HomeMy Public PortalAboutAgreement_2012-11-21_LA Engineering Inc_Rosemead Blvd Safety Enhancement and Beautification Project Fed Proj No CML-5365(007)SECTION 00350
AGREEMENTFORM
PUBLIC WORKS CONTRACT AGREEMENT
FOR ROSEMEAD BLVD SAFETY ENHANCEMENT AND BEAUTIFICATION
PROJECT
Federal Project Numbers CML -5365(007)
THIS AGREEMENT "Agreement" is made and entered into this 21st day of November, 2012, by
and between the City of Temple City, a charter city, located in the County of Los Angeles, State of
California hereinafter called City, and Los Angeles Engineering, Inc., located at 633 N. Barranca
Avenue, Covina, CA, hereinafter called Contractor, collectively referred to as the Parties.
Section 1. Recitals
City issued a Notice Inviting Bids; bids to be submitted on or before 1:00 p.m. on November 8,
2012, for the following: Rosemead Boulevard Safety Enhancement and Beautification Project on
Rosemead Boulevard in the City of Temple City, California, hereinafter called "Project". On
November 8, 2012, said bids were duly opened.
At its regular meeting held on November 20, 2012, the City Council duly accepted the bid of
Contractor for said Project as being the lowest responsible bid received, and directed that a written
contract be entered into with Contractor.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements
herein contained, said parties do hereby agree as follows:
Section 2. Contract Documents. This Agreement consists of the following documents
("Contract Documents"), all of which are made a part of this Contract:
2.1 Notice Inviting Bids
2.2 Instructions to Bidders
2.3 Bid Proposal, as accepted, including the List of Subcontractors
2.4 Notice of Award
2.5 This Contract
2.6 Verification of California Contractor's License
2.7 Contractor's Certificate Regarding Workers' Compensation
2.8 Security for payment (labor and materials)
2.9 Security for performance
2.10 Certificate(s) of Insurance
2.11 General Conditions/Specifications
2.12 Special Provisions
2.13 Plans and Standard Drawings
2.14 Standard Specifications for Public Works Construction aka "Greenbook"
2.15 Addenda Nos. A, B
2.16 Other documents (list here): Form 1273
All of the above-mentioned documents are intended to complement the other documents so
that any work called for in one, and not mentioned in the others, or vice versa, is to be executed the
same as if mentioned in all of said documents. In the event of a discrepancy between the provisions
of the Contractor's documents and the City's documents, the City's documents take precedence with
respect to resolution of the discrepancy.
Section 3. The Work.
3.1 The work ("Work") to be performed by Contractor is described in the Contract
Documents.
3.2 In completing the Work, Contractor must employ, at a minimum, the applicable
generally accepted professional standards of its industry in existence at the time of
performance as utilized by persons engaging in similar work.
3.3 Except as specifically provided in the Contract Documents, Contractor must furnish,
at its sole expense, all of the labor, materials, tools, equipment, services and
transportation necessary to perform all of the Work.
3.4 Contractor must perform all of the Work in strict accordance with the Contract
Documents.
Section 4. Time to Perform the Work.
4.1 Time is of the essence with respect to Contractor's Work. Contractor agrees to
diligently pursue performance of the Work as specified by the Contract Documents.
4.2 Contractor will be excused from any delay in performance or failure to perform due
to causes beyond the control of Contractor. Such causes include, but are not limited
to, acts of God, acts of terrorism, acts of federal, state or local governments, acts of
City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe
weather.
4.3 If Contractor is delayed by any cause beyond Contractor's control, City may, but is
not required to, grant a time extension for the completion of the Work. If delay
occurs, Contractor must notify City in writing within 48 hours of the cause and the
extent of the delay and how such delay interferes with Contractor's performance of
the Work.
Section 5. Compensation and Payment.
5.1 Subject to any limitations provided in the Contract Documents, City agrees to pay
Contractor for the faithful performance of all of the Work. Such payment shall be
in an amount not to exceed fifteen million, seven hundred seventy three
thousand, nine hundred fourteen dollars and fifty cents ($15,773,914.50).
5.2 Contractor must furnish City with an invoice for the Work performed in accordance
with the Contract Documents. Contractor may not submit invoices more often than
once every 30 days.
5.3 City will review each invoice and determine whether the Work performed is
accordance with the Contract Documents. The Director may require Contractor to
provide a release of all undisputed Agreement amounts contained in the invoice.
5.4 If City disputes any item on an invoice, City will give Contractor notice stating, the
reasons for the dispute. The Parties will meet and confer in good faith to attempt to
resolve the dispute.
5.5 Except as to any charges for the Work performed that the City disputes, City will
cause Contractor to be paid within 30 days of the date of the invoice or the date that
Contractor furnishes City with a release of all undisputed Agreement amounts,
whichever occurs later.
5.6 In the event there is any claim specifically excluded by Contractor from the operation
of any release, City may retain an amount not to exceed the amount of the excluded
claim.
5.7 Said compensation shall cover all expenses, losses, damages, and consequences
arising out of the nature of the work during its progress or prior to its acceptance
including those for well and faithfully completing the work and the whole thereof in
the manner and time specified in the Contract Documents, and also including those
arising from actions of the elements, unforeseen difficulties or obstructions
encountered in the prosecution of the work, suspension or discontinuance of the
work, and all other unknowns or risks of any description connected with the work.
5.8 City shall retain five percent (5%) of said contract price until said time as the
provisions of Section 208 herein have been met.
Section 6. Labor Code Requirements.
6.1 Contractor acknowledges that under California Labor Code sections 1810 and
following, 8 hours of labor constitutes a legal day's work. Contractor will forfeit as a
penalty to City the sum of $25.00 for each worker employed in the execution of this
Agreement by Contractor or any subcontractor for each calendar day during which
such worker is required or permitted to work more than 8 hours in any one calendar
day and 40 hours in any one calendar week in violation of the provisions of Labor
Code section 1810. (Labor Code § 1813.)
6.2 Copies of the determination of the Director of the Department of Industrial Relations
of the prevailing rate of per diem wages for each craft, classification or type of
worker needed to execute this Agreement will be made available upon request from
the Director's office at 9701 Las Tunas Drive, Temple City California 91780.
6.3 Contractor must post at the work site, or if there is no regular work site or posting is
infeasible at the work site, then at its principal office, for the duration of the Contract,
a copy of the determination by the Director of the Department of Industrial Relations
of the specified prevailing rate of per diem wages. (Labor Code § 1773.2.)
6.4 Contractor, and any subcontractor engaged by Contractor, must pay not less than the
specified prevailing rate of per diem wages to all workers employed in the execution
of the contract. (Labor Code § 1774.) Contractor is responsible for compliance with
Labor Code section 1776 relative to the retention and inspection of payroll records.
6.5 Contractor must comply with all provisions of Labor Code section 1775. Under
Section 1775, Contractor may forfeit as a penalty to City up to $50.00 for each
worker employed in the execution of the Agreement by Contractor or any
subcontractor for each calendar day, or portion thereof, in which the worker is paid
less than the prevailing rates. Contractor may also be liable to pay the difference
between the prevailing wage rates and the amount paid to each worker for each
calendar day, or portion thereof, for which each worker was paid less than the
prevailing wage rate.
6.6 Nothing in this Agreement prevents Contractor or any subcontractor from employing
properly registered apprentices in the execution of the Contract. Contractor is
responsible for compliance with Labor Code section 1777.5 for all apprenticeable
occupations. This statute requires that contractors and subcontractors must submit
contract award information to the applicable joint apprenticeship committee, must
employ apprentices in apprenticeable occupations in a ratio of not less than one
apprentice for each journeyman (unless an exception is granted under §1777.5), must
contribute to the fund or funds in each craft or trade or a like amount to the California
Apprenticeship Council, and that contractors and subcontractors must not
discriminate among otherwise qualified employees as apprentices solely on the
ground of sex, race, religion, creed, national origin, ancestry or color. Only
apprentices defined in Labor Code section 3077, who are in training under
apprenticeship standards and who have written apprentice contracts, may be
employed on public works in apprenticeable occupations.
Section 7. Federal Requirements.
7.1 Notwithstanding any other provision of this Agreement, because the construction
work covered under this Agreement is financed in whole or in part with assistance
provided under a program of the U.S. Department of Transportation or some other
source of Federal funding, Contractor shall also comply with and cause its
subcontractors to comply with the requirements of the Davis -Bacon Act (40 U.S.C.
276 et seq.). The Davis -Bacon Act requires the payment of wages to all laborers and
mechanics at a rate not less than the minimum wage specified by the Secretary of
Labor in the periodic wage rate determinations. If Contractor is required to comply
with the Davis -Bacon Act, Contractor shall pay the higher of Davis -Bacon Act or
state prevailing wages, on a trade -by -trade basis.
7.2 By entering into this Agreement and to the extent required by any source of Federal
funding for the construction work covered under this Agreement, Contractor certifies
that it is not a person or firm ineligible to be awarded Government contracts by virtue
of Section 3(a) of the Davis -Bacon Act. If any source of Federal funding for this
Agreement so requires, Contractor agrees to include, or cause to be included, the
above provision, to be applicable to contractors and subcontractors, in each contract
and subcontract for work covered under this Agreement. If no Federal funding for
this Agreement implicates Section 3(a) of the Davis -Bacon Act, the parties agree that
this Section 7.2 shall be of no force and effect.
7.3 Contractor shall comply with all mandatory standards and policies relating to energy
efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
7.4 The City, the federal grantor agency, the Comptroller General of the United States, or
any of their duly authorized representatives shall have access to any books,
documents papers and records of the Contractor and any subcontractors which are
directly pertinent to this Agreement, for the purpose of making audit, examination,
excerpts and transcriptions. Contractor shall maintain all required records for three
years after City makes final payments and all other pending matters are closed.
7.5 Contractor shall comply with the Copeland "Anti -Kick Back" Act, 18 U.S.C. §874,
as supplemented in Department of Labor regulations. (29 C.F.R. part 3.)
7.6 Contractor shall ensure compliance with sections 103 and 107 of the Contract Work
Hours and Safety Standards Act, 40 U.S.C. §§ 327 — 33, as supplemented by
Department of Labor regulations. See 29 C.F.R. part 5.
7.7 Contractor and any subcontractors must comply with Executive Order 11246 as
amended by Executive Order 11375 and as supplemented in Department of Labor
regulations. (41 C.F.R. part 3.)
7.8 If the Compensation exceeds $100,000, Contractor shall comply with all applicable
standards, orders, or requirements issued under section 306 of the Clean Air Act,
Section 508 of the Clean Water Act, Executive Order 11738, and Environmental
Protection Agency (EPA) regulations, which prohibit the use under non-exempt
federal contracts, grants or loans of facilities included on the EPA List of Violating
Facilities. (See e.g. 47 C.F.R. §18.36(i)(12).)
Section 8. DBE Requirements. DBE Requirements for this project is subject to Title 49, Code
of Federal Regulations Part 26 (49 CFR26) entitled "Participation by Disadvantaged
Business Enterprises in Department of Transportation Financial Assistance
Programs." In order to ensure Caltrans achieves its federally mandated statewide
overall DBE goal, the City of Temple City encourages the participation of
Disadvantaged Business Enterprises (DBEs), and Underutilized Disadvantaged
Business Enterprises (UDBE) as defined in 49 CFR 26 in the performance of
contracts financed in whole or in part with Federal Funds. The Contractor shall not
discriminate on the basis of race, color, national origin, or sex in the award and
performance of subcontracts. Bidders shall be fully informed in respect to the
requirements of the DBE Regulations. The DBE and UDBE Regulations in their
entirety are incorporated herein by this reference. See Form FHWA 1273 in the
Federal -Aid Requirements Section of this Specification.
Section 9. Federal Trainee & On The Job Training Reauirements. On -the -Job Training for
this project is subject to 23 U.S.0 140, a goal of 7 trainees has been determined for
the duration of this project. The Contractor shall take all necessary and reasonable
steps to ensure that minorities and women have the opportunity to compete for and
participate as trainees or apprentices, but not exclude anyone. Shall the contractor not
be able to meet the OJT objectives, direct recruitment efforts must be documented to
show an effort must. On -the -Job Training provisions costs are reimbursed by the
FHWA in accordance with the Federal Requirements. Please reference FR4-FR5.
Section 10. Non -Discrimination.
10.1 Contractor shall not discriminate in its recruiting, hiring, promotion, demotion or
termination practices on the basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status,
gender, age, or sexual orientation in the performance of this Agreement and to the
extent required by the funding for the work performed under this Agreement shall
comply with the provisions of the California Fair Employment and Housing Act as
set forth in Part 2.8 of Division 3, Title 2 of the California Government Code; the
Federal Civil Rights Act of 1964, as set forth in Public Law 88-352, and all
amendments thereto; Executive Order 11246; and all administrative rules and
regulations issued pursuant to such acts and order.
10.2 Contractor hereby promises and agrees to comply with all of the provisions of the
Federal Immigration and Nationality Act (8 USCA 1101, et seq.), as amended; and,
in connection therewith, shall not employ unauthorized aliens as defined therein.
Should Contractor so employ such unauthorized aliens for the performance of work
and/or services covered by this Agreement, and should the Federal Government
impose sanctions against the City for such use of unauthorized aliens, Contractor
hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed,
together with any and all costs, including attorney's fees, incurred by the City in
connection therewith.
10.3 Contractor and any subcontractors shall not discriminate on the basis of race, color,
national origin, or sex in the performance of this Agreement. Contractor shall carry
out applicable DBE requirements for this Project as subject to Title 49, Code of
Federal Regulations Part 26 entitled "Participation by Disadvantaged Business
Enterprises in Department of Transportation Financial Assistance Programs." Failure
by Contractor to carry out these requirements is a material breach of this Agreement,
which may result in the termination of this Agreement or such other remedy as City
deems appropriate. In order to assist the California Department of Transportation in
achieving its federally -mandated statewide overall Disadvantaged Business
Enterprises ("DBE") goal, City encourages the participation of DBEs, as defined in
49 CFR 26, in the performance of contracts financed in whole or in part by federal
funds. The DBE Regulations are incorporated herein by reference. See Form FHWA
1273 in the Federal Aid Requirements section of the bid documents.
Section 11. General Legal Compliance.
11.1 In performing the Work, Contractor must comply with all applicable statutes, laws
and regulations, including, but not limited to, OSHA requirements and the Temple
City Municipal Code.
11.2 Contractor must, at Contractor's sole expense, obtain all necessary permits and
licenses required for the Work, and give all necessary notices and pay all fees and
taxes required by law, including, without limitation, any business license tax imposed
by City.
11.3 Contractor must maintain a valid California Contractor's License throughout the term
of this Contract.
Section 12. Clavton and Cartwright Act Assignments. In entering into this Agreement or a
contract with a subcontractor to supply goods, services, or materials pursuant to this
Agreement for the Project, Contractor and any or subcontractor is deemed to have
offered and agreed to assign to 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. Sec. 15) or under
the Cartwright Act (Chapter 2, commencing with Section 16700 of Part 2 of Division
7 of the California Business and Professions Code), arising from purchases of goods,
services, or materials for the Project. This assignment will be deemed made and will
become effective at the time City tenders final payment to Contractor, without further
acknowledgement by the Parties.
Section 13. Hazardous waste and unknown conditions.
13.1 Contractor shall, without disturbing the condition, notify City in writing as soon as
Contractor, or any of Contractor's subcontractors, agents or employees have
knowledge and reporting is possible, of the discovery of any of the following
conditions:
13.1.1 The presence of any material that the Contractor believes is hazardous waste,
as defined in Section 25117 of the Health and Safety Code;
13.1.2 Subsurface or latent physical conditions at the site differing from those
indicated in the specifications; or,
13.1.3 Unknown physical conditions at the site of any unusual nature, different
materially from those ordinarily encountered and generally recognized as
inherent in work of this character provided for in this Contract.
13.2 Pending a determination by City of appropriate action to be taken, Contractor shall
provide security measures (e.g., fences) adequate to prevent the hazardous waste or
physical conditions from causing bodily injury to any person.
13.3 City shall promptly investigate the reported conditions. If City, through its Director
or director's designee, and in the exercise of its sole discretion, determines that the
conditions do materially differ, or do involve hazardous waste, and will cause a
decrease or increase in the Contractor's cost of, or time required for, performance of
any part of the work, then City shall issue a change order.
13.4 In the event of a dispute between City and Contractor as to whether the conditions
materially differ, or involve hazardous waste, or cause a decrease or increase in the
Contractor's cost of, or time required for, performance of any part of the work,
Contractor shall not be excused from any scheduled completion date, and shall
proceed with all work to be performed under the Contract. Contractor shall retain
any and all rights which pertain to the resolution of disputes and protests between the
parties.
Section 14. Independent Contractor. Contractor is and will at all times remain as to City a
wholly independent contractor. Neither the City nor any of its officers, employees, or
agents will have control over the conduct of Contractor or any of Contractor's
officers, employees, agents or subcontractors, except as expressly set forth in the
Contract Documents. Contractor may not at any time or in any manner represent that
it or any of its officers, employees, agents, or subcontractors are in any manner
officers, employees, agents or subcontractors of City.
Section 15. Warrantv & Guarantee
15.1 New Materials. Contractor guarantees that all materials and equipment furnished will
be new unless otherwise specified in the Contract Documents.
15.2 One Year Guarantee. Contractor guarantees all materials and equipment furnished
and Work performed for a period of one (1) year from the date of substantial
completion is free from all defects due to faulty materials or workmanship.
Contractor shall promptly make such corrections as may be necessary by reasons of
such defects including the repairs of any damage to other property, whether real or
personal. The City will give notice of observed defects with reasonable promptness.
If Contractor fails to make such repairs, or other Work that may be made necessary
by such defects, the City may do so and charge the Contractor the cost thereby
incurred, plus 10% for administrative expenses. The Performance Bond shall remain
in full force and effect through the guarantee period. Contractor shall execute the
Public Improvement Warranty attached hereto and incorporate hereon by this
reference as Attachment "A."
Section 16. Bonds. Contractor shall provide a payment bond consistent with the terms of this
section and City may not waive this requirement. Contractor shall also provide a
performance bond consistent with the terms of this section, unless City waives such
requirement in writing. Each bond shall (1) be in writing; (2) signed by at least one
admitted surety insurer under oath; (3) if a bond is signed by more than one surety
insurer, include a statement that the sureties are jointly and severally liable on the
obligations required hereunder; (4) list the address at which the principal and
surety/sureties may be served with notices, papers, and other documents under this
chapter; (5) be in the form of a bond and not in a deposit in lieu of a bond; (6) be
consistent with any other requirements of the City that reasonably relate to a
guarantee that the project will be completed at no cost to the City.
16.1 Payment Bond. Contractor shall furnish and file with City a bond in the sum of one
hundred percent (100%) of the Compensation. Consistent with Civil Code § 3248,
the bond shall provide that if the Contractor or any subcontractors hired by
Contractor fails to pay (1) any of the persons named in Civil Code § 3181; (2)
amounts due under the Unemployment Insurance Code with respect to work or labor
performed under this Agreement; or (3) for any amounts required to be deducted,
withheld, and paid over to the Employment Development Department from the wages
of employees of the contractor and subcontractors pursuant to Unemployment
Insurance Code §13020 with respect to the work and labor that the sureties will pay
for the same, and also, in case suit is brought upon the bond, a reasonable attorney's
fee, to be fixed by the court. The bond shall, by its terms, inure to the benefit of any
of the persons named in Civil Code § 3181 so as to give a right of action to those
persons or their assigns in any suit brought upon the bond. The bond provided under
this section shall be released by written authorization of the City Manager at the
completion of the one year warranty period described in section 15.2, above,
provided that Contractor is not in default on any provision of this Agreement.
16.2 Performance Bond. Contractor before commencing said Project, shall provide City
with a bond in the sum of one hundred percent (100%) of the Compensation
conditioned upon the faithful performance of this Agreement and to guarantee the
completion of the Work, to protect City if Contractor is in default of this Agreement,
and to secure Contractor's one-year guarantee and warranty. The City Council may,
in its sole and absolute discretion and upon recommendation of the City Manager,
partially release a portion or portions of the security provided under this section as the
Public Improvements are accepted by City, provided that Contractor is not in default
on any provision of this Agreement. All security provided under this section shall be
released at the end of the warranty period described in section 15.2, above, provided
that Contractor is not in default on any provision of this Agreement.
Section 17. Indemnification.
17.1 Contractor agrees to indemnify, defend and hold harmless City from and against, any
and all liabilities, claims, actions, causes of action, proceedings, suits, damages,
judgments, liens, levies, costs and expenses of whatever nature, including reasonable
attorneys' fees and disbursements (collectively, "Claims"), which City may suffer or
incur or to which City may become subject by reason of or arising out of any injury
to or death of any person(s), damage to property, loss of use of property, economic
loss or otherwise occurring as a result of any negligent or willfully wrongful acts or
omissions of Contractor, its officers, employees, agents, or subcontractors committed
in performing any Work under this Contract.
17.2 If any action or proceeding is brought against City by reason of any of the matters
against which Contractor has agreed to indemnify City as provided above, City need
not have first paid for any of the matters to which City is entitled to indemnification
in order to be so indemnified.
17.3 For the purposes of this section, "City" includes City's officers, officials, employees
and agents.
17.4 The provisions of this section do not apply to Claims occurring as a result of the
City's sole negligence or willful acts or omissions.
17.5 In the event of any Claim made against City, City may, in its sole discretion, reserve,
retain or apply any funds due to Contractor under this Agreement for the purpose of
resolving such Claim.
17.6 The provisions of this section will survive the expiration or earlier termination of this
Agreement.
Section 18. Insurance. Contractor shall not commence work under this Agreement until
Contractor shall have obtained all insurance required by the Contract Documents and
such insurance shall have been approved by City as to form, amount and carrier, nor
shall Contractor allow any subcontractor to commence work on any subcontract until
all similar insurance required of the subcontractor shall have been so obtained and
approved.
18.1 Compensation Insurance. Contractor shall take out and maintain, during the life of
this contract, Worker's Compensation Insurance for all of Contractor's employees
employed at the site of improvement; and, if any work is sublet, Contractor shall
require the subcontractor similarly to provide Worker's Compensation Insurance for
all of the latter's employees, unless such employees are covered by the protection
afforded by Contractor. If any class of employees engaged in work under this
Agreement at the site of the Project is not protected under any Workers'
Compensation law, Contractor shall provide and shall cause each subcontractor to
provide adequate insurance for the protection of employees not otherwise protected.
Contractor shall indemnify City for any damage resulting to it from failure of either
Contractor or any subcontractor to take out or maintain such insurance.
18.2 Comprehensive General Liability. Products/ Completed Operations Hazard,
Comprehensive Automobile Liability and Contractual General Liability Insurance.
Contractor shall take out and maintain during the life of this Agreement such
comprehensive general liability, products/completed operations hazard,
comprehensive automobile liability and contractual general liability insurance as shall
protect City, its elective and appointive boards, officers, agents and employees,
Contractor, and any subcontractor performing work covered by this contract, from
claims for damage for personal injury, including death, as well as from claims for
property damage which may arise from Contractor's or any subcontractor's
operations under this contract, whether such operations be by Contractor or by any
subcontractor, or by anyone directly or indirectly employed by either Contractor or
any subcontractor, and the amounts of such insurance shall be as follows:
18.2.1 Public Liability Insurance in an amount of not less than One Million Dollars
($1,000,000);
18.2.2 Products/Completed Operations Hazard Insurance in an amount of not less
than One Million Dollars ($1,000,000);
18.2.3 Comprehensive Automobile Liability Insurance in an amount of not less than
One Million Dollars ($1,000,000);
18.2.4 Contractual General Liabilitv Insurance in an amount of not less than One
Million Dollars ($1,000,000).
A combined single limit policy with aggregate limits in an amount of not less than
Two Million Dollars ($2,000,000) shall be considered equivalent to the said required
minimum limits set forth hereinabove.
18.3 Proof of Insurance. The insurance required by this Agreement shall be with insurers
which are Best A+ rated, and California Admitted or better. The City of Temple City
shall be named as "additional insured" on all policies required hereunder, and
Contractor shall fumish City, concurrently with the execution hereof, with
satisfactory proof of carriage of the insurance required, and adequate legal assurance
that each carrier will give City at least thirty (30) days' prior notice of the
cancellation of any policy during the effective period of the contract.
18.4 Notice to Commence Work. The City will not issue any notice authorizing
Contractor or any subcontractor to commence work under this contact until
Contractor has provided to the City the proof of insurance as required by
subparagraph (c) of this article.
18.5 Failure to Maintain Required Insurance. If Contractor, for any reason, fails to have in
place at all times during the term of this Agreement all of the required insurance
coverage, the Director may obtain such coverage at Contractor's expense and deduct
the cost from the sums due Contractor.
18.6 Effect of Coveraee. The existence of the required insurance coverage under this
Agreement will not be deemed to satisfy or limit Contractor's indemnity obligations
under this Contract. Contractor acknowledges that the insurance coverage and policy
limits set forth in this Agreement constitute the minimum coverage and policy limits
required. Any insurance proceeds available to City in excess of the limits and
coverage required by this Contract, and which is applicable to a given loss, must be
made available to City to compensate it for such losses.
Section 19. Liquidated Damages. The parties agree that it would be impractical and extremely
difficult to fix the actual damages to the City in the event the Project is not
commenced and/or completed on or before the dates specified for commencement
and completion of the Project in the Contract Documents. The parties have
considered the facts of a breach of this Agreement and have agreed that the liquidated
damages set forth in Section 00800, Special and Supplementary Conditions, is
reasonable as liquidated damages in the event of a breach, and that said amounts shall
be presumed to be the amount of the damages sustained by the City in the event such
work is not begun and/or completed and accepted by the times so specified in the
Contract Documents. Any and all such liquidated damages assessed shall be done so
in accordance with that certain edition of the Standard Specification for Public Works
Construction currently in effect on the execution date of this Contract.
Section 20. Notice of Completion. Upon completion of Project and acceptance of same by the
City Council, the City Clerk shall have cause to be recorded a Notice of Completion
with the office of the Los Angeles County Recorder; and, after thirty-five (35) days
from the date said Notice of Completion is recorded, the Director of Finance of City
shall release the funds retained pursuant to Section 5; provided there have been no
mechanics' liens or stop notices filed against said work which have not been paid,
withdrawn or eliminated as liens against said work.
Section 21. Compliance with Department of Transportation Subcontractor and DBE
Requirements. On May 20, 2009, the City and the California Department of
Transportation entered into an implementation agreement that allows the City to
receive certain United States Department of Transportation funds. Because
Department of Transportation funds are being used for the Project, City and
Contractor hereby agree to the following:
21.1 Prompt Progress Payment to Subcontractors. The Contractor and any subcontractors
shall be timely paid as set forth in Section 7108.5 of the California Business and
Professions Code, which requires a prime contractor or subcontractor to pay any
subcontractor not later than 10 days of receipt of each progress payment, unless
otherwise agreed to in writing. Any delay or postponement of payment over 30 days
may take place only for good cause and with the City's prior written approval. Any
violation of Section 7108.5 shall subject the violating Contractor or subcontractor to
the penalties, sanctions, and other remedies of that Section. This requirement shall
not be construed to limit or impair any contractual, administrative, or justice remedies
otherwise available to the Contractor or any subcontractor in the event of a dispute
involving late payment or nonpayment by the Contractor, deficient subcontractor
performance, and/or noncompliance by a subcontractor. These requirements apply to
both DBE and non -DBE subcontractors.
21.2 Prompt Payment of Withheld Funds to Subcontractors. Based on City's withholding
of retainage pursuant to Sections 5 and 18 of this Agreement, City shall hold
retainage from Contractor but and provide for prompt and regular incremental
acceptances of portions of the work performed under this Agreement, and shall pay
Contractor based on the acceptances. Contractor is obligated to pay any retainage
owed to subcontractors for satisfactory completion of accepted work within 30 days
after receipt of City funds attributable to that work. Contractor shall pay
subcontractors in full within 10 days of receipt of City funds and Contractor shall be
made whole at the completion of the entire Project by the retainage payment provided
for in Sections 18 and 5.8. For purposes of this retainage payment, a subcontractor's
work is deemed to be satisfactorily completed when all tasks called for in the
subcontract have been accomplished and documented as required by City. The work
of a subcontractor covered by that acceptance is deemed to be satisfactorily
completed, when City has made an incremental acceptance of a portion of the
contract work, as per 49 CFR 26.29. This regulation also requires that any delay or
postponement of payment among the parties may take place only for good cause,
must have the prior written approval of the agency, and that appropriate means of
enforcement such as those contained in Section 7108.5 of the California Business and
Professions Code must be included in the contract.
Section 22. Notice.
22.1 All written notices required or permitted to be given under this Agreement will be
deemed made when received by the other Party at its respective address as follows:
To City: City of Temple City
9701 Las Tunas Drive
Temple City, California 91780
Attention: Jose Pulido
(Tel.) 626-285-2171
(Fax) 626-309-9352
To Contractor: Los Angeles Engineering, Inc.
633 N. Barranca Avenue
Covina, CA 91723
Attention: Ron Hallquist
(Tel.) 626-454-5222
(Fax) 626-454-5226
Notice will be deemed effective on the date personally delivered or transmitted by
facsimile. If the notice is mailed, notice will be deemed given three days after
deposit of the same in the custody of the United States Postal Service, postage
prepaid, for first class delivery, or upon delivery if using a major courier service with
tracking capabilities.
22.2 Any Party may change its notice information by giving notice to the other Party in
compliance with this section.
Section 23. Termination
23.1 Except as otherwise provided, City may terminate this Agreement at any time with or
without cause. Notice of termination will be in writing.
23.2 Contractor may terminate this Agreement upon providing written notice to City at
least thirty (30) days before the effective termination date, or, if within twenty-nine
(29) days of the effective termination date, if it provides fifteen (15) days written
notice of circumstances beyond the control of Contractor.
23.3 Should the Agreement be terminated pursuant to this Section, City may procure on its
own terms services similar to those terminated.
23.4 By executing this document, Contractor waives any and all claims for damages that
might otherwise arise from City's termination under this Section.
23.5 If City takes over the Work as provided in this Section, City may, without liability for
so doing, take possession of, and utilize in completing the Work, such materials,
appliances, plant, and other property belonging to Contractor as may be on the site of
the Work and necessary for the completion of the Work.
Section 24. Project Documents. All data, drawings, maps, models, notes, photographs, reports,
studies and other documents (collectively, "Project Documents") prepared, developed
or discovered by Contractor in the course of performing any of the Work under this
Agreement will become the sole property of City. Upon the expiration or termination
of this Contract, Contractor must turn over all original Project Documents to City in
its possession, but may retain copies of any of the Project Documents it may desire.
Section 25. General Provisions.
25.1 Authority to Execute. Each Party represents and warrants that all necessary action
has been taken by such Party to authorize the undersigned to execute this Agreement
and to bind it to the performance of its obligations.
25.2 Assignment. Contractor may not assign this Agreement without the prior written
consent of City, which consent may be withheld in the City's sole discretion since the
experience and qualifications of Contractor were material considerations for this
Contract.
25.3 Binding Effect. This Agreement is binding upon the heirs, executors, administrators,
successors and permitted assigns of the Parties.
25.4 Integrated Contract. This Agreement, including the Contract Documents, is the
entire, complete, final and exclusive expression of the Parties with respect to the
Work to be performed under this Agreement and supersedes all other agreements or
understandings, whether oral or written, between Contractor and City prior to the
execution of this Contract.
25.5 Modification of Agreement. No amendment to or modification of this Agreement
will be valid unless made in writing and approved by Contractor and by the City
Council or City Manager, as applicable. The Parties agree that this requirement for
written modifications cannot be waived and that any attempted waiver will be void.
25.6 Counter -parts and Facsimile Signatures. This Agreement may be executed in several
counterparts, each of which will be deemed an original, and all of which, when taken
together, constitute one and the same instrument. Amendments to this Agreement
will be considered executed when the signature of a party is delivered by facsimile
transmission. Such facsimile signature will have the same effect as an original
signature.
25.7 Waiver. Waiver by any Party of any term, condition, or covenant of this Agreement
will not constitute a waiver of any other term, condition, or covenant. Waiver by any
Party of any breach of the provisions of this Agreement will not constitute a waiver
of any other provision, or a waiver of any subsequent breach or violation of any
provision of this Contract. Acceptance by City of any Work performed by Contractor
will not constitute a waiver of any of the provisions of this Contract.
25.8 IntMretation. This Agreement will be interpreted, construed and governed according
to the laws of the State of California. Each party has had the opportunity to review
this Agreement with legal counsel. The Agreement will be construed simply, as a
whole, and in accordance with its fair meaning. It will not be interpreted strictly for
or against either party.
25.9 Severability. If any term, condition or covenant of this Contract is declared or
determined by any court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement will not be affected and
the Agreement will be read and construed without the invalid, void or unenforceable
provision.
25.10 Venue. In the event of litigation between the parties, venue in state trial courts will
be in the County of Los Angeles. In the event of litigation in a U.S. District Court,
venue will be in the Central District of California, in Los Angeles.
THE UNDERSIGNED AUTHORIZED REPRESENTATIVES of the Parties have executed
this Agreement as follows:
CITY:
ATTEST:
Peggy M, &ity Clerk
CITY OF TEMPLE CITY, a charter law city
by
Jose E. Pulido, * Manager
CONTRACTOR:
by
A"Q.-,S aX'-L-.'-v-
Print Name
President/ ecr 1-ary
Officer Title (President, VP)
by/� Q
Print Name
Officer Title (TreasuPer, Secretary)
APPROVED AS TO M:
Eric S. Vail, City Attorney
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
- - n=r�=e=��-�--_<-_�� >~Fr•--��•=w���,r �---�--_�'� - �- =�--rte--- - �-�- -
State of California 1
County of Los Angeles JI}
On November 30, 2012before me, J. Nelson, Notary Public
pare Here NseG Na -e vtl Tme of Na OYiar
personally appeared Angus O'Brien
Ow N LSON CX-
ommission No. 1933Q56NOTARY PUSL CLU1ORN111LOS ANGELES COUNTY
My Comm. Expires APRIL 10,1015
who proved to me on the basis of satisfactory evidence to
be the person whose narneX iJ.�d subscribed to the
within instrument and acknowledged to me that
he/sVeltf4y exeaded the same in his/Vrithgfr authorized
capacity(i/), and that by his/h/rr/th/r signatureX on the
instrument the person or the entity upon behalf of
which the persony4 acted, executed the instrument.
I certify under PENALTY OR PERJURY under the laws
of the State of California That the foregoing paragraph is
true and correct.
WITNESS my hand and offilIncial sea(.
Sionature `�
Place Ncrarj 5x9 A[cve '• Sisna, 2 e: Nctay Public
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Description of Attached Document
Title or Type of Document:
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Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
10 Corporate Officer —Ttle(s): —
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Number of Pages:
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ATTACHMENT A
PUBLIC IMPROVEMENTS WARRANTY
On , 20_1 the City of Temple City ("City") accepted as complete and
meeting the standards of City, the following public improvement(s):
built and constructed by ,
("Contractor")
Contractor hereby warrants and guarantees the aforementioned public improvements as to the material
used and workmanship performed for a period of one (1) year following the date set forth above.
In the event of a defect, malfunction, or failure to conform t the improvement specifications and all
applicable local standards, the Contractor shall repair or replace said improvements at Contractor's own
and sole expense within a reasonable time from notice of the defect from City. Should Contractor fail to
cure any defect within a reasonable period of time, Contractor agrees to reimburse City for any and all
costs of City's efforts to cure any defect once City has provided notice to the Contractor of the defect and
the City's intent to cure such defect.
Should litigation be necessary to enforce the provisions of this warranty, the prevailing party shall be
entitled to reimbursement for attorneys' fees and court and related costs.
Executed at California, on the day and year first written above.
CONTRACTOR
By: l c_
Signature
r
By: AWJ05 " ' Angus O'Brien
(Typed Name)
Its: PrPcidPntjRPcrPtaryr
itle
By:
Signature
uv Noro;r\
(Typed Name)
Its: ` r ��� mangqf,,/-
Title
[NOTARY REQUIRED]
LA #4851-2633-6261 v1 12/9/09
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
Los Angeles
On November 30, 2012before me, J. Nelson, Notary Public
Date Hare Insert Name are TO. of pie Officer
personally appeared Angus O'Brien
x J.NELSON
- Commission No. 1933056
)Q 4 NOTARY PUBLIC CALIFORNIA
LOS ANGELES COUNTY " !{
My Cwmp, Eapir•s APRIL 10, 2015 `
Place Notaq Seat AttCM
who proved to me on the basis of satisfactory evidence to
be the person�g'whose name is/5rk subscribed to the
within instrument and acknowledged to me that
he/s,ye/tiXy executed the same in his/hhXytdir authorized
capacity(), and that by his/t/dth/r signatureo on the
instrument the person(4, or the entity upon behalf of
which the person,% acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and, off i,cial seal.
Signature �a& Vv
Signalvre of Notary Public
OPTIONAL
Though the information baloty is not required by lar, it nay prove valuable to persons relying on tie document
and could prevent fraudulent removal and reattachment of this form, to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
Individual
_, Corporate Officer—Title(s): _
Partner —!= Limited `; General
Attorney in Fact
Trustee
Guardian or Conservator
Other:
Signer Is Representing:
Number of Pages:
Sianer's Nat
Individual
❑ Corporate Officer—Title(s): _
1] Partner —❑ Limited _f General
01 Attorney in Fact
Trustee
Guardian or Conservator
Other:
Signer Is Representing:
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