HomeMy WebLinkAboutReso 74-2024 (24-374)FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF SOUTH
SAN FRANCISCO AND DRAEGER, INC.
THIS FIRST AMENDMENT TO THE CONSTRUCTION SERVICES AGREEMENT is made at
South San Francisco, California, as of March 8, 2024 by and between THE CITY OF SOUTH
SAN FRANCISCO (“City”), a municipal corporation, and DRAEGER, INC. (“Contractor”),
(sometimes referred together as the “Parties”) who agree as follows:
RECITALS
A. On November 8, 2023, City and Contractor entered that certain Construction Services
Agreement (“Agreement”) whereby Contractor agreed to provide construction services for the City’s
Training Tower Maintenance Project (Project No. PF1704). A true and correct copy of the Agreement
and its exhibits is attached as Exhibit A.
B. City and Contractor now desire to amend the Agreement.
NOW, THEREFORE, for and in consideration of the promises and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and
Contractor hereby agree as follows:
1.All terms which are defined in the Agreement shall have the same meaning when used in this
Amendment, unless specifically provided herein to the contrary.
2.Section 2: Compensation. Section 2 of the Agreement shall be amended such that the City
agrees to pay Contractor an additional sum of $307,728.00, for a total not-to-exceed amount
of $815,161 with the understanding that up to $0.00 has already been paid to Contractor.
Contractor agrees this is the City’s total contribution for payment of costs under the
Agreement unless additional payments are authorized in accordance with the terms of the
Agreement and said terms of payment are mutually agreed to by and between the parties in
writing.
3.Scope of Services. The Scope of services time of completion is extended to August 30, 2024
and Exhibit B to the Agreement is revised and attached to this Amendment, shown as the new
Exhibit B.
All other terms, conditions and provisions in the Agreement remain in full force and effect. If
there is a conflict between the terms of this Amendment and the Agreement, the terms of the
Agreement will control unless specifically modified by this Amendment.
[SIGNATURES ON THE FOLLOWING PAGE]
EXHIBIT A
CITY OF SOUTH SAN FRANCISCO DRAEGER, INC.
By: By:
Sharon Ranals, City Manager John Wilson
Sr. Vice President / Marketing & Sales
Draeger, Inc.
Attest:
_____________________________
Rosa Acosta, City Clerk
Approved as to Form:
By:
City Attorney
4863-6295-2592, v. 2
SOUTH SAN FRANCISCO SERVICES AGREEMENT
This Services Agreement (this “Agreement”) is made and entered into between the City of South
San Francisco, a municipal corporation (“City”) and Draeger, Inc., (“Consultant”) effective as of
December 11, 2023 (the “Effective Date”). City and Consultant are hereinafter collectively referred to as
(the “Parties”). In consideration of their mutual covenants, the Parties hereby agree as follows:
1.Scope of Services. Consultant shall provide the following services and/or materials (“the
Work”): replace gas detection for burn tower, replace exterior exhaust fans, upgrade fire props control
system, gas detector cover panel, and other components, as more specifically described and detailed in
Quote # 136213173, dated September 28, 2023, attached hereto as Attachment I, the terms of which are
agreed to by the Parties to be a part hereof and incorporated herein. The Work shall commence on
December 11, 2023, and shall be completed to the satisfaction of the City by March 8, 2024 unless such
date is extended or otherwise modified by the City in writing. In the event of a conflict or inconsistency
between the text of the main body of this Agreement and Attachment I, the text of the main body of this
Agreement shall prevail.
2.Payment. City shall pay Consultant an amount not to exceed: FIVE-HUNDRED AND
SEVEN THOUSAND FOUR-HUNDRED AND THIRTY-THREE DOLLARS ($507,433) for the full
and satisfactory completion of the Work in accordance with the terms and conditions of this Agreement. The
amount stated above is the entire compensation payable to Consultant for the Work performed hereunder,
including all labor, materials, tools and equipment furnished by Consultant.
City shall make payments, based on invoices received, for Work satisfactorily performed. City shall
have thirty (30) days from the receipt of an invoice to pay Consultant.
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 City and Consultant.
At all times Consultant shall be an independent contractor and City shall not control the manner of
Consultant accomplishing the Work. Consultant is not authorized to bind the City to any contracts or other
obligations without the express written consent of the City.
4.Indemnification. To the fullest extent permitted by law, Consultant shall indemnify, defend
(with counsel acceptable to the City), and hold harmless the City and its elected and appointed officers,
officials, employees and agents (collectively, the “City 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 Consultant’s
negligence, omissions, or willful misconduct in Consultant’s performance of the Work or Consultant’s
failure to comply with this Agreement, except such Liability caused by the gross negligence or willful
misconduct of the City Indemnitees.
5.Insurance. Prior to beginning the Work and continuing throughout the term of this
Agreement, Consultant (and any subcontractors) shall, at Consultant’s (or subcontractor’s) sole cost and
expense, furnish the City with certificates of insurance evidencing that Consultant 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 ONE
MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION
DOLLARS ($2,000,000) 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 City-owned or City-furnished equipment used
or operated by the Consultant, its personnel, agents or subcontractors.
EXHIBIT A to First Amendment
4863-6295-2592, v. 2
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.
D.Professional Liability Insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) covering the licensed professionals’ errors and omissions.
All insurance policies shall be written on an occurrence basis and shall name the City Indemnitees
as additional insureds with any City insurance shall be secondary and in excess to Consultant’s insurance.
If the Consultant’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. The certificates shall contain a statement of
obligation on the part of the carrier to notify City 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. The City’s Risk Manager may waive or modify any of the
insurance requirements of this section.
6.Compliance with all Applicable Laws; Nondiscrimination. Consultant shall comply with
all applicable local, state and federal laws, regulations and ordinances in the performance of this Agreement.
Consultant 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.
7.Termination. City may terminate or suspend this Agreement at any time and without cause
upon written notification to Consultant. Upon receipt of notice of termination or suspension, Consultant
shall immediately stop all work in progress under this Agreement. The City's right of termination shall be
in addition to all other remedies available under law to the City.
8.Prevailing Wage. Where applicable, 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 Consultant or by any subcontractor shall receive the wages herein provided for. The
Consultant 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 Consultant to each worker.
An error on the part of an awarding body does not relieve the Consultant from responsibility for payment of
the prevailing rate of per diem wages and penalties pursuant to Labor Code Sections 1770-1775. The City
will not recognize any claim for additional compensation because of the payment by the Consultant 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 Consultant.
4863-6295-2592, v. 2
(A)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 Consultant 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.
(B)Payroll Records. Each Consultant 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 Consultant in
connection with the public work. Such records shall be certified and submitted weekly as required by
Labor Code Section 1776.
9.Payment of Taxes; Tax Withholding. Consultant 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, Consultant must provide City with a valid California Franchise Tax Board form 590
(“Form 590”), as may be amended and such Form 590 shall be attached hereto and incorporated herein as
Exhibit B. Unless Consultant provides City with a valid Form 590 or other valid, written evidence of an
exemption or waiver from withholding, City may withhold California taxes from payments to Consultant
as required by law. Consultant 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.
Consultant accepts sole responsibility for withholding taxes from any non-California resident subcontractor
and shall submit written documentation of compliance with Consultant’s withholding duty to City upon
request.
10.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.
11.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.
12.Non-Liability of Officials, Employees and Agents. No officer, official, employee or
agent of City shall be personally liable to Consultant in the event of any default or breach by City or for
any amount which may become due to Consultant pursuant to this Agreement.
13.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.
14.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:
4863-6295-2592, v. 2
Contractor:
Draeger, Inc.
7256 S. Sam Houston W Pkwy, Suite 100
Houston, Texas 77085
City:
City Clerk
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
15.Execution in Counterpart. 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.
16.Assignment, Governing Law. The Consultant may not assign any of Consultant’s
obligations under this Agreement without the City’s prior written approval. This Agreement is governed
by California law. The jurisdiction for any litigation arising from this Agreement shall be in the state of
California, and shall be venued in the County of San Mateo.
17.Limitation of Liability. Except for its obligation to indemnify, in no event shall
consultant be liable to the City for lost profits, or for any special, consequential, incidental, punitive, or
exemplary damages. Consultant’s maximum liability under the agreement, other than for its
indemnification obligations, is the actual purchase price received by consultant for the services
performed under the agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written above.
CITY:DRAEGER,INC.:
By: By:
Sharon Ranals, City Manager
Print Name: _ John Wilson
Title: Sr. VP Marketing & Sales
By:
Print Name: Graeme Roberts
Title: Controller US Sales
APPROVED AS TO FORM:
City Attorney
Graeme
Roberts
Digitally signed by Graeme
Roberts
Date: 2023.12.15 08:07:51
-06'00'
John Wilson
Digitally signed by John
Wilson
Date: 2023.12.15 15:22:11
-06'00'
4863-6295-2592, v. 2
2729961.1
4863-6295-2592, v. 2
ATTACHMENT I
Quote# 136213173
EXHIBIT B to First Amendment