CITY OF COMMERCE
STANDARD PUBLIC WORKS AGREEMENT
Between
THE CITY OF COMMERCE
And
HARDY & HARPER, INC.
TABLE OF CONTENTS
TOC \h \z \t "ComPW1,1,ComPW2,2" HYPERLINK \l "_Toc52388730" SEC. 1. RECITALS PAGEREF _Toc52388730 \h 4 HYPERLINK \l "_Toc52388731" SEC. 2. CONTRACT DOCUMENTS. PAGEREF _Toc52388731 \h 4 HYPERLINK \l "_Toc52388732" SEC. 3. SCOPE OF PROJECT PAGEREF _Toc52388732 \h 5 HYPERLINK \l "_Toc52388733" SEC. 4. COMPENSATION. PAGEREF _Toc52388733 \h 5 HYPERLINK \l "_Toc52388734" Sec. 4.1. Progress Payments PAGEREF _Toc52388734 \h 5 HYPERLINK \l "_Toc52388735" Sec. 4.2. Retention of Funds PAGEREF _Toc52388735 \h 5 HYPERLINK \l "_Toc52388736" Sec. 4.3. Substitution of Securities. PAGEREF _Toc52388736 \h 6 HYPERLINK \l "_Toc52388737" SEC. 5. UNDOCUMENTED WORKERS. PAGEREF _Toc52388737 \h 6 HYPERLINK \l "_Toc52388738" SEC. 6. NOTICE TO PROCEED. PAGEREF _Toc52388738 \h 6 HYPERLINK \l "_Toc52388739" SEC. 7. DISCOVERY OF HAZARDOUS OR LATENT CONDITIONS. PAGEREF _Toc52388739 \h 6 HYPERLINK \l "_Toc52388740" SEC. 8. MISCELLANEOUS STATUTORY REQUIREMENTS PAGEREF _Toc52388740 \h 7 HYPERLINK \l "_Toc52388741" Sec. 8.1. Contractor License. PAGEREF _Toc52388741 \h 7 HYPERLINK \l "_Toc52388742" Sec. 8.2. Ineligible Contractor Prohibited. PAGEREF _Toc52388742 \h 7 HYPERLINK \l "_Toc52388743" Sec. 8.3. Compliance with SB 854 Registration. PAGEREF _Toc52388743 \h 7 HYPERLINK \l "_Toc52388744" Sec. 8.4. Trench and Pipeline Safety. PAGEREF _Toc52388744 \h 7 HYPERLINK \l "_Toc52388745" Sec. 8.5. Utility Relocation. PAGEREF _Toc52388745 \h 8 HYPERLINK \l "_Toc52388746" Sec. 8.6. Third Party Claims Notification. PAGEREF _Toc52388746 \h 8 HYPERLINK \l "_Toc52388747" Sec. 8.7. Unfair Business Practices Claims. PAGEREF _Toc52388747 \h 8 HYPERLINK \l "_Toc52388748" Sec. 8.8. Day’s Work. PAGEREF _Toc52388748 \h 8 HYPERLINK \l "_Toc52388749" Sec. 8.9. Payroll Records. PAGEREF _Toc52388749 \h 8 HYPERLINK \l "_Toc52388750" Sec. 8.10. Employment of Apprentices. PAGEREF _Toc52388750 \h 8 HYPERLINK \l "_Toc52388751" Sec. 8.11. Records Audit PAGEREF _Toc52388751 \h 9 HYPERLINK \l "_Toc52388752" SEC. 9. PREVAILING WAGES PAGEREF _Toc52388752 \h 9 HYPERLINK \l "_Toc52388753" SEC. 10. INDEMNITY, DEFENSE AND HOLD HARMLESS PAGEREF _Toc52388753 \h 9 HYPERLINK \l "_Toc52388754" SEC. 11. BONDS. PAGEREF _Toc52388754 \h 10 HYPERLINK \l "_Toc52388755" SEC. 12. INSURANCE REQUIREMENTS. PAGEREF _Toc52388755 \h 10 HYPERLINK \l "_Toc52388756" SEC. 13. LIQUIDATED DAMAGES. PAGEREF _Toc52388756 \h 11 HYPERLINK \l "_Toc52388757" SEC. 14. DISPUTE RESOLUTION PAGEREF _Toc52388757 \h 11 HYPERLINK \l "_Toc52388758" Sec. 14.1. Claims of $375,000 or Less PAGEREF _Toc52388758 \h 11 HYPERLINK \l "_Toc52388759" Sec. 14.2 Public Contracts Code 9204 Claims PAGEREF _Toc52388759 \h 11 HYPERLINK \l "_Toc52388760" SEC. 15. TERMINATION. PAGEREF _Toc52388760 \h 12 HYPERLINK \l "_Toc52388761" Sec. 15.1. Termination for Convenience. PAGEREF _Toc52388761 \h 12 HYPERLINK \l "_Toc52388762" Sec. 15.2 Termination for Default. PAGEREF _Toc52388762 \h 12 HYPERLINK \l "_Toc52388763" Sec. 15.3 Waiver of Remedies for any Breach. PAGEREF _Toc52388763 \h 12 HYPERLINK \l "_Toc52388764" SEC. 16. CONTRACTOR'S FAILURE TO PROCURE COMPLETION OF PROJECT PAGEREF _Toc52388764 \h 12 HYPERLINK \l "_Toc52388765" SEC. 17. COMPLIANCE WITH APPLICABLE LAWS. PAGEREF _Toc52388765 \h 13 HYPERLINK \l "_Toc52388766" SEC. 18. NOTICE OF COMPLETION. PAGEREF _Toc52388766 \h 13 HYPERLINK \l "_Toc52388767" SEC. 19. AUTHORITY. PAGEREF _Toc52388767 \h 13 HYPERLINK \l "_Toc52388768" SEC. 20. ENTIRE CONTRACT. PAGEREF _Toc52388768 \h 13 HYPERLINK \l "_Toc52388769" SEC. 21. ATTORNEY’S FEES AND COSTS. PAGEREF _Toc52388769 \h 13 HYPERLINK \l "_Toc52388770" SEC. 22. INDEPENDENT CONTRACTOR PAGEREF _Toc52388770 \h 13 HYPERLINK \l "_Toc52388771" SEC. 23. NOTICE. PAGEREF _Toc52388771 \h 14 HYPERLINK \l "_Toc52388772" SEC. 24. PROHIBITION AGAINST ASSIGNMENT. PAGEREF _Toc52388772 \h 14 HYPERLINK \l "_Toc52388773" SEC. 25. CUMULATIVE REMEDIES. PAGEREF _Toc52388773 \h 14 HYPERLINK \l "_Toc52388774" SEC. 26. COUNTERPARTS. PAGEREF _Toc52388774 \h 14
TABLE OF EXHIBITS
TOC \h \z \t "ComPWExhibits,1" HYPERLINK \l "_Toc52388775" EXHIBIT “A” INSURANCE REQUIREMENTS PAGEREF _Toc52388775 \h 17 HYPERLINK \l "_Toc52388776" EXHIBIT “B” Faithful Performance Bond PAGEREF _Toc52388776 \h 22 HYPERLINK \l "_Toc52388777" EXHIBIT “C” Labor and Materials Payment Bond PAGEREF _Toc52388777 \h 25 HYPERLINK \l "_Toc52388778" EXHIBIT “D” Warranty Bond PAGEREF _Toc52388778 \h 28
CITY OF COMMERCE
STANDARD PUBLIC WORKS AGREEMENT
THIS STANDARD PUBLIC WORKS AGREEMENT (“AGREEMENT”) is dated June 14, 2022 for reference purposes only and is made and entered into by and between the CITY OF COMMERCE, a Municipal corporation (the “CITY”) and Hardy & Harper, Inc._(“CONTRACTOR”) whose address is 32 Rancho Circle, Lake Forest, CA 92630.
SEC. 1. RECITALS
WHEREAS, the CITY duly advertised a Notice Inviting Bids and received bids for the work described as FY 2021-22 Pavement Rehabilitation Project (“PROJECT”), and; WHEREAS, The City Council awarded a contract to the lowest responsible and responsive Contractor , and directed that a written contract be entered into with CONTRACTOR for the PROJECT.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements herein contained, the parties do hereby agree as follows:
SEC. 2. CONTRACT DOCUMENTS.
A. The CONTRACT DOCUMENTS for the PROJECT shall consist of the Notice Inviting Sealed Bids, the Instructions to Bidders, Bidders Proposal, Addendums, General Specifications and all referenced specifications, details, standard drawings (Project drawings) , and appendices, together with this Contract and all required bonds, and insurance certificates. All of the “Contract Documents” are intended to complement the other documents so that any work called for in one, and not mentioned in the others, or vice versa, is to be executed the same as if mentioned in all of said documents. The CONTRACT DOCUMENTS are incorporated herein by this reference and made part hereof as though they were fully set forth herein.
B. In case any of the CONTRACT DOCUMENTS conflict with each other, the order of preference for the CONTRACT DOCUMENTS is:
1. This AGREEMENT
2. Appendices
3. Standard drawings
4. Details
5. Special Provisions, if any
6. Addendums
7. General Provisions and all referenced specifications
8. Bidders Proposal
9. Instructions to Bidders
10. Notice Inviting Sealed Bids
SEC. 3. SCOPE OF PROJECT
The Scope of PROJECT consists generally of furnishing all labor, materials, tools, equipment and incidental for the rehabilitation of various locations Citywide as shown on Project Plans. Improvements include slurry seal, AC coldmill, AC overlay, AC pavement removal & construction, restoration of traffic loops, traffic striping, traffic legends, arrow markings, and as more specifically set forth in the Plans, Specifications and other Contract Documents.
SEC. 4. COMPENSATION.
CONTRACTOR hereby agrees to receive and accept the total amount of $ $2,813,129.00, which is based on performing all of the work shown on Bidders Proposal as full compensation for furnishing all materials, performing all work, and fulfilling all obligations hereunder. Said compensation shall cover all expenses, losses, damages, and consequences arising out of the nature of the work during its progress or prior to its acceptance including those for well and faithfully completing the work and the whole thereof in the manner and time specified in the CONTRACT DOCUMENTS, and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the work, suspension or discontinuance of the work, and all other unknowns or risks of any description connected with the work. CITY shall herein retain five percent (5%) of said price until said time as the provisions of SEC. 18 herein have been met.
Sec. 4.1. Progress Payments
Progress Payments shall be made in accordance with applicable section of the General Provisions and the provisions of this Section 4.1. Upon receipt of a properly presented payment request, the CITY shall process the payment request in accordance with Public Contracts Code Section 20104.5. The CITY shall review the payment request as soon as possible. If the CITY rejects the payment request, it shall be returned to the CONTRACTOR within seven days of its receipt by the CITY with an explanation for the reasons of its rejection. If the payment request is approved in writing by the CITY, payment shall be made in thirty (30) days of receipt of an undisputed and properly presented payment request. Late payments shall bear interest at the legal rate of interest in accordance with Code of Civil Procedure 685.010. CITY shall pay CONTRACTOR a sum based upon ninety five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the period covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security. Refer to Section 4.2 of this Agreement for retention of funds.
Sec. 4.2. Retention of Funds
Progress payments shall be made in accordance with the provisions of Section 4.1 of this Agreement. In accordance with said section, CITY shall pay CONTRACTOR a sum based upon ninety five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security to be paid to the CONTRACTOR within sixty (60) days after final acceptance of the work by the City Council, after CONTRACTOR shall have furnished CITY with a release of all undisputed contract amounts, if required by CITY. In the event there are any claims specifically excluded by CONTRACTOR from the operation of the release, the CITY may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount in dispute. CITY’s failure to deduct or withhold shall not affect CONTRACTOR’s obligations hereunder.
Sec. 4.3. Substitution of Securities.
Pursuant to Public Contracts Code Sec. 22300 CONTRACTOR shall be allowed to substitute securities for any moneys withheld by the CITY to ensure performance under a contract, unless, federal regulations or policies, or both, do not allow the substitution of securities. At the request and expense of the CONTRACTOR, securities equivalent to the amount withheld shall be deposited with the CITY, or with a state or federally chartered bank in this state as the escrow agent, who shall then pay those moneys to the CONTRACTOR. Upon satisfactory completion of the contract, the securities shall be returned to the contractor.
SEC. 5. UNDOCUMENTED WORKERS.
CONTRACTOR hereby promises and agrees to comply with all of the provisions of Federal and/or State law as the same shall apply to this PROJECT pertaining to the employment of unauthorized aliens as defined therein. Should CONTRACTOR so employ unauthorized aliens for the performance of work and/or services covered by this Contract, and should the Federal Government impose sanctions against the CITY for use of unauthorized aliens, CONTRACTOR hereby agrees to, and shall, hold harmless, indemnify and defend CITY for the cost of all such sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by the CITY in connection therewith.
SEC. 6. NOTICE TO PROCEED.
CONTRACTOR shall commence work on the date specified in the Notice to Proceed to be issued in writing to CONTRACTOR by the CITY and shall complete work on the PROJECT within 100 Working Days from the commencement thereof to avoid liquidated damages to be assessed by the City if project completion is delayed unless the delay is caused by act of God or beyond Contractor’s control. .
SEC. 7. DISCOVERY OF HAZARDOUS OR LATENT CONDITIONS.
A. CONTRACTOR shall, without disturbing the condition, notify CITY in writing as soon as CONTRACTOR, or any subcontractor, agent or employees have knowledge and reporting is possible, of the discovery of any of the following conditions:
The presence of any material that the CONTRACTOR believes is hazardous waste, as defined in Section 25117 of the Health and Safety Code; Subsurface or latent physical conditions at the site differing from those indicated in the specifications; or, Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.
B. Pending a determination by the CITY of appropriate action to be taken, CONTRACTOR shall provide security measures (e.g., fences) adequate to prevent the hazardous waste or physical conditions from causing bodily injury to any person.
C. CITY shall promptly investigate the reported conditions. If CITY, through the Director of Public works or City Engineer or his/her designee, and in the exercise of its sole discretion, determines that the conditions do materially differ, or do involve hazardous waste, and will cause a decrease or increase in the CONTRACTOR’s cost of or time required for performance of any part of the work, then CITY shall issue a change order.
D. In the event of a dispute between CITY and CONTRACTOR as to whether the conditions materially differ or involve hazardous waste or cause a decrease or increase in the CONTRACTOR’s cost of, or time required for performance of any part of the work, CONTRACTOR shall not be excused from any schedule completion date, and shall proceed with all work to be performed under the Contract. CONTRACTOR shall retain any and all rights which pertain to the resolution of disputes and protests between the parties.
SEC. 8. MISCELLANEOUS STATUTORY REQUIREMENTS
Sec. 8.1. Contractor License.
CONTRACTOR and its Subcontractor shall possess a valid Contractor’s license issue by State of California and authorized for the performance of the Project. The Contractor and all subcontractors shall obtain a City of Commerce business license before commencing work on the Project.
Sec. 8.2. Ineligible Contractor Prohibited.
Any contractor or subcontractor who is ineligible to perform work on a public works project pursuant to Section 1777.1 or 1777.7 of the Labor Code is prohibited from performing work under this Agreement.
Sec. 8.3. Compliance with SB 854 Registration.
This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. No prime contractor or subcontractor may be listed on a bid proposal for a public works project (submitted on or after March 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. No prime contractor or subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. The CONTRACTOR will be required to post job site notices as described in 8 California Code of Regulation section 16451(d).
Sec. 8.4. Trench and Pipeline Safety.
If this Contract is for more than $25,000 or an amount established by the state law and involves excavation of any trench five feet or more in depth, the CONTRACTOR shall submit a detailed plan of shoring, bracing, sloping or other provisions to be made for worker protection in accordance with Labor Code Section 6705. Such plan shall be approved by a qualified representative of the CITY in advance of commencing excavation work.
Sec. 8.5. Utility Relocation.
CITY is responsible for removal, relocation, or protection of city owned existing conflicting main or trunk line utilities to the extent such utilities were not identified in the invitation for bids or specifications. CITY shall reimburse contractor for any costs incurred in locating, repairing damage not caused by contractor and removing or relocating such unidentified utility facilities, including equipment idled during such work. CONTRACTOR shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities. Contractor is responsible to contact Underground SERVICE Dig Alert (USA) and mark all utilities in compliance with the state law in advance of any excavation..
Sec. 8.6. Third Party Claims Notification.
The CITY shall timely notify the CONTRACTOR in writing of any third party claims relating to the Agreement.
Sec. 8.7. Unfair Business Practices Claims.
The CONTRACTOR or subcontractor offers and agrees to assign to the CITY all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the CITY renders final payment to the CONTRACTOR without further acknowledgment by the parties. (Section 7103.5, California Public Contract Code.).
Sec. 8.8. Day’s Work.
CONTRACTOR acknowledges that under California Labor Code sections 1810 and following, 8 hours of labor constitutes a legal day’s work. CONTRACTOR will forfeit as a penalty to CITY the sum of $25.00 or other amounts established by law for each worker employed in the execution of this Contract by CONTRACTOR or any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Labor Code section 1810. (Labor Code § 1813).
Sec. 8.9. Payroll Records.
CONTRACTOR shall maintain the certified payroll records required by Labor Codes Sec. 1776 and shall report such records directly to the California Labor Commissioner as required by Labor Code Sec. 1771.4. The CONTRACTOR shall inform the CITY of the location of the records enumerated under Labor Code Sec. 1776, including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address. Contractor shall submit payroll records if and when requested by the city in a timely manner.
Sec. 8.10. Employment of Apprentices.
Nothing in this Contract prevents CONTRACTOR or any subcontractor from employing properly registered apprentices in the execution of the Contract. CONTRACTOR is responsible for compliance with Labor Code section 1777.5 for all apprenticeable occupations. This statute requires that contractors and subcontractors must submit contract award information to the applicable joint apprenticeship committee, must employ apprentices in apprenticeable occupations in a ratio of not less than one hour of apprentice’s work for every five hours of labor performed by a journeyman (unless an exception is granted under §1777.5), must contribute to the fund or funds in each craft or trade or a like amount to the California Apprenticeship Council, and that contractors and subcontractors must not discriminate among otherwise qualified employees as apprentices solely on the ground of sex, race, religion, creed, national origin, ancestry or color. Only apprentices defined in Labor Code section 3077, who are in training under apprenticeship standards and who have written apprentice contracts, may be employed on public works in apprenticeable occupations.
Sec. 8.11. Records Audit
In accordance with Government Code, Section 8546.7, records of both the CITY and the CONTRACTOR shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.
SEC. 9. PREVAILING WAGES
CONTRACTOR and its Subcontractor shall pay prevailing Wage rates for this Project in accordance with the “General Wage Determination Made by the Director of Industrial Relations Pursuant To California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1", for Los Angeles County. Wage rates shall conform with those available at the City of Commerce Public Works Department and posted at the Project site.
The following Labor Code sections are hereby referenced and made a part of this Agreement:
1. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates.
2. Section 1777.4 - Apprenticeship Requirements.
3. Section 1777.5 - Apprenticeship Requirements.
4. Section 1813 - Penalty for Failure to Pay Overtime.
5. Sections 1810 and 1811 - Working Hour Restrictions.
6. Section 1775 - Payroll Records.
7. Section 1773.8 - Travel and Subsistence Pay.
SEC. 10. INDEMNITY, DEFENSE AND HOLD HARMLESS
A. 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. 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 legal counsel 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.
B. CONTRACTOR obligations under this section apply regardless of whether such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of CITY under any provision of this agreement, CONTRACTOR shall not be required to indemnify and hold harmless CITY for liability attributable to the active negligence of CITY, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. 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.
SEC. 11. BONDS.
A. CONTRACTOR, before commencing said PROJECT, shall furnish and file with CITY, a Performance Bond, in the sum of one hundred percent (100%) of the Agreement price thereof conditioned upon the faithful performance of this Agreement in the form attached hereto as Exhibit “B.”..
B. CONTRACTOR, before commencing said PROJECT, shall furnish and file with CITY, a Labor and Materials Payment Bond in the sum of 100% of the Agreement price, conditioned upon the payment of all labor and materials furnished in connection with this Agreement in the form attached hereto as Exhibit “C.” C. CONTRACTOR, before commencing said PROJECT, shall furnish and file with CITY, a Warranty Bond in the amount of 50% of the Contract price, conditioned upon the guaranty and warranty of the work and labor and materials in connection with the work performed on the Project pursuant to this Agreement for a period of one year from the date of project completion and acceptance in the form attached hereto as Exhibit “D.” SEC. 12. INSURANCE REQUIREMENTS.
Prior to commencing work hereunder, CONRACTOR shall provide the CITY with proof of insurance naming the CITY and each of its directors, officers, agents, and employees as additional-named insureds on a policy or policies of insurance providing and maintaining the coverages set forth in the Insurance Schedule attached hereto as Exhibit A. CITY shall have the right to hold the policies and policy renewals, and CONTRACTOR shall promptly furnish to CITY all renewal notices and all receipts of paid premiums. CITY may make proof of loss if not made promptly by CONTRACTOR.
SEC. 13. LIQUIDATED DAMAGES.
See Section 6-9 Liquidated Damages of the General Provisions. In addition, pursuant to the authority of California Public Contracts Code Section 7102, CITY and CONTRACTOR agree that the determination of actual damages for any unreasonable delay in performance of this Agreement caused by CITY would be extremely difficult or impractical to determine in the event of a breach of this Agreement by CITY. Therefore, if the CITY is determined to be liable for such unreasonable delays, the CITY and its sureties shall be liable to the CONTRACTOR for the sum of Five Hundred dollars ($500) as liquidated damages for each calendar day of delay in the performance of any service required hereunder SEC. 14. DISPUTE RESOLUTION
Sec. 14.1. Claims of $375,000 or Less
A. A claim by the CONTRACTOR for a time extension, for money damages for work, or a payment disputed by the CITY must be submitted to a resolution process in accordance with Public Contracts Code Sections 21040-21040.4. A summary of Sections 21040-21040.4 are as follows:
(1) Informal negotiation between the CITY and CONTRACTOR. (2) Mediation with the CONTRACTOR.
(3) Court mandated Arbitration.
(4) Court trial. If the party requesting the court trial does not prevail, then that party must pay all court costs and attorney's fees.
Sec. 14.2 Public Contracts Code 9204 Claims
CONTRACTOR shall comply with the procedure set forth in Public Contracts Code section 9204 for any claim, as that term is defined therein, for one or more of the following: 1) a time extension, including, without limitation, for relief from damages or penalties for delay, 2) payment of money or damages arising from work done pursuant to this Agreement, and/or 3) payment of an amount disputed by the CITY under this Agreement. A summary of the provisions of Public Contracts Code Section 9204 is as follows:
1. CONTRACTOR must send a claim to the CITY for a time extension, payment for work not in the Agreement, or payments disputed by the CITY by registered mail or certified mail with return receipt requested.
2. CITY must respond within 45 days as to which claims are disputed and undisputed.
3. If claim remains in dispute, CONTRACTOR may request informal meet and confer meeting with CITY.
4. After meet and confer, an disputed claim remaining shall be submitted to non-binding mediation.
5. All undisputed claims shall be paid within 60 days.
SEC. 15. TERMINATION.
Sec. 15.1. Termination for Convenience.
The CITY may terminate this contract, in whole or in part, with 30 days written notice to the CONTRACTOR when it is in the CITY’s best interest. The CONTRACTOR shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The CONTRACTOR shall promptly submit its termination claim to CITY to be paid the CONTRACTOR. If the CONTRACTOR has any property in its possession belonging to the CITY, the CONTRACTOR will account for the same, and dispose of it in the manner the CITY directs. The CONTRACTOR may terminate this contract, in whole, with 90 days written notice to the CITY.
Sec. 15.2 Termination for Default.
If at any time the CONTRACTOR is determined to be in material breach of the Contract, a Notice of Potential Breach of Contract shall be prepared by the CITY, and will be served upon the CONTRACTOR and its sureties. If the CONTRACTOR continues to neglect or refuses to comply with the Contract or with the Notice of Potential Breach of Contract to the satisfaction of the CITY within the time specified in such Notice, the CITY shall have the authority to terminate the Contract for this Project.
Sec. 15.3 Waiver of Remedies for any Breach.
In the event that CITY elects to waive its remedies for any breach by CONTRACTOR of any covenant, term or condition of this Contract, such waiver by CITY shall not limit CITY’s remedies for any succeeding breach of that or of any other term, covenant, or condition of the Contract.
SEC. 16. CONTRACTOR'S FAILURE TO PROCURE COMPLETION OF PROJECT In the event CONTRACTOR fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the work or any part thereof contemplated by this Agreement in a diligent and workmanlike manner, and if the CONTRACTOR for a period of three (3) calendar days after receipt of written demand from CITY or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said three (3) calendar days, fails to continue to do so; then the CITY may exclude the CONTRACTOR from the premises, or any portion thereof, and take possession of said premises or any portion thereof, together with all material and equipment thereon, and may complete the work contemplated by this Agreement or any portion of said work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said work, or the portion taken over by the CITY to another contractor or by a combination of such methods. In any event, the procuring of the completion of said work, or the portion thereof taken over by the CITY, shall be a charge against the CONTRACTOR, and may be deducted from any money due or becoming due to CONTRACTOR from the CITY, or the CONTRACTOR shall pay the CITY the amount of said charge, or the portion thereof unsatisfied. The sureties, provided for under this Agreement shall become liable for payment should CONTRACTOR fail to pay in full any said cost incurred by the CITY.
SEC. 17. COMPLIANCE WITH APPLICABLE LAWS.
CONTRACTOR hereby promises and agrees to comply with all of the provisions of all applicable local, state and federal laws in connection with the performance of its obligations under this Contract.
SEC. 18. NOTICE OF COMPLETION.
Upon completion of the PROJECT and acceptance of same by the City Council, the CITY Administrator shall cause to be recorded a Notice of Completion with the office of the Los Angeles County Recorder; and, after sixty (60) days from the date said Notice of Completion is recorded, the Director of Finance of CITY at the request of the Public Works Department, shall release any undisputed funds retained pursuant to SEC. 4 hereof; but not later than 60 days after completion of the Project, provided there have been no mechanics’ liens or stop notices filed against said work which have not been paid, withdrawn or eliminated as liens against said work.
SEC. 19. AUTHORITY.
Any person executing this Contract on behalf of the CONTRACTOR warrants and represents that he or she has the authority to execute this Contract on behalf of the CONTRACTOR and has the authority to bind the CONTRACTOR to the performance of its obligations hereunder.
SEC. 20. ENTIRE CONTRACT.
This Contract, including the Contract Documents and any other documents incorporated herein by specific reference, represents the entire and integrated Contract between the CITY and the CONTRACTOR. This Contract supersedes all prior oral or written negotiations, representations or agreements. This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.
SEC. 21. ATTORNEY’S FEES AND COSTS.
If either party to this Contract is required to initiate or defend or made a party to any action or proceeding in any way connected with this Contract, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
SEC. 22. INDEPENDENT CONTRACTOR
The CONTRACTOR is and shall at all times remain as to the CITY, a wholly independent contractor. Neither the CITY, nor any of its officers, employees or agents shall have control over the conduct of the CONTRACTOR or any of the CONTRACTORs’ officers, employees or agents, except as herein set forth. The CONTRACTOR shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the CITY, nor shall CITY officers, employees or agents be deemed the officers, employees, or agents of CONTRACTOR as a result of this Contract.
SEC. 23. NOTICE.
Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the U.S. Mail, prepaid, first-class mail, return receipt requested, addressed as follows:
To CITY: City of Commerce
2535 Commerce Way
Commerce, CA 90040
Attention: Director of Public Works
To CONTRACTOR: Hardy & Harper, Inc.
32 Rancho Circle
Lake Forest, CA 92630
Attention: Michael Murray
SEC. 24. PROHIBITION AGAINST ASSIGNMENT.
The experience, knowledge, capability and reputation of CONTRACTOR, its principals and employees were a substantial inducement for the CITY to enter into this Contract. Neither this Contract nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of CITY. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of CONTRACTOR, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Contract shall be void. No approved transfer shall release the CONTRACTOR or any surety of CONTRACTOR of any liability hereunder without the express consent of CITY.
SEC. 25. CUMULATIVE REMEDIES.
The provisions of this Contract are cumulative and in addition to and not in limitation of any rights or remedies available to CITY.
SEC. 26. COUNTERPARTS.
This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes.
IN WITNESS WHEREOF the parties hereto have caused this Contract to be executed on the date next to their respective officers duly authorized signatures in that behalf. (SIGNATURES APPEAR ON NEXT PAGE)
CITY OF COMMERCE
By: ___________________________________
Mayor
Date: _________________________________
ATTEST:
______________________________________
Lena Shumway, City Clerk
APPROVED AS TO FORM
_______________________________________
Noel Tapia, City Attorney
CONTRACTOR
By: ___________________________________
Date: __________________________________
By: ___________________________________
Date: __________________________________
EXHIBIT “A”
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Project, CONTRACTOR and its subcontractors shall maintain insurance in conformance with the requirements set forth below. CONTRACTOR will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so.
CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to CONTRACTOR or its subcontractors in excess of the limits and coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to CITY.
CONTRACTOR shall provide the following types and amounts of insurance:
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 described below and in a form satisfactory to CITY.
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, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
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 Project 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 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, automobile 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 in the event that any primary insurance that would otherwise have applied proves to be uncollectable 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.
Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
CONTRACTOR shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers.
Pollution liability insurance. Environmental Impairment Liability Insurance shall be written on a CONTRACTOR’s Pollution Liability form or other form acceptable to CITY providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites.
Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only the CITY has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below.
The named insureds shall be CONTRACTOR and CITY, including its officers, officials, employees, and agents. All Subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to the CITY. The CITY will act as a fiduciary for all other interests in the Project.
Policy shall be provided for replacement value on an "all risk" basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to CITY to ensure adequacy of terms and sublimits and shall be submitted to the CITY prior to commencement of construction.
Other provisions or requirements
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 Project hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors. CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. CITY and its officers, officials, employees, and agents shall continue as additional insureds under such policies.
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.
Products/completed operations coverage. Products/completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The CITY, its officials, officers, agents, and employees, shall be included as additional insureds under the Products and Completed Operations coverage.
CITY’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these requirements 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 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, agents, and volunteers 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 subconsultants, subcontractors, 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. CONTRACTOR agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to CITY for review.
CITY’s right to revise requirements. 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 a ninety (90) day 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 Project. (Use of City Bond Form is Required)
EXHIBIT “B”
Faithful Performance Bond
FAITHFUL PERFORMANCE BOND
PUBLIC WORK (CALIFORNIA) TC "Faithful Performance Bond Public Works" \f 4 KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, the Principal and the Obligee have entered into a written contract, hereinafter called the Contract, a copy of which is or may be attached hereto, dated the ______ day of ____________________, ______ referred to and made a part hereof for __________________________________________________________________________ and all appurtenant work in accordance with Project No. , which agreement requires the Principal to provide Obligee with this bond.
NOW THEREFORE, we, _______________________________________, as Principal, and ___________________________________________, a corporation organized under the laws of _________________________, and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of _____________________________, as Obligee, in the sum of _________________________________________________________________ Dollars ($_______________________), lawful money of the United States of America, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
The address at which the Surety may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The address at which the Principal may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The condition of the foregoing obligation is such that if the Principal, his or its heirs, executors, administrators, successors or assigns, and each of his or its subcontractors shall well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements of said contract, and during the life of any guaranty required under the contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of said contract that may hereafter be made, then this obligation shall be 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 attorney's fees, incurred by the obligee 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.
This document is signed by the respective parties on the dates next to their names.
Principal
By: __________________________________
Title: ________________________________
Surety
By: __________________________________
Title: ________________________________
Date: ________________________________
Date: ________________________________
I declare under penalty of perjury under the laws of the State of California that the contents of the above Faithful Performance Bond are true and correct, and that I have been duly authorized to sign this Faithful Performance Bond on behalf of Surety. This Declaration is signed on , in the City of , State of California. --OR--
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 ______________ before me, ____________________________________(here insert name and title of the officer), 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 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 __________________________________ (Seal)
-- AND –
(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
_________________________
City Attorney
EXHIBIT “C”
Labor and Materials Payment Bond
(Use of City Bond Form is Required)
LABOR AND MATERIAL PAYMENT BOND
PUBLIC WORK (CALIFORNIA) TC "Labor and Materials Payment Bond Public Works" \f 4 KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, ________________________________________, as Principal, has entered into a contract dated ___________________, _____, (the "Contract") with the City of _____________________________ (Obligee) referred to and made a part hereof to perform the following work of public improvement, to wit:
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________and all appurtenant work in accordance with the plans and specifications for Project No._______, which requires Principal to file this bond to secure claims made under Civil Code Section 3082 et seq.
NOW THEREFORE, we, ____________________________________, as Principal, and ___________________________________________, a corporation organized under the laws of ______________________ and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of _____________________________, as Obligee, and all subcontractors, laborers, materialpersons and other persons employed in the performance of the referenced agreement, in the sum of _________________________________________________ Dollars ($_______________________), lawful money of the United States of America, which is 100% of the amount of the Contract, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
The address at which the Surety may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The address at which the Principal may be served with notices, papers and other documents is:
______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ If the above bounden Principal, his or its heirs, executors, administrators, successors, assigns, or any of his or its subcontractors, fails to pay for any materials, provisions, provender, or other supplies, or teams, implements or machinery, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor to persons named in Section 9100 of the Civil Code, or for amounts due under the Unemployment Insurance Code with respect to such work or labor performed under the Contract, 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 subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, then the Surety on this bond will pay the same, in an amount not exceeding the sum specified in this bond, and also, in case suit is brought upon this bond, a reasonable attorney's fee, which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment herein rendered.
As part of the obligation secured hereby, the Surety shall not be exonerated or released from the obligation of the bond by any change, alteration, or modification in or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement or pertaining or relating to the furnishing of labor, materials, or equipment therefor, 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 of work of improvement, nor by any 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, where the bond is given for the benefit of claimants, by any fraud practiced by any person other than the claimant seeking to recover on the bond.
This bond shall inure to the benefit of any and all persons, companies and corporations named in Civil Code Section 9100 so as to give them a right of action in a suit on this bond.
This bond is executed for the purpose of complying with the laws of the State of California designated as Title 3, Chapter 5, Payment Bond, commencing with Section 9550 of the Civil Code of the State of California and all amendments thereto, and shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code of the State of California.
This document is signed by the respective parties on the dates next to their names.
Principal
By: _________________________________
Title: ________________________________
Surety
By: _________________________________
Title: ________________________________
Date: ________________________________
Date: ________________________________
I declare under penalty of perjury under the laws of the State of California that the contents of the above Labor and Materials Payment Bond are true and correct, and that I have been duly authorized to sign this Labor and Materials Payment Bond on behalf of Surety. This Declaration is signed on ______ , in the City of _____, State of California. --OR--
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 ______________ before me, ____________________________________(here insert name and title of the officer), 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 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 __________________________________ (Seal)
-- AND –
(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
________________________
City Attorney
EXHIBIT “D”
Warranty Bond
(Use of City Bond Form is Required)
WARRANTY BOND
PUBLIC WORKS TC "Warranty Bond Public Works" \f 4
WHEREAS, the City Council of the City of _____________________________, State of California, and ________________________________________________, (hereinafter designated as "Principal") have entered into a written contract (the "Contract") dated ________________________ whereby Principal agrees to install and complete certain designated public improvements, which Contract is hereby referred to and made a part hereof; and WHEREAS, said Principal is required under the terms of said Contract to furnish a bond for the guarantee and warranty of the work for a period of one (1) year following the completion and acceptance thereof against any defective work or labor done or defective materials furnished.
NOW, THEREFORE, we, the Principal and __________________________________ ______________________, a corporation organized under the laws of ____________________, and duly authorized to transact business in the State of California, as Surety, are held and firmly bound unto the City of _____________________________, (hereinafter called "City"), in the penal sum of ____________________________________________________________________________Dollars, ($__________________) lawful money of the United States, which is 50% of the amount of the Contract, 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 address at which the Surety may be served with notices, papers and other documents is:
__________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ The address at which the Principal may be served with notices, papers and other documents is:
__________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ The condition of this obligation is such that if the above bounded 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 the said Contract and any alteration thereof made as therein provided, on his or their 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 attorney’s fees, incurred by 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 Contract or to the work to be performed thereunder or the specifications accompanying the same shall in anywise 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 or to the work or to the specifications.
This document is signed by the respective parties on the dates next to their names.
Principal
By: __________________________________
Title: ________________________________
Surety
By: _________________________________
Title: _______________________________
Date: _______________________________
Date: ________________________________
I declare under penalty of perjury under the laws of the State of California that the contents of the above Warranty Bond are true and correct, and that I have been duly authorized to sign this Warranty Bond on behalf of Surety. This Declaration is signed on ___, in the City of , State of California. --OR--
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 ______________ before me, ____________________________________(here insert name and title of the officer), 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 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 __________________________________ (Seal)
-- AND –
(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
__________________________
City Attorney
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