HomeMy Public PortalAboutAgreement_ 2017-07-10 to 2017-07-31_California Surfacing_Live Oak Park Tennis Courts_17-005Agreement FOR
LIVE OAK PARK TENNIS COURT RESURFACING PROJECT
Between
THE CITY OF TEMPLE CITY
and
Dated
JULY 1, 2017
LA #4842-7229-1141 v I
Agreement FOR
LIVE OAK PARK TENNIS COURT RESURFACING PROJECT
This Agreement for the Tennis Court Resurfacing Project ("Agreement") is
entered into as of the date referenced on the cover page ("Effective Date") between the
City of Temple City, a charter city and municipal corporation ("City"), and California
Surfacing, a sole proprietor ("Contractor") (collectively the "Parties"). In consideration
of the mutual promises and covenants made by the Parties and contained here and
other consideration, the value and adequacy of which are hereby acknowledged, the
Parties agree as follows:
SECTION 1. SCOPE OF SERVICES
1.1 Term. Subject to the provisions of Section 9 [Termination] of this
Agreement, the term of this Agreement is for three (3) weeks commencing on Monday,
July 10, 2017 ("Term").
1.2 Contractor Services. Subject to the terms and conditions of this
Agreement, Contractor agrees to perform for City the resurfacing services specified in
the Scope of Services attached hereto and incorporated herein by reference as Exhibit
"A" [Scope of Services] ("Services"). Contractor agrees to furnish, for the
compensation provided for herein, all labor, materials, tools, equipment, services, and
incidental and customary work necessary to fully and adequately perform and complete
the Services. The Services shall be subject to inspection and approval by City.
Contractor agrees to work closely with City staff in the performance of the Services and
shall be available to City's staff and consultants at all reasonable times.
1.3 Extra Work. Contractor shall not be compensated for any work or
services rendered in connection with its performance of this Agreement, which are in
addition to or outside of the Services ("Extra Work"), except as expressly provided for
herein. It shall be Contractor's responsibility to ensure that the scope and price of any
Extra Work to be performed by Contractor is approved by City in writing in advance of
Contractor's commencement of the Extra Work in accordance with Section 10.10
[Amendments] and Section 10.19 [Administration and Implementation]. City shall not be
obligated to pay for or otherwise be liable for unauthorized Extra Work performed by
Contractor.
1.4 Schedule of Performance. Contractor agrees to diligently perform and
complete the Services in accordance with the schedule of performance attached hereto
and incorporated herein by reference as Exhibit "B" [Schedule of Performance]
("Schedule of Performance"). Modifications to the Schedule of Performance must be
agreed upon in writing in advance by the City Manager pursuant to Section 9.19
[Administration and Implementation] and Contractor.
1.5 General Warranty. Contractor warrants all Services under this
Agreement (which for purposes of this Section shall be deemed to include unauthorized
Extra Work which has not been removed and any non -conforming materials
LA 44842a229-1141 vl 1
incorporated into the Services) to be of good quality and free from any defective or
faulty material and workmanship. All warranties and guarantees of subcontractors,
suppliers and manufacturers with respect to any portion of the Services, whether
express or implied, are deemed to be obtained by Contractor for the benefit of City,
regardless of whether or not such warranties and guarantees have been transferred or
assigned to City by separate agreement and Contractor agrees to enforce such
warranties and guarantees, if necessary, on behalf of City.
1.6 Repair of Defects. Contractor agrees that for a period of one (1) year
from and after final acceptance of the Services, or in any guarantee or warranty
provided by any manufacturer or supplier of equipment or materials incorporated into
the Services, whichever is later, Contractor shall within ten (10) days after being notified
in writing by City of any defect in the Services or non-conformance of the Services,
commence and prosecute with due diligence all work and services necessary to fulfill
the terms of the warranty at its sole cost and expense. In addition, Contractor shall, at
its sole cost and expense, repair and replace any portions of the work, facilities, fixtures,
or materials damaged by its defective Services or which becomes damaged in the
course of repairing or replacing defective Services. For any Services so corrected,
Contractor's obligation hereunder to correct defective Services shall be reinstated for an
additional one year period, commencing with the date of acceptance of such corrected
Services. Contractor shall perform such tests as City may require to verify that any
corrective actions are adequate to remedy the defective condition. In the event that
Contractor fails to perform its obligations under this Section to the reasonable
satisfaction of City, then City shall have the right to correct and replace any defective,
non -conforming, or damaged Services at Contractor's sole expense. Contractor shall
be obligated to fully reimburse City for any expenses incurred hereunder upon demand.
1.7 Contractor's Representative. Contractor hereby designates the
representative named in Exhibit "D" [Representatives], or his or her designee, to act as
its representative for the performance of this Agreement ("Contractor's
Representative'). Contractor's Representative shall have full authority to represent and
act on behalf of the Contractor for all purposes under this Agreement. Contractor's
Representative shall supervise and direct the Services, using his or her best skill and
attention, and shall be responsible for all means, methods, techniques, sequences and
procedures and for the satisfactory coordination of all portions of the Services under this
Agreement.
SECTION 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Compensation. City shall pay to Contractor for non -disputed Services
rendered, the compensation set forth in Exhibit "C" [Compensation] attached hereto and
incorporated herein by reference. Total compensation to Contractor for the Services
shall not exceed the total price or "not to exceed" amount set forth in Exhibit "C," without
the prior written approval of City in accordance with Section 9.10 [Amendments] and
Section 9.19 [Administration and Implementation].
LA #4842-7229-1141 v 1 2
2.2 Payment of Compensation. Contractor shall submit periodic (monthly or
quarterly as specified in Exhibit "C") invoices together with an itemized statement of
Services provided. The statement shall describe the Services provided together with
such other reasonable detail and supporting documentation as may be required by the
City Manager, or his/her designee. City will review the statement and pay, with the
exception of any charges for work performed or expenses incurred by Contractor which
are disputed by City, within 30 days of receiving such statement, all approved charges
thereon. Payment to Contractor for work performed pursuant to this Agreement shall
not be deemed to waive any defect in work performed by Contractor.
SECTION 3. RESPONSIBILITIES OF CONTRACTOR
3.1 Control and Payment of Subordinates; Independent Contractor.
Contractor agrees that all Services shall be performed by Contractor or under its
supervision. The personnel performing the Services under this Agreement on behalf of
Contractor shall at all times be under the Contractor's exclusive direction and control.
Contractor will determine the means, methods and details of performing the Services
subject to the requirements of this Agreement. Contractor is and shall at all times
remain a wholly independent contractor and not an officer, employee or agent of City.
Contractor shall have no authority to bind City in any manner, nor to incur any
obligation, debt or liability of any kind on behalf of or against City, whether by contract or
otherwise, unless such authority is expressly conferred under this Agreement or is
otherwise expressly conferred in writing by City. Neither Contractor, nor any of
Contractor's officers, employees or agents, shall obtain any rights to retirement,
healthcare or any other benefits which may otherwise accrue to City's employees.
Contractor expressly waives any claim Contractor may have to any such rights.
3.2 Standard of Care and Licenses. Contractor agrees that all Services
shall be performed in a skillful and competent manner, consistent with the standards
generally recognized as being employed by professionals in the same discipline in the
State of California. Contractor represents and warrants that it, its employees and
subcontractors shall have sufficient skill and experience to perform the Services and
that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services, including
a City Business License, and that such licenses and approvals shall be maintained in
good standing throughout the term of this Agreement.
3.3 Required Corrections. Contractor shall perform, at its own expense and
without reimbursement from the City, any work necessary to correct errors or omissions
that are caused by the Contractor's failure to comply with the standard of care provided
for herein.
3.4 Law 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 Services, 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 Services.
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3.5 Safety. Contractor shall perform the Services, and maintain its work area,
so as to avoid injury or damage to any person or property and shall otherwise 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.
3.6 Labor Code and Prevailing Wage Requirements.
3.6.1 ADDrenticeable Crafts. To the extent applicable, Contractor shall
comply with the provisions of Section 1777.5 of the Labor Code with respect to the
employment of properly registered apprentices upon public works.
3.6.2 Hours of Work. Contractor shall comply with the legal days work
and overtime requirements of Section 1813 of the Labor Code.
3.6.3 Pavroll Records. In accordance with the requirements of Labor
Code Section 1776, Contractor shall keep accurate payroll records which are either on
forms provided by the Division of Labor Standards Enforcement or which contain the
same information required by such forms. Contractor shall make all such records
available for inspection at all reasonable hours.
3.6.4 Prevailina Waae Laws. Contractor represents and warrants that it
is aware of the requirements of California Labor Code Section 1720, et seq., and 1770,
et sem., as well as California Code of Regulations, Title 8, Section 1600, et seg.,
("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the
performance of other requirements on "Public Works" and "Maintenance" projects. If
the Services are being performed as part of an applicable "Public Works' or
"Maintenance" project, as defined by the Prevailing Wage Laws, and if the total
compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing
Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per
diem wages in effect at the commencement of this Agreement and Contractor shall
provide City with proof that it and all of its subcontractors (if any) are registered with the
Department of Industrial Relations as required by Labor Code Section 1725.5.
Contractor shall make copies of the prevailing rates of per diem wages for each craft,
classification or type of worker needed to execute the Services available to interested
parties upon request, and shall post copies at the Contractor's principal place of
business and any location where the Services are performed.
3.7 Equal Opportunity Employment. Contractor represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sexual orientation, sex or age. 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.
3.8 Unauthorized Aliens. Contractor hereby promises and agrees to comply
with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. §§
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1101, et sec., as amended, and in connection therewith, shall not employ unauthorized
aliens as defined therein.
SECTION 4. INDEMNIFICATION
4.1 Indemnity. Except as to the sole negligence, active negligence, gross
negligence or willful misconduct of City, Contractor shall indemnify, defend, and hold
harmless the City, and its officers, employees and agents, from and against any and all
causes of action, claims, liabilities, obligations, judgments, or damages, including
reasonable legal counsels' fees and costs of litigation ("claims"), arising out of the
Contractor's performance of its obligations under this Agreement or out of the
operations conducted by Contractor, including the City's active or passive negligence,
except for such loss or damage arising from the sole negligence or willful misconduct of
the City. In the event the City indemnitees are made a party to any Action arising from
Contractor's performance of this Agreement, the Contractor shall provide a defense to
the City indemnitees or at the City's option, reimburse the City indemnities their costs of
defense, including reasonable legal fees, incurred in defense of such claims. This
Section shall apply to any acts or omissions, willful misconduct or negligent conduct,
whether active or passive, on the part of Contractor's officers, directors, employees,
agents and contractors, including but not limited to acts or omissions in any way related
to, the release, treatment, use, generation, transportation, storage, or disposal in, on,
under, to, or from the location at which work under this Agreement is performed of any
Hazardous Substances by Contractor or its officers, directors, employees, agents, and
subcontractors. The Parties expressly agree that any payment, or Costs and Expenses
City incurs or makes to, or on behalf of, an injured employee under City's workers'
compensation or other insurance, is included as a loss or Costs and Expenses for the
purpose of this Section. City shall not be responsible for any acts, errors or omissions
of any person or entity except City and its officers, agents, servants, employees or
contractors. The Parties expressly agree that the obligations of Contractor under this
Section shall survive the expiration or early termination of the Agreement and that
payment by City is not a condition precedent to enforcement of this indemnity.
4.2 Action. For purposes of this Agreement, "Action" shall mean any suit
(whether legal, equitable, or declaratory in nature), proceeding or hearing (whether
administrative or judicial), arbitration or mediation (whether voluntary, court-ordered,
binding, or non-binding), or other alternative dispute resolution process, and the filing,
recording, or service of any process, notice, claim, demand, lien, or other instrument
which is a prerequisite or prelude to commencement of the Action.
4.3 Costs and Expenses. For purposes of this Agreement, "Costs and
Expenses" shall mean all costs and expenses, to the extent reasonable in amount,
actually and necessarily incurred by a Party in good faith in the investigation,
prosecution or defense of an Action, including, but not limited to, court costs, filing,
recording, and service fees, copying costs, exhibit production costs, special media
rental costs, attorneys fees, consultant fees, fees for investigators, witness fees (both
lay and expert), travel expenses, deposition and transcript costs, and any other costs or
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expenses, the award of which a court of competent jurisdiction may determine to be just
and reasonable.
4.4 Hazardous Substances. For purposes of this Agreement, "Hazardous
Substances' shall mean any and all of the following:
a. any substance, product, waste or other material of any
nature whatsoever which is or becomes listed, regulated, or for which liability arises for
misuse, pursuant to the Comprehensive Environmental Response Compensation and
Liability Act ("CERCLA"), 42 U.S.C. §9601, et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. §6901, et seq.; the Toxic Substances Control Act, 15 U.S.C.S.
§2601, et seq.; the Clean Water Act, 33 U.S.C. §1251, et seq.; the Insecticide,
Fungicide, Rodenticide Act, 7 U.S.C. §136, et seq.; the Superfund Amendments and
Reauthorization Act, 42 U.S.C. §6901, et seq.; the Clean Air Act, 42 U.S.C. §7401, et
seq.; the Safe Drinking Water Act, 42 U.S.C. §300f, et seq.; the Solid Waste Disposal
Act, 42 U.S.C. §6901, et seq.; the Surface Mining Control and Reclamation Act, 30
U.S.C. §1201, et seq.; the Emergency Planning and Community Right to Know Act, 42
U.S.C. §11001, et seq.; the Occupational Safety and Health Act, 29 U.S.C. §§655 and
657; the Hazardous Waste Control Act, California Health and Safety Code ("H.&S.C.")
§25100, et seq.; the Hazardous Substance Account Act, H.&S.C.§25330, et seq.; the
California Safe Drinking Water and Toxic Enforcement Act, H.&S.C. §25249.5, et seq.;
the Underground Storage of Hazardous Substances, H.&S.C. §25280, et seq.; the
Carpenter -Presley -Tanner Hazardous Substance Account Act, H.&S.C. §25300, et seq.;
the Hazardous Waste Management Act, H.&S.C. §25170.1, et seq.; the Hazardous
Materials Response Plans and Inventory, H.&S.C. §25001, et seq.; the Porter -Cologne
Water Quality Control Act, Water Code §13000, et seq., all as they may from time to
time be amended; and
b. any substance, product, waste or other material of any
nature whatsoever which is or becomes listed, regulated, or for which liability for misuse
arises pursuant to any other federal, state or local statute, law, ordinance, resolution,
code, rule, regulation, order or decree due to its hazardous, toxic or dangerous nature.
SECTION 5. RECORDS AND DOCUMENTS
5.1 Accounting Records.
5.1.1 Maintenance and Inspection. Contractor shall maintain complete
and accurate records with respect to all expenses incurred under this Agreement. Any
and all such documents or records shall be maintained in accordance with generally
accepted accounting principles and shall be sufficiently complete and detailed so as to
permit an accurate evaluation of the Services provided by Contractor pursuant to this
Agreement. All such records shall be clearly identifiable.
5.1.2 Inspection and Coovino. Contractor shall allow a representative of
City during normal business hours to examine, audit, and make transcripts or copies of
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such records and any other documents created pursuant to this Agreement. Contractor
shall allow inspection of all work, data, documents, proceedings, and activities related to
the Agreement for a period of three (3) years from the date of final payment under this
Agreement. At no cost to City, Contractor shall provide copies of such documents or
records directly to the City for inspection, audit and copying when it is practical to do so;
otherwise, unless an alternative is mutually agreed upon, such documents and records
shall be made available at Contractor's address indicated for receipt of notices in this
Agreement.
5.2 Ownership of Documents. All original maps, models, designs, drawings,
photographs, studies, surveys, reports, data, notes, computer files, files and other
documents prepared, developed or discovered by Contractor in the course of providing
the Services shall become the sole property of City and may be used, reused or
otherwise disposed of by the City without the permission of the Contractor. Upon
completion, expiration or termination of this Agreement, Contractor shall turn over to
City all such original maps, models, designs, drawings, photographs, studies, surveys,
reports, data, notes, computer files, files and other documents
SECTION 6. [intentionally removed]
[intentionally removed].
SECTION 7. NON -LIABILITY OF CITY OFFICERS AND EMPLOYEES
No officer or employee of City will be personally liable to Contractor in the event
of any default or breach by the City or for any amount that may become due to
Contractor.
SECTION 8. BONDS
8.1 Performance and Payment Bonds. If required by law or specifically
required by City as set forth in Exhibit "E" [Bonds Required], attached hereto and
incorporated herein by reference, Contractor shall execute and provide to City
concurrently with Contractor's execution of this Agreement, but in no event later than
the Effective Date of this Agreement, a Performance Bond and/or a Payment Bond in
the amount of the total, not -to -exceed compensation indicated in Exhibit C, and in a
form provided or approved by the City.
8.2 Bond Provisions. Should, in City's sole opinion, any bond become
insufficient or any surety be found to be unsatisfactory, Contractor shall renew or
replace the affected bond within 10 days of receiving notice from City. In the event the
surety or Contractor intends to reduce or cancel any required bond, at least thirty (30)
days prior written notice shall be given to the City, and Contractor shall post acceptable
replacement bonds at least ten (10) days prior to expiration of the original bonds. No
further payments shall be deemed due or will be made under this Agreement until any
replacement bonds required by this section are accepted by the City. To the extent, if
any, that the total compensation is increased in accordance with the Agreement, the
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Contractor shall, without further notice from City, cause the amount of the bonds to be
increased accordingly and shall promptly deliver satisfactory evidence of such increase
to the City. To the extent available, the bonds shall further provide that no change or
alteration of the Agreement (including, without limitation, an increase in the total
compensation, as referred to above), extensions of time, or modifications of the time,
terms, or conditions of payment to the Contractor, will release the surety.
8.3 Surety Qualifications. Only bonds executed by an admitted surety
insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The
surety must be a California -admitted surety with a current A.M. Best's rating no less
than A:VIII and satisfactory to the City. If a California -admitted surety insurer issuing
bonds does not meet these requirements, the insurer will be considered qualified if it is
in conformance with Section 995.660 of the California Code of Civil Procedure, and
proof of such is provided to the City.
SECTION 9. TERMINATION.
9.1 Termination by City. City may, by written notice to Contractor, terminate
with or without cause, and without any prior notice of default or right to cure by
Contractor, the whole or any part of this Agreement at any time and by giving written
notice to Contractor of such termination, and specifying the effective date thereof, at
least thirty (30) days before the effective date of such termination. Upon termination,
Contractor shall be compensated only for those non -disputed Services that have been
adequately rendered to City, and Contractor shall be entitled to no further
compensation.
9.2 Termination by Contractor. Contractor may, by written notice to City,
terminate this Agreement based upon City's failure to timely cure a default under this
Agreement as provided herein. At least forty-five (45) days prior to termination,
Contractor shall provide City with a written notice specifying City's alleged default and
providing City with a forty-five (45) day period to cure the default. Should City timely
cure such default, the Agreement shall continue. Should City fail to timely or adequately
cure such default, Contractor may terminate this Agreement by issuance of written
notice to City.
SECTION 10. GENERAL PROVISIONS
10.1 Assignment or Transfer. Contractor shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
10.2 Loss and Damage. Contractor shall be responsible for all loss and
damage which may arise out of the nature of the Services agreed to herein, or from the
action of the elements, or from any unforeseen difficulties which may arise or be
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encountered in the prosecution of the Services until the same is fully completed and
accepted by City.
10.3 Liquidated Damages. The Parties agree that City has a legitimate
interest in ensuring that Contractor provides the Services (including performance of all
duties and responsibilities) required under this Agreement in a consistent and reliable
manner, and that Contractor's failure to timely provide such Services or to provide them
in an inadequate manner will cause City to suffer damages and that it is, and will be,
impractical and extremely difficult to ascertain and determine the exact amount of
damages or to calculate actual damages. Therefore, in addition to City's right to treat
such non-performance as a material breach of, and to terminate, this Agreement, the
Parties agree that liquidated damages, as provided herein, represent a reasonable
estimate of the monetary damages that reasonably could be anticipated and that proof
of actual damages would be costly or impractical. The Parties specifically confirm the
accuracy of the statements made above and the fact that each Party has had ample
opportunity to consult with legal counsel and obtain an explanation of the liquidated
damage provisions at the time that the Agreement was made. Therefore, in lieu of
actual damages, Contractor is subject to payment of $500 per failure to perform, per
day. City may, at its election. deduct any assessed liquidated damages from payment
due, or that will become due, to Contractor from City.
10.4 Excusable Delays. Contractor shall not be liable for damages, including
liquidated damages, if any, caused by delay in performance of failure to perform due to
causes beyond the control of Contractor. Such causes include, but are not limited to,
acts of God, acts of the public enemy, acts of federal, state or local governments, acts
of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe
weather. The term and price of this Agreement shall be equitably adjusted for any
delays due to such causes.
10.5 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 the Agreement.
10.6 Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of California. In the event of litigation
between the Parties, venue in state trial courts shall lie exclusively in the County of Los
Angeles. In the event of litigation in a U.S. District Court, venue shall lie exclusively in
the Central District of California, located in Los Angeles, California.
10.7 Integration. This Agreement, including the attached Exhibits "A" through
"F", is the entire, complete, final and exclusive expression of the Parties with respect to
the matters addressed therein and supersedes all other agreements or understandings,
whether oral or written, or entered into between Contractor and City prior to the
execution of this Agreement. No statements, representations or other agreements,
whether oral or written, made by any party which are not embodied herein shall be valid
and binding.
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10.8 Severability. If a term, condition or covenant of this Agreement is
declared or determined by any court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall not be affected thereby
and the Agreement shall be read and construed without the invalid, void or
unenforceable provision(s).
10.9 Prohibited Interests. Contractor represents 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 Agreement. 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 Agreement.
10.10 Amendments. No amendment to or modification of this Agreement shall
be valid unless made in writing and approved by Contractor and City. The City
Manager shall have the authority to approve any amendment to this Agreement if the
total compensation under this Agreement, as amended, would not exceed the City
Manager's contracting authority under the Temple City Municipal Code. All other
amendments shall be approved by the City Council. The Parties agree that the
requirement for amendments or modifications to be in writing cannot be waived and that
any attempted waiver shall be void.
10.11 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
10.12 Delivery of Notices. All notices required or permitted to be given under
this Agreement shall be in writing and shall be given to the respective Parties at the
addresses listed in Exhibit "D", or at such other address as the respective Parties may
provide in writing for this purpose. Such notice shall be deemed made when personally
delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class
postage prepaid and addressed to the party at its applicable address. Actual notice
shall be deemed adequate notice on the date actual notice occurred, regardless of the
method of service.
10.13 Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the Parties.
10.14 Waiver. Waiver by any Party to this Agreement of any term, condition, or
covenant of this Agreement shall not constitute a waiver of any other term, condition, or
covenant. Waiver by any Party or any breach of the provisions of this Agreement shall
not constitute a waiver of any other provision, nor a waiver of any subsequent breach or
violation of any provision of this Agreement. Acceptance by City of any Services by
Contractor shall not constitute a waiver of any of the provisions of this Agreement.
10.15 Attorneys Fees, Costs and Expenses. In the event litigation or other
proceeding is required to enforce or interpret any provision of this Agreement, the
1_A 44842-7129-1141 %1 10
prevailing party in such litigation or other proceeding shall be entitled to an award of
reasonable attorney's fees and Costs and Expenses, in addition to any other relief to
which it may be entitled.
10.16 Subcontracting. Contractor shall not subcontract any portion of the
Services, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions of
this Agreement.
10.17 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
10.18 Authority to Execute. The person or persons executing this Agreement
on behalf of Contractor represents and warrants that he/she/they has/have the authority
to so execute this Agreement and to bind Contractor to the performance of its
obligations hereunder.
10.19 Administration and Implementation. This Agreement shall be
administered and executed by the City Manager or his or her designated representative.
The City Manager shall have the authority to issue interpretations and to make
amendments to this Agreement, including amendments that commit additional funds,
consistent with Section 9.10 [Amendment] and the City Manager's contracting authority
under the Temple City Municipal Code.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed the day and year first above written.
ATTEST:
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Peggy o, Ci Clerr-�k
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APPROVED AS TO F M:
Eric S. City Attorney
CITY OF TEMPLE CITY
Bryan Cook, City Manager
CONTRA
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By- � �r
(Authorized 0 cer)
Name: RICd-.9rcJ 5- 1-f0MF�
Title CJwner
(2nd signature required if Corporation, Incorporation or Limited Liability
Corporation)
LA #4942-7229-1141 vl
By
(Authorized Officer)
TitlP-
12
EXHIBIT "A"SCOPE OF SERVICES
Contractor will furnish all necessary equipment, materials and personnel for the
completion of the work in a timely and organized manner.
[LIVE OAK PARK TENNIS COURTS RESURFACING PROJECT
This project consists of the resurfacing of four (4) tennis courts at Live Oak Park. The
work includes all services, labor, materials, transportation and equipment necessary to
perform the work described in the Scope of Work below in accordance with all state,
federal and local requirements.
Scope of Work
1. Preparation: Power wash court surfaces and rinse with clean water. Patch cracks
and spalls. Prime any exposed areas of concrete. Grind any high spots and
peeling areas.
2. Acrylic Resurfacer: Apply by squeegee, one coat of acrylic resurfacer mixed with
#60 silica sand as base coat and as filler.
3. Color Texture Coats: Apply two squeegee coats of color acrylic #90 silica sand
for a medium speed of play. The color shall be Dark Green and California Red,
paint to be Plexipave.
4. Play lines: The play lines shall be sharp and accurate according to the U.S.T.A.
"Acrylo-Line" white marking paint shall be applied by hand brush between strips
of masking tape.
5. Clean out and replace expansion joints under the net lines and at opening
between courts and install a two part urethane caulk by Sika to seal the joints.
Grind edges for proper adhesion.
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EXHIBIT "B" SCHEDULE OF PERFORMANCE
Contractor shall provide services identified in Exhibit "A" beginning Monday, July 10,
2017 and concluding no later than Friday, July 21, 2017.
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EXHIBIT "C" COMPENSATION
The City shall compensate the Contractor $13,650 for completing the project as
described in Exhibit "A".
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EXHIBIT "D" REPRESENTATIVES
City of Temple City
Attn: Steve Lawson, Parks & Recreation Manager
10144 Bogue Street
Temple City, California 91780
Contractor:
California Resurfacing
Attn: Rich Hottell
4457 Oak Lane
Claremont, CA 91711
LA 44842-7229-1141 v i
EXHIBIT "E" BONDS REQUIRED
Not applicable.
LA #4842-7229.1141 v I
EXHIBIT "F" INSURANCE REQUIREMENTS FOR CITY OF TEMPLE CITY
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during
the term of this Agreement, policies of insurance of the type and amounts
indicated below by check marks, described more fully below, and in a form that is
satisfactory to City.
X General liability insurance. Contractor shall maintain commercial
general liability insurance with coverage at least as broad as Insurance Services
Office form CG 00 01, in an amount not less than $1,000,000 per occurrence,
$2,000,000 general aggregate, for bodily injury, personal injury, and property
damage. The policy must include contractual liability that has not been
amended. Any endorsement restricting standard ISO "insured contract" language
will not be accepted.
X Automobile liability insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering
bodily injury and property damage for all activities of the Contractor arising out of
or in connection with Work to be performed under this Agreement, including
coverage for any owned, hired, non -owned or rented vehicles, in an amount not
less than $1,000,000 combined single limit for each accident.
Umbrella or excess liability insurance. [Optional depending on limits
required] Contractor shall obtain and maintain an umbrella or excess liability
insurance policy with limits that will provide bodily injury, personal injury and
property damage liability coverage at least as broad as the primary coverages
set forth above, including commercial general liability and employer's liability.
Such policy or policies shall include the following terms and conditions:
A drop down feature requiring the policy to respond if any primary
insurance that would otherwise have applied proves to be
uncollectible in whole or in part for any reason;
Pay on behalf of wording as opposed to reimbursement;
Concurrency of effective dates with primary policies;
Policies shall "follow form" to the underlying primary policies; and
Insureds under primary policies shall also be insureds under the
umbrella or excess policies.
X Workers' compensation insurance. Contractor shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability
Insurance (with limits of at least $1,000,000).
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Other provisions or requirements for insurance:
Proof of insurance. Contractor shall provide certificates of insurance to City as
evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsements must be approved by City's Risk Manager prior to commencement
of performance. Current certification of insurance shall be kept on file with City at
all times during the term of this contract. City reserves the right to require
complete, certified copies of all required insurance policies, at any time.
Duration of coverage. Contractor shall 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 Contractor, his agents, representatives, employees or
subconsultants.
Primary/noncontributing. Coverage provided by Contractor shall be primary
and any insurance or self-insurance procured or maintained by City shall not be
required to contribute with it. The limits of insurance required herein may be
satisfied by a combination of primary and umbrella or excess insurance. Any
umbrella or excess insurance shall contain or be endorsed to contain a provision
that such coverage shall also apply on a primary and non-contributory basis for
the benefit of City before the City's own insurance or self-insurance shall be
called upon to protect it as a named insured.
Agency's rights of enforcement. In the event any policy of insurance required
under this Agreement does not comply with these specifications or is canceled
and not replaced, City has the right but not the duty to obtain the insurance it
deems necessary and any premium paid by City will be promptly reimbursed by
Contractor or City will withhold amounts sufficient to pay premium from
Contractor payments. In the alternative, City may cancel this Agreement.
Acceptable insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance or is on the List of Approved Surplus Line Insurers in the
State of California, with an assigned policyholders' Rating of A- (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition
of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
Waiver of subrogation. All insurance coverage maintained or procured pursuant
to this Agreement shall be endorsed to waive subrogation against City, its
elected or appointed officers, agents, officials, employees and volunteers or shall
specifically allow Contractor or others providing insurance evidence in
compliance with these specifications to waive their right of recovery prior to a
loss. Contractor hereby waives its own right of recovery against City, and shall
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require similar written express waivers and insurance clauses from each of its
subconsultants.
Enforcement of contract provisions (non estoppel). Contractor acknowledges
and agrees that any actual or alleged failure on the part of the City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or
other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of
any type. If the Contractor maintains higher limits than the minimums shown
above, the City requires and shall be entitled to coverage for the higher limits
maintained by the Contractor. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to the City.
Notice of cancellation. Contractor agrees to oblige its insurance agent or broker
and insurers to provide to City with a thirty (30) day notice of cancellation (except
for nonpayment for which a ten (10) day notice is required) or nonrenewal of
coverage for each required coverage.
Additional insured status. General liability policies shall provide or be endorsed
to provide that City and its officers, officials, employees, and agents shall be
additional insureds under such policies. This provision shall also apply to any
excess/umbrella liability policies.
Prohibition of undisclosed coverage limitations. None of the coverages
required herein will be in compliance with these requirements if they include any
limiting endorsement of any kind that has not been first submitted to City and
approved of in writing.
Separation of insureds. A severability of interests provision must apply for all
additional insureds ensuring that Contractor's insurance shall apply separately to
each insured against whom claim is made or suit is brought, except with respect
to the insurer's limits of liability. The policy(ies) shall not contain any cross -liability
exclusions.
Pass through clause. Contractor agrees to ensure that its sub -consultants, sub-
contractors, and any other party involved with the project who is brought onto or
involved in the project by Contractor, provide the same minimum insurance
coverage and endorsements required of Contractor. Contractor agrees to monitor
and review all such coverage and assumes all responsibility for ensuring that
such coverage is provided in conformity with the requirements of this section.
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Contractor agrees that upon request, all AgreementS with consultants,
subcontractors, and others engaged in the project will be submitted to City for
review.
Agency's right to revise specifications. The City reserves the right at any time
during the term of the contract to change the amounts and types of insurance
required by giving the Contractor ninety (90) days advance written notice of such
change. If such change results in substantial additional cost to the Contractor,
the City and Contractor may renegotiate Contractor's compensation.
Self-insured retentions. Any self-insured retentions must be declared to and
approved by City. City reserves the right to require that self-insured retentions be
eliminated, lowered, or replaced by a deductible. Self-insurance will not be
considered to comply with these specifications unless approved by City.
Timely notice of claims. Contractor shall give City prompt and timely notice of
claims made or suits instituted that arise out of or result from Contractor's
performance under this Agreement, and that involve or may involve coverage
under any of the required liability policies.
Additional insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the Work.
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