HomeMy WebLinkAboutO. Nelson & Son, Inc. (2)MINOR CONSTRUCTION AGREEMENT
BETWEEN THE TOWN OF LOS ALTOS HILLS AND O, NELSON & SON, INC.
This Agreement (this "Agreement") is made and entered into between the Town of Los Altos Hills,
a General Law City ("Town") and O. Nelson & Son, Inc. ("Contractor") effective as of
l '?o�3 (the "Effective Date"). Town and Contractor are hereinafter collectively referred
to As (the "Parties"). In consideration of their mutual covenants, the Parties hereby agree as follows:
1. Scope of Work. Contractor shall provide the following services and/or materials ("the
Work"): Repair damage guard rail at Page Mill Road near Via Ventana Way. Or, as more particularly
described in the Scope of Work, attached hereto and incorporated herein as Exhibit A. In the event of a
conflict or inconsistency between the text of the main body of this Agreement and Exhibit A, the text of the
main body of this Agreement shall prevail. The Work shall commence on October 2, 2023 and shall be
completed to the satisfaction of the Town October 9, 2023 unless such date is extended or otherwise
modified by the Town in writing.
2. Payment. Town shall pay Contractor an amount not to exceed: Two thousand four
hundred fifty-six dollars ($2,456.00) for the full and satisfactory completion of the Work in accordance
with the terms and conditions of this Agreement. The calculation of payment for the Work shall be set
forth as described in the Compensation Form, attached hereto and incorporated herein as Exhibit B. The
amount stated above is the entire compensation payable to Contractor for the Work performed hereunder,
including all labor, materials, tools and equipment furnished by Contractor.
(A) Invoices. Town shall make monthly payments, based on invoices received, for Work
satisfactorily performed. Town shall have thirty (30) days from the receipt of an invoice that
complies with all of the requirements above to pay Contractor.
(B) False Claims Act. Presenting a false or fraudulent claim for payment, including a change
order, is a violation of the California False Claims Act and may result in treble damages and a fine
of five thousand ($5,000) to ten thousand dollars ($10,000) per violation.
(C) Retention and Final Payment. Town shall retain five percent (5%) of each payment, which
shall be paid within sixty (60) days after acceptance of the services, as described in Section 11, and
submittal to Town of a final invoice, if all services required have been satisfactorily performed.
Contractor may substitute securities or establish an escrow in lieu of retainage, pursuant to Public
Contract Code Section 22300.
3. Independent Contractor. It is understood and agreed that this Agreement is not a contract
of employment and does not create an employer-employee relationship between the Town and Contractor.
At all times Contractor shall be an independent contractor and Contractor is not authorized to bind the Town
to any contracts or other obligations without the express written consent of the Town.
4. Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend
(with counsel acceptable to the Town), and hold harmless the Town and its elected and appointed officers,
officials, employees, agents, contractors and consultants (collectively, the "Town Indemnitees") from and
against any and all liability, loss, damage, claims, expenses and costs (including, without limitation,
attorneys' fees and costs of litigation) (collectively, "Liability") of every nature arising out of or in
connection with Contractor's performance of the Work or Contractor's failure to comply with this
Agreement, except such Liability caused by the gross negligence or willful misconduct of the Town
Indemnitees.
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dlinor Construction agreement
5. Excavations. In accordance with Public Contracts Code Section 714, Contractor shall
promptly notify the Town in writing of discovery of any material Contractor believes may be hazardous
waste as defined in Section 25117 of the Health and Safety Code or of any subsurface or latent physical
conditions at the site of any unusual nature differing materially from those generally inherent in the work
described in Exhibit A. Upon receipt of such communication, Town shall promptly investigate the
conditions and if conditions do materially differ, shall issue a change order providing for additional time or
payment of additional costs.
6. Relocation of Utilities. In the event that the completion of the services described in Exhibit
A requires the removal or protection of main or trunk line public utility facilities, the Town shall be
responsible for removal and protection of such public utilities pursuant to Government Code Section 4215.
7. Insurance. Prior to beginning the Work and continuing throughout the term of this
Agreement, Contractor (and any subcontractors) shall, at Contractor's (or subcontractor's) sole cost and
expense, furnish the Town with certificates of insurance evidencing that Contractor has obtained and
maintains insurance in the following amounts:
A. Workers' Compensation that satisfies the minimum statutory limits.
B. Commercial General Liability and Property Damage Insurance in an amount not less than TWO
MILLION DOLLARS ($2,000,000) combined single limit per occurrence, FIVE MILLION
DOLLARS ($5,000,000) annual aggregate, for bodily injury, property damage, products,
completed operations and contractual liability coverage. The policy shall also include coverage for
liability arising out of the use and operation of any Town -owned or Town -furnished equipment used or
operated by the Contractor, its personnel, agents or subcontractors.
C. Comprehensive automobile insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) per occurrence for bodily injury and property damage including coverage for owned and
non -owned vehicles.
All insurance policies shall be written on an occurrence basis and shall name the Town Indemnitees
as additional insureds. The certificates shall contain a statement of obligation on the part of the carrier to
notify the Town of any material change, cancellation, termination or non -renewal of the coverage at least
thirty (30) days in advance of the effective date of any such material change, cancellation, termination or
non -renewal. Further, if the Contractor's insurance policy includes a self-insured retention that must be
paid by a named insured as a precondition of the insurer's liability, or which has the effect of providing that
payments of the self-insured retention by others, including additional insureds or insurers do not serve to
satisfy the self-insured retention, such provisions must be modified by special endorsement so as to not
apply to the additional insured coverage required by this agreement so as to not prevent any of the parties
to this agreement from satisfying or paying the self-insured retention required to be paid as a precondition
to the insurer's liability. Additionally, the certificates of insurance must note whether the policy does or
does not include any self-insured retention and also must disclose the deductible.
8. General Warranties and Guarantee. Contractor warrants that: (A) All Work, Products
and/or Services are as described in this Agreement, including any exhibits incorporated] conform to all
drawings, samples, descriptions and specifications; (B) All Work, Products and/or Services delivered are
new and of good merchantable quality, free from material defects of workmanship and fit for the purpose
for which sold or provided; (C) Contractor has good title to all Products delivered and all Products delivered
are free from liens and other encumbrances; and (D) Contractor's Work will be in strict conformity with all
applicable local, state, and federal laws. For purposes of this warranty, any parts not meeting the foregoing
quality shall be deemed defective.
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\livor Colist rucho11 \-'reement.
Contractor shall guarantee the Work to be free of defects in material and workmanship for a period
of one (1) year following the Town's acceptance of the Work ("Contractor's Guarantee"), as described in
Section 11. As part of Contractor's Guarantee, Contractor agrees to make, at Contractor's own expense,
any repairs or replacements made necessary by defects in material or workmanship which become evident
within the one-year guarantee period. The Contractor's Guarantee is effective regardless of whether or not
a maintenance bond is required by the Town for this Agreement.
9. Licenses. Contractor represents and warrants that Contractor possesses all licenses,
permits, and qualifications legally required for the performance of the Work, including but not limited to a
business license from the Town and payment of any applicable business license tax. Contractor shall, at
Contractor's sole cost and expense, maintain all such licenses, permits and qualifications in full force and
effect throughout the term of this Agreement.
10. Damage to Town Facilities and Site Safety. Damage to Town or public facilities or private
property caused by the Contractor or by its subcontractors during performance of the Work shall be repaired
and/or replaced in kind at no cost to the Town. The worksite shall be kept clean and free of hazards at all
times during installation. After work is completed at the site, Contractor shall clean the surrounding area
to the condition prior to performance of the Work.
11. Final Inspection and Work Acceptance. All Work shall be subject to final inspection and
acceptance or rejection by the Town. Contractor shall guarantee the Work to be free of defects in material
and workmanship for a period of one (1) year following the Town's acceptance of the Work.
12. Compliance with all Applicable Laws.
A. Contractor shall comply with all applicable local, state and federal laws,
regulations and ordinances in the performance of this Agreement.
B. Contractor shall not discriminate in the provision of service or in the employment
of persons engaged in the performance of this Agreement on account of race, color,
national origin, ancestry, religion, gender, marital status, sexual orientation, age,
physical or mental disability in violation of any applicable local, state or federal
laws or regulations.
C. Contractor shall comply with the requirements of the Secretary of Labor and the
latest amendments to: Executive Orders 11246 and 11375, as supplemented in
Department of Labor regulations (41 C.F.R. chapter 60); the Copeland "Anti -
Kickback" Act (18 U.S.C. § 847) as supplemented in Department of Labor
regulations (29 C.F.R. part 3); Section 3 of the Housing and Urban Development
Act of 1968 (12 U.S.C. §§ 1701 et seq.); Title VI of the Civil Rights Act of 1964
(42 U.S.C. §§ 2000); Section 109 of Title I of the Housing and Community
Development Act of 1974 (42 U.S.C. §§ 5301 et seq.); the Age Discrimination Act
of 1975 (42 U.S.C. §§ 6101 et seq.); and Section 504 of the Rehabilitation Act of
1973 (29 U.S.C. §§ 701 etseq.)
13. Payment of Taxes, Tax Withholding. Contractor is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes. To be exempt from
tax withholding, Contractor must provide Town with a valid California Franchise Tax Board form 590
("Form 590"). Unless Contractor provides Town with a valid Form 590 or other valid, written evidence of
an exemption or waiver from withholding, Town may withhold California taxes from payments to
Contractor as required by law. Contractor shall obtain, and maintain on file for three (3) years after the
termination of this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all
subcontractors. Contractor accepts sole responsibility for withholding taxes from any non -California
resident subcontractor and shall submit written documentation of compliance with Contractor's
withholding duty to Town upon request.
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Minor Construction Agreemew
14. Prevailing Wage.
A. The wages to be paid for a day's work to all classes of laborers, workmen, or
mechanics on the work contemplated by this Agreement, shall be not less than the
prevailing rate for a day's work in the same trade or occupation in the locality
within the state where the work hereby contemplates to be performed as
determined by the Director of Industrial Relations pursuant to the Director's
authority under Labor Code Section 1770, et seq. Each laborer, worker or
mechanic employed by Contractor or by any subcontractor shall receive the wages
herein provided for. The Contractor shall pay two hundred dollars ($200), or
whatever amount may be set by Labor Code Section 1775, as may be amended,
per day penalty for each worker paid less than prevailing rate of per diem wages.
The difference between the prevailing rate of per diem wages and the wage paid
to each worker shall be paid by the Contractor to each worker.
The Town will not recognize any claim for additional compensation because of the
payment by the Contractor for any wage rate in excess of prevailing wage rate set
forth. The possibility of wage increases is one of the elements to be considered by
the Contractor.
NOTE: An error on the part of an awarding body does not relieve the Contractor
from responsibility for payment of the prevailing rate of per diem wages and
penalties pursuant to Labor Code Sections 1770-1775.
i. Posting of Schedule of Prevailing Wage Rates and Deductions. If the
schedule of prevailing wage rates is not attached hereto pursuant to Labor
Code Section 1773.2, the Contractor shall post at appropriate conspicuous
points at the site of the project a schedule showing all determined
prevailing wage rates for the various classes of laborers and mechanics to
be engaged in work on the project under this contract and all deductions,
if any, required by law to be made from unpaid wages actually earned by
the laborers and mechanics so engaged.
ii. Payroll Records. Each Contractor and subcontractor shall keep an
accurate payroll record, showing the name, address, social security
number, work week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by the
Contractor in connection with the public work. Such records shall be
certifies and submitted weekly as required by Labor Code Section 1776.
15. Patents. The Contractor shall assume all costs arising from the use of patented materials,
equipment, services, or processes used on or incorporated in the Work, and agrees to indemnify and save
harmless the Town of Los Altos Hills, the City Council, and the Engineer, and their duly authorized
representatives, for all suits at law, or actions of every nature for, or on account of the use of any patented
materials, equipment, services, or processes.
16. Dispute Resolution. Prior to initiating litigation in a court of competent jurisdiction, both
Contractor and Town shall undergo alternative dispute procedures as outlined in Public Contract Code
Section 20104, et seq. The Parties also expressly agree that such procedures are incorporated as though fully
set forth in this Agreement.
17, Prevailing Party. In the event that either party to this Agreement commences any legal
action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the
prevailing party in such a proceeding shall be entitled to recover its reasonable attorney's fees associated
with that legal action or proceeding.
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%nor (�onsiruclion _k"Iwment
18. Termination. Town may terminate or suspend this Agreement at any time and without cause
upon written notification to Contractor. Upon receipt of notice of termination or suspension, Contractor
shall immediately stop all work in progress under this Agreement. The Town's right of termination shall be
in addition to all other remedies available under law to the Town.
19. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement
shall continue in full force and effect.
20. Entire Agreement. This Agreement represents the entire and integrated agreement between
the Parties. This Agreement may be modified or amended only by a subsequent written agreement signed
by both Parties.
21. Non -Liability of Officials, Employees and Agents. No officer, official, employee or agent
of Town shall be personally liable to Contractor in the event of any default or breach by Town or for any
amount which may become due to Contractor pursuant to this Agreement.
22. Execution in Counter arts. This Agreement may be executed in counterparts and/or by
facsimile or other electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with other signed
counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties.
23. Choice of Law; Venue. The applicable law shall be that of the State of California
24. Notice. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if
personally delivered; (ii) when received if transmitted by telecopy, if received during normal business hours
on a business day (or if not, the next business day after delivery) provided that such facsimile is legible and
that at the time such facsimile is sent the sending Party receives written confirmation of receipt; (iii) if sent
for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express);
and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice
shall be sent to the respective Parties as follows:
Contractor:
Town:
Hal Nelson
O. Nelson & Son, Inc.
3345 Tripp Road
Woodside, CA 94062
John Chau
Town of Los Altos Hills
26379 Fremont Road
Los Altos Hills, CA 94022
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Minor Consiruction Aereemeni
IN WI*FNI,"SS Wl WRECIF, t1w Parflas have executed this Agreement aq of the date wricten above,
TO, v
By:
0 5�i ii, rftatt
OLY Mallage'r
CONTRAM*OR:
Print Namet.
Title.
%I III ilr ( it (I i I ut I c I lo 41 %g I-Wv I I I � III
EXHIBIT A
SCOPE OF WORK
%livor Construction ;Agreement
0.Nelson e� Son, Inc.
General Engineers
3345 Tripp Road
Woodside, CA 94062
(650) 851-3600 Email. onsdigs@gmail,com
Proposal and Contract #48
To: Town of Los Altos Hills Attn: John Chau September 13, 2023
Hereafter "Contractor", telephone (650)_247-2516 fax (650)_.241-3160; O. Nelson & Son, Inc. hereafter
"Sub -contractor", propose(s) to furnish all materials and perform labor necessary to complete the following:
Re: Page Mill Rd. at Via Ventana Way
Los Altos Hills, CA
1). To replace (1) post, (1) block, (1) guard rail and (1) safety bracket:
Re -use compression head (it has minor dents). Place work signage
on Page Mill, $ 2,456.
Prevailing wage job
This proposal is valid until October 30, 2023 and if accepted on or before that date, work will commence
approximately on upon request and will be substantially completed approximately days subject to de-
lays caused by acts of God, stormy weather, uncontrollable labor trouble, or unforeseen contingencies.
If any payment is not made when due, Contractor may suspend work on the job until such time as all pay-
ments due have been made. A failure to make payment for a period in excess of 30 days from the due
date shall be deemed a material breach of this contract.
Respectfully Submitted,
O. Nelson & Son, Inc.
By
3345 Tripp
Woodside, CA 94062
(65o) 851-3600 Office
f65o) 851-5714 FAX
ACCEPTANCE
You are hereby authorized to furnish materials and labor
required to complete the work in this Proposal, for which
I / We agree to pay the Contract price mentioned in this
Proposal, and according to the terms . I / We have read
and agree to the provisions contained herein, and in any
attachments hereto, which are made part hereof and are
described as ---------- __________________�
By —Datei
Contractor's State License #A307071 Authorized Signature
5417822.1
EXHIBIT B
COMPENSATION
\linor Construction Agreemenl
O. Nefson c ,Son, Inc.
General Engineers
3345 Tripp Road
Woodside, CA 94062
(650) 851-3600 Email. onsdigs@gmail.com
Proposal and Contract #48
To: Town of Los Altos Hills Attn: John Chau September 13, 2023
Hereafter "Contractor", telephone (650)_947-2516 fax (650) 941-3160; O. Nelson & Son, Inc. hereafter
"Sub -contractor", propose(s) to furnish all materials and perform labor necessary to complete the following:
Re: Page Mill Rd. at Via Ventana Way
Los Altos Hills, CA
1). To replace (1) post, (1) block, (1) guard rail and (1) safety bracket:
Re -use compression head (it has minor dents). Place work signage
on Page Mill. $ 2,456.
Prevailing wage job
This proposal is valid until October 30, 2023 and if accepted on or before that date, work will commence
approximately on upon request and will be substantially completed approximately days subject to de-
lays caused by acts of God, stormy weather, uncontrollable labor trouble, or unforeseen contingencies.
If any payment is not made when due, Contractor may suspend work on the job until such time as all pay-
ments due have been made. A failure to make payment for a period in excess of 30 days from the due
date shall be deemed a material breach of this contract.
Respectfully Submitted,
r
o. Nelson & Son, Inc.You are hereby authorized to furnish materials and labor
By.
3345 Tripp
Woodside, CA 94062
(65o) 851-3600 Office
J650) 851-5714 FAX
required to complete the work in this Proposal, for which
I / We agree to pay the Contract price mentioned in this
Proposal, and according to the terms . I / We have read
and agree to the provisions contained herein, and in any
attachments hereto, which are made part hereof and are
described as____________________________�
By —Datei
Contractor's State License #A307071 Authorized Signature