforcement of Contract Provisions (non estoppel)
Contractor acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City, nor does it waive any rights hereunder.
Specffications not Limiting
Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If Contractor maintains higher limits than the minimums required above, the entity shall be entitled to coverage at the higher limits maintained by Contractor.
Notice of Cancellation
Contractor agrees to oblige its insurance agent or broker and insurers to provide to the City with thitty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal ofcoverage for each required coverage.
S elf-ins ur e d Re t enti ons
Any self-insured retentions must be declared to and approved by the City. The City reserves the right to require that self-insured retentions be eliminated, lowered or replaced by a deductible.
Self-insurance will not be considered to comply with these specifications unless approved by the City's Risk Manager.
Timely Notice of Claims
Contractor shall give the City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional Insurance
Contractor shall also procure and maintain, at its own cost and expenso, ffiy additional kinds of insurance, which in its own judgement may be necessary for its proper protection and prosecution of the Work.
Ex.B-Page2of2
240
For the Meeting of: February 75,2024
Agenda Item No.:
1. - I
CrrY oF SINGER
REPORTTO THE, CITY COUNCIL
To:
From:
Subject:
Mayor and Council Members
Greg Garner, Interim City Manager
July 4,2024Regular City Council Meeting
CONFLICT OF'INTEREST:
None known.
RECOMMENDATION:
That the City Council cancel the regular meeting scheduled for Thursday, July 4,2024, and determine whether to call a special meeting in lieu at this time.
EXECUTIVE SUMMARY:
This year the 4th of July Holiday lands on the first Thursday of July. The Council may determine to call a special meeting and if so, set a date for the special meeting or set a date for the special meeting at a later time.
ACTIONS FOLLOWING APPROVAL:
A Notice of Cancellation will be posted and sent to agenda recipients.
Preoared bv: Beckv Padron- Citv Clerk/Deoutv Personnel Aooroved bv:
Officer
REWEW: City Manage ,t (4 Finance: Ciw Attornev:
TYPE OF ITEM:
--x-X
Consent
Info Item
Action Item
Department Report
Redevelopment Agency
COUNCIL ACTION: APPROVED DENIED NO ACTION
Public Hearing
Matter Initiated by a Council Membet
Other
Continued to:
241