AGENDA
ITEM
11 AGENDA STAFF REPORT
DATE:
TO:
APPROVED BY:
PREPARED BY:
SUBJECT:
Park,
March 16, 2022
Mayor and City Council
Miguel Figueroa, City Manager
Lilliana Falomir, Public Works Manager -Administra~
Approval of Construction of Soccer Field by Calexico Parents Athletic Association (CPAA) at Adrian C. Cordova Memorial a City Owned Property and Authorize the City Manager to Sign Agreement to Build a Soccer Field at Adrian C. Cordova Memorial Park between the City of Calexico and Calexico Parents Athletic Association.
================================================================== Recommendation:
Approval of Construction of Soccer Field by Calexico Parents Athletic Association (CPAA) at Adrian C. Cordova Memorial Park, a City Owned Property and Authorize the City Manager to Sign Agreement to Build a Soccer Field at Adrian C. Co,rdova Memorial Park between the City of Calexico and Calexico Parents Athletic Association.
Background:
Adrian C. Cordova Memorial Park is located on Clinton Avenue between Zapata Drive and Meadows Drive. Approximately 9 acres of Adrian Cordova Park has been developed into multipurpose field, playground area, parking lot and three baseball fields .
The remaining 6 acres of Adrian C. Cordova Memorial Park is undeveloped.
Discussion & Analysis:
Due to the overwhelming demand for the use of parks by sport athletics league the Calexico Parents Athletic Association (CPAA) is proposing to construct one (1) soccer field at Adrian C. Cordova Memorial Park which will include all labor and material. CPAA will be required to submit construction plans, specification and apply for all the necessary permits. The City will conduct all inspections to assure that the field is constructed in accordance to all applicable codes. Please note that once the soccer field is constructed all members of the community including sport leagues will be able to use the soccer field for recreational use.
AGENDA
C\
Fiscal Impact:
No fiscal impact at this time.
Coordinated With:
City Manager's Office.
City Attorney's Office.
Public Works Department.
Attachment(s):
1. Agreement to Build a Soccer Field at Adrian C. Cordova Memorial Park between the City of Calexico and Calexico Parents Athletic Association.
AGREEMENT TO BUILD A SOCCER FIELD AT CORDOVA PARK
BETWEEN THE CITY OF CALEXICO AND CALEXICO PARENTS ATHLETIC
ASSOCIATION
I. Parties and Date.
This Agreement ("Agreement") is made and entered into this l 61 h day of March, 2022
("Effective Date") by and between the City of Calexico, a municipal corporation (referred to herein as "City") and the Calexico Parents Athletic Association, [***INSERT TYPE OF NTITY] (referred to herein as "CP AA"). CPAA and City are sometimes individually referred to as "Patty" and collectively as "Patties."
2. Recitals.
2.1 The City is a municipal corporation organized under the laws of the State of California, with the power to contract for services necessary to achieve its purpose and to accept donations from the public;
2.2 City is the owner of ce1tain real prope1ty commonly referred to as Adrian C.
Cordova Memorial Park ("Park") located on Clinton A venue and Zapata Street (the "Prope1ty");
2.3 CP AA desires to donate and provide volunteer services, including labor, material, and equipment for the design and construction of a soccer field at the Park ("Project");
2.4 The City desires to grant CP AA a license and right of entry to access the Prope1ty in order to construct the Project in exchange for the promises contained herein; and
2.5 The City and CP AA desire to enter into this Agreement to establish the terms of the Project by CP AA and the procedures pursuant to which the Project will be accepted by the City upon completion.
3. Terms.
3.1 Incorporation of Documents. This Agreement includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications, and documents therein, and attachments and addenda thereto:
(i) Depiction of the Project Area, attached hereto as Exhibit "A" and incorporated herein by this reference.
(ii) Scope of Services, attached hereto as Exhibit "B" and incorporated herein by this reference.
(iii) Bonds attached hereto as Exhibit "C" and incorporated herein by this reference. (iv) Insurance requirements attached hereto as Exhibit "D" and incorporated herein by this reference.
81211.00100\34588774.1
3.2 Term. Time is of the essence for each and every provision of this Agreement.
CP AA shall perform and complete all work required for the Project by a date mutually agreed to by the Parties, but no later than December 31, 2022, unless otherwise agreed to by the Parties.
3.3 CPAA's Obligations.
(a) CPAA's Basic Obligation. CPAA shall, at its own cost and expense, furnish all labor, equipment, and material for design and construction of the Project ("Services") and perform and complete in a good and workmanlike manner, in accordance with City approved plans and specifications. The Services are more paiticularly described in Exhibit "B". All Services shall be subject to the terms and provisions of this Agreement, the exhibits attached hereto, and all applicable local, state and federal laws, rules and regulations. All work related to the construction of the Project is for the convenience of and at the request of CP AA, who shall be solely responsible for all costs and expenses in connection with the design and construction thereof. The City shall not be responsible to any contractor or its subcontractors, suppliers or materialmen for any such work
(b) Independent Contractor; Responsibility of CP AA. CP AA will provide the Services described herein and is not an employee of City. CP AA will determine the means, methods and details of performing the Services. Any contractor performing the Services under this Agreement on behalf of CP AA shall at all times be under CP AA's exclusive direction and control and CP AA shall be fully responsible to the City for the acts and omissions of said contractor.
( c) CP AA Contractor. The Services shall be pe1fo1med by a qualified contractor (or subcontractor) holding a state-issued contractor's license in good standing. CP AA shall provide a contractor that has a current and active contractor's license and the technical personnel required to perform the Services and complete the Project. CP AA shall have a written agreement executed by its contractor, which shall incorporate and bind the contractor to the terms of this Agreement. CP AA shall furnish its Contractors with a copy of this Agreement, and approved plans, and any other incorporated documents. Nothing contained in this Agreement shall create any contractual relationship between any contractor and the City. ( d) Bonds. CP AA shall require its contractor to provide the following surety bonds: (1) a performance bond in an amount of one hundred (100%) of the cost to install the Project, to guarantee faithful performance of the Project; and (2) a payment bond (labor and materials bond) in an amount of one hundred percent (100%) of the cost to install the Project, to secure payment to the contractors, subcontractors, laborers, materialmen and persons furnishing equipment for the installation of the Project. City shall be added as an additional obligee to the bonds by providing a dual obligee rider. The bonds shall be provided by a California admitted surety as defined in Code of Civil Procedure section 995.120, and shall be on City's standard bond forms attached hereto as Exhibit "C." Personal sureties and unregistered sureties are unacceptable.
( e) Prevailing Wages. CP AA is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., ("Prevailing Wage Laws"), which require the payment of 2 812 11.00100\34588774 .1
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, CPAA agrees to fully comply with such Prevailing Wage Laws.
CPAA shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws, including any claims pursuant to California Labor Code Section 1781.
(f) Permits, Licenses and Approvals. CP AA shall be solely responsible for securing and paying for the necessary permits, licenses and approvals from the City or any other entity with jurisdiction over the Project. CP AA shall provide verification that permits, licenses and approvals have been obtained promptly upon demand from the City. CP AA shall ensure that all Services performed under this Agreement comply with all applicable federal, state, county and local government rules and regulations.
(g) Standard of Care. CP AA and its contractor shall perform all Services under this Agreement in a skillful, competent and timely manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in California.
CP AA further represents that it and its contractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Any of CP AA's contractors who are determined by City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or prope1ty, or any of CP AA's other contractors who fail or refuse to perform the Services in a manner acceptable to City, shall be promptly removed from the Project by CP AA and shall not be used to perform any of the Services or to work on the Project.
(h) Warranty/Guarantee. CPAA shall provide the applicable warranty and guarantee obligations set fmth in the Scope of Services attached hereto as Exhibit "B." (i) Laws and Regulations. CP AA shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all California Code of Regulations Title 24 and Cal/OSHA requirements, and shall give all notices required by law.
CP AA shall be liable for all. violations of such laws and regulations in connection with Services.
U) Insurance. CP AA shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that it and its contractor has secured appropriate insurance to cover work on the Project. The City shall have the right to review and approve all such insurance policies. Insurance requirements are attached hereto as Exhibit "D". (k) Safety. CP AA shall execute and maintain its Services so as to avoid injury or damage to any person or prope1ty. In carrying out its Services, the CPAA shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of all personnel under its supervision and control. This includes securing the Project and the Prope1ty during and after construction hours. 3 81211.00100\34588774. l
(I) The Parle CP AA accepts the Prope1ty in its "as is" condition, with all faults. CPAA acknowledges and agrees that CP AA is entering the Park and Project area under this Agreement based on CPAA's own investigations and knowledge of the Park and that, except as otherwise specifically stated in this Agreement, neither City nor any agent of City has made any representation or warranty whatsoever, express or implied, with regard to the physical condition of Project area or the suitability of the Project area for any particular purpose or use, including, without limitation, any representations or warranties regarding the applicability or non-applicability of any laws, the soil or subsoil, surface or subsurface conditions, topography, possible hazardous substances contamination, fill, drainage, applicability of or compliance with any environmental laws or any other matter of any nature whatsoever. The City is not responsible for damage to or loss by theft of CP AA' s property located in or on the Park and Project area.
3 .4 City's Basic Obligation. City does hereby grant CP AA license and right of entry to access the Prope1ty as an independent contractor to furnish all materials and to perform all Services on a wholly volunteer basis according to the terms and conditions herein contained.
City agrees to accept the Project upon completion, in City's sole discretion, thereof in compliance with all obligations set forth herein.
3.5 Suspension or Termination of Services. The City may, in its sole discretion, suspend or terminate all or any pmt of the Services if it determines that such a suspension or termination is in the best interest of the City. Such suspension or termination shall be effective immediately upon notice to CP AA.
3.6 Ownership of Materials and Confidentiality. All materials and data, including but not limited to, data on magnetic media and any materials and data required to be made or kept pursuant to federal, state or local laws, rules or regulations, prepared or collected by CP AA pursuant to this Agreement, shall be the sole prope1ty of the City.
3.7 Indemnification. CPAA shall defend (with counsel reasonably satisfactory to the City), indemnify, and hold harmless City, its elected officials, officers, employees, agents, and volunteers from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of CP AA, its personnel, employees, agents, or contractors in connection with or arising out of installation of the Project, use of the Project, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to prope1ty or persons, including wrongful death, to the extent caused by the sole or active negligence or willful misconduct of City as determined by a comt or administrative body of competent jurisdiction. CPAA's obligation to indemnify shall survive the expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, agents, or volunteers. 4 81211.00100\34588774.1
3 .8 Limitation of Liability. In no event and under no circumstances shall the City be liable to CP AA, or any person claiming through CP AA, for any claim, loss, damage, principal, interest, loss of anticipated revenues, or any consequential, punitive, special or similar damages.
3.9 Fee Title/Liens. The Parties agree that fee title to the Project and all other City prope1iy shall at all times remain fully vested in the City. CP AA shall not file, record, nor permit the recording or filing of, any lien, including any mechanics or other lien(s), claim(s) or encumbrance(s) of any nature with respect to any portion of the Project or City property, nor shall the CP AA use or permit to be used any po1iion of the Project or City property to be used as security for any transaction of any kind. The CPAA shall immediately remove any lien(s), claim(s) or encumbrance(s) of any kind, including any security obligation of any nature, which the CP AA may cause or permit to be filed or recorded against any portion of the Project or City prope1iy.
3 .10 Notices. All notices hereunder and communications regarding interpretation of the terms of the Agreement or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
CPAA:
[***INSERT NAME AND ADDRESS***]
ATTN: [***INSERT REP. NAME AND TITLE***]
CITY:
CITY OF CALEXICO
608 HEBER A VENUE
CALEXICO, CA 92231
ATTN: CITYMANAGER
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3 .11 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements.
3.12 Governing Law. This Agreement shall be governed by the Jaws of the State of California. Any action brought to enforce the terms of this Agreement shall be brought in a state or federal court located in the County of Imperial, State of California. 3 .13 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.14 Assignment Forbidden. CPAA shall not, either voluntarily or by action of law, assign or transfer this Agreement or any obligation, right, title or interest assumed by CP AA 5 81211.00100\34588774.1
herein without the prior written consent of City. If CP AA attempts an assignment or transfer of this Agreement or any obligation, right, title or interest herein, City may, at its option, terminate and revoke the Agreement and shall thereupon be relieved from any and all obligations to CP AA or its assignee or transferee.
3 .15 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Agreement.
3 .16 Amendments. This Agreement may not be amended except by a writing signed by the City and CP AA.
3 .17 Interpretation. In interpreting this Agreement, it shall be deemed that it was prepared jointly by the Patties with full access to legal counsel of their own. No ambiguity shall be resolved against any patty on the premise that it or its attorneys were solely responsible for drafting this Agreement or any provision thereof.
3 .18 Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. 3 .19 Authority to Enter Contract. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party.
3.20 Counterparts. This Agreement may be executed in counterpatts, each of which shall constitute an original and all of which shall constitute one agreement. 6 81211.00100\34588774.1
IN WITNESS WHEREOF, the Pa11ies hereto have executed this Agreement by their authorized officers as of the day and year first written above.
CITY OF CALEXICO
By:
Name: ~~~~~~~~~~~-
Title:
Attest:
By:
Name: ~~~~~~~~~~~-
Title:
7 81211.00100\34588774.1
CALEXICO PARENTS ATHLETIC
ASSOCIATION
CPAA
By:
Name: ~~~~~~~~~~~-
Title:
Attest:
By:
Name: ~~~~~~~~~~~-
Title:
Federal Tax I.D. Number
8 12 11.00 100\34588774. 1
EXHIBIT "A II
DEPICTION OF PROJECT
CORDOVA PARK
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EXHIBIT II B II
SCOPE OF SERVICES
1. CONSTRUCTION AND COMPLETION OF THE PROJECT.
1.1 Conditions Precedent. The Patties recognize and agree that several conditions precedent exist to commence construction of the Project, including, without limitation:
81211.00 I 00\34588774.1
1.1.1 Plans and Specifications, Approval; Permits. CP AA, at its own expense and at no cost to the City, shall develop plans and specifications for the Project in accordance with all applicable laws, regulations, rule, or guidelines. CP AA shall submit all plans and specifications to the City for review and approval through the City's standard administrative process.
The final and approved plans and specifications ("Final Plans") shall be used to construct the Project. CP AA shall also obtain all permits as required by this Agreement. City shall obtain immediate possession of all of the documents prepared by CP AA upon the donation of the completed Project to City, or upon the termination of this Agreement for any reason prior to completion of the Project.
1.1.2 Environmental Review. CP AA shall certify that the environmental review process has been completed, as required by CEQA. The Project may constitute a "project" for purposes of compliance with the California Environmental Quality Act ("CEQA"). The City shall be the lead agency for the Project, and the environmental review for the work to be performed pursuant to this Agreement shall be determined by the City, in its sole discretion.
(a) Fees and Costs of Environmental Review. All fees and costs of the environmental review, including any and all costs associated with surveys, testing, investigation, and inspection as well as any mitigation monitoring program or other environmental mitigation shall be borne solely by CPAA.
1.1.3 Bonds; Insurance. CP AA shall submit to the City certificates of insurance and copies of payment and performance bonds in accordance with the requirements of this Agreement.
1.1.4 Contractor. CP AA shall obtain the City's approval of the selected contractor and a fully executed copy of the general contract between CP AA and its contractor shall be delivered to the City.
1.1.5 Pre-Construction Meeting. CP AA shall hold a pre-construction meeting with the City.
1.1.6 Schedule for Completion. Based on the Final Plans prepared pursuant to this Agreement, the City and CP AA shall mutually agree on a schedule for completion of the Project, which shall be approved by City prior to commencement of construction on the Project. The schedule for completion is incorporated herein by this reference. Any and all changes to 9 the schedule that will materially affect the estimated date of completion shall be subject to City approval.
1.2 Construction. CP AA shall have the sole and exclusive right and responsibility to construct the Project, except that the City shall have the rights expressly provided in the Agreement. CP AA warrants and agrees that it is aware of and familiar with the laws, rules and regulations of the City and the State of California and accepts sole responsibility for ensuring any such applicable laws, regulations, rules, or guidelines are met and otherwise managing the work, as required by law. CP AA shall indemnify the City as set fmih in the Agreement for any claim or matter arising from or in any way related to CPAA's obligations pursuant to this Section.
1.2.1 City Access During Construction. The City may designate in writing to CP AA any number of persons who may have access to the Prope1ty during construction of the Project for purposes of monitoring the work. The City's designees shall have the primary responsibility of monitoring CPAA's work on the Project and, except in emergency circumstances as reasonably determined by the City or the City's designee(s), shall not have authority to direct the progress of the work. In the event of emergency circumstances, as reasonably determined by the City or the City's designee(s), the City's designee(s) shall have authority to direct CPAA or CPAA's contractor to cease fmther work on the Project, or to take such other action as they determine to be reasonably necessary in light of the circumstances.
1.2.2 City 's Reasonable Approval of Material Design Changes. CP AA shall have the sole and exclusive right to make and approve non-material design changes during construction of the Project. The City's prior approval will be required, however, for any material design changes. A material design change is one which fundamentally alters the Project as described in the Final Plans developed and approved by the City pursuant to this Agreement.
1.2.3 Restoration of Property. CP AA shall use commercially reasonable efforts to protect City property from any damage resulting from the Project (with the exception of those demolition and/or reconstruction activities reasonably contemplated by the Patties as part of the Project) and shall repair any damage to such prope1ty resulting from the Project.
1.2.4 Status of the Project. CP AA shall keep the City reasonably informed as to the status of the Project. CP AA shall notify the City of any matter pertaining to the Project that may affect the Project not later than 24 hours after CP AA' s discovery of such matter. Where an emergency condition exists that may affect the Project, CP AA shall notify the City of such condition immediately. CPAA shall complete the Project without interfering with the City's business operations, except as may be approved by the City in writing.
1.3 Costs of Construction. CP AA shall be fully responsible for all costs of completion of the Project, and in no event shall any funds of the City be used for construction or completion of the Project. CP AA shall indemnify City from any claims for payment 10 81211.00100134588774.1
from any volunteer, agent, contractor or subcontractor or other matters relating to or arising from CPAA's obligations as set fo1th in this Section. Notwithstanding the foregoing, in the event CP AA fails to substantially complete the Project pursuant to the terms of this Agreement, or if at any time after commencement of construction the City determines CP AA has abandoned the Project, the City shall have authority to pay outstanding costs of construction to the extent necessary to ensure completion of the Project, or, at the City's sole option, to pay the costs to restore the Prope1ty to its original state prior to commencement of construction, from the bonds or other security posted by CP AA pursuant to this Agreement; however, any such payment shall not constitute waiver of any other remedy under this Agreement, at law, or in equity for CPAA's breach or default under this Agreement. In no case shall the City be required to expend any City funds to complete the Project or to restore the Prope1ty in the event CP AA abandons the Project prior to completion.
1.4 Project Inspection. CP AA shall reimburse the City for any costs associated with inspection of the Project as required.
1.5 Project Completion.
8 1211.00100\34588774.1
1.5 .1 Completion. On or before the scheduled date for completion of the Project, CPAA shall notify City, in writing, of the date on which it considers the Project to be complete and shall request City to immediately thereafter inspect the work to confirm such Completion.
1.5.2 Final Walk-Through after Completion. Within ten (10) days or receipt of notice of completion as described above, City and the CPAA's designated representative(s) will pa1ticipate jointly in a final walk-through for the Project.
1.5.3 Punchlist. CPAA will document the final walk-through and prepare a punch list, subject to the approval of City or City's representative(s), for the completion of the Project.
1.5.4 City's Approval of Construction. If City determines that CPAA has achieved completion, City shall so notify the CP AA by issuance of a written certificate of completion.
1.5.5 Ce1tificate of Final Acceptance. City shall issue a written Final Acceptance Ce1tificate to CP AA after its confirmation that:
(a) Punchlist and other work of a minor nature has been satisfactorily completed;
(b) Complete operations and maintenance manuals have been submitted for applicable materials, machinery and equipment incorporated into the Project;
( c) All warranties from contractors, subcontractors, materials suppliers, and manufacturers have been submitted;
11 (d) The final as-built drawings in have been submitted; ( e) Labor and material releases from all contractors and subcontractors performing work on, or furnishing materials for, the Project have been provided by CP AA.
(f) The City Council of the City has formally accepted the Project, by resolution or in such other manner as the City finds appropriate.
The issuance of the Final Acceptance Certificate shall commence the Warranty Period.
1.5.6 Notice of Completion. The City shall process and record a Notice of Completion for the Project after acceptance of the Project by the City Council of the City.
1.6 Transfer of Ownership. Upon issuance of the Final Acceptance Certificate by the City, ownership of all work and improvements constructed or installed by CP AA pursuant to the obligations set fo1th in this Agreement shall automatically transfer to the City. CP AA shall have no continuing right to enter the Prope1ty or to use the Project, except in the performance of its continuing obligations after completion of the Project, under this Agreement.
1.6.1 Liability for Project Prior to Formal Acceptance. Until the City has formally accepted the Project, CP AA shall be solely responsible for any and all damage to the Project or any Project work, regardless of the cause and for all damages or injuries to any person or prope1ty from any cause related to the Project. City will not enter or use or permit others to enter or use any pmtion of the Property, except as otherwise permitted by this Agreement, until the City has formally accepted the Project and delivered to CP AA a Ce1tificate of Final Acceptance in accordance with this Agreement.
1.6.2 Liability After Acceptance of Project. After the City has formally accepted the Project, CPAA and CPAA's successors shall remain liable for all injuries or damages caused to persons or property, including damage to the Project itself, arising from or related to the Project performed by CP AA or any of CP AA' s contractors, subcontractors, employees, representatives, or agents provided, however, such liability shall not extend beyond any applicable statutes of limitation under state or federal law.
1.7 Warranties.
81211.00100\34588774.1
1. 7 .1 Conforming Materials/Project. CP AA warrants those materials and equipment furnished in connection with the Project will be of good quality and new unless otherwise required or permitted by Final Plans, that the Project will be free of defects, and that the Project will conform to the requirements of the design development documents, accepted industry standards, and applicable governmental rules. Any work not conforming to these requirements, including substitutions not properly approved and 12 81211.00100\34588774.1
authorized, may be considered defective. CP AA shall be responsible and liable for the correction of any pmiion of the Project that is not in conformity with the requirements of the Final Plans. CP AA shall also promptly take all action necessary to prevent similar deficiencies from occurring in the future . If CP AA fails to correct any nonconforming work within fourteen (14) days of receipt of notice from the City requesting correction, then the City may cause the nonconforming work to be remedied or removed and replaced and may deduct the cost(s) of doing so from any bonds or other security posted by CP AA pursuant to this Agreement or to and/or obtain reimbursement from CP AA for such cost(s).
1. 7 .2 Warranty Period. CP AA hereby warrants that the work will be constructed in accordance with the Final Plans and will be free from defects in workmanship and materials for a period of twelve (12) months from the date of issuance of the Final Acceptance Ce1iificate (the "Warranty Period").
1.7.3 Repair of Deficient Project. CP AA shall, for a period of twelve (12) months following issuance of the Final Acceptance Ce1tificate, promptly repair any defective or deficient work. Such repair work shall proceed within fomieen (14) days of receipt of written notice from the City of a defect in the Project. If CP AA fails to c01Tect any defective or deficient work within foutieen (14) days of receipt of notice from the City requesting correction, then the City may cause the nonconforming work to be remedied or removed and replaced and may deduct the cost(s) of doing so from any bonds or other security posted by CP AA pursuant to this Agreement or to and/or obtain reimbursement from CP AA for such cost(s ).
1.7.4 The obligations of CP AA under this Section are in addition to, and not in lieu of, the rights and remedies available to the City under applicable law.
This Section shall not be deemed a waiver of any statutes of limitation applicable to patent or latent defects in the Project.
13 EXHIBIT "C"
BONDS
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the Calexico Parents Athletic Association, (hereinafter referred to as "CP AA") has entered into an agreement with , (hereinafter referred to as the "Contractor") for , (hereinafter referred to as the "Project").
WHEREAS, the work to be performed by the Contractor is more paiticularly set fmth in the Agreement dated , (hereinafter referred to as "Contract Documents"), the terms and conditions of which are expressly incorporated herein by reference; and WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, the undersigned Contractor and
_______ _______________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto CP AA in the sum of DOLLARS, ($ , said sum being
not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the guarantee of all repairs and maintenance; and shall indemnify and save harmless CP AA, its officials, officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a patt of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney's fees, incurred by CP AA in enforcing such obligation.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good after the acceptance of the work by CP AA, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect CP AA from loss or damage to the Project. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit CPAA; rights or the Contractor or Surety's obligations under the Contract, law, or equity, including, but not limited to, California Code of Civil Procedure Section 337.15. 14 8 1211.00100\3 4588774.1
Whenever Contractor shall be, and is declared by CP AA to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at CPAA' option:
1. Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
11. Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and CP AA, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term "balance of the contract price" as used in this paragraph shall mean the total amount payable to Contractor by CP AA under the Contract and any modification thereto, less any amount previously paid by CP AA to the Contractor and any other set offs pursuant to the Contract Documents. m. Permit CP AA to complete the Project in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term "balance of the contract price" as used in this paragraph shall mean the total amount payable to Contractor by CP AA under the Contract and any modification thereto, less any amount previously paid by CP AA to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that CP AA may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if CP AA, when declaring the Contractor in default, notifies Surety of CPAA' objection to Contractor's further participation in the completion of the Project.
The Surety, for value received, hereby stipulates, and agrees that no change, extension of time, alteration, or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract Documents or to the Project.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
15 81211.00100\34588774.1
IN WITNESS WHEREOF, we have hereunto set our hands and seals this ------'2022).
(Corporate Seal)
Contractor/Principal
By:
Title:
(Corporate Seal) Surety
By:
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title:
day of
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title ________________ _ The rate of premium on this bond is _ _ ____ per thousand. The total amount of premium charges,$ _____ ____ ____ _
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to :
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if
different from above)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
16 812 11.00100\34588774.1
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ____ ~
On ________ __,_ 2022, before me, ______________ , Notary Public, personally appeared - ---- - - --- - -------' who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by Jaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER
D Individual
D Corporate Officer
D Partner(s)
D Attorney-In-Fact
D Trustee(s)
D Guardian/Conservator
D Other:
Signer is representing:
Title(s)
D
D
Name Of Person(s) Or Entity(ies)
8 1211.00 I 00\34588774. 1
Limited
General
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
17 PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
THAT WHEREAS, the Calexico Parents Athletic Association, (hereinafter referred to as the "CP AA") has entered into an agreement with , (hereinafter referred to as the "Contractor") for , (hereinafter referred to as the "Project").
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Agreement dated , (hereinafter referred to as "Contract Documents"), the tenns and conditions of which are expressly incorporated herein by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Depaiiment from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set fmih.
NOW THEREFORE, we, the Principal and as Surety, are held and firmly bound unto CP AA in the penal sum of Dollars ($ lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Civil Code Section 9100, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Revenue and Taxation Code Section 18663, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case · suit is brought upon this bond, all litigation expenses incurred by CP AA in such suit, including reasonable attorneys' fees, court costs, expe1i witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pe1iaining or relating to any scheme or work of improvement herein above described, or pe1iaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement 18 8121 l.00100\34588774.l
herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or CPAA and original contractor or on the pait of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of Contract, including but not limited to, the provisions of Sections 2819 and 2845 ofthe California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this ------ ' 2022. -
(Corporate Seal)
Contractor/Principal
By:
Title:
(Corporate Seal) Surety
By:
Attorney-in-Fact
(Attach Attorney-in-Fact Ce1tificate) Title:
day of
Signatures of those signing for the Contractor and Surety must be notified and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
19 8 12 11.00100\34588774.1
Notary Acknowledgment
A notary public or other officer comJ?leting this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ____ _
On _________ __, 20_, before me, ______________ , Notary Public, personally appeared ___________________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same m his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I ce1iify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER
D Individual
D Corporate Officer
D Partner(s)
D Attorney-In-Fact
D Trustee(s)
D Guardian/Conservator
D Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
81211.00100\34588774 . l
Title(s)
D
D
Limited
General
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
20 EXHIBIT -"D"
INSURANCE REQUIREMENTS
1. Time for Compliance. CP AA shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it and its contractor has secured all insurance required under this section. In addition, CP AA shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
2. Minimum Requirements. CP AA shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by CPAA, its agents, representatives, employees, or subcontractors. CP AA shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:
2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 0 I) OR Insurance Services Office Owners and CP AAs Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Policies shall not contain exclusions contrary to this Contract.
2.2 Minimum Limits of Insurance. CP AA shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence and $5,000,000 general aggregate for bodily injury, personal injury, and prope1ty damage; (2) Automobile Liability: $2,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1 ,000,000 each accident, policy limit bodily injury or disease, and each employee bodily injury or disease. Defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the patties required to be named as additional insureds pursuant to this Contract.
3. Professional Liability. All architects, engineers, consultants, or design professionals retained by CPAA shall also procure and maintain, for a period of three (3) years following completion of the contract, errors, and omissions liability insurance with a limit of not less than $2,000,000 per occurrence. This insurance shall name the City, its directors, officials, officers, employees, agents, and volunteers as additional and insureds with respect to Services performed and shall otherwise comply with all requirements of this Section.
4. Insurance Endorsements. The insurance policies shall contain the following provisions, or CP AA shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions to the insurance policies.
21 81211.00100\34588774.1
4.1 General Liability. (1) Such policy shall give the City, its officials, employees, agents and authorized volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of CP AA, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit CPAA to waive all rights of subrogation which may be obtained by the CPAA or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and CP AA agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of CPAA's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents, and authorized volunteers shall be excess of CP AA's insurance and shall not be called upon to contribute with it.
4.2 Automobile Liability. (1) Such policy shall give the City, its officials, employees, agents and authorized volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by CP AA or for which CP AA is responsible; (2) all policies shall waive or shall permit CPAA to waive all rights of subrogation which may be obtained by the CP AA or any insurer by vi1tue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and CP AA agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of CPAA's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents, and authorized volunteers shall be excess of CP AA' s insurance and shall not be called upon to contribute with it in any way.
4.3 Workers' Compensation and Employer's Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, agents, and authorized volunteers for losses paid under the terms of the insurance policy which arise from work perfo1med by CPAA.
4.4 All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thi1ty (30) days prior written notice by ce1tified mail, return receipt requested, has been given to the City; and (2) any failure to comply with repmting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and authorized volunteers.
5. Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. CPAA shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officials, employees, agents, and authorized volunteers; or (2) the CP AA shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
6. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, licensed to do business in California, and satisfactory to the City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
7. Verification of Coverage. CPAA shall furnish City with original ce1tificates of insurance and endorsements effecting coverage required by this Contract on fo1ms satisfactory to the City. The ce1tificates and endorsements for each insurance policy shall be signed by a person authorized by that 22 81211.00100134588774.1
insurer to bind coverage on its behalf and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
8. Subcontractors. All contractors shall meet the requirements of this Section before commencing Work. CP AA shall furnish separate ceitificates and endorsements for each contractor. Contractor policies of General Liability insurance shall name the City, its officials, employees, agents, and authorized volunteers as additional insureds using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages for contractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the City in writing.
9. Repmiing of Claims. CPAA shall repolt to the City, in addition to CPAA's insurer, any and all insurance claims submitted by CP AA in connection with the Services under this Agreement.
10. CPAA shall ensure that its contractor is aware of the provisions of Section 3 700 of the California Labor Code, which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code. Each contractor shall comply with such provisions before commencing the performance of the Services under such contractor's agreement with CP AA.
11. If any of the required policies provide claims-made coverage, the retroactive date must be shown, and must be before the date of the Agreement and the beginning of work under the Agreement.
The insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work under the Agreement. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Agreement effective date, CP AA must purchase "extended reporting" coverage for a mini8mu of five
12. The insurance requirements and limits of the insurance provisions of this Agreement shall not be construed to limit any direct or indirect liability of CP AA. Acceptance of insurance does not relieve CP AA from liability under this provision. This provision shall apply to all damages or claims for damages related to the services performed by CPAA regardless of whether or not any insurance obtained by CP AA is applicable. The insurance policy limits set fo1ih herein shall not act as a limitation upon the amount of indemnification or defense to be provided by CP AA hereunder.
13. If CPAA maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by CP AA.
Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
14. If CPAA fails to maintain any of the insurance coverage required herein, City may withhold payment, order CP AA to stop the work, declare CP AA in breach, suspend or terminate the Agreement, or pay premiums due on existing policies. City may collect any replacement insurance costs or premium payments made by City to an insurer from CP AA or deduct the amount paid from any sums due CP AA under this Agreement. Breach of any insurance provision herein may be considered as a material breach in the discretion of City.
23 81211.00100\34588774.1