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CITY OF ARCADIA
SHORT -FORM CONSTRUCTION CONTRACT
CONSTRUCTION OF CONCRETE PAVEMENT PROJECT AT VARIOUS LOCATIONS
This Contract is made and entered into this gbh day of k (�, 2010 by
and between the City of Arcadia, a municipal organization organ hzd�lulnder the laws of
the State of California with its principal place of business at 240 West Huntington Drive,
Arcadia, California 91066 ( "City ") and MAPLE BUILDERS, INC., a CA Corporation with
its principal place of business at 11625 Goldring Rd, Arcadia, CA 91006 ( "Contractor ").
City and Contractor are sometimes individually referred to as "Party" and collectively as
"Parties" in this Contract.
RECITALS
A. City is a municipal corporation organized under the laws of the State of
California, with power to contract for services necessary to achieve its purpose.
B. Contractor desires to perform and assume responsibility for the provision
of certain construction services required by the City on the terms and conditions set
forth in this Contract. Contractor represents that it is experienced in providing
construction of concrete pavement services to public clients, that it and its
employees or subcontractors have all necessary licenses and permits to perform the
Services in the State of California, and that is familiar with the plans of City.
C. City desires to engage Contractor to render such services for the
Construction of Concrete Pavement Project at Various Locations Project ( "Project ")
as set forth in this Contract.
The City and the Contractor for the considerations stated herein agree as follows:
CONTRACT
Parties.
1.1 City's Representative. The City hereby designates Tom Tait, Public
Works Services Director, or his or her designee, to act as its representative for the
performance of this Contract ( "City's Representative "). City's Representative shall have
the power to act on behalf of the City for all purposes under this Contract. Contractor
shall not accept direction or orders from any person other than the City's Representative
or his or here designee.
1.2 Contractor's Representative. Before starting the Work, Contractor shall
submit in writing the name, qualifications and experience of its proposed representative
who shall be subject to the review and approval of the City ( "'Contractor's
Representative "). Following approval by the City, the Contractor's Representative shall
have full authority to represent and act on behalf of the Contractor for all purposes
under this Contract. The Contractor's Representative shall supervise and direct the
Work, using his best skill and attention, and shall be responsible for all construction
RV PUB \SDEITSCH \740726.3
means, methods, techniques, sequences and procedures and for the satisfactory
coordination of all portions of the Work under this Contract. Contractor's
Representative shall devote full time to the Project and either he or his designee, who
shall be acceptable to the City, shall be present at the Work site at all times that any
Work is in progress and at any time that any employee or subcontractor of Contractor is
present at the Work site. Arrangements for responsible supervision, acceptable to the
City, shall be made for emergency Work which may be required. Should Contractor
desire to change its Contractor's Representative, Contractor shall provide the
information specified above and obtain the City's written approval.
2. Incorporation of Documents. This Contract includes and hereby incorporates in full by
reference the following documents, including all exhibits, drawings, specifications and
documents therein, and attachments and addenda thereto: General Liability Insurance,
Automobile Insurance, Worker's Compensation Insurance, City Business License,
Performance Bond, and Payment Bond.
3. Contractor's Basic Obligation; Scope of Work. Contractor promises and agrees,
at its own cost and expense, to furnish to the Owner all labor, materials, tools,
equipment, services, and incidental and customary work necessary to fully and
adequately complete the Project, including all structures and facilities necessary for the
Project or described in the Contract (hereinafter sometimes referred to as the "Work "),
for a Total Contract Price as specified pursuant to this Contract. All Work shall be
subject to, and performed in accordance with the above referenced documents, as well
as the exhibits attached hereto and incorporated herein by reference. The plans and
specifications for the Work are further described in Exhibit "A" attached hereto and
incorporated herein by this reference. Special conditions, if any, relating to the Work
are described in Exhibit "B" attached hereto and incorporated herein by this reference.
4. Change in Scope of Work. Any change in the scope of the Work, method of
performance, nature of materials or price thereof, or any other matter materially
affecting the performance or nature of the Work shall not be paid for or accepted unless
such change, addition or deletion is approved in advance and in writing by a valid
change order executed by the City.
5. Period of Performance and Liquidated Damages. Contractor shall perform and
complete all Work under this Contract within fourteen (14) Calendar days, beginning
the effective date of the Notice to Proceed ( "Contract Time "). Contractor shall perform
its Work in strict accordance with any completion schedule, construction schedule or
project milestones developed by the City. Such schedules or milestones may be
included as part of Exhibits "A" or "B" attached hereto, or may be provided separately in
writing to the Contractor. Contractor agrees that if such Work is not completed within
the aforementioned Contract Time and /or pursuant to any such completion schedule,
construction schedule or project milestones developed pursuant to provisions of the
Contract, it is understood, acknowledged and agreed that the City will suffer damage.
Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and
liquidated damages the sum of FIVE HUNDRED DOLLARS AND NO CENTS ($500.00) per
day for each and every calendar day of delay beyond the Contract Time or beyond any
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completion schedule, construction schedule or Project milestones established pursuant
to the Contract.
6. Standard of Performance; Performance of Employees. Contractor shall perform
all Work under this Contract in a skillful and workmanlike manner, and consistent with
the standards generally recognized as being employed by professionals in the same
discipline in the State of California. Contractor represents and maintains that it is skilled
in the professional calling necessary to perform the Work. Contractor warrants that all
employees and subcontractors shall have sufficient skill and experience to perform the
Work assigned to them. Finally, Contractor represents that it, its employees and
subcontractors have all licenses, permits, qualifications and approvals of whatever
nature that are legally required to perform the Work, including a City Business License,
and that such licenses and approvals shall be maintained throughout the term of this
Contract. As provided for in the indemnification provisions of this Contract, Contractor
shall perform, at its own cost and expense and without reimbursement from the City,
any work necessary to correct errors or omissions which are caused by the Contractor's
failure to comply with the standard of care provided for herein. Any employee who is
determined by the City to be uncooperative, incompetent, a threat to the safety of
persons or the Work, or any employee who fails or refuses to perform the Work in a
manner acceptable to the City, shall be promptly removed from the Project by the
Contractor and shall not be re- employed on the Work.
7. Substitutions / "Or Equal ".
7.1 Pursuant to Public Contract Code Section 3400(b) the City may make a
finding that designates certain products, things, or services by specific brand or trade
name. Unless specifically designated in this Contract, whenever any material, process,
or article is indicated or specified by grade, patent, or proprietary name or by name of
manufacturer, such Specifications shall be deemed to be used for the purpose of
facilitating the description of the material, process or article desired and shall be
deemed to be followed by the words "or equal."
7.2 Contractor may, unless otherwise stated, offer for substitution any
material, process or article which shall be substantially equal or better in every respect
to that so indicated or specified in this Contract. However, the City may have adopted
certain uniform standards for certain materials, processes and articles. Contractor shall
submit requests, together with substantiating data, for substitution of any "or equal"
material, process or article no later than thirty -five (35) days after award of the Contract.
To facilitate the construction schedule and sequencing, some requests may need to be
submitted before thirty -five (35) days after award of Contract. If the City has specified
particular deadlines prior to the thirty -five day period after contract award, such
deadlines, if any, shall be set forth in the Special Conditions attached hereto.
Provisions regarding submission of "or equal" requests shall not in any way authorize an
extension of time for performance of this Contract. If a proposed "or equal" substitution
request is rejected, Contractor shall be responsible for providing the specified material,
process or article. The burden of proof as to the equality of any material, process or
article shall rest with the Contractor.
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7.3 The City has the complete and sole discretion to determine if a material,
process or article is an "or equal" material, process or article that may be substituted.
Data required to substantiate requests for substitutions of an "or equal" material,
process or article data shall include a signed affidavit from the Contractor stating that,
and describing how, the substituted "or equal" material, process or article is equivalent
to that specified in every way except as listed on the affidavit. Substantiating data shall
include any and all illustrations, specifications, and other relevant data including catalog
information which describes the requested substituted "or equal" material, process or
article, and substantiates that it is an "or equal" to the material, process or article. The
substantiating data must also include information regarding the durability and lifecycle
cost of the requested substituted "or equal" material, process or article. Failure to
submit all the required substantiating data, including the signed affidavit, to the City in a
timely fashion will result in the rejection of the proposed substitution.
7.4 The Contractor shall bear all of the City's costs associated with the review
of substitution requests. The Contractor shall be responsible for all costs related to a
substituted "or equal" material, process or article. Contractor is directed to the Special
Conditions (if any) to review any findings made pursuant to Public Contract Code
section 3400.
8. Stormwater Pollution Prevention Plan. If applicable, the Contractor shall file a
Notice of Intent and procure a State Water Resources Control Board (State Water
Board) National Pollutant Discharge Elimination System General Permit for Waste
Discharge Requirements for Discharges of Storm Water Runoff Associated with
Construction Activity (Permit). The Contractor shall be solely responsible for preparing
and implementing a Storm Water Pollution Prevention Plan (SWPPP) prior to initiating
work. The Contractor shall be responsible for procuring, implementing and complying
with the provisions of the Permit and the SWPPP, including the standard provisions,
monitoring and reporting requirements as required by Permit. It shall be the
responsibility of the Contractor to evaluate and include in the Total Contract Price, the
cost of procuring the Permit and preparing the SWPPP as well as complying with the
SWPPP and any necessary revisions to the SWPPP. The Contractor shall also include
in the Total Contract Price the cost of monitoring as required by the Permit.
9. Control and Payment of Subordinates; Contractual Relationship. City retains
Contractor on an independent contractor basis and Contractor is not an employee of
City. Any additional personnel performing the work governed by this Contract on behalf
of Contractor shall at all times be under Contractor's exclusive direction and control.
Contractor shall pay all wages, salaries, and other amounts due such personnel in
connection with their performance under this Contract and as required by law.
Contractor shall be responsible for all reports and obligations respecting such additional
personnel, including, but not limited to: social security taxes, income tax withholding,
unemployment insurance, and workers' compensation insurance.
10. City's Basic Obligation. City agrees to engage and does hereby engage
Contractor as an independent contractor to furnish all materials and to perform all Work
according to the terms and conditions herein contained for the sum set forth above.
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Except as otherwise provided in the Contract, the City shall pay to Contractor, as full
consideration for the satisfactory performance by the Contractor of the services and
obligations required by this Contract, the above referenced compensation in accordance
with compensation provisions set forth in the Contract.
11. Compensation and Payment.
11.1 Amount of Compensation. As consideration for performance of the Work
required herein, City agrees to pay Contractor the Total Contract Price of FOUR
THOUSAND FIVE HUNDRED AND FIFTY DOLLARS ($4,550.00) ( "Total Contract
Price ") provided that such amount shall be subject to adjustment pursuant to the
applicable terms of this Contract or written change orders approved and signed in
advance by the City.
11.2 Payment of Compensation. If the Work is scheduled for completion in
thirty (30) or less calendar days, City will arrange for payment of the Total Contract
Price upon completion and approval by City of the Work. If the Work is scheduled for
completion in more than thirty (30) calendar days, City will pay Contractor on a monthly
basis as provided for herein. On or before the fifth (5th) day of each month, Contractor
shall submit to the City an itemized application for payment in the format supplied by the
City indicating the amount of Work completed since commencement of the Work or
since the last progress payment. These applications shall be supported by evidence
which is required by this Contract and such other documentation as the City may
require. The Contractor shall certify that the Work for which payment is requested has
been done and that the materials listed are stored where indicated. Contractor may be
required to furnish a detailed schedule of values upon request of the City and in such
detail and form as the City shall request, showing the quantities, unit prices, overhead,
profit, and all other expenses involved in order to provide a basis for determining the
amount of progress payments.
City shall review and pay all progress payment requests in accordance
with the provisions set forth in Section 20104.50 of the California Public Contract Code.
No progress payments will be made for Work not completed in accordance with this
Contract.
11.3 Contract Retentions. From each approved progress estimate, ten percent
(10 %) will be deducted and retained by the City, and the remainder will be paid to
Contractor. All Contract retainage shall be released and paid to the Contractor and
subcontractors pursuant to California Public Contract Code Section 7107.
11.4 Other Retentions. In addition to Contract retentions, the City may deduct
from each progress payment an amount necessary to protect City from loss because of:
(1) liquidated damages which have accrued as of the date of the application for
payment; (2) any sums expended by the City in performing any of Contractor's
obligations under the Contract which Contractor has failed to perform or has performed
inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law;
(5) reasonable doubt that the Work can be completed for the unpaid balance of the
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Total Contract Price or within the scheduled completion date; (6) unsatisfactory
prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract;
(8) failure of the Contractor to maintain or submit on a timely basis proper and sufficient
documentation as required by the Contract or by City during the prosecution of the
Work; (9) erroneous or false estimates by the Contractor of the value of the Work
performed; (10) any sums representing expenses, losses, or damages as determined
by the City, incurred by the City for which Contractor is liable under the Contract; and
(11) any other sums which the City is entitled to recover from Contractor under the
terms of the Contract or pursuant to state law, including Section 1727 of the California
Labor Code. The failure by the City to deduct any of these sums from a progress
payment shall not constitute a waiver of the City's right to such sums.
11.5 Substitutions for Contract Retentions. In accordance with California Public
Contract Code Section 22300, the City will permit the substitution of securities for any
monies withheld by the City to ensure performance under the Contract. At the request
and expense of the Contractor, securities equivalent to the amount withheld shall be
deposited with the City, or with a state or federally chartered bank in California as the
escrow agent, and thereafter the City shall then pay such monies to the Contractor as
they come due. Upon satisfactory completion of the Contract, the securities shall be
returned to the Contractor. For purposes of this Section and Section 22300 of the
Public Contract Code, the term "satisfactory completion of the contract" shall mean the
time the City has issued written final acceptance of the Work and filed a Notice of
Completion as required by law and provisions of this Contract. The Contractor shall be
the beneficial owner of any securities substituted for monies withheld and shall receive
any interest thereon. The escrow agreement used for the purposes of this Section shall
be in the form provided by the City.
12. Title to Work. As security for partial, progress, or other payments, title to Work
for which such payments are made shall pass to the City at the time of payment. To the
extent that title has not previously been vested in the City by reason of payments, full
title shall pass to the City at delivery of the Work at the destination and time specified in
this Contract. Such transferred title shall in each case be good, free and clear from any
and all security interests, liens, or other encumbrances. Contractor promises and
agrees that it will not pledge, hypothecate, or otherwise encumber the items in any
manner that would result in any lien, security interest, charge, or claim upon or against
said items. Such transfer of title shall not imply acceptance by the City, nor relieve
Contractor from the responsibility to strictly comply with the Contract, and shall not
relieve Contractor of responsibility for any loss of or damage to items.
13. Termination.
13.1 If Contractor fails to commence work as provided in this Contract, or fails
to make delivery of materials promptly as ordered, or to maintain the rate of delivery or
progress of the work in such manner as in the opinion of City's authorized
representative will ensure a full compliance with the Contract within the time limit, or if in
the opinion of City's authorized representative, Contractor is not carrying out the
provisions of the contract in their true intent and meaning, written notice will be served
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on Contractor and its Surety to provide, within a specified time to be fixed by City's
authorized representative, for satisfactory compliance with the Contract. If Contractor
neglects or refuses to comply with such notice within the time therein fixed, he /she shall
not thereafter exercise any rights under said Contract or be entitled to receive any of the
benefits thereof, except as hereinafter provided, and City's authorized representative
may, with the approval of the City Council, perform any part of the work or purchase any
or all of the material included in the Contract or required for the completion thereof, or
take possession of all or any part of the machinery, tools, appliances, materials and
supplies used in the work covered by the Contract or that have been delivered by or on
account of Contractor for use in connection therewith, and the same may be used
either directly by City or by other parties for it, in the completion of the work.
13.2 City has the right to terminate or abandon any portion or all of the work
under this Contract by giving ten (10) calendar days written notice to Contractor. In
such event, City shall be immediately given title and possession to all original field
notes, drawings and specifications, written reports and other documents produced or
developed for that portion of the work completed and /or being abandoned. City shall
pay Contractor the reasonable value of services rendered for any portion of the work
completed prior to termination. If said termination occurs prior to completion of any task
for the Project for which a payment request has not been received, the charge for
services performed during such task shall be the reasonable value of such services,
based on an amount mutually agreed to by City and Contractor of the portion of such
task completed but not paid prior to said termination. City shall not be liable for any
costs other than the charges or portions thereof which are specified herein. Contractor
shall not be entitled to payment for unperformed services, and shall not be entitled to
damages or compensation for termination of work.
13.3 Contractor may terminate its obligation to provide further services under
this Contract upon thirty (30) calendar days' written notice to City only in the event of
substantial failure by City to perform in accordance with the terms of this Contract
through no fault of Contractor.
14. Completion of Work. When the Contractor determines that it has completed the
Work required herein, Contractor shall so notify City in writing and shall furnish all labor
and material releases required by this Contract. City shall thereupon inspect the Work.
If the Work is not acceptable to the City, the City shall indicate to Contractor in writing
the specific portions or items of Work which are unsatisfactory or incomplete. Once
Contractor determines that it has completed the incomplete or unsatisfactory Work,
Contractor may request a reinspection by the City. Once the Work is acceptable to City,
City shall pay to Contractor the Total Contract Price remaining to be paid, less any
amount which City may be authorized or directed by law to retain. Payment of retention
proceeds due to Contractor shall be made in accordance with Section 7107 of the
California Public Contract Code.
15. Contract Interpretation. Should any question arise regarding the meaning or
import of any of the provisions of this Contract or written or oral instructions from City,
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the matter shall be referred to City's Representative, whose decision shall be binding
upon Contractor.
16. Loss and Damage. Except as may otherwise be limited by law, the Contractor
shall be responsible for all loss and damage which may arise out of the nature of the
Work agreed to herein, or from the action of the elements, or from any unforeseen
difficulties which may arise or be encountered in the prosecution of the Work until the
same is fully completed and accepted by City.
17. Indemnification.
17.1 To the fullest extent permitted by law, the Contractor shall defend,
indemnify and hold harmless the City, its respective officials, officers, agents,
employees, and representatives ( "Indemnitees ") from any and all claims, demands,
causes of action, costs, expenses, liabilities, losses, damages (including without
limitation the payment of all consequential damages and attorneys fees and other
related costs and expenses) or injuries, in law or equity, regardless of whether the
allegations are false, fraudulent, or groundless, to tangible property or persons
(including wrongful death, accidents or injuries arising from the alleged failure to inspect
or to maintain traffic controllers or traffic signals, injuries or damages occurring during
the transport of products or in rendering services under the Contract Documents, such
as automobile accidents, trip /slip and fall accidents and third party assaults) arising out
of or resulting from the performance of the Work or this Contract (including claims made
by subcontractors for nonpayment), to the extent that the acts, omissions or willful
misconduct are attributable to the Contractor or anyone employed directly or indirectly
by any of them. Contractor shall defend, at Contractor's own cost, expense and risk,
with legal counsel of Indemnitee's choosing, any and all such aforesaid suits, actions or
other legal proceedings of every kind that may be brought or instituted against the City,
its respective officials, officers, agents, employees and representatives. To the extent
of its liability, Contractor shall pay and satisfy any judgment, award or decree that may
be rendered against the City and its respective officials, officers, agents, employees,
and representatives, in any such suit, action or other legal proceeding. Contractor shall
reimburse the City and its respective officials, officers, agents, employees, and
representatives for any and all legal expenses and costs incurred by each of them in
connection therewith or in enforcing the indemnity herein provided. The only limitations
on this provision shall be those imposed by Civil Code section 2782.
17.2 The duty to defend and to hold harmless, as set forth above, shall include
the duty to defend as established by Section 2778 of the California Civil Code, and the
duty to defend shall arise upon the making of any claim or demand against the City, its
respective officials, officers, agents, employees and representatives, notwithstanding
that no adjudication of the underlying facts has occurred, and whether or not Contractor
has been named in the claim or lawsuit.
17.3 Nothing contained in the preceding sections shall be deemed to obligate
the Contractor to indemnify the City or any of the other Indemnitees, against liability for
damages or any other loss, damage or expense sustained, suffered or incurred on
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account of death or bodily injury to active persons or injury to property caused by the
sole negligence or willful misconduct of the City or any of the other Indemnitees set forth
above. Therefore, if it is determined by legal proceedings or agreement, that the
Contractor has no direct contributory or incidental negligence or other obligation to the
City or the other Indemnitees, and the Contractor is in no way a proper party to a
particular claim, then the Contractor shall not be obligated to hold the City or any
Indemnitees harmless with respect to said claim. However, until such determination is
made by legal proceedings or agreement, or if the Contractor is found to have any
degree of direct or contributory negligence or if it is determined that the Contractor is in
any way or to any degree a proper party to said claim, then the Contractor's obligations
under all of the terms and provisions of the preceding section shall remain in full force
and effect.
17.4 Nothing in this provision, or elsewhere in the Contract Documents, shall
be deemed to relieve the Contractor of its duty to defend the City or any Indemnitee, as
specified under this Article, pending a determination of the respective liabilities of the
City or any Indemnitee, by legal proceeding or agreement.
17.5 In furtherance to, but not in limitation of the indemnity provisions in this
Contract, Contractor hereby expressly and specifically agrees that its obligation to
indemnify, defend and hold harmless as provided in this Contract shall not in any way
be affected or diminished by any statutory or constitutional immunity it enjoys from suits
by its own employees or from limitations of liability or recovery under workers'
compensation laws.
18. Insurance.
18.1 Time for Compliance. Contractor shall not commence Work under this
Contract until it has provided evidence satisfactory to the City that it has secured all
insurance required under this section. In addition, Contractor shall not allow any
subcontractor to commence work on any subcontract until it has provided evidence
satisfactory to the City that the subcontractor has secured all insurance required under
this section.
18.2 Minimum Requirements. Contractor shall, at its expense, procure and
maintain for the duration of the Contract insurance against claims for injuries to persons
or damages to property which may arise from or in connection with the performance of
the Work hereunder by the Contractor, its agents, representatives, employees or
subcontractors. Contractor shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Contract. Such insurance shall
meet at least the following minimum levels of coverage:
(a) Minimum Scope of Insurance. Coverage shall be at least as broad
as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile
Liability: Insurance Services Office Business Auto Coverage form number CA 0001,
code 1 (any auto); (3) Workers' Compensation and Employer's Liability: Workers'
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Compensation insurance as required by the State of California and Employer's Liability
Insurance; and (4) Builders' /All Risk: Builders'/All Risk insurance covering for all risks of
loss, including explosion, collapse, underground excavation and removal of lateral
support (and including earthquakes and floods if requested by the City).
(b) Minimum Limits of Insurance. Contractor shall maintain limits no
less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form
with a general aggregate limit is used including, but not limited to, form CG 2503, either
the general aggregate limit shall apply separately to this Contract/location or the general
aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability:
$1,000,000 per accident for bodily injury and property damage; (3) Workers'
Compensation and Employer's Liability: Workers' compensation limits as required by
the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per
accident for bodily injury or disease; and (4) Builders' /All Risk: Completed value of the
project.
18.3 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Contractor shall provide endorsements on forms supplied or
approved by the City to add the following provisions to the insurance policies:
(a) General Liability. (1) The City, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with
respect to the Work or operations performed by or on behalf of the Contractor, including
materials, parts or equipment furnished in connection with such work; and (2) the
insurance coverage shall be primary insurance as respects the City, its directors,
officials, officers, employees, agents and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the Contractor's scheduled underlying coverage.
Any insurance or self- insurance maintained by the City, its directors, officials, officers,
employees, agents and volunteers shall be excess of the Contractor's insurance and
shall not be called upon to contribute with it.
(b) Automobile Liability. (1) The City, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with
respect to the ownership, operation, maintenance, use, loading or unloading of any auto
owned, leased, hired or borrowed by the Contractor or for which the Contractor is
responsible; and (2) the insurance coverage shall be primary insurance as respects the
City, its directors, officials, officers, employees, agents and volunteers, or if excess,
shall stand in an unbroken chain of coverage excess of the Contractor's scheduled
underlying coverage. Any insurance or self- insurance maintained by the City, its
directors, officials, officers, employees, agents and volunteers shall be excess of the
Contractor's insurance and shall not be called upon to contribute with it in any way.
(c) Workers' Compensation and Employer's Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the City, its directors,
officials, officers, employees, agents and volunteers for losses paid under the terms
of the insurance policy which arise from work performed by the Contractor.
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(d) All Coverages. Each insurance policy required by this Contract
shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or
canceled except after thirty (30) days prior written notice by certified mail, return receipt
requested, has been given to the City; and (2) any failure to comply with reporting or
other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, employees, agents and
volunteers.
18.4 Builders'/All Risk Policy Requirements. The builders' /all risk insurance
shall provide that the City be named as loss payee. In addition, the insurer shall waive
all rights of subrogation against the City.
18.5 Separation of Insureds; No Special Limitations. All insurance required by
this Section shall contain standard separation of insureds provisions. In addition, such
insurance shall not contain any special limitations on the scope of protection afforded to
the City, its directors, officials, officers, employees, agents and volunteers.
18.6 Deductibles and Self- Insurance Retentions. Any deductibles or self -
insured retentions must be declared to and approved by the City. Contractor shall
guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate
such deductibles or self- insured retentions as respects the City, its directors, officials,
officers, employees, agents and volunteers; or (2) the Contractor shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
18.7 Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best's rating no less than A:VIII, licensed to do business in California, and
satisfactory to the City.
18.8 Verification of Coverage. Contractor shall furnish City with original
certificates of insurance and endorsements effecting coverage required by this Contract
on forms satisfactory to the City. The certificates and endorsements for each insurance
policy shall be signed by a person authorized by that insurer to bind coverage on its
behalf, and shall be on forms supplied or approved by the City. All certificates and
endorsements must be received and approved by the City before work commences.
The City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
18.9 Subcontractors. All subcontractors shall meet the requirements of this
Section before commencing Work. In addition, Contractor shall include all
subcontractors as insureds under its policies or shall furnish separate certificates and
endorsements for each subcontractor. All coverages for subcontractors shall be subject
to all of the requirements stated herein.
18.10 Reporting of Claims. Contractor shall report to the City, in addition to
Contractor's insurer, any and all insurance claims submitted by Contractor in connection
with the Work under this Contract.
RVPUB \SDEITSCH \740726.3 11
19. Bond Requirements. INTENTIONALLY OMMITTED
20. Safety. Contractor shall execute and maintain its work so as to avoid injury or
damage to any person or property. Contractor shall comply with the requirements of the
specifications relating to safety measures applicable in particular operations or kinds of
work. In carrying out its Work, the Contractor shall at all times be in compliance with all
applicable local, state and federal laws, rules and regulations, and shall exercise all
necessary precautions for the safety of employees appropriate to the nature of the Work
and the conditions under which the Work is to be performed. Safety precautions as
applicable shall include, but shall not be limited to, adequate life protection and life
saving equipment; adequate illumination for underground and night operations;
instructions in accident prevention for all employees, such as machinery guards, safe
walkways, scaffolds, ladders, bridges, gang planks, confined space procedures,
trenching and shoring, fall protection and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and
adequate facilities for the proper inspection and maintenance of all safety measures.
Furthermore, Contractor shall prominently display the names and telephone numbers of
at least two medical doctors practicing in the vicinity of the Project, as well as the
telephone number of the local ambulance service, adjacent to all telephones at the
Project site.
21. Warranty. Contractor warrants all Work under the Contract (which for purposes
of this Section shall be deemed to include unauthorized work which has not been
removed and any non - conforming materials incorporated into the Work) to be of good
quality and free from any defective or faulty material and workmanship. Contractor
agrees that for a period of one year (or the period of time specified elsewhere in the
Contract or in any guarantee or warranty provided by any manufacturer or supplier of
equipment or materials incorporated into the Work, whichever is later) after the date of
final acceptance, Contractor shall within ten (10) days after being notified in writing by
the City of any defect in the Work or non - conformance of the Work to the Contract,
commence and prosecute with due diligence all Work necessary to fulfill the terms of
the warranty at its sole cost and expense. Contractor shall act sooner as requested by
the City in response to an emergency. In addition, Contractor shall, at its sole cost and
expense, repair and replace any portions of the Work (or work of other contractors)
damaged by its defective Work or which becomes damaged in the course of repairing or
replacing defective Work. For any Work so corrected, Contractor's obligation hereunder
to correct defective Work shall be reinstated for an additional one year period,
commencing with the date of acceptance of such corrected Work. Contractor shall
perform such tests as the City may require to verify that any corrective actions,
including, without limitation, redesign, repairs, and replacements comply with the
requirements of the Contract. All costs associated with such corrective actions and
testing, including the removal, replacement, and reinstitution of equipment and materials
necessary to gain access, shall be the sole responsibility of the Contractor. All
warranties and guarantees of subcontractors, suppliers and manufacturers with respect
to any portion of the Work, whether express or implied, are deemed to be obtained by
Contractor for the benefit of the City, regardless of whether or not such warranties and
guarantees have been transferred or assigned to the City by separate agreement and
RVPUB \SDEITSCH \740726.3 12
Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of
the City. In the event that Contractor fails to perform its obligations under this Section,
or under any other warranty or guaranty under this Contract, to the reasonable
satisfaction of the City, the City shall have the right to correct and replace any defective
or non - conforming Work and any work damaged by such work or the replacement or
correction thereof at Contractor's sole expense. Contractor shall be obligated to fully
reimburse the City for any expenses incurred hereunder upon demand.
22. Laws and Regulations. Contractor shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Contract or the Work, including all Cal /OSHA
requirements, and shall give all notices required by law. Contractor shall be liable for all
violations of such laws and regulations in connection with Work. If the Contractor
observes that the drawings or specifications are at variance with any law, rule or
regulation, it shall promptly notify the City in writing. Any necessary changes shall be
made by written change order. If the Contractor performs any work knowing it to be
contrary to such laws, rules and regulations and without giving written notice to the City,
the Contractor shall be solely responsible for all costs arising therefrom. City is a public
entity of the State of California subject to certain provisions of the Health & Safety Code,
Government Code, Public Contract Code, and Labor Code of the State. It is stipulated
and agreed that all provisions of the law applicable to the public contracts of a
municipality are a part of this Contract to the same extent as though set forth herein and
will be complied with. Contractor shall defend, indemnify and hold City, its officials,
directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Contract, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
22.1 Immigration Reform and Control Act. Contractor acknowledges that
Contractor, and all subcontractors hired by Contractor to perform services under this
Agreement, are aware of and understand the Immigration Reform and Control Act
( "IRCA "). Contractor is and shall remain in compliance.with the IRCA and shall ensure
that any subcontractors hired by Contractor to perform services under this Agreement
are in compliance with the IRCA. In addition, Contractor agrees to indemnify, defend
and hold harmless the City, its agents, officers and employees, from any liability,
damages or causes of action arising out of or relating to any claims that Contractor's
employees, or the employees of any subcontractor hired by Contractor, are not
authorized to work in the United States for Contractor or its subcontractor and /or any
other claims based upon alleged IRCA violations committed by Contractor or
Contractor's subcontractor(s).
23. Permits and Licenses. Contractor shall be responsible for securing City permits
and licenses necessary to perform the Work described herein, including, but not limited
to, a City Business License. While Contractor will not be charged a fee for any City
permits, Contractor shall pay the City's applicable business license fee. Any ineligible
contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may
not perform work on this Project.
RVPUB \SDEITSCH \740726.3 13
24. Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work
governed by this Contract entails excavation of any trench or trenches five (5) feet or
more in depth, Contractor shall comply with all applicable provisions of the California
Labor Code, including Section 6705. To this end, Contractor shall submit for City's
review and approval a detailed plan showing the design of shoring, bracing, sloping, or
other provisions to be made for worker protection from the hazard of caving ground
during the excavation of such trench or trenches. If such plan varies from the shoring
system standards, the plan shall be prepared by a registered civil or structural engineer.
25. Hazardous Materials and Differing Conditions. As required by California Public
Contract Code Section 7104, if this Contract involves digging trenches or other
excavations that extend deeper than four (4) feet below the surface, Contractor shall
promptly, and prior to disturbance of any conditions, notify City of: (1) any material
discovered in excavation that Contractor believes to be a hazardous waste that is
required to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or
latent physical conditions at the site differing from those indicated by City; and (3)
unknown physical conditions of an unusual nature at the site, significantly different from
those ordinarily encountered in such contract work. Upon notification, City shall
promptly investigate the conditions to determine whether a change order is appropriate.
In the event of a dispute, Contractor shall not be excused from any scheduled
completion date and shall proceed with all Work to be performed under the Contract,
but shall retain all rights provided by the Contract or by law for making protests and
resolving the dispute.
26. Underground Utility Facilities. To the extent required by Section 4215 of the
California Government Code, City shall compensate Contractor for the costs of: (1)
locating and repairing damage to underground utility facilities not caused by the failure
of Contractor to exercise reasonable care; (2) removing or relocating underground utility
facilities not indicated in the construction drawings; and (3) equipment necessarily idled
during such work. Contractor shall not be assessed liquidated damages for delay
caused by failure of City to provide for removal or relocation of such utility facilities.
27. Labor Code Provisions.
27.1 Prevailing Wages. Funding for the Work is with all local funds and, as
provided under the Owner's Charter, will NOT require compliance with the prevailing
wage requirements of the State of California.
27.2 AApprenticeable Crafts. If the Total Contract Price exceeds $35,000 and if
Contractor employs workmen in an apprenticeable craft or trade, Contractor shall
comply with the provisions of Section 1777.5 of the California Labor Code with respect
to the employment of properly registered apprentices upon public works. The primary
responsibility for compliance with said section for all apprenticeable occupations shall
be with Contractor.
27.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes
a legal day's work. Pursuant to Section 1813 of the California Labor Code, Contractor
RVPUB \SDEITSCH \740726.3 14
shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to
work more than eight (8) hours in any one calendar day and forty (40) hours in any one
calendar week, except when payment for overtime is made at not less than one and
one -half (1 -1/2) times the basic rate for that worker.
27.4 Payroll Records. Contractor and each subcontractor shall keep an
accurate payroll record, showing the name, address, social security number, work
classification, straight time and overtime hours worked each day and week, and the
actual per diem wages paid to each journeyman, apprentice, worker, or other employee
employed by him or her in connection with the public work. The payroll records shall be
certified and shall be available for inspection at all reasonable hours at the principal
office of Contractor in the manner provided in Labor Code section 1776. In the event of
noncompliance with the requirements of this section, Contractor shall have 10 days in
which to comply subsequent to receipt of written notice specifying in what respects such
Contractor must comply with this section. Should noncompliance still be evident after
such 10 -day period, the Contractor shall, as a penalty to City, forfeit not more than
$50.00 for each calendar day or portion thereof, for each worker, until strict compliance
is effectuated. The amount of the forfeiture is to be determined by the Labor
Commissioner. Upon the request of the Division of Apprenticeship Standards or the
Division of Labor Standards Enforcement, such penalties shall be withheld from
progress payments then due. The responsibility for compliance with this section is on
the Contractor.
27.5 Contractor's Labor Certification. By its signature hereunder, Contractor
certifies that he is aware of the provisions of Section 3700 of the California Labor Code
which require every employer to be insured against liability for Worker's Compensation
or to undertake self- insurance in accordance with the provisions of that Code, and
agrees to comply with such provisions before commencing the performance of the
Work.
28. Labor and Material Releases. Contractor shall furnish City with labor and
material releases from all subcontractors performing work on, or furnishing materials for,
the work governed by this Contract prior to final payment by City.
29. Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and that it shall not discriminate against any employee or
applicant for employment because of race, religion, color, national origin, ancestry, sex,
age or other interests protected by the State or Federal Constitutions. Such non-
discrimination shall include, but not be limited to, all activities related to initial
employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff or termination.
30. Anti -Trust Claims. This provision shall be operative if this Contract is applicable
to California Public Contract Code Section 7103.5. In entering into this Contract to
supply goods, services or materials, the Contractor hereby offers and agrees to assign
to the City all rights, title, and interest in and to all causes of action it may have under
Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act
RVPUB \SDEITSCH \740726.3 15
(Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and
Professions Code) arising from purchases of goods, services, or materials pursuant to
the Contract. This assignment shall be made and become effective at the time the City
tender final payment to the Contractor, without further acknowledgment by the Parties.
31. Claims of $375,000 or Less. Notwithstanding any other provision herein, claims
of $375,000 or less shall be resolved pursuant to the alternative dispute resolution
procedures set forth in California Public Contract Code §§ 20104, et seg.
32. Claims. Pursuant to Public Contract Code Section 9201, the City shall provide
the Contractor with timely notification of the receipt of any third -party claim, relating to
the Contract. The City is entitled to recover its reasonable costs incurred in providing
such notification.
33. Prohibited Interests.
33.1 Solicitation. Contractor maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for
Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee
working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or
other consideration contingent upon or resulting from the award or making of this
Contract. For breach or violation of this warranty, City shall have the right to terminate
this Contract without liability.
33.2 Conflict of Interest. For the term of this Contract, no member, officer or
employee of City, during the term of his or her service with City, shall have any direct
interest in this Contract, or obtain any present or anticipated material benefit arising
therefrom. In addition, Contractor agrees to file, or to cause its employees or
subcontractors to file, a Statement of Economic Interest with the City's Filing Officer as
required under state law in the performance of the Work.
34. Certification of License. Contractor certifies that as of the date of execution of
this Contract, Contractor has a current contractor's license of the classification indicated
below under Contractor's signature.
35. General Provisions.
35.1 Notices. All notices hereunder and communications regarding
interpretation of the terms of the Contract or changes thereto shall be provided by the
mailing thereof by registered or certified mail, return receipt requested, postage prepaid
and addressed as follows:
city
City of Arcadia
240 West Huntington Drive
Arcadia, CA 91066
Attn: Tiffany Lee
RVPUB \SDEITSCH\740726.3 16
Contractor
Maple Builders, Inc.
11625 Goldring Road
Arcadia, CA 91006
Attn: Allen Lin
Any notice so given shall be considered received by the other Party three (3) days after
deposit in the U.S. Mail as stated above and addressed to the Party at the above
address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
35.2 Time of Essence. Time is of the essence in the performance of this
Contract.
35.3 Assignment Forbidden. Contractor shall not, either voluntarily or by action
of law, assign or transfer this Contract or any obligation, right, title or interest assumed
by Contractor herein without the prior written consent of City. If Contractor attempts an
assignment or transfer of this Contract or any obligation, right, title or interest herein,
City may, at its option, terminate and revoke the Contract and shall thereupon be
relieved from any and all obligations to Contractor or its assignee or transferee.
35.4 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this Agreement.
35.5 City's Right to Employ Other Contractors. City reserves right to employ
other contractors in connection with this Project.
35.6 Construction; References; Captions. Since the Parties or their agents
have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for
or against any Party. Any term referencing time, days or period for performance shall
be deemed calendar days and not work days. All references to Contractor include all
personnel, employees, agents, and subcontractors of Contractor, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this Agreement.
The captions of the various articles and paragraphs are for convenience and ease of
reference only, and do not define, limit, augment, or describe the scope, content or
intent of this Agreement.
35.7 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual rights by custom, estoppel or otherwise.
35.8 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
35.9 Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
RVPUB \SDEITSCH \740726.3 17
35.10 Governing Law. This Contract shall be governed by California law. Venue
shall be in Los Angeles County.
35.11 Counterparts. This Contract may be executed in counterparts, each of
which shall constitute an original.
35.12 Successors. The Parties do for themselves, their heirs, executors,
administrators, successors, and assigns agree to the full performance of all of the
provisions contained in this Contract.
35.13 Attorneys' Fees. If either Party commences an action against the other
Party, either legal, administrative or otherwise, arising out of or in connection with this
Contract, the prevailing Party in such action shall be entitled to have and recover from
the losing Party reasonable attorneys' fees and all other costs of such action.
35.14 Authority to Enter Contract. Each Party warrants that the individuals who
have signed this Contract have the legal power, right and authority to make this
Contract and bind each respective Party.
35.15 Entire Contract; Modification. This Contract contains the entire agreement
of the Parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Contract may only be modified by a
writing signed by both Parties.
IN WITNESS WHEREOF, each of the Parties has caused this Contract to be
executed on the day and year first above written.
CITY OF ARCADIA
By:
Donald Penman
City Manager
Attest:
A f Ciy Jerk
AP ROVED AS TO FORM
1
Stephen P. Deitsch
City Attorney
RVPUB \SDE1TSCH \740726.3 18
MAPLE BUILDERS, INC.
Title: PR0Jtc -7 Co,v71?oCC6-k
CONCUR
Tom Tait
Public Works Services Director
EXHIBIT "A"
PLANS AND SPECIFICATIONS
The following plans and specifications are incorporated into this Contract herein
by this reference:
"PLEASE SEE ATTACHED PLANS AND SPECIFICATIONS"
RVPUB \SDEITSCH \740726.3 19
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EXHIBIT "B"
SPECIAL CONDITIONS
Contractor to supply all, but not limited to, labor, materials, and equipment necessary to
construct and / or install the following improvements:
1. Initial Mobilization.
2. Diversion of recyclable materials.
3. Construction of concrete cross gutter and spandrel, minimum 8" thick.
4. Provide traffic control per "WATCH" manual.
RVPUB \SDEITSCH \740726.3 20
EXHIBIT "C"
PAYMENT BOND
*INTENTIONALLY OMMITTED*
RVPUB \SDEITSCH \740726.3 21
PERFORMANCE BOND
*INTENTIONALLY OMMITTED*
RVPUB \SDEITSCH \740726.3 22