Contract No.:
Approved:
Ayala Park Improvements Project Phase 1B – Softball Fields 1-4 Project No.: PK231
AGREEMENT
THIS AGREEMENT is made and entered into this 2nd day of July, 2024 by and between THE CITY OF CHINO, a municipal corporation, hereinafter called “City”, and ACT 1, CONSTRUCTION, INC., hereinafter called “Contractor”.
WITNESSETH, that the parties hereto mutually agree as follows:
ARTICLE I: For and in consideration of the payments and agreements hereinafter mentioned to be made and performed by City, Contractor agrees to perform and complete all of the work for the project Ayala Park Improvements Project Phase 1B – Softball Fields 1-4 – Project No.: PK231 in a good and workmanlike manner in accordance with all plans and specifications therefor, to furnish at Contractor’s sole cost and expense all tools, equipment, labor, and materials necessary therefor, except such materials and equipment as are expressly stipulated to be furnished by City, and to do everything required by the Contract Documents.
ARTICLE II: Contractor shall be responsible for furnishing all labor, materials, equipment, tools, and services, furnishing and removing all plants, temporary structures, tools, and equipment, and doing everything required by this Agreement and by the Contract Documents. Contractor shall also be responsible for all losses and damages arising out of the performance of the Work, from the action of the elements, or from any unforeseen difficulties that may arise during the prosecution of the Work until its acceptance by City; for all risks of every description associated with the Work; and for all expenses resulting from the suspension or discontinuance of the Work. City shall pay Contractor, and Contractor shall receive, for completing the Work in accordance with the requirements of the Contract Documents and in full compensation therefor, the price named in the Bid Proposal. Subject to any additions or deductions that may be made by change order or amendment, and any penalties or damages that may be assessed against Contractor, Contractor shall receive a total contract amount of Three Million Seven Hundred Sixty-Six Thousand Four Hundred Two Dollars and Fifty Cents ($3,766,402.50) for completion of the contract work.
ARTICLE III: The City hereby employs said Contractor to perform the work according to the terms of this Agreement for the abovementioned price(s), and agrees to pay the same at the time, in the manner, and upon the conditions stipulated in the Contract Documents; and the said parties for themselves, their heirs, executors, administrators, successors and assignees, do hereby agree to the full performance of the covenants herein contained.
ARTICLE IV: Contractor shall begin work within fifteen (15) calendar days after receiving a Notice to Proceed from the City and the work shall be completed within one hundred twenty (120) working days. If the work is not completed within said time period, liquidated damages shall apply.
ARTICLE V: The Notice Inviting Bids, the Summary of Work, the Instructions to Bidders, the Bid Documents, the Required Post-Bid Documents, the General Provisions, the Special Provisions, the Technical Specifications, and all other drawing, plans, or specifications for the Work (collectively, “Contract Documents”) are hereby incorporated into and made part of this Agreement.
ARTICLE VI: Contractor shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Contractor's negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the City. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of City. Should conflict of interest principles preclude a single legal counsel from representing both City and Contractor, or should City otherwise find Contractor’s legal counsel unacceptable, then Contractor shall reimburse the City its costs of defense, including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation. The Contractor shall promptly pay any final judgment rendered against the City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the Contractor’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
ARTICLE VII: No officer or employee of the City shall have any financial interest in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his financial interest or the financial interest of any corporation, partnership or association in which he is interested, in violation of any State statute or regulation. Similarly, Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
ARTICLE VIII: This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of San Bernardino, State of California.
ARTICLE IX: 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 of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
ARTICLE X: No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
ARTICLE XI: The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
ARTICLE XII: In the course of its work under this Agreement, the Contractor, its agents and employees shall be bound by and comply with all applicable federal, state and local laws and requirements.
ARTICLE XIII: The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. [SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed on the day and year first above written.
Approved as to Form:
Approved as to Content:
City Attorney
Silvia Avalos
Director of Community Services, Parks & Recreation Department CONTRACTOR COMPANY NAME:
Dated:
By:
(Signature)
Name:
(Please Type or Print Name)
(Signature must be notarized)
Title:
(Please Type or Print Title)
CITY OF CHINO
Dated:
Dr. Linda Reich, City Manager
ATTEST:
Natalie Gonzaga, City Clerk
Date
BOND NO: ___________________
CONTRACT NO: ___________________
APPROVED: ___________________
PERFORMANCE BOND
Ayala Park Improvements Project Phase 1B – Softball Fields 1-4 Project No.: PK231
WHEREAS the City of Chino has executed an agreement with __________________ (hereinafter “Principal”), requiring Principal to perform the construction of public improvements (hereinafter the “Work”); WHEREAS, the Work to be performed by Principal is more particularly set forth in that certain Public Works Agreement (Contract No. ____________) dated ___________________________, (hereinafter the “Agreement”); and WHEREAS, the Agreement is hereby referred to and incorporated herein by this reference; and WHEREAS, Principal or its contractor is required by the Agreement to provide a good and sufficient bond for performance of the Agreement, and to guarantee and warranty the Work constructed thereunder.
NOW, THEREFORE, we the undersigned, ______________________________, as Principal and __________________________________, a corporation organized and existing under the laws of the State of _________________________ and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Chino in the sum of _________________________________________________ ($______________), said sum being not less than one hundred percent (100%) of the total cost of the Work as set forth in the Agreement, 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 Principal and its contractors, or their 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, agreements, guarantees, and warranties in the Agreement and any alteration thereof made as therein provided, 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 to indemnify and save harmless City, its officers, employees, and agents, as stipulated in the Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or additions to the terms of the said Agreement or to the Work to be performed thereunder or the specification accompanying the same 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 Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this ____ day on _____________________, 202_. ________________________________
Principal
By: ___________________________
________________________________
Surety
By: ___________________________
Attorney-in-Fact
NOTE:
Notary Acknowledgements for each signature are required for the Principal and the Surety. Additionally required, copy of the Power of Attorney to local representatives of the bonding company shall be attached hereto.
BOND NO: ___________________
CONTRACT NO: ___________________
APPROVED: ___________________
LABOR & MATERIAL BOND
Ayala Park Improvements Project Phase 1B – Softball Fields 1-4 Project No.: PK231
WHEREAS the City of Chino has executed an agreement with _____________________ (hereinafter “Principal”), requiring Principal to perform certain work consisting of but not limited to, furnishing all labor, materials, tools, equipment, services, and incidentals for the construction of public improvements (hereinafter “Work”); WHEREAS, the Work to be performed by Principal is more particularly set forth in that certain Public Works Agreement (Contract No. ____________) dated ___________________________, (hereinafter the “Agreement”); and WHEREAS, Principal or its contractor is required to furnish a bond in connection with the Agreement providing that if Principal or any of its contractors shall fail to pay for any materials, provisions, or other supplies, or terms 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, that the Surety on this bond will pay the same together with a reasonable attorney’s fee in case suit is brought on the bond.
NOW, THEREFORE, we the undersigned, ______________________________, as Principal and ____________________________________, a corporation organized and existing under the laws of the State of _________________________ and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City of Chino and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the said Work, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to said Work to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid, the sum of ____________________________________________________________ ($_______________), said sum being not less than 100% of the total amount payable by Principal under the terms of the Agreement, for which payment 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 Principal or its contractors, or their heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Work contracted to be done, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 9100, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein.
In case legal action is required to enforce the provisions of this bond, the prevailing party shall be entitled to recover reasonable attorneys’ fees in addition to court costs, necessary disbursements and other consequential damages. In addition to the provisions hereinabove, it is agreed that this bond will inure to the benefit of any and all persons, companies and corporations entitled to make claims under Sections 8024, 8400, 8402, 8404, 8430 or 9100 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or additions to the terms of the Agreement or to the Work to be performed thereunder or the specification accompanying the same 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 Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this ____ day on _____________________, 202_. ________________________________
Principal
By: ___________________________
________________________________
Surety
By: ___________________________
Attorney-in-Fact
NOTE:
Notary Acknowledgements for each signature are required for the Principal and the Surety. Additionally required, copy of the Power of Attorney to local representatives of the bonding company shall be attached hereto.
BOND NO: ___________________
CONTRACT NO: ___________________
APPROVED: ___________________
WARRANTY BOND
Ayala Park Improvements Project Phase 1B – Softball Fields 1-4 Project No.: PK231
WHEREAS the City of Chino has executed an agreement with _____________________ (hereinafter “Principal”), requiring Principal to perform certain work consisting of but not limited to, furnishing all labor, materials, tools, equipment, services, and incidentals for the construction of public improvements (hereinafter “Work”); WHEREAS, the Work to be performed by Principal is more particularly set forth in that certain Public Works Agreement (Contract No. ____________) dated ___________________________, (hereinafter the “Agreement”); and WHEREAS, said Principal is required under the terms of said Agreement to furnish a bond for the warranty of said improvements.
NOW, THEREFORE, we, the Principal, and , as surety, are held and firmly bound unto the City of Chino in the penal sum of Dollars ($ ) lawful money of the United States, said sum being not less than 10% of the total amount payable by Principal under the terms of the Agreement, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above bound Principal, 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 provisions in said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed thereof made as therein provided, on his or its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless City, its officers, agents, and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees including reasonable attorneys’ fees, incurred by the City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same 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 agreement or to the work or to the specifications.
IN WITNESS WHEREOF, we have hereto set our hands and seals this ____ day on _____________________, 202_. ________________________________
Principal
By: ___________________________
________________________________
Surety
By: ___________________________
Attorney-in-Fact
NOTE:
Notary Acknowledgements for each signature are required for the Principal and the Surety. Additionally required, copy of the Power of Attorney to local representatives of the bonding company shall be attached hereto.
NOTICE OF AWARD
TO: (CONTRACTOR)
FOR CONSTRUCTION OF:
Ayala Park Improvements Project Phase 1B – Softball Fields 1-4 Project No.: PK231
Your Bidder's Proposal dated , is accepted for the total contract price of $ .
You are required by the "INSTRUCTIONS TO BIDDERS" to execute the documents specified within ten (10) days from the date of mailing this Notice. Please sign one copy of the Notice of Award upon receipt and return.
RECEIVED:
CONTRACTOR THE CITY OF CHINO
By: By:
(Title) (Title)
(Date) (Date)
NOTICE TO PROCEED
TO: (Contractor) DATE:
FROM: Jeff Benson
Parks and Capital Projects Manager, City of Chino
Notice is hereby given that you are authorized and directed to proceed with the following project in accordance with the contract documents:
Ayala Park Improvements Project Phase 1B – Softball Fields 1-4 Project No.: PK231
These documents have been received and are on file with the City Clerk of the City of Chino:
DOCUMENT:
The Agreement Fully Executed ( )
Labor and Material Bond (100%) ( )
Faithful Performance Bond (100%) ( )
Warranty Bond (10%) ( )
Workers' Compensation Insurance Certificate ( )
Liability Insurance Policy or Certificate ( )
Insurance Forms ( )
Under the terms of the Contract, work is to begin within fifteen (15) calendar days from the date of this Notice to Proceed and is to be completed within one hundred and twenty (120) working days from the date on which the work was started.
Jeff Benson.
Park and Capital Project Manager
C-1