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Home My Public Portal About2016.076 (04-05-16)CITY RESOLUTION NO. 2016.076 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD APPROVING THE SECOND AMENDMENT TO CONTRACT BY AND BETWEEN CS LEGACY CONSTRUCTION INC., AND THE CITY OF LYNWOOD FOR THE RELEASE OF A REDUCED RETENTION PAYMENT IN THE AMOUNT OF $330,549.62 FOR COMPLETION OF THE CONSTRUCTION OF THE RICARDO LARA LINEAR PARK AND WITHHOLD $144,520.88 IN PENALTY ASSESSMENTS PURSUANT TO A LABOR COMPLIANCE INVESTIGATION BY THE DEPARTMENT OF INDUSTRIAL RELATION'S LABOR COMMISSIONER RELATED TO THE LINEAR PARK CONSTRUCTION WHEREAS, on June 15, 2012, the California State Parks' Office of Grants and Local Services (OGALS) awarded the City of Lynwood a grant for the construction of the Lynwood Linear Park Project in the amount of $4,949,957; and WHEREAS, on November 4, 2014 Council awarded the Linear Park construction contract to CS Legacy Construction Inc; and WHEREAS, on November 26, 2104 CS Legacy entered into a contract with the City in the amount of $4,683,273.78 to construct the Lynwood Linear Park and on December 1, 2014 the park was officially under construction; and WHEREAS, on August 18, 2015, City Council approved the first amendment to the Agreement to authorize an increase in the amount of the construction contract to $4,829,000 based on the estimated cost to complete the project due to unforeseen circumstances; WHEREAS, on January 11, 2016 Construction Manager, Doug Benash submitted final progress payment for CS Legacy in the amount of $111,903.66. WHEREAS, the final cost for the physical construction of the Ricardo Lara Linear Park ( "Park ") project after quantities built were calculated came to $4,750,705.04. WHEREAS, ten percent of each progress payment or a total of $475,070.50 has been retained for the Project's final payment once the project is completed and receives a Notice of Completion; and WHEREAS, on January 27, 2016, staff received supplies and manuals for the maintenance of the Park from CS Legacy indicating they were officially removing their services from the Park and it was complete; and WHEREAS, on February 1, 2016 the City received notice from the State Labor Commissioner that CS Legacy was under investigation for alleged Labor Compliance violations initiated by the project's labor compliance firm, Contractor Compliance and Monitoring, Inc. (CCMI); and WHEREAS, pursuant to the investigation, the City received a Notice of Withholding from CCMI stating the City should withhold the amount of $144,520.88 from the final payment to the Contractor which includes wage penalties, liquidated damages and training funds; and WHEREAS, pursuant to California Civil and Labor Code, Contractor shall be paid amount due for work performed no more than 90 days after work- is completed provided the awarding body withholds and retains therefrom all amounts required to satisfy any civil wage and penalty assessment issued by the Labor Commissioner; and WHEREAS, the City finds that the circumstances set forth herein justify the need for a second amendment to said contract to authorize payment to Contractor for work completed, less the stated withholding amount pursuant to the ongoing labor compliance investigation by the State Labor Commissioner. NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY DETERMINE AND RESOLVE AS FOLLOWS: Section 1. That the City hereby approves the draft Second Amendment of CS Legacy Construction's Agreement as submitted and agreed herein subject to final review and execution by all parties thereto. Section 3. That the City Council hereby authorizes the payment of a reduced retention payment in the amount of $330,549.62 constituting the eligible payment to Contractor pursuant to the withholding of $144,520.88 in accordance with the labor compliance violations under review by the State Labor Commissioner. Section 4. That the City authorizes the Mayor or appointed designee to execute a second amendment to the Agreement with CS Legacy Construction to reflect final payment in the amount of $330,549.62, resulting from withholdings in the amount of $144,520.88 in accordance with ongoing Labor Commission investigation, in a form approved by the City Attorney. Section 5. This resolution shall become effective immediately upon its adoption. Section 6. The City Clerk shall certify as to the adoption of this City Council Resolution. [THIS SPACE INTENTIONALLY LEFT BLANK] Ira PASSED, APPROVED, AND ADOPTED THIS 51h DAY OF APRIL, 2016. ATTEST: aria Quinonez, City .Clerk APPROVED AS TOM: David A. Garcia, City Attorney Edwin Hernandez, Mayor ,�J,� -\�1 a J. Arnoldo Beltran, City Manager APPROVED AS TO CONTENT: Enka Ramirez, Development, C 6ic iance and Enforcement Se s D irector STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, Maria Quinonez, the undersigned, City Clerk of the City of Lynwood, do hereby certify that the foregoing Resolution was passed and adopted by the City Council of the City of Lynwood at a regular meeting held on the 5 adopted of April, 2016, and passed by the following vote: AYES: COUNCIL MEMBERS ALATORRE, SANTILLAN -BEAS, SOLACHE AND MAYOR HERNANDEZ NOES: NONE ABSENT: MAYOR PRO TEM CASTRO ABSTAIN: NONE i Maria Quinonez, City Clerk STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, Maria Quinonez, the undersigned, City Clerk of the City of Lynwood, do hereby certify that the above foregoing is a full, true and correct copy of Resolution No. 2016.076 and is on file in my office and that said Resolution was adopted on the date and by the vote therein stated. Dated this 5th day of April, 2016. i r Maria Quinonez, Ci y Clerk 111 SECOND AMENDMENT TO AGREEMENT This SECOND AMENDMENT TO THIS CONSTRUCTION AGREEMENT ("Second Amendment ") is made as of April 5, 2016 by and between the City of Lynwood, a public body, corporate and politic ( "City") and CS Legacy Const ction Inc, ( "Contractor "). City and Contractor are sometimes hereinafter individually ref dried to as a "Party" and collectively referred to as the "Parties." RECITAL WHEREAS, on November 4, 2014, by Council Resolution No. 2014.199 the City selected Contractor by way of formal bid process for the general construction of the City of Lynwood's Linear Walking Park (Park); and WHEREAS, on November 26, 2014 the City a in the amount of $4,683,273.78 for the development of WHEREAS, On December 1, 2014, Contractor WHEREAS, the City determined that the u justified the need for an appropriation of additional to complete the Linear Park Project; and WHEREAS, on January 21, 2016, a First Amei increase the original contract amount to $4,750,705.04. WHEREAS, on January 27, 2016, staff maintenance of the Park from CS Legacy indicating t from the Park and it was complete, subject to a final d into an Agreement with Contractor Park; and construction of the Park; and een circumstances were identified which in the amount of $67,431.26 was in order to the Agreement was executed to supplies and manuals for the officially removing their services n: and WHEREAS, on February 1, 2016 the City; received notice from the State Labor Commissioner that CS Legacy was under investigation for alleged Labor Compliance violations related to said project; and WHEREAS, pursuant to the investigation, a Notice of Withholding was issued stating the amount to be withheld from contractor's payment is $144,520.88 which includes wage penalties, liquidated damages and training funds; and WHEREAS, it is agreed that the circumstances set forth herein justify the need for a second amendment to original Agreement to authorize payment to Contractor for work completed, less the stated withholding amount pursuant to the ongoing labor compliance in accordance with State Code and an allowable proportional retention for any incomplete items. NOW, THEREFORE, in consideration of performance by the Parties of the covenants and conditions herein contained, the Parties hereto agree as !follows: 1. Contract Price. Section 2 of the original & amended in its entirety so that it shall read as follows: "Il. CONTRACT A. The City agrees to pay, and the Contractor outlined in the Contract Documents, the CI subject to additions and deductions, if any, n Documents. Progress payments shall not be ma days, nor shall progress payments paid be in Contract Price at time of completion. Fxceptas the Notice of Withholding of Contract Paymet processed thirty-five (35) days after the City 1 except for the allowable proportional retent Substantial Completion lists (Punch -List) f Contractor may, upon Contractor's written req at Contractor's expense, deposit substitute se4 Section 16430, and as authorized by Public C retention monies withheld to insure performan entitled "Contract Price" shall be to accept as full payment for the Work Price of Four Million Seven hundred le in accordance with said Contract more often than once each thirty (30) cess of ninety percent (90 %) of the ecified below in section C, regarding final payment to Contractor will be recorded the Notice of Completion, i for any disputed amount on the a October 2015 and March 2016. ;t, and approved by the City Council, ities, as stated in Government Code tract Code, Section 22300, in lieu of B. Payment of undisputed amounts due under this lAgreement, including the final payment due hereunder, is contingent upon the Contractor furnishing to the City an unconditional release by the Contractor of all claims against the City arising by virtue of this Agreement related to those amounts. Disputed claims in stated amounts may be specifically excluded by Contractor from the (operation of any release. No payment, final or otherwise, shall operate to release the Contractor or its sureties from obligations arising under this Agreement or the bonds d warranties furnished hereunder. No payment shall be construed as an acceptance of any of the Work or of defective or improper materials," C. Notwithstanding the provisions of Section IIA, pursuant to California Labor Code Section 1727(a), before making final payments to the contractor of money due under this Second Amendment, First Amendment; and initial Agreement, the City shall withhold and retain the amount(s) required to satisfy any civil wage and penalty assessment issued by the Labor Commissioner in accordance with California Labor Code sections 1771.5 and 1771.6. Due to the current Notice of Withholding of Contract Payments, related to this Project, the amount of $144,520.88 shall be withheld and will not be disbursed by the City until receipt of a writing from the Labor Commissioner authorizing such payment or fraction thereof and an appropriate notice that the issue has been resolved. 2. Full Force and Effect. The Parties further in this Amendment, the terms of the original Agre force and effect. 2 that, except as specifically provided shall remain unchanged and in full IN wrrNESS WHEREOF, the Parties have executed this Agreement as of the dates written below. ATTEST: M Maria Quinonez, City Clerk APPROVED AS TO FORM: TAFOYA & GARCIA LLP David Garcia City Attorney CITY: CITY OF LYNWOOD Edwin Hernandez, Mayor CONTRACTOR: CS