HomeMy WebLinkAboutAGENDA REPORT 2019 0306 CCSA REG ITEM 10HCITY OF MOORPARK,
CALIFORNIA
City Council Meeting
of 3/6/2019
ACTION Approved staff
recommendation, including
adoption of Resolution No.
2019-3794.
BY B.Garza
H. Consider Award of Agreement to F.S. Contractors, Inc. for Additional Median
Island Improvements for Tierra Rejada Road Streetscape (Project No. M0031)
and Resolution Amending the FY 2018/2019 Budget to Fund the Additional
Work. Staff Recommendation: 1) Award bid to F.S. Contractors, Inc. $96,250,
plus a contingency of $14,437, for a total contract amount of $110,687, and
authorize the City Manager to sign the Amendment, subject to final language
approval of the City Manager; and 2) Adopt Resolution No. 2019-3794 amending
the FY 2018/19 budget to fund construction services related to Additional Median
Island Improvements for Tierra Rejada Road Streetscape. ROLL CALL VOTE
REQUIRED
Item: 10.H.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: The Honorable City Council
FROM: Jeremy Laurentowski, Parks and Recreation Director
PREPARED BY: Chris Ball, Management Analyst
DATE: 3/6/19 Regular Meeting
SUBJECT: Consider Award of Agreement to F.S. Contractors, Inc. for
Additional Median Island Improvements for Tierra Rejada Road
Streetscape (Project No. M0031) and Resolution Amending the
FY 2018/2019 Budget to Fund the Additional Work
BACKGROUND
In 2015 the City Council approved funding to hire a landscape architect to prepare a
landscape master plan for the redesign of the Tierra Rejada Road corridor. Staff
solicited the services of Architerra Inc., dba Architerra Design Group (Architerra) for the
project, based on their extensive experience with streetscape design and use of
California native plants in landscape restoration projects. The conceptual plans
developed by Architerra incorporated a combination of California native and drought
tolerant plant species specifically chosen to complement the original design intent of the
Mountain Meadows Planned Community, as well as increase overall plant diversity and
reduce water consumption. The plans also included water saving irrigation techniques
such as point irrigation and drip irrigation systems.
In 2016 the City Council approved the conceptual plan and authorized the preparation
of construction drawings and specifications for the approved design concept. At the
time, the area of the redesign work extended from Arroyo Simi in the west, to Spring
Road in the east, and focused on the north side of Tierra Rejada Road, the center
median islands, and highly visible areas such as street intersections and monument
locations.
An initial test area along Tierra Rejada Road adjacent to Mountain Meadows School
was completed in the spring of 2017, allowing City Council and the community to view
and evaluate the streetscape design elements prior to full implementation of the Tierra
Rejada Road corridor redesign. Overall the community reaction was positive, and in
October of 2017 the City Council authorized completion of construction documents
Item: 10.H.
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Honorable City Council
03/06/2019 Regular Meeting
Page 2
consistent with the approved design concept. On October 17, 2018 the City Council
approved an Agreement with Oakridge Landscape, Inc. (Oakridge) for construction of
the Final Phase of the Tierra Rejada Road Streetscape Project (M0031). Construction
of this phase is currently underway, and is expected to be completed in March of 2019.
On December 5, 2018 the City Council approved Amendment No. 4 to the Agreement
with Architerra for preparation of plans and specifications for the renovation of three
additional median islands located immediately north of Arroyo Simi, between Arroyo
Simi and Los Angeles Avenue. The plans for these median islands maintain
consistency with the new landscaping and irrigation that is currently being installed
along the Tierra Rejada Road corridor. The groundcover in the median islands
immediately north of Arroyo Simi had also experienced significant decline over the past
several years, and was ultimately removed in the spring of 2018.
DISCUSSION
The extension of the Tierra Rejada Road renovation to Los Angeles Avenue will create
a consistent, continuous streetscape that extends from Los Angeles Avenue to Spring
Road. It will also add water saving irrigation systems to the median islands north of
Arroyo Simi. Oakridge provided an estimate of approximately $107,000 to complete this
additional work as a change order to their existing contract for the Final Phase of
M0031. However, after careful evaluation of the work required for the additional
improvements, staff determined that publicly bidding the project would likely result in a
lower cost for this work.
Staff released an informal bid for the additional median island improvements on January
30, 2019. A total of five bids were received before the submittal deadline on February
14, 2019. Bid results were as follows:
Contractor Bid Amount
F.S. Contractors, Inc. $96,250.00
Oakridge Landscape, Inc. $112,071.71
Venco Western, Inc. $114,455.00
Mariposa Landscapes, Inc. $130,467.67
Environmental Construction, Inc. $177,813.00
The bids were evaluated on completeness and cost. The apparent low bidder is F.S.
Contractors, Inc (F.S. Contractors), with a bid price of $96,250. This represents a
savings of over $11,000 when compared to the estimate originally provided by
Oakridge. Staff feels that F.S. Contractors possesses the necessary qualifications and
experience to perform the work. Staff is recommending award of the Agreement for the
additional Tierra Rejada Road Median Island Improvements to F.S. Contractors. The
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Honorable City Council
03/06/2019 Regular Meeting
Page 3
total cost of the contract with F.S. Contractors is $96,250, plus a 15% contingency of
$14,437, for a total contract amount of $110,687.
FISCAL IMPACT
The additional median island improvements are an extension of the ongoing M0031, but
appropriations were not included in the adopted Fiscal Year 2018/19 budget. The
subject medians are located within the area supported by AD84-2 Citywide Landscape
and Lighting District Fund 2300, which annually operates on a deficit. As a result, staff
is requesting a budget amendment allocating $110,687 from the General Fund (1000) to
finance the additional median island improvements.
STAFF RECOMMENDATION (ROLL CALL VOTE)
1) Award bid to F.S. Contractors, Inc. $96,250, plus a contingency of $14,437, for a
total contract amount of $110,687, and authorize the City Manager to sign the
Amendment, subject to final language approval of the City Manager.
2) Adopt Resolution No. 2019-____ amending the FY 2018/19 budget to fund
construction services related to Additional Median Island Improvements for Tierra
Rejada Road Streetscape.
Attachments:
1. Agreement with F.S. Contractors, Inc.
2. Resolution No. 2019-_____
357
AGREEMENT BETWEEN THE CITY OF MOORPARK AND
F.S. CONTRACTORS, INC. FOR
TIERRA REJADA ROAD MEDIAN ISLAND IMPROVEMENTS
THIS AGREEMENT, is made and effective as of this _________ day of
________________________, 2019, between the City of Moorpark, a municipal
corporation (“City”) and F.S. Contractors, Inc., a corporation (“Contractor”). In
consideration of the mutual covenants and conditions set forth herein, the parties agree
as follows:
WHEREAS, City has the need for construction services related to Tierra Rejada
Road Median Island Improvements; and
WHEREAS, Contractor specializes in providing such services and has the proper
work experience, certifications, and background to carry out the duties involved; and
WHEREAS, Contractor has submitted to City a Proposal dated February 14,
2019 which is attached hereto as Exhibit C.
NOW, THEREFORE, in consideration of the mutual covenants, benefits, and
premises herein stated, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall be from the date of City Council approval on
March 6, 2019 until completion of the work identified in Exhibit D: Contract Documents,
and in conformance with Exhibit C: Contractor’s Bid Proposal, unless this Agreement is
terminated or suspended pursuant to this Agreement.
2. SCOPE OF SERVICES
City does hereby retain Contractor, as an independent contractor, in a
contractual capacity to provide construction services related to Tierra Rejada Road
median island renovation, as set forth in Exhibit C: Contractor’s Bid Proposal, which
exhibit is attached hereto and incorporated herein by this reference as though set forth
in full and hereinafter referred to as the “Proposal” and as set forth in Exhibit D: Contract
Documents, attached hereto and incorporated herein by this reference as though set
forth in full and hereinafter referred to as “Bid Documents”. In the event there is a
conflict between the provisions of Exhibit C, Exhibit D, and this Agreement, the
language contained in this Agreement shall take precedence.
Contractor shall perform the tasks described and set forth in Exhibit C and
Exhibit D. Contractor shall complete the tasks according to the schedule of
performance, which is also set forth in Exhibit D.
Compensation for the services to be performed by Contractor shall be in
accordance with Exhibit C. Compensation shall not exceed the rates or total contract
Attachment 1
358
value of ninety-six thousand two hundred fifty dollars ($96,250) as stated in Exhibit C,
plus a contingency in the amount of fourteen thousand four hundred dollars ($14,437),
for a total contract value of one hundred ten thousand six hundred eighty-seven dollars
($110,687), without a written amendment to the agreement executed by both parties.
Payment by City to Contractor shall be in accordance with the provisions of this
Agreement.
City and Contractor acknowledge that this project is a public work to which
prevailing wages apply, and that a public work project is subject to compliance
monitoring and enforcement by the California Department of Industrial Relations (DIR).
Contractor agrees to comply with and be bound by all the terms, rules and regulations
described in (a) Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the
California Labor Code, including without limitation Labor Code Section 1771 and (b) the
rules and regulations established by the DIR implementing such statutes, as though set
forth in full herein, including any applicable amendments made thereto during the term
of this Agreement. For every subcontractor who will perform work on this project,
Contractor shall be responsible for subcontractor’s compliance with (a) and (b), and
Contractor shall take all necessary actions to ensure subcontractor’s compliance. Labor
Code Section 1725.5 requires all contractors and subcontractors to annually register
with the DIR before bidding or performing on any public work contract.
3. PERFORMANCE
Contractor shall at all times faithfully, competently and to the best of their ability,
experience, standard of care, and talent, perform all tasks described herein. Contractor
shall employ, at a minimum, generally accepted standards and practices utilized by
persons engaged in providing similar services as are required of Contractor hereunder
in meeting its obligations under this Agreement.
4. MANAGEMENT
The individual directly responsible for Contractor’s overall performance of the
Agreement provisions herein above set forth and to serve as principal liaison between
City and Contractor shall be Jose Angel Fierros and no other individual may be
substituted without the prior written approval of the City Manager.
The City’s contact person in charge of administration of this Agreement, and to
serve as principal liaison between Contractor and City, shall be the City Manager or the
City Manager’s designee.
5. PAYMENT
Taxpayer ID or Social Security numbers must be provided, on an IRS W-9 form,
before payments may be made to vendors.
The City agrees to pay Contractor monthly, in accordance with the payment rates
and terms and the schedule of payment as set forth in Exhibit C, based upon actual
time spent on the above tasks. This amount shall not exceed ninety-six thousand two
F.S. Contractors, Inc. Page 2 of 18
359
hundred fifty dollars ($96,250) as stated in Exhibit C, plus a contingency in the amount
of fourteen thousand four hundred thirty-seven dollars ($14,437), for a total contract
value of one hundred ten thousand six hundred eighty-seven dollars ($110,687) for the
total term of the Agreement unless additional payment is approved as provided in this
Agreement.
Contractor shall not be compensated for any services rendered in connection
with its performance of this Agreement, unless such additional services and
compensation are authorized, in advance, in a written amendment to the agreement
executed by both parties.
Contractor shall submit invoices monthly for actual services performed. Invoices
shall be submitted on or about the first business day of each month, or as soon
thereafter as practical, for services provided in the previous month. Payment shall be
made within thirty (30) days of receipt of each invoice as to all non-disputed fees. Any
expense or reimbursable cost appearing on any invoice shall be accompanied by a
receipt or other documentation subject to approval of the City Manager. If the City
disputes any of Contractor’s fees or expenses it shall give written notice to Contractor
within thirty (30) days of receipt of any disputed fees set forth on the invoice.
6. TERMINATION OR SUSPENSION WITHOUT CAUSE
The City may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Contractor at least
ten (10) days prior written notice. Upon receipt of said notice, the Contractor shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
The Contractor may terminate this Agreement only by providing City with written
notice no less than thirty (30) days in advance of such termination.
In the event this Agreement is terminated or suspended pursuant to this Section,
the City shall pay to Contractor the actual value of the work performed up to the time of
termination or suspension, provided that the work performed is of value to the City.
Upon termination or suspension of the Agreement pursuant to this Section, the
Contractor will submit an invoice to the City pursuant to this Agreement.
7. DEFAULT OF CONTRACTOR
The Contractor’s failure to comply with the provisions of this Agreement shall
constitute a default. In the event that Contractor is in default for cause under the terms
of this Agreement, City shall have no obligation or duty to continue compensating
Contractor for any work performed after the date of default and can terminate or
suspend this Agreement immediately by written notice to the Contractor. If such failure
by the Contractor to make progress in the performance of work hereunder arises out of
causes beyond the Contractor’s control, and without fault or negligence of the
Contractor, it shall not be considered a default.
F.S. Contractors, Inc. Page 3 of 18
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If the City Manager or the City Manager’s designee determines that the
Contractor is in default in the performance of any of the terms or conditions of this
Agreement, designee shall cause to be served upon the Contractor a written notice of
the default. The Contractor shall have five (5) days after service upon it of said notice in
which to cure the default by rendering a satisfactory performance. In the event that the
Contractor fails to cure its default within such period of time, the City shall have the
right, notwithstanding any other provision of this Agreement, to terminate this
Agreement without further notice and without prejudice to any other remedy to which it
may be entitled at law, in equity or under this Agreement.
8. LIQUIDATED DAMAGES
If the Contractor fails to complete the work, or any portion thereof, within the time
period required by this Agreement, or as duly extended in writing by the City Manager,
Contractor shall forfeit and pay to the City, as liquidated damages, the sum of two
hundred fifty dollars ($250) per day for each calendar day the work, or portion thereof,
remains uncompleted after the above specified completion date. Liquidated damages
shall be deducted from any payments due or to become due to the Contractor under the
terms of this Agreement. Progress payments made by the City after the above specified
completion date shall not constitute a waiver of liquidated damages by the City.
9. OW NERSHIP OF DOCUMENTS
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 the representatives of City or the City’s designees at reasonable times to
such books and records; shall give the City the right to examine and audit said books
and records; shall permit City to make transcripts therefrom as necessary; and shall
allow inspection of all work, data, documents, proceedings, and activities related to this
Agreement. Notification of audit shall be provided at least thirty (30) days before any
such audit is conducted. Such records, together with supporting documents, shall be
maintained for a period of ten (10) years after receipt of final payment.
Upon completion of, or in the event of termination or suspension without cause of
this Agreement, all original documents, designs, drawings, maps, models, computer
files, surveys, notes, and other documents prepared in the course of providing the
services to be performed pursuant to this Agreement shall become the sole property of
the City and may be used, reused, or otherwise disposed of by the City without the
permission of the Contractor. With respect to computer files, Contractor shall make
available to the City, at the Contractor’s office and upon reasonable written request by
the City, the necessary computer software and hardware for purposes of accessing,
compiling, transferring, and printing computer files.
F.S. Contractors, Inc. Page 4 of 18
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10. INDEMNIFICATION AND HOLD HARMLESS
Contractor shall indemnify, defend and hold harmless City, and any and all of its
officers, employees, and agents (“City Indemnitees”) from and against any and all
causes of action, claims, liabilities, obligations, judgments, or damages, including
reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of the
Contractor’s performance of its obligations under this Agreement or out of the
operations conducted by Contractor, including the City’s active or passive negligence,
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 Contractor’s performance of this Agreement,
the Contractor 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.
Contractor agrees to obtain executed indemnity agreements with provisions
identical to those set forth in this Section 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. In the event 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. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a
waiver of any rights hereunder. This obligation to indemnify and defend City as set forth
here is binding on the successors, assigns, or heirs of Contractor and shall survive the
termination of this Agreement or this Section.
City does not and shall not waive any rights that it may have against Contractor
by reason of this Section, because of the acceptance by City, or the deposit with City, of
any insurance policy or certificate required pursuant to this Agreement. The hold
harmless and indemnification provisions shall apply regardless of whether or not said
insurance policies are determined to be applicable to any losses, liabilities, damages,
costs, and expenses described in this Section.
This Indemnity shall survive termination of the Agreement or Final Payment
hereunder. This Indemnity is in addition to any other rights or remedies that the
Indemnitees may have under the law or under any other Contract Documents or
Agreements. In the event of any claim or demand made against any party which is
entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retain, or
apply any monies to the Contractor under this Agreement for the purpose of resolving
such claims; provided, however, City may release such funds if the Contractor provides
City with reasonable assurance of protection of the Indemnitees’ interests. City shall, in
its sole discretion, determine whether such assurances are reasonable.
11. INSURANCE
Contractor shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit A attached hereto and
incorporated herein by this reference as though set forth in full.
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12. INDEPENDENT CONTRACTOR
Contractor is and shall at all times remain as to the City a wholly independent
Contractor. The personnel performing the services under this Agreement on behalf of
Contractor shall at all times be under Contractor’s exclusive direction and control.
Neither City nor any of its officers, employees, or agents shall have control over the
conduct of Contractor or any of Contractor’s officers, employees, or agents, except as
set forth in this Agreement. Contractor shall not at any time or in any manner represent
that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the City. Contractor shall not incur or have the power to incur
any debt, obligation, or liability against City, or bind City in any manner.
No employee benefits shall be available to Contractor in connection with the
performance of this Agreement. Except for the fees paid to Contractor as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Contractor
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to Contractor for injury or sickness arising out of performing services
hereunder.
13. LEGAL RESPONSIBILITIES
The Contractor shall keep itself informed of local, state and federal laws and
regulations which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Contractor shall at all times
observe and comply with all such laws and regulations, including but not limited to the
Americans with Disabilities Act and Occupational Safety and Health Administration laws
and regulations. The City and Contractor shall comply with Exhibit B, California Public
Contract Code Section 9204, when applicable. The City, and its officers and
employees, shall not be liable at law or in equity occasioned by failure of the Contractor
to comply with this Section.
14. ANTI DISCRIMINATION
Neither the Contractor, nor any subcontractor under the Contractor, shall
discriminate in employment of persons upon the work because of 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, or military and veteran status of such person; or any other basis
protected by applicable federal, state, or local law, except as provided in Section 12940
of the Government Code. The Contractor shall have responsibility for compliance with
this Section, if applicable [Labor Code Sec. 1735].
15. UNDUE INFLUENCE
Contractor declares and warrants that no undue influence or pressure is used
against or in concert with any officer or employee of the City in connection with the
award, terms or implementation of this Agreement, including any method of coercion,
F.S. Contractors, Inc. Page 6 of 18
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confidential financial arrangement, or financial inducement. No officer or employee of
the City will receive compensation, directly or indirectly from Contractor, or any officer,
employee or agent of Contractor, in connection with the award of this Agreement or any
work to be conducted as a result of this Agreement. Violation of this Section shall be a
material breach of this Agreement entitling the City to any and all remedies at law or in
equity.
16. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of the City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the
Services during his/her tenure or for one (1) year thereafter, shall have any interest,
direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work
to be performed in connection with the Services performed under this Agreement.
17. CONFLICT OF INTEREST
Contractor covenants that neither they nor any officer or principal of their firm
have any interests, nor shall they acquire any interest, directly or indirectly, which will
conflict in any manner or degree with the performance of their services hereunder.
Contractor further covenants that in the performance of this Agreement, they shall
employ no person having such interest as an officer, employee, agent, or subcontractor.
Contractor further covenants that Contractor has not contracted with nor is performing
any services directly or indirectly, with the developer(s) and/or property owner(s) and/or
firm(s) and/or partnership(s) and/or public agency(ies) owning property and/or
processing an entitlement application for property in the City or its Area of Interest, now
or within the past one (1) year, and further covenants and agrees that Contractor and/or
its subcontractors shall provide no service or enter into any contract with any
developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public
agency(ies) owning property and/or processing an entitlement application for property in
the City or its Area of Interest, while under contract with the City and for a one (1) year
time period following termination of this Agreement.
18. NOTICE
Any notice to be given pursuant to this Agreement shall be in writing, and all such
notices and any other document to be delivered shall be delivered by personal service
or by deposit in the United States mail, certified or registered, return receipt requested,
with postage prepaid, and addressed to the party for whom intended as follows:
To: City Manager
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
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To: Jose Angel Rojo Fierros
F.S. Contractors, Inc.
14838 Bledsoe Street
Sylmar, CA 91342
Either party may, from time to time, by written notice to the other, designate a
different address or contact person, which shall be substituted for the one above
specified. Notices, payments and other documents shall be deemed delivered upon
receipt by personal service or as of the third (3rd) day after deposit in the United States
mail.
19. CHANGE IN NAME
Should a change be contemplated in the name or nature of the Contractor’s legal
entity, the Contractor shall first notify the City in order that proper steps may be taken to
have the change reflected in the Agreement documents.
20. ASSIGNMENT
Contractor shall not assign this Agreement or any of the rights, duties or
obligations hereunder. It is understood and acknowledged by the parties that Contractor
is uniquely qualified to perform the services provided for in this Agreement.
21. LICENSES
At all times during the term of this Agreement, Contractor shall have in full force
and effect, all licenses required of it by law for the performance of the services in this
Agreement.
22. VENUE AND GOVERNING LAW
This Agreement is made, entered into, and executed in Ventura County,
California, and any action filed in any court or for arbitration for the interpretation,
enforcement or other action of the terms, conditions, or covenants referred to herein
shall be filed in the applicable court in Ventura County, California. The City and
Contractor understand and agree that the laws of the State of California shall govern the
rights, obligations, duties, and liabilities of the parties to this Agreement and also govern
the interpretation of this Agreement.
23. COST RECOVERY
In the event any action, suit or proceeding is brought for the enforcement of, or
the declaration of any right or obligation pursuant to this Agreement or as a result of any
alleged breach of any provision of this Agreement, the prevailing party shall be entitled
to recover its costs and expenses from the losing party, and any judgment or decree
rendered in such a proceeding shall include an award thereof.
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24. ARBITRATION
Cases involving a dispute between City and Contractor may be decided by an
arbitrator if both sides agree in writing, with costs proportional to the judgment of the
arbitrator.
25. ENTIRE AGREEMENT
This Agreement and the Exhibits attached hereto contain the entire
understanding between the parties relating to the obligations of the parties described in
this Agreement. All prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into this Agreement and
shall be of no further force or effect. Each party is entering into this Agreement based
solely upon the representations set forth herein and upon each party’s own independent
investigation of any and all facts such party deems material.
26. CAPTIONS OR HEADINGS
The captions and headings of the various Articles, Paragraphs, and Exhibits of
this Agreement are for convenience and identification only and shall not be deemed to
limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof.
27. AMENDMENTS
Any amendment, modification, or variation from the terms of this Agreement shall
be in writing and shall be effective only upon approval by both parties to this Agreement.
28. PRECEDENCE
In the event of conflict, the requirements of the City’s Request for Proposal, if
any, and this Agreement shall take precedence over those contained in the Contractor’s
Proposal.
29. INTERPRETATION OF AGREEMENT
Should interpretation of this Agreement, or any portion thereof, be necessary, it is
deemed that this Agreement was prepared by the parties jointly and equally, and shall
not be interpreted against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
30. WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision. No waiver
shall be binding unless executed in writing by the party making the waiver.
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31. AUTHORITY TO EXECUTE
The person or persons executing this Agreement on behalf of the Contractor
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Contractor and has the authority to bind Contractor to the performance of
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK F.S. Contractors, Inc.
By:_______________________________ By:_______________________________
Troy Brown, City Manager Jose Angel Rojo Fierros, President
Attest:
__________________________________
Maureen Benson, City Clerk
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Exhibit A
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of Work, Contractor will maintain
insurance in conformance with the requirements set forth below. Contractor will use
existing coverage to comply with these requirements. If that existing coverage does not
meet requirements set forth here, Contractor agrees to amend, supplement or endorse
the existing coverage to do so. Contractor acknowledges that the insurance coverage
and policy limits set forth in this section constitute the minimum amount of coverage
required. Any insurance proceeds available to the City in excess of the limits and
coverage required in this Agreement and which is applicable to a given loss, will be
available to the City.
Contractor shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office (ISO)
“Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense
costs must be paid in addition to limits. There shall be no cross liability exclusion for
claims or suits by one insured against another. Limits are subject to review but in no
event less than $1,000,000 per occurrence for all covered losses and no less than
$2,000,000 general aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident. If Contractor owns no vehicles, this
requirement may be satisfied by a non-owned auto endorsement to the general liability
policy described above. If Contractor or Contractor’s employees will use personal autos
in any way on this project, Contractor shall provide evidence of personal auto liability for
each such person.
Workers’ Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the underlying
coverages. Coverage shall be provided on a “pay on behalf” basis, with defense costs
payable in addition to policy limits. Policy shall contain a provision obligating insurer at
the time insured’s liability is determined, not requiring actual payment by the insured
first. There shall be no cross liability exclusion precluding coverage for claims or suits by
one insured against another. Coverage shall be applicable to the City for injury to
employees of Contractor, subcontractors or others involved in the Work. The scope of
coverage provided is subject to approval by the City following receipt of proof of
insurance as required herein. Limits are subject to review.
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Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of A- or better
and a minimum financial size of VII.
General conditions pertaining to provision of insurance coverage by Contractor.
Contractor and the City agree to the following with respect to insurance provided by
Contractor:
1. Contractor agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds the City, its officials,
employees, and agents, using standard ISO endorsement CG 2010 with an
edition prior to 1992. Contractor also agrees to require all contractors and
subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Contractor, or Contractor’s employees, or agents, from waiving the right
to subrogation prior to a loss. Contractor agrees to waive subrogation rights
against the City regardless of the applicability of any insurance proceeds, and to
require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or
applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to
the City or its operation limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include limiting endorsement of any kind that has not been
first submitted to the City and approved in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called “third party action over” claims, including any exclusion for
bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. Contractor shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability
or reduction of discovery period) that may affect the City’s protection without the
City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to Contractor’s general liability policy, shall be delivered to city at or
prior to the execution of this Agreement. In the event such proof of any insurance
is not delivered as required, or in the event such insurance is canceled or
reduced at any time and no replacement coverage is provided, the City has the
right, but not the duty, to obtain any insurance it deems necessary to protect its
interests under this or any other Agreement and to pay the premium. Any
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premium so paid by the City shall be charged to and promptly paid by Contractor
or deducted from sums due Contractor, at the City’s option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to the City
of any cancellation or reduction of coverage. Contractor agrees to require its
insurer to modify such certificates to delete any exculpatory wording stating that
failure of the insurer to mail written notice of cancellation or reduction of coverage
imposes no obligation, or that any party will “endeavor” (as opposed to being
required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this Agreement that all insurance coverage
required to be provided by Contractor or any subcontractor, is intended to apply
first and on a primary, non-contributing basis in relation to any other insurance or
self-insurance available to the City.
10. Contractor agrees to ensure that subcontractors, and any other party involved
with the Work who is brought onto or involved in the Work by Contractor, provide
the same minimum insurance required of Contractor. Contractor agrees to
monitor and review all such coverage and assumes all responsibility for ensuring
that such coverage is provided in conformity with the requirements of this
section. Contractor agrees that upon request, all agreements with subcontractors
and others engaged in the Work will be submitted to the City for review.
11. Contractor agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, Architect, Engineer, or other
entity or person in any way involved in the performance of Work contemplated by
this Agreement to self-insure its obligations to the City. If Contractor’s existing
coverage includes a deductible or self-insured retention, the deductible or self-
insured retention must be declared to the City. At that time, the City shall review
options with the Contractor, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the Agreement to
change the amounts and types of insurance required by giving the Contractor 90
days advance written notice of such change. If such change results in substantial
additional cost to the Contractor, the City will negotiate additional compensation
proportional to the increased benefit to the City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any
steps that can be deemed to be in furtherance of or towards performance of this
Agreement.
14. Contractor acknowledges and agrees that any actual or alleged failure on the
part of the City to inform Contractor of non-compliance with an insurance
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requirement in no way imposes any additional obligations to the City nor does it
waive any rights hereunder in this or any other regard.
15. Contractor will renew the required coverage annually as long as the City, or its
employees or agents face an exposure from operations of any type pursuant to
this Agreement. This obligation applies whether or not the Agreement is canceled
or terminated for any reason. Termination of this obligation is not effective until
the City executes a written statement to that effect.
16. Contractor shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has
been ordered shall be submitted prior to expiration. A coverage binder or letter
from Contractor’s insurance agent to this effect is acceptable. A certificate of
insurance and/or additional insured endorsement as required in these
specification applicable to the renewing or new coverage must be provided to the
City within five days of the expiration of coverage.
17. The provisions of any Workers’ Compensation or similar act will not limit the
obligations of Contractor under this Agreement. Contractor expressly agrees not
to use any statutory immunity defenses under such laws with respect to the City,
its employees, officials, and agents.
18. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits, or other requirements nor as a
waiver of any coverage normally provided by any given policy. 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 limiting or all-
inclusive.
19. These insurance requirements are intended to be separate and distinct from any
other provision in this Agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this section supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts or
impairs the provisions of this section.
21. Contractor agrees to be responsible for ensuring that no contract used by any
party involved in any way with the Work reserves the right to charge the City or
Contractor for the cost of additional insurance coverage required by this
Agreement. Any such provisions are to be deleted with reference to the City. It is
not the intent of the City to reimburse any third party for the cost of complying
with these requirements. There shall be no recourse against the City for payment
of premiums or other amounts with respect thereto.
22. Contractor agrees to provide immediate notice to City of any claim or loss against
Contractor arising out of the work performed under this Agreement. The City
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assumes no obligation or liability by such notice, but has the right (but not the
duty) to monitor the handling of any such claim or claims if they are likely to
involve the City.
23. Contractor agrees to obtain and provide to City a copy of Professional Liability
coverage for Architects or Engineers on this project, when required by City. City
shall determine the liability limit.
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EXHIBIT B
PUBLIC CONTRACT CODE SECTION 9204
9204. (a) The Legislature finds and declares that it is in the best interests of the state
and its citizens to ensure that all construction business performed on a public works
project in the state that is complete and not in dispute is paid in full and in a timely
manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing
with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section
19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part
3, this section shall apply to any claim by a contractor in connection with a public works
project.
(c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or
certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties
for delay assessed by a public entity under a contract for a public works project.
(B) Payment by the public entity of money or damages arising from work done by, or on
behalf of, the contractor pursuant to the contract for a public works project and payment
for which is not otherwise expressly provided or to which the claimant is not otherwise
entitled.
(C) Payment of an amount that is disputed by the public entity.
(2) “Contractor” means any type of contractor within the meaning of Chapter 9
(commencing with Section 7000) of Division 3 of the Business and Professions Code
who has entered into a direct contract with a public entity for a public works project.
(3) (A) “Public entity” means, without limitation, except as provided in subparagraph (B),
a state agency, department, office, division, bureau, board, or commission, the
California State University, the University of California, a city, including a charter city,
county, including a charter county, city and county, including a charter city and county,
district, special district, public authority, political subdivision, public corporation, or
nonprofit transit corporation wholly owned by a public agency and formed to carry out
the purposes of the public agency.
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that
department.
(ii) The Department of Transportation as to any project under the jurisdiction of that
department.
(iii) The Department of Parks and Recreation as to any project under the jurisdiction of
that department.
(iv) The Department of Corrections and Rehabilitation with respect to any project under
its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part
3 of the Penal Code.
(v) The Military Department as to any project under the jurisdiction of that department.
(vi) The Department of General Services as to all other projects.
(vii) The High-Speed Rail Authority.
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(4) “Public works project” means the erection, construction, alteration, repair, or
improvement of any public structure, building, road, or other public improvement of any
kind.
(5) “Subcontractor” means any type of contractor within the meaning of Chapter 9
(commencing with Section 7000) of Division 3 of the Business and Professions Code
who either is in direct contract with a contractor or is a lower tier subcontractor.
(d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the
claim applies shall conduct a reasonable review of the claim and, within a period not to
exceed 45 days, shall provide the claimant a written statement identifying what portion
of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public
entity and a contractor may, by mutual agreement, extend the time period provided in
this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim.
(C) If the public entity needs approval from its governing body to provide the claimant a
written statement identifying the disputed portion and the undisputed portion of the
claim, and the governing body does not meet within the 45 days or within the mutually
agreed to extension of time following receipt of a claim sent by registered mail or
certified mail, return receipt requested, the public entity shall have up to three days
following the next duly publicly noticed meeting of the governing body after the 45-day
period, or extension, expires to provide the claimant a written statement identifying the
disputed portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be processed and
made within 60 days after the public entity issues its written statement. If the public
entity fails to issue a written statement, paragraph (3) shall apply.
(2) (A) If the claimant disputes the public entity’s written response, or if the public entity
fails to respond to a claim issued pursuant to this section within the time prescribed, the
claimant may demand in writing an informal conference to meet and confer for
settlement of the issues in dispute. Upon receipt of a demand in writing sent by
registered mail or certified mail, return receipt requested, the public entity shall schedule
a meet and confer conference within 30 days for settlement of the dispute.
(B) Within 10 business days following the conclusion of the meet and confer
conference, if the claim or any portion of the claim remains in dispute, the public entity
shall provide the claimant a written statement identifying the portion of the claim that
remains in dispute and the portion that is undisputed. Any payment due on an
undisputed portion of the claim shall be processed and made within 60 days after the
public entity issues its written statement. Any disputed portion of the claim, as identified
by the contractor in writing, shall be submitted to nonbinding mediation, with the public
entity and the claimant sharing the associated costs equally. The public entity and
claimant shall mutually agree to a mediator within 10 business days after the disputed
portion of the claim has been identified in writing. If the parties cannot agree upon a
mediator, each party shall select a mediator and those mediators shall select a qualified
neutral third party to mediate with regard to the disputed portion of the claim. Each party
shall bear the fees and costs charged by its respective mediator in connection with the
selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim
remaining in dispute shall be subject to applicable procedures outside this section.
(C) For purposes of this section, mediation includes any nonbinding process, including,
but not limited to, neutral evaluation or a dispute review board, in which an independent
third party or board assists the parties in dispute resolution through negotiation or by
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issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this
section.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the
mediation conducted pursuant to this section shall excuse any further obligation under
Section 20104.4 to mediate after litigation has been commenced.
(E) This section does not preclude a public entity from requiring arbitration of disputes
under private arbitration or the Public Works Contract Arbitration Program, if mediation
under this section does not resolve the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the time
periods described in this subdivision or to otherwise meet the time requirements of this
section shall result in the claim being deemed rejected in its entirety. A claim that is
denied by reason of the public entity’s failure to have responded to a claim, or its failure
to otherwise meet the time requirements of this section, shall not constitute an adverse
finding with regard to the merits of the claim or the responsibility or qualifications of the
claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear interest at
7 percent per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim
against a public entity because privity of contract does not exist, the contractor may
present to the public entity a claim on behalf of a subcontractor or lower tier
subcontractor. A subcontractor may request in writing, either on his or her own behalf or
on behalf of a lower tier subcontractor, that the contractor present a claim for work
which was performed by the subcontractor or by a lower tier subcontractor on behalf of
the subcontractor. The subcontractor requesting that the claim be presented to the
public entity shall furnish reasonable documentation to support the claim. Within 45
days of receipt of this written request, the contractor shall notify the subcontractor in
writing as to whether the contractor presented the claim to the public entity and, if the
original contractor did not present the claim, provide the subcontractor with a statement
of the reasons for not having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or
specifications for any public works project that may give rise to a claim under this
section.
(f) A waiver of the rights granted by this section is void and contrary to public policy,
provided, however, that (1) upon receipt of a claim, the parties may mutually agree to
waive, in writing, mediation and proceed directly to the commencement of a civil action
or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable
change order, claim, and dispute resolution procedures and requirements in addition to
the provisions of this section, so long as the contractual provisions do not conflict with or
otherwise impair the timeframes and procedures set forth in this section.
(g) This section applies to contracts entered into on or after January 1, 2017.
(h) Nothing in this section shall impose liability upon a public entity that makes loans or
grants available through a competitive application process, for the failure of an awardee
to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2020, and as of that date is
repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes
or extends that date.
(Added by Stats. 2016, Ch. 810, Sec. 1. (AB 626) Effective January 1, 2017. Repealed
as of January 1, 2020, by its own provisions.)
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RESOLUTION NO. 2019-_______
A RESOLUTION OF CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, AMENDING THE FISCAL YEAR
2018/19 BUDGET BY APPROPRIATING $110,687 FROM THE
GENERAL FUND (1000) FOR THE ADDITIONAL MEDIAN
ISLAND IMPROVEMENTS RELATED TO THE TIERRA REJADA
ROAD STREETSCAPE (PROJECT NO. M0031)
WHEREAS, on February 4, 2015 City Council approved Resolution No. 2015-
3361 which approved a budget amendment in the amount of $20,925 from the General
Fund (1000) and $6,975 from the 84-2 Steeple Hill T2865 Fund (2302) to obtain
landscape architectural services for the renovation of Tierra Rejada Road Streetscape
Project (M0031), between Arroyo Simi and Spring Road; and
WHEREAS, on June 17, 2015 the City Council by Resolution No. 2015-3408
approved the City of Moorpark Operating and Capital Improvement Budget for Fiscal
Year (FY) 2015/16, which included an additional $90,000 for M0031; and
WHEREAS, on March 16, 2016 the City Council approved Resolution No. 2016-
3490 which approved a budget amendment in the amount of $97,543 from the General
Fund (1000) and $60,506 from the 84-2 Steeple Hill T2865 Fund (2302) for landscape
and architectural services for the Tierra Rejada Road Streetscape Project (M0031); and
WHEREAS, on November 2, 2016 the City Council approved Resolution No.
2016-3553 which approved a budget amendment in the amount of $265,010.50 from
the General Fund (1000) and $2,237.50 from the 84-2 Steeple Hill T2865 Fund (2302)
for landscape design services and construction for the Tierra Rejada Road Streetscape
Project (M0031); and
WHEREAS, on December 6, 2017 the City Council approved Resolution No.
2017-3652 which approved a budget amendment in the amount of $400,812 from the
General Fund (1000) and $82,154 from the 84-2 Steeple Hill T2865 Fund (2302) for
construction services related to tree irrigation and median island renovation for the
Tierra Rejada Road Streetscape Project (M0031); and
WHEREAS, on June 20, 2018 the City Council adopted the Operating and
Capital Improvement Projects budget for FY 2018/19 which includes $38,814 for the
Tierra Rejada Road Streetscape Project (M0031); and
WHEREAS, on October 17, 2018 the City Council approved Resolution No.
2018-3759 which approved a budget amendment in the amount of $1,000,000 from the
General Fund (1000) and $760,823 from the Special Projects Fund (3004) for
construction services related to the Final Phase of the Tierra Rejada Streetscape
Revitalization Project (M0031); and
Attachment 2
376
Resolution No. 2019-______
Page 2
WHEREAS, on December 5, 2018 City Council approved an amendment to the
Agreement with Architerra for the landscape design to include the renovation of three
additional median islands located between Arroyo Simi and Los Angeles Avenue.
Based on the prepared plans and specifications, staff released an informal bid on
January 30, 2019; and
WHEREAS, a staff report has been presented to the City Council summarizing
the results of the informal bid request for additional median island improvements related
to the Tierra Rejada Streetscape Project (M0031), and recommending the award of the
contract to F.S. Contractors, Inc. with a total contract value of $110,687, which includes
a contingency of $14,437; and
WHEREAS, an additional $110,687 is requested from the General Fund
(1000)finance the additional median island improvements related to the Tierra Rejada
Streetscape Project (M0031); and
WHEREAS, Exhibit “A”, attached hereto and made a part hereof, describes said
budget amendment and the resultant impact to the budget line items.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. A budget amendment in the amount of $110,687 from the General
Fund (1000) as more particularly described in Exhibit “A”, attached hereto, is hereby
approved.
SECTION 2. The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 6th day of March, 2019.
_____________________________
Janice S. Parvin, Mayor
ATTEST:
________________________________ ___
Maureen Benson, City Clerk
Exhibit A – Budget Amendment
377
Resolution No. 2019-______
Page 3
EXHIBIT A
BUDGET AMENDMENT FOR
GENERAL FUND (1000)
FOR MEDIAN ISLAND IMPROVEMENTS RELATED TO
THE TIERRA REJADA ROAD STREETSCAPE PROJECT (M0031)
FY 2018/19
FUND BALANCE ALLOCATION:
Fund Title
Fund-Account
Number Amount
GENERAL FUND 1000-000-00000-33990 $ 110,687.00
Total $ 110,687.00
EXPENDITURE APPROPRIATION:
Account Number
Current
Budget* Revision
Amended
Budget
1000-542-M0031-55300 $ 10,194.81 $ 10,194.81
2302-542-M0031-55300 $ 4,851.86 $ 4,851.86
1000-542-M0031-55500 $ 1,157,845.02 $ 110,687.00 $ 1,268,532.02
2302-542-M0031-55500 $ 78,444.57 $ 78,444.57
3004-000-M0031-55500 $ 760,823.00
$ 760,823.00
Total $ 2,012,159.26 $ 110,687.00 $ 2,122,846.26
378