HomeMy WebLinkAbout2019 CON MJC Construction - Emergency Storm Drain and Sinkhole Repair - Rachael Ave.AGREEMENT
BETWEEN
THE CITY OF NATIONAL CITY
AND
MJC CONSTRUCTION
THIS AGREEMENT is entered into on this 19th day of December, 2019, between the
CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and JIMENEZ INC., a
California corporation, d.b.a. "MJC CONSTRUCTION" (the "CON TRACTOR").
RECITALS
WHEREAS, the CITY desires to employ a CONTRACTOR to provide general
underground pipe replacement, concrete and asphault work
WHEREAS, the CITY has determined that the CONTRACTOR is lincensed in the State
of California and is qualified by experience and ability to perform the services desired by the
CITY, and the CONTRACTOR is willing to perform such services.
NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS
FOLLOWS:
I. ENGAGEMENT OF CONTRACTOR. The CITY agrees to engage the
CONTRACTOR to perform the undergroung pipe repair and associated surface improvments
and the CONTRACTOR agrees to perform the services set forth here in accordance with all
terms and conditions contained herein.
The CONTRACTOR represents that all services shall be performed directly by
the CONTRACTOR or under direct supervision of the CONTRACTOR.
2. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement
will become effective on December 13, 2019. The duration of this Agreement is for the period of
December 13, 2019 through February 1, 2020. Completion dates or time durations for specific
portions of the Project (defined below) are set forth in Exhibit "A".
3. SCOPE OF SERVICES. The CONTRACTOR will perform general concrete,
storm drain pipe, sewer pipe, and asphalt work on a sinkhole located at the 1700 block of
Rachael Avenue, and any surrounding area as deemed necessary by City, as set forth in the
attached Exhibit "A" following the fee schedule as set forth in the attached Exhibit "A" (the
"Project").
The CONTRACTOR shall be responsible for all research and reviews related to
the work and shall not rely on personnel of the CITY for such services, except as authorized in
advance by the°CITY. The CONTRACTOR shall appear at meetings specified in Exhibit "A" to
keep staff and City Council advised of the progress on the project.
The CITY may unilaterally, or upon request from the CONTRACTOR, from time
to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under
this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith
and confer for the purpose of negotiating a corresponding reduction or increase in the
compensation associated with said change in services.
4. PROJECT COORDINATION AND SUPERVISION. Roberto Yano, Deputy
City Engineer hereby is designated as the Project Coordinator for the CITY and will monitor the
progress and execution of this Agreement. The CONTRACTOR shall assign a single Project
Director to provide supervision and have overall responsibility for the progress and execution of
this Agreement for the CONTRACTOR. Javier Jimenez thereby is designated as the Project
Director for the CONTRACTOR.
5. COMPENSATION AND PAYMENT. The compensation for the
CONTRACTOR shall be based on monthly billings covering actual work performed. Billings
shall include labor classifications, respective rates, hours worked and also materials, if any. The
total cost for all work described in Exhibit "A" shall not exceed $57,496.75. The compensation
for the CONTRACTOR'S work shall not exceed the rates set forth in Exhibit "A". Monthly
invoices will be processed for payment and remitted within thirty (30) days from receipt of
invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the
CITY.
The CONTRACTOR shall maintain all books, documents, papers, employee time
sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such
materials available at its office at all reasonable times during the term of this Agreement and for
three (3) years from the date of final payment under this Agreement, for inspection by the CITY,
and for furnishing of copies to the CITY, if requested.
6. ACCEPTABILITY OF WORK. The CITY shall decide any and all questions
which may arise as to the quality or acceptability of the services performed and the manner of
performance, the acceptable completion of this Agreement, and the amount of compensation due.
In the event the CONTRACTOR and the CITY cannot agree to the quality or acceptability of the
work, the manner of performance and/or the compensation payable to the CONTRACTOR in
this Agreement, the CITY or the CONTRACTOR shall give to the other written notice. Within
ten (10) business days, the CONTRACTOR and the CITY shall each prepare a report which
supports their position and file the same with the other party. The CITY shall, with reasonable
diligence, determine the quality or acceptability of the work, the manner of performance and/or
the compensation payable to the CONTRACTOR.
7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda,
Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the
CONTRACTOR for this project, whether paper or electronic, shall: (1) be free from defects; (2)
become the property of the CITY for use with respect to this project; and (3) shall be turned over
to the CITY upon completion of the project, or any phase thereof, as contemplated by this
Agreement.
Contemporaneously with the transfer of documents, the CONTRACTOR hereby
assigns to the CITY, and CONTRACTOR thereby expressly waives and disclaims any copyright
in, and the right to reproduce, all written material, drawings, plans, specifications, or other work
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prepared under this Agreement, except upon the CITY'S prior authorization regarding
reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR
shall, upon request of the CITY, execute any further document(s) necessary to further effectuate
this waiver and disclaimer.
The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce,
modify, assign, transfer, or in any other way, medium, or method utilize the CONTRACTOR'S
written work product for the CITY'S purposes, and the CONTRACTOR expressly waives and
disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to
intellectual property and artistic works.
Any modification or reuse by the CITY of documents, drawings, or specifications
prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section
14, but only with respect to the effect of the modification or reuse by the CITY, or for any
liability to the CITY should the documents be used by the CITY for some project other than
what was expressly agreed upon within the Scope of Services of this project, unless otherwise
mutually agreed.
8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of
this Agreement will be acting in an independent capacity and not as agents, employees, partners,
or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR' S
employees are employees of the CITY, and are not entitled to any of the rights, benefits, or
privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy-
ment, or workers' compensation insurance.
This Agreement contemplates the personal services of the CONTRACTOR and
the CONTRACTOR'S employees, and it is recognized by the parties that a substantial
inducement to the CITY for entering into this Agreement was, and is, the professional reputation
and competence of the CONTRACTOR and its employees. Neither this Agreement, nor any
interest herein, may be assigned by the CONTRACTOR without the prior written consent of the
CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or
hiring as many employees, or SUBCONTRACTORSoas the CONTRACTOR may deem
necessary for the proper and efficient performance of this Agreement. All agreements by
CONTRACTOR with its SUBCONTRACTOR(S) shall require the SUBCONTRACTOR(S) to
adhere to the applicable terms of this Agreement.
9. CONTROL. Neither the CITY, nor its officers, agents, or employees shall have
any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S
employees, except as set forth in this Agreement. The CONTRACTOR, or the
CONTRACTOR'S agents, servants, or employees are not in any manner agents, servants, or
employees of the CITY. The CONTRACTOR and its agents, servants, and employees are wholly
independent from the CITY and CONTRACTOR'S obligations to the CITY are solely
prescribed by this Agreement.
10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the
performance of the services to be provided herein, shall comply with all applicable state and
federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City
of National City, whether now in force or subsequently enacted. The CONTRACTOR and each
of its SUBCONTRACTOR(S), shall obtain and maintain a current City of National City business
license prior to and during performance of any work pursuant to this Agreement.
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11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants
that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally
required to practice its profession. CONTRACTOR must promptly produce a copy of any such
license, permit, or approval to CITY upon request. The CONTRACTOR represents and
covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times
during the term of this Agreement, any license, permit, or approval which is legally required for
the CONTRACTOR to practice its profession.
12. STANDARD OF CARE.
A. The CONTRACTOR, in performing any services under this Agreement,
shall perform in a manner consistent with that level of care and skill ordinarily exercised by
members of the CONTRACTOR'S trade or profession currently practicing under similar
conditions and in similar locations. The CONTRACTOR shall take all special precautions
necessary to protect the CONTRACTOR'S employees and members of the public from risk of
harm arising out of the nature of the work and/or the conditions of the work site.
B. Unless disclosed in writing prior to the date of this Agreement, the
CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years
preceding, been debarred by a governmental agency or involved in debarment, arbitration or
litigation proceedings concerning the CONTRACTOR'S professional performance or the
furnishing of materials or services relating thereto.
C. The CONTRACTOR is responsible for identifying any unique products,
treatments, processes or materials whose availability is critical to the success of the project the
CONTRACTOR has been retained to perform, within the time requirements of the CITY, or,
when no time is specified, then within a commercially reasonable time. Accordingly, unless the
CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all
products, materials, processes or treatments identified in the project documents prepared for the
CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due
diligence under this sub -section will render the CONTRACTOR liable to the CITY for any
increased costs that result from the CITY'S later inability to obtain the specified items or any
reasonable substitute within a price range that allows for project completion in the time frame
specified or, when not specified, then within a commercially reasonable time.
13. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not
discriminate against any employee or applicant for employment because of age, race, color,
ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or
medical condition. The CONTRACTOR will take positive action to insure that applicants are
employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation,
marital status, national origin, physical handicap, or medical condition. Such action shall include
but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. The CONTRACTOR agrees to post in
conspicuous places available to employees and applicants for employment any notices provided
by the CITY setting forth the provisions of this non-discrimination clause.
14. CONFIDENTIAL INFORMATION. The CITY may from time to time
communicate to the CONTRACTOR certain confidential information to enable the
CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR
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shall treat all such information as confidential and shall not disclose any part thereof without the
prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of
such information, even within its own organization, to the extent necessary to perform the
services to be provided herein. The foregoing obligation of this Section 14, however, shall not
apply to any part of the information that (i) has been disclosed in publicly available sources of
information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly
available sources of information; (iii) is already in the possession of the CONTRACTOR without
any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the
CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has
been or is rightfully authorized by that third party.
The CONTRACTOR shall not disclose any reports, recommendations,
conclusions or other results of the services or the existence of the subject matter of this
Agreement without the prior written consent of the CITY. In its performance hereunder, the
CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting
the information or other property of any other person, firm or corporation.
CONTRACTOR shall be liable to CITY for any damages caused by breach of this
condition, pursuant to the provisions of Section 15.
15. INDEMNIFICATION AND HOLD HARMLESS. To the maximum extent
provided by law, The CONTRACTOR agrees to defend, indemnify and hold harmless the City
of National City, its officers, officials, agents, employees, and volunteers against and from any
and all liability, loss, damages to property, injuries to, or death of any person or persons, and all
claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of
any kind or nature, including workers' compensation claims, of or by anyone whomsoever,
resulting from or arising out of the CONTRACTOR'S performance or other obligations under
this Agreement; provided, however, that this indemnification and hold harmless shall not include
any claims or liability arising from the established sole negligence or willful misconduct of the
CITY, its agents, officers, employees or volunteers. CITY will cooperate reasonably in the
defense of any action, and CONTRACTOR shall employ competent counsel, reasonably
acceptable to the City Attorney.
The indemnity, defense, and hold harmless obligations contained herein shall
survive the termination of this Agreement for any alleged or actual omission, act, or negligence
under this Agreement that occurred during the term of this Agreement.
16. EMPLOYEE PAYMENTS AND INDEMNIFICATION.
A. PERS Eligibility Indemnification. If CONTRACTOR' s employee(s) providing
services under this Agreement claims, or is determined by a court of competent jurisdiction or
the California Public Employees Retirement System ("PERS") to be eligible for enrollment in
PERS of the CITY, CONTRACTOR shall indemnify, defend, and hold harmless CITY for the
payment of any employer and employee contributions for PERS benefits on behalf of the
employee as well as for payment of any penalties and interest on such contributions which would
otherwise be the responsibility of the CITY.
CONTRACTOR'S employees providing service under this Agreement shall not:
(1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under
PERS; (3) enroll in PERS as an employee of CITY; (4) receive any employer contributions paid
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by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would
accrue to a CITY employee. CONTRACTOR's employees hereby waive any claims to benefits
or compensation described in this Section 16. This Section 16 applies to CONTRACTOR
notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to
the contrary.
B. Limitation of CITY Liability. The payment made to CONTRACTOR under this
Agreement shall be the full and complete compensation to which CONTRACTOR and
CONTRACTOR's officers, employees, agents, and subcontractors are entitled for performance
of any work under this Agreement. Neither CONTRACTOR nor CONTRACTOR's officers,
employees, agents, and subcontractors are entitled to any salary or wages, or retirement, health,
leave or other fringe benefits applicable to CITY employees. The CITY will not make any
federal or state tax withholdings on behalf of CONTRACTOR. The CITY shall not be required
to pay any workers' compensation insurance on behalf of CONTRACTOR.
C. Indemnification for Employee Payments. CONTRACTOR agrees to defend and
indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution
including any contribution to PERS, social security, salary or wages, overtime payment, or
workers' compensation payment which the CITY may be required to make on behalf of (1)
CONTRACTOR, (2) any employee of CONTRACTOR, or (3) any employee of
CONTRACTOR construed to be an employee of the CITY, for work performed under this
Agreement. This is a continuing obligation that survives the termination of this Agreement.
17. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all
of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of
California, the applicable provisions of Division 4 and 5 of the California Labor Code and all
amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify,
and hold harmless the CITY and its officers, employees, and volunteers from and against all
claims, demands, payments, suits, actions, proceedings, and judgments of every nature and
description, including reasonable attorney's fees and defense costs presented, brought or
recovered against the CITY or its officers, employees, or volunteers, for or on account of any
liability under any of said acts which may be incurred by reason of any work to be performed by
the CONTRACTOR under this Agreement.
18. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase
and maintain, and shall require its SUBCONTRACTOR(S), when applicable, to purchase and
maintain throughout the term of this Agreement, the following insurance policies:
A. Automobile Insurance covering all bodily injury and property damage
incurred during the performance of this Agreement, with a minimum coverage of $1,000,000
combined single limit per accident. Such automobile insurance shall include owned, non -owned,
and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents,
employees, and volunteers as additional insureds, and a separate additional insured endorsement
shall be provided.
B. Commercial General Liability Insurance, with minimum limits of
$1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy,
covering all bodily injury and property damage arising out of its operations, work, or
performance under this Agreement. The policy shall name the CITY and its officers, agents,
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employees, and volunteers as additional insureds, and a separate additional insured endorsement
shall be provided. The general aggregate limit must apply solely to this "project" or "location".
The "project" or "location" should be noted with specificity on an endorsement that shall be
incorporated into the policy.
C. Workers' Compensation Insurance in an amount sufficient to meet
statutory requirements covering all of CONTRACTOR'S employees and employers' liability
insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed
with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to
commencement of work under this Agreement.
If CONTRACTOR has no employees subject to the California Workers'
Compensation and Labor laws, CONTRACTOR shall execute a Declaration to that effect. Said
Declaration shall be provided to CONTRACTOR by CITY.
E. The aforesaid policies shall constitute primary insurance as to the CITY,
its officers, officials, employees, and volunteers, so that any other policies held by the CITY
shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30)
days prior written notice to the CITY's Risk Manager, at the address listed in subsection G
below, of cancellation or material change.
F. If required insurance coverage is provided on a "claims made" rather than
"occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years
after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date
must be on or before the date of this Agreement.
G. The Certificate Holder for all policies of insurance required by this
Section shall be:
City of National City
c/o Risk Manager
1243 National City Boulevard
National City, CA 91950-4397
H. Insurance shall be written with only insurers authorized to conduct
business in California that hold a current policy holder's alphabetic and financial size category
rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of
equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is
provided by non -admitted "surplus lines" carriers, they must be included on the most recent List
of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements.
I. This Agreement shall not take effect until certificate(s) or other sufficient
proof that these insurance provisions have been complied with, are filed with and approved by
the CITY'S Risk Manager. If the CONTRACTOR does not keep all insurance policies required
by this Section 18 in full force and effect at all times during the term of this Agreement, the
CITY may treat the failure to maintain the requisite insurance as a breach of this Agreement and
terminate the Agreement as provided herein.
J. All deductibles and self -insured retentions in excess of $10,000 must be
disclosed to and approved by the CITY. CITY reserves the right to modify the insurance
requirements of this Section 18, including limits, based on the nature of the risk, prior
experience, insurer, coverage, or other special circumstances.
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K. If the CONTRACTOR maintains broader coverage or higher limits (or
both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage
or higher limits (or both) maintained by the CONTRACTOR. Any available insurance proceeds
in excess of the specified minimum limits of insurance and coverage shall be available to the
CITY.
19. LEGAL FEES. If any party brings a suit or action against the other party arising
from any breach of any of the covenants or agreements or any inaccuracies in any of the
representations and warranties on the part of the other party arising out of this Agreement, then
in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -
court settlement, shall be entitled to have and recover of and from the other party all costs and
expenses of suit, including attorneys' fees.
For purposes of determining who is to be considered the prevailing party, it is stipulated
that attorney's fees incurred in the prosecution or defense of the action or suit shall not be
considered in determining the amount of the judgment or award. Attorney's fees to the prevailing
party if other than the CITY shall, in addition, be limited to the amount of attorney's fees
incurred by the CITY in its prosecution or defense of the action, irrespective of the actual
amount of attorney's fees incurred by the prevailing party.
20. TERMINATION.
A. This Agreement may be terminated with or without cause by the CITY.
Termination without cause shall be effective only upon 60-day's written notice to the
CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in
accordance with this Agreement.
B. This Agreement may also be terminated immediately by the CITY for
cause in the event of a material breach of this Agreement, misrepresentation by the
CONTRACTOR in connection with the formation of this Agreement or the performance of
services, or the failure to perform services as directed by the CITY.
C. Termination with or without cause shall be effected by delivery of written
Notice of Termination to the CONTRACTOR as provided for herein.
D. In the event of termination, all finished or unfinished Memoranda Reports,
Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR,
whether paper or electronic, shall immediately become the property of and be delivered to the
CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for
any work satisfactorily completed on such documents and other materials up to the effective date
of the Notice of Termination, not to exceed the amounts payable hereunder, and less any
damages caused the CITY by the CONTRACTOR'S breach, if any. Thereafter, ownership of
said written material shall vest in the CITY all rights set forth in Section 7.
E. The CITY further reserves the right to immediately terminate this
Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a
reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business
reorganization, change in business name or change in business status of the CONTRACTOR.
21. NOTICES. All notices or other communications required or permitted hereunder
shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express
or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or
sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex,
telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally
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delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by
overnight mail, the business day following its deposit in such overnight mail facility, (iii) if
mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is
outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or
other like facility regularly maintained by the United States Postal Service, (iv) if given by
telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given
by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other
communication delivered or sent as specified above shall be directed to the following persons:
To CITY: Roberto Yano
Deputy City Engineer
Engineering and Public works Department
City of National City
1243 National City Boulevard
National City, CA 91950-4397
To CONTRACTOR:
Javier Jimenez Owner
MJC CONSTRUNCTION
3015 Sylvia St.
Bonita, CA 91902
Notice of change of address shall be given by written notice in the manner
specified in this Section. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to constitute receipt of the notice,
demand, request or communication sent. Any notice, request, demand, direction or other
communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-
eight (48) hours by letter mailed or delivered as specified in this Section.
22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT
OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform
services of any kind for any person or entity whose interests conflict in any way with those of the
City of National City. The CONTRACTOR also agrees not to specify any product, treatment,
process or material for the project in which the CONTRACTOR has a material financial interest,
either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall
at all times comply with the terms of the Political Reform Act and the National City Conflict of
Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its
official position to influence in any way any matter coming before the CITY in which the
CONTRACTOR has a financial interest as defined in Government Code Section 87103. The
CONTRACTOR represents that it has no knowledge of any financial interests that would require
it to disqualify itself from any matter on which it might perform services for the CITY.
The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or
expenses the CITY may suffer by virtue of any violation of this Section 22 by the
CONTRACTOR.
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23. PREVAILING WAGES. State prevailing wage rates may apply to work
performed under this Agreement. State prevailing wages rates apply to all public works contracts
as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2,
1720.3, 1720.4, and 1771. CONTRACTOR is solely responsible to determine if State prevailing
wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules,
and regulations.
24. ADMINISTRATIVE PROVISIONS.
A. Computation of Time Periods. If any date or time period provided for in
this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date
shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a
Saturday, Sunday or federal, state, or legal holiday.
B. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute but one and
the same instrument.
C. Captions. Any captions to, or headings of, the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
D. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto.
E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes. To the extent any exhibits,
schedules, or provisions thereof conflict or are inconsistent with the terms and conditions
contained in this Agreement, the terms and conditions of this Agreement shall control.
F. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties hereto.
G. Assignment & Assumption of Rights. CONTRACTOR shall not assign
this Agreement, in whole or in part, to any other party without first obtaining the written consent
of CITY.
H. Waiver. The waiver or failure to enforce any provision of this Agreement
shall not operate as a waiver of any future breach of any such provision or any other provision
hereof.
I. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The venue for any legal action arising under
this Agreement shall be in either state or federal court in the County of San Diego, State of
California.
J. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the
parties shall be subject to the examination and audit of the State Auditor for a period of three (3)
years after final payment under the Agreement, per Government Code Section 8546.7.
K. Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, and contains the entire agreement between the
parties as to the subject matter hereof. No subsequent agreement, representation, or promise
made by either party hereto, or by or to an employee, officer, agent or representative of any party
hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby.
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L. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
M. Subcontractors or SubCONTRACTORs. The CITY is engaging the
services of the CONTRACTOR identified in this Agreement. The CONTRACTOR shall not
subcontract any portion of the work, unless such subcontracting was part of the original proposal
or is allowed by the CITY in writing. In the event any portion of the work under this Agreement
is subcontracted, the subCONTRACTOR(s) shall be required to comply with and agree to, for
the benefit of and in favor of the CITY, both the insurance provisions in Section 18 and the
indemnification and hold harmless provision of Section 15 of this Agreement.
N. Construction. The parties acknowledge and agree that (i) each party is of
equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and
negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity
to consult with its own, independent counsel and such other professional advisors as such party
has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv)
each party and such parry's counsel and advisors have reviewed this Agreement, (v) each party
has agreed to enter into this Agreement following such review and the rendering of such advice,
and (vi) any rule or construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or
any amendments hereto.
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Standard Agreement Page 11 of 12 City of National City and
Revised May 2019 MJC CONSTRUCTION
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and year first above written.
CITY OF NATIONAL CITY
By:
ston, City Manager
APPROVED AS TO FORM:
Angil P. Morris -Jones
City Attorney
By:
Roberto M. Contreras
Deputy City Attorney
JIMENEZ INC., A CALIFORNIA
CORPORATION, D.B.A. "MJC
CONSTRUCTION"
(Corporation — signatures of two corporate officers required)
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(Print)
Pr2-es.t o Er►
(Title)
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(Print)
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VICe -rPre d-ene
(Title)
Standard Agreement Page 12 of 12 City of National City and
Revised May 2019 MJC CONSTRUCTION
OCIDA
CONSTRUCTION
LIC# 754128
3015 Sylvia Street
Bonita, CA 91902
PH: 619-472-5619
Bill To
City of National City
1243 National City Blvd.
Natuonal City, Ca 91950
EXHIBIT A
Invoice
Date Invoice #
12/18/2019 165 929
Job Number
Item Description Qty Amount
12-1619 Rachael St. Emerency Storm drain Repair and Sinkhole Repair
1. Emergency Storm Drain Repair and Sinkhole Repair LS $45,000.00
2. Over excavation and disposal of oversaturated soils, placement and compaction of imported rock,
soil,and repair of the street pavement section over the over excavation area, pick up and delivery of
concrete risers, transport extra concrete risers to City storage LS $6,000.00
TOTAL LABOR...$51,000.00
MATERIAL
1.21 tons of 3/4 inch dry rock @ $11.99 per ton...$251.79
2.21 tons of 3/4 inch dry rock @ $11.90 per ton...$249.90
3.3 feet of 60X36X36 Ecc Cone @ $175.00 per foot...$525.00
4.3.75 feet of 60X45 Shaft @ $175.00 per foot...$656.25
5..75 feet of 36X3 Grade ring @ $160.00 per foot...$120.00
6. Seal LS...$69.02
7. One 3 Piece set sewer...$675.00
SUB -TOTAL FOR MATERIALS...$6496.75
GRAND TOTAL....$57,496.75
Payments/Credits so.00
Total
Balance Due
57,496.75
$57,496.75
$57,496.75
RESOLUTION NO. 2019 - 180
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY: (1) FINDING A
PUBLIC WORKS EMERGENCY THAT OCCURRED ON DECEMBER 11, 2019 AT RACHAEL
AVENUE RESULTING IN A SINKHOLE; (2) RATIFYING THE DECLARATION,
CONTRACTING PER THE EMERGENCY CONTRACTING PROCEDURE, AND
APPROPRIATIONS OF A NOT TO EXCEED AMOUNT OF $100,000 FOR EMERGENCY
WORK TO REPAIR THE RACHEAL AVENUE SINKHOLE; AND (3) RATIFYING THE
WAIVING OF COMPETITIVE BIDDING PROCEDURES IN ACCORDANCE WITH SECTION
22050 "EMERGENCY CONTRACTING PROCEDURES" OF THE CALIFORNIA PUBLIC
CONTRACT CODE AND CHAPTER 2.62 "ALTERNATIVE BID PROCEDURES FOR PUBLIC
PROJECTS," SECTION 2.62.070 "EMERGENCIES" OF THE
NATIONAL CITY MUNICIPAL CODE
WHEREAS, on Wednesday, December 11, 2019 the Public Works
Department learned of a sinkhole that formed on Rachael Avenue just north of 18th
Street; and
WHEREAS, Rachael Avenue runs in a north -south direction on the east
side of National City with the centerline of Rachael Avenue marking the boundary
between the City of San Diego (east side of the road) and the City of National City (west
side of the road); and
WHEREAS, Public Works crews quickly responded and secured the site to
prevent any vehicles from driving over and into the sinkhole; and
WHEREAS, on Thursday, December 12, 2019, Engineering and Public
Works staff inspected the site and discovered that a failed 36" corrugated metal pipe
(CMP) segment that begins in the City of San Diego and crosses under Rachael Avenue
into National City was what caused the 10 feet wide, by 10 feet long, by 8 feet deep
sinkhole; and
WHEREAS, on December 12, 2019, based on the recommendation of the
Deputy City Engineer, the City Manager declared this work as an "emergency" pursuant
to California Public Contract Code Section 22050 "Emergency Purchases -Emergency
Defined" and National City Municipal Code Section 2.60.230; and
WHEREAS, on December 12, 2019, staff obtained two quotes for repairing
the sinkhole from different contractors familiar with the area with MJC Construction, being
the lowest of the two quotes, began repair work on December 13, 2019; and
WHEREAS, repair work should be completed by December 17, 2019 and
the road should be open to traffic by December 18, 2019; and
WHEREAS, staff is requesting an increase of $80,000 to the General Fund
Environmental Compliance Contract Services appropriation through the use of General
Fund fund balance for a not to exceed amount of $100,000 to complete the emergency
work and to ratify the City Manager's declaration of emergency and waiving of competitive
bidding procedures, as provided under emergency contracting procedures.
Resolution No. 2019 —180
Page Two
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City does hereby authorizes the Mayor to ratify the declaration, contracting per
the emergency contracting procedure, and appropriations of a not to exceed amount of
$100,000 for emergency work to repair the Racheal Avenue sink hole.
BE IT FURTHER RESOLVED, that the City Council of the City of National City
does hereby authorizes the Mayor to ratify the waiving of competitive bidding procedures in
accordance with Section 22050 "Emergency Contracting Procedures" of the California Public
Contract Code and Chapter 2.62 "Alternative Bid Procedures for Public Projects," Section
2.62.070 "Emergencies" of the National City Municipal Code.
PASSED and ADOPTED this 17th day of December, 2019.
Alejandra Sotelo-Solis, Mayor
ATTEg/LST. / ....2fr_,
rei Michael R. alla, City Clerk
APPROVED AS TO FORM:
o-i -on
ttorney
Passed and adopted by the Council of the City of National City, California, on
December 17, 2019 by the following vote, to -wit:
Ayes: Councilmembers Morrison, Quintero, Rios, Sotelo-Solis.
Nays: Cano.
Absent: None.
Abstain: None.
AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS
Mayor of the City of National City, California
MICHAEL R. DALLA
City Clerk of the City of National City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2019-180 of the City of National City, California, passed and
adopted by the Council of said City on December 17, 2019.
City Clerk of the City of National City, California
By:
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: December 17, 2019
AGENDA ITEM NO. 1
ITEM TITLE:
Resolution of the City Council of the City of National City: (1) Finding a Public Works Emergency that occurred on
December 11, 2019 at Rachael Avenue resulting in a sink hole; (2) ratifying the declaration, contracting per the emergency
contracting procedure, and appropriations of a not to exceed amount of $100,000 for emergency work to repair the
Racheal Avenue sink hole; and (3) ratifying the waiving of competitive bidding procedures under emergency conditions
consistent with Section 22050 "Emergency Contracting Procedures" of the California Public Contract Code and Chapter
2.62 "Alternative Bid Procedures for Public Projects," Section 2.62.070 "Emergencies" of the National City Municipal Code.
PREPARED BY: Roberto Yano Deputy City Engineer
PHONE: 619-336-4383
EXPLANATION:
See attached Staff Report.
DEPARTMENT: Engineering/Public Works
APPROVED BY:
FINANCIAL STATEMENT:
ACCOUNT NO.
APPROVED:
APPROVED:
Finance
MIS
ENVIRONMENTAL REVIEW:
Statutorily Exempt under Public Resources Code § 21080, and 14 CCR § 15269 (b).
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt Resolution ratifying the declaration of emergency, contracting per the emergency contracting procedure, and
appropriations of a not to exceed amount of $100,000 for emergency work to repair the Racheal Avenue sink hole.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. Staff Report
2. Declaration of Emergency Letter from City Manager
3. Resolution
sd/u. iart710. 4 - /cr0
Staff Report
On Wednesday, December 11, 2019 the Public Works Department learned of a sinkhole
that formed on Rachael Avenue just north of 18th Street. Rachael Avenue runs in a north -
south direction on the east side of National City. The centerline of Rachael marks the
boundary between the City of San Diego (east side of the road) and the City of National
City (west side of the road). Public Works crews quickly responded and secured the site
to prevent any vehicles from driving over and into the sinkhole.
On Thursday, December 12th, Engineering and Public Works staff inspected the site and
discovered that a failed 36" corrugated metal pipe (CMP) segment that begins in the City
of San Diego and crosses under Rachael into National City was what caused the sinkhole.
The sinkhole measured 10 feet wide, by 10 feet long, by 8 feet deep. On December 12th,
based on the recommendation of the Deputy City Engineer, the City Manager declared
this work as an "emergency," consistent with the provisions included in Section 22050
"Emergency Contracting Procedures" of the California Public Contract Code and Section
2.60.230 "Emergency Purchases -Emergency Defined" of the National City Municipal
Code.
The evening of December 12th, staff obtained two quotes for repairing the sinkhole from
different contractors familiar with the area. MJC Construction, the lowest of the two
quotes, began repair work on December 13th
The repair work should be completed by December 17th and the road should be open to
traffic on December 18th. Based on quotes received for these emergency construction
services, staff requests an increase of $80,000 to the General Fund Environmental
Compliance Contract Services appropriation (001-416-030-299-0000) through use of
General Fund fund balance to complete the emergency work. Negotiations with the City
of San Diego for cost -sharing are ongoing. Once they are completed, staff will provide
an update to Council.
Staff also requests that the City Council ratify the City Manager's declaration of
emergency and waiving of competitive bidding procedures, as provided under emergency
contracting procedures of the National City Municipal Code.
NATIONA Uttry
/- :2f1
�- INCORPORATED
Engineering & Public Works Department
1243 National City Boulevard, National City, CA 91950
Phone: (619) 336-4380 Fax: (619) 336-4397
December 12, 2019
Brad Raulston, City Manager
RE: REQUEST FOR EMERGENCY SERVICES — RACHAEL AVENUE NORTH OF 18TH STREET
Dear Brad,
On Wednesday, December 11, 2019 the Public Works Department learned of a sinkhole that formed on
Rachael Avenue just north of 18' Street. Rachael Avenue runs in a north -south direction on the east side
of National City. The centerline of Rachael marks the boundary between the City of San Diego (east side
of the road) and the City of National City (west side of the road). Public Works crews quickly responded
and secured the site to prevent any vehicles from driving over and into the sinkhole. On Thursday,
December 12t' Engineering and Public Works staff inspected the site and discovered that a failed 36"
corrugated metal pipe (CMP) segment that begins in the City of San Diego and crosses under Rachael into
National City was what caused the sinkhole. The sinkhole measured 10 feet wide, by 10 feet long, by 8
feet deep. The sinkhole is now an imminent threat to public health and safety. I recommend that you declare
this work as an "emergency," consistent with Section 2.60.230 "Emergency Purchases -Emergency
Defined" of the National City Municipal Code.
Our department will work with the City of San Diego, and with all other present utilities, to perform this
repair as safe and as quickly as possible. Two of the City's on -call consultants, Geosyntec Consultants,
Inc. and MJC Construction, provided a quote for the emergency construction services necessary to repair
the failed CMP and surrounding areas.
Sinc ely,
be • o
eputy Engineer
I, Brad Raulston, hereby declare the repair efforts for the Rachael Avenue Sinkhole as emergency work.
cc: Roberto M. Contreras, Deputy City Attomey
RESOLUTION NO. 2019 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY: (1) FINDING A
PUBLIC WORKS EMERGENCY THAT OCCURRED ON DECEMBER 11, 2019 AT RACHAEL
AVENUE RESULTING IN A SINKHOLE; (2) RATIFYING THE DECLARATION,
CONTRACTING PER THE EMERGENCY CONTRACTING PROCEDURE, AND
APPROPRIATIONS OF A NOT TO EXCEED AMOUNT OF $100,000 FOR EMERGENCY
WORK TO REPAIR THE RACHEAL AVENUE SINKHOLE; AND (3) RATIFYING THE
WAIVING OF COMPETITIVE BIDDING PROCEDURES IN ACCORDANCE WITH SECTION
22050 "EMERGENCY CONTRACTING PROCEDURES" OF THE CALIFORNIA PUBLIC
CONTRACT CODE AND CHAPTER 2.62 "ALTERNATIVE BID PROCEDURES FOR PUBLIC
PROJECTS," SECTION 2.62.070 "EMERGENCIES" OF THE
NATIONAL CITY MUNICIPAL CODE
WHEREAS, on Wednesday, December 11, 2019 the Public Works
Department learned of a sinkhole that formed on Rachael Avenue just north of 18th
Street; and
WHEREAS, Rachael Avenue runs in a north -south direction on the east
side of National City with the centerline of Rachael Avenue marking the boundary
between the City of San Diego (east side of the road) and the City of National City (west
side of the road); and
WHEREAS, Public Works crews quickly responded and secured the site to
prevent any vehicles from driving over and into the sinkhole; and
WHEREAS, on Thursday, December 12, 2019, Engineering and Public
Works staff inspected the site and discovered that a failed 36" corrugated metal pipe
(CMP) segment that begins in the City of San Diego and crosses under Rachael Avenue
into National City was what caused the 10 feet wide, by 10 feet long, by 8 feet deep
sinkhole; and
WHEREAS, on December 12, 2019, based on the recommendation of the
Deputy City Engineer, the City Manager declared this work as an "emergency" pursuant
to California Public Contract Code Section 22050 "Emergency Purchases -Emergency
Defined" and National City Municipal Code Section 2.60.230; and
WHEREAS, on December 12, 2019, staff obtained two quotes for repairing
the sinkhole from different contractors familiar with the area with MJC Construction, being
the lowest of the two quotes, began repair work on December 13, 2019; and
WHEREAS, repair work should be completed by December 17, 2019 and
the road should be open to traffic by December 18, 2019; and
WHEREAS, staff is requesting an increase of $80,000 to the General Fund
Environmental Compliance Contract Services appropriation through the use of General
Fund fund balance for a not to exceed amount of $100,000 to complete the emergency
work and to ratify the City Manager's declaration of emergency and waiving of competitive
bidding procedures, as provided under emergency contracting procedures.
Resolution No. 2019 —
Page Two
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City does hereby authorizes the Mayor to ratify the declaration, contracting per
the emergency contracting procedure, and appropriations of a not to exceed amount of
$100,000 for emergency work to repair the Racheal Avenue sink hole.
BE IT FURTHER RESOLVED, that the City Council of the City of National City
does hereby authorizes the Mayor to ratify the waiving of competitive bidding procedures in
accordance with Section 22050 "Emergency Contracting Procedures" of the California Public
Contract Code and Chapter 2.62 "Alternative Bid Procedures for Public Projects," Section
2.62.070 "Emergencies" of the National City Municipal Code.
PASSED and ADOPTED this 17th day of December, 2019.
Alejandra Sotelo-Solis, Mayor
ATTEST:
Michael R. Dalla, City Clerk
APPROVED AS TO FORM:
Angil Morris -Jones
City Attorney
CONTRACT TRANSMITTAL FORM
(Attach to Documents dropped off to City Clerk's Office)
Date: 2/4/2020
From (Dept.): Engineering / Public Works
Submitted by (First & Last Name): Tirza Gonzales
Vendor: MJC Construction
Resolution: - / NO RESO 2019-180
2 3 4 Originals Provided to City Clerk (circle quantity)
Department has copy
Vendor has copy