CITY OF COMMERCE
STANDARD PUBLIC WORKS CONTRACT
Between
THE CITY OF COMMERCE
And
CEM CONSTRUCTION CORPORATION
EV CHARGING STATION PROJECT
TABLE OF CONTENTS
SEC. 1. RECITALS ..... 4
SEC. 2. CONTRACT DOCUMENTS.
SEC. 3. SCOPE OF PROJECT. 5
SEC. 4. COMPENSATION......
Sec. 4.1. Progress Payments.. 5
Sec. 4.2 Retention of Funds 5
Sec. 4.3. Substitution of Securities.... 6
SEC. 5. UNDOCUMENTED WORKERS. 6
SEC. 6. NOTICE TO PROCEED.. 6
SEC. 7. DISCOVERY OF HAZARDOUS OR LATENT CONDITIONS. 6
SEC. 8. MISCELLANEOUS STATUTORY REQUIREMENTS ....7
Sec. 8.1. Contractor License. 7
Sec. 8.2 Ineligible Contractor Prohibited. 7
Sec. 8.3. Compliance with SB 854 Registration.. 7
Sec. 8.4 Trench and Pipeline Safety.
7 Sec. 8.5. Utility Relocation.... 7
Sec. 8.6 Third Party Claims Notification. 8
Sec. 8.7. Unfair Business Practices Claims. 8
Sec. 8.8. Day's Work. 8
Sec. 8.9. Payroll Records. 8
Sec. 8.10. Employment of Apprentices.... 8
Sec. 8.11. Records Audit. .9
SEC. 9. PREVAILING WAGES... 9
SEC. 10. INDEMNITY, DEFENSE AND HOLD HARMLESS ...2
SEC. 11. BONDS. 10
SEC. 12. INSURANCE REQUIREMENTS. 10
SEC. 13. LIQUIDATED DAMAGES. 10
SEC. 14. DISPUTE RESOLUTION 11
Sec. 14.1. Claims of $375,000 or Less. 11
Sec. 14.2 Public Contracts Code 9204 Claims. 11
SEC. 15. TERMINATION.... 11
Sec. 15.1. Termination for Convenience. 11
Sec. 15.2 Termination for Default... 12
Sec. 15.3 Waiver of Remedies for any Breach... 12
SEC. 16. CONTRACTOR'S FAILURE TO PROCURE COMPLETION OF PROJECT 12 SEC. 17. COMPLIANCE WITH APPLICABLE LAWS .. 12
SEC. 18. NOTICE OF COMPLETION 12
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SEC. 19. AUTHORITY..... 13
SEC. 20. ENTIRE CONTRACT..... 13
SEC. 21. ATTORNEY'S FEES AND COSTS. 13
SEC. 22. INDEPENDENT CONTRACTOR 13
SEC. 23. NOTICE... 13
SEC. 24. PROHIBITION AGAINST ASSIGNMENT.. 14
SEC. 25. CUMULATIVE REMEDIES.. 14
SEC. 26. CITY BUSINESS LICENSE. 14
SEC. 27. COUNTERPARTS.... 14
TABLE OF EXHIBITS
EXHIBIT "A" INSURANCE REQUIREMENTS
16 EXHIBIT "B" Faithful Performance Bond..
18 EXHIBI "C" Labor and Materials Payment Bond ...21
EXHIBIT "D" Warranty Bond............ .24
EV CHARGING STATION PROJECT
CITY OF COMMERCE
STANDARD PUBLIC WORKS AGREEMENT
THIS STANDARD PUBLIC WORKS AGREEMENT ("AGREEMENT") is dated August 9, 2022 for reference purposes only and is made and entered into by and between the CITY OF COMMERCE, a Municipal corporation (the "CITY") and CEM Construction Corporation ("CONTRACTOR") whose address is 1412 Espanol Avenue, Montebello, CA 90640.
SEC. 1. RECITALS
WHEREAS, the CITY duly advertised a Notice Inviting Bids and received bids for the work described as EV Charging Station Project ("PROJECI"), 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:
This AGREEMENT
2. Appendices
Standard drawings
Details
Special Provisions, if any
6. Addendums
General Specifications and all referenced specifications Bidders Proposal
9. Instructions to Bidders
10. Notice Inviting Sealed Bids
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SEC. 3. SCOPE OF PROJECT
The Scope of PROJECT consists generally of EV Charging Station Project 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 $81,000, 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.
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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, CONTRACIOK hereby agrees to, and shall, hold harmless, indemnify and defend CITY for the cost of all such sanctions imposed, 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 60 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:
1. The presence of any material that the CONTRACTOR believes is hazardous waste, as defined in Section 25117 of the Health and Safety Code;
2. Subsurface or latent physical conditions at the site differing from those indicated in the specifications; or,
3. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.
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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.
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
EV CHARGING STATION PROJECT
main or trunkline 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
EV CHARGING STATION PROJECT
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
A. 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 [insert County name] County. Wage rates shall conform with those available at the City of Commerce Public Works Department and posted at the Project site.
B. 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
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
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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.
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
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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 one thousand dollars ($1,000.00) as liquidated damages for each working 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:
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, any 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,
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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 the procuring or 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.
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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 the funds retained pursuant to SEC. 4 hereof; 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 CONTRACTOR'S 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:
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To CITY: City of Commerce
535 Commerce Wa
ommerce, CA 9004
Attn: Director of Public Works
To CONTRACTOR: CEM Construction Corporation
1412 Espanol Avenue
Montebello, CA 90640
Attn: Jesus E. Carillo, President
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. CITY BUSINESS LICENSE
Contractor and all subcontractors performing work on the Project shall obtain a City of Commerce business license before performing any work on the Project, SEC. 27. 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.
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CITY OF COMMERCE CONTRACTOR
By: By: CEM CONSTRUCTEN CORP.
Oralia Y. Rebollo, Mayor
Date: 07-28 - 2=22
Date:
By: A CARME PRESIDENT
ATTEST:
Date: 07-28-2-22
Lena Shumway, City Clerk
APPROVED AS TO FORM
Noel Tapia, City Attorney
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EXHIBIT "A"
INSURANCE REQUIREMENTS
On or before beginning any of the work called for by any term of this Contract, CONTRACTOR, at its own cost and expense, shall carry, maintain for the duration of this Contract, and provide proof thereof that is acceptable to CITY of its procurement of the insurance specified below from insurers and under forms of insurance satisfactory in all respects to CITY. Such insurance shall not be in derogation of CONTRACTOR's obligations to provide indemnity under this Contract.
1. Comprehensive General Liability and Automobile Liability Insurance Coverage.
CONTRACTOR shall carry and maintain Comprehensive General Liability and Automobile Liability Insurance which provides the following:
Minimum coverage: Bodily injury limits of $2,000,000 for each person and $2,000,000 for each occurrence; property damage limits of $2,000,000 for each occurrence, $5,000,000 aggregate.
Products/Completed Operations Hazard Insurance in an amount of not less than FIVE MILLION DOLLARS ($5,000,000);
A combined single limit policy with aggregate limits in an amount of not less than Five MILLION DOLLARS ($5,000,000) shall be considered equivalent to the said required minimum limits set forth herein above.
If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Contract or the general aggregate limit shall be at least twice the required occurrence limit.
Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Contract, including the use of owned and non-owned real property and automobiles. Insurance coverage shall not be subject to any type of pollution exclusion or owned property exclusions.
2. Automobile Liability.
CONTRACTOR shall carry and maintain Automobile Liability Insurance which provides a minimum coverage of at least $5,000,000 per accident for bodily injury and property damage.
3. Worker's Compensation.
CONTRACTOR shall carry and maintain worker's compensation in the amount of $1,000,000 as required by the California Labor Code for all persons employed directly or indirectly in connection with this Contract by CONTRACTOR. To the extent that CONTRACTOR utilizes any subcontractor for the performance of any part of the work under this Contract, CONTRACTOR shall require and assure that such subcontractor also carry and maintain worker's compensation as required by the California Labor Code for all persons directly or indirectly in connection with this Contract.
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4. Additional Insureds.
The CITY, its officers, agents and employees must be named as additional insureds or as additional loss payees in all insurance policies required by this Contract. An endorsement to this effect shall be delivered to CITY prior to the commencement of any work. Satisfaction of any deductible requirement shall be the responsibility of CONTRACTOR. Such insurance shall be primary and noncontributory with any other insurance maintained by the CITY.
5. Notice of Cancellation.
CONTRACTOR agrees to oblige its insurance agent or broker and insures to provide 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.
6. Severability Clause.
Each of the policies of insurance shall contain a clause substantially as follows:
The insurance afforded by this policy applies separately to each insured against whom a claim or suit is made or suit is brought, except with respect to the limit of the insurer's liability.
7. Qualifications of Insurer.
All policies of insurance shall be issued by an insurance company acceptable to CITY and authorized to issue said policy in the State of California.
8. Approval of Insurer.
The insurance carrier providing the insurance shall be chosen by CONTRACTOR subject to approval by CITY, provided that such approval shall not be unreasonably withheld.
9. Payment of Premiums.
All premiums on insurance policies shall be paid by CONTRACTOR making payment, when due, directly to the insurance carrier, or in a manner agreed to by CITY.
10. Evidence of Insurance and Claims.
CONTRACTOR shall provide certificates of insurance to CITY as evidence of insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. The CITY's Risk Manager must approve insurance certificates and endorsements prior to commencement of performance. Current certification of insurance shall be kept on file with the CITY at all times during the term of this Contract. The CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.
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(Use of City Bond Form is Required)
EXHIBIT "B"
Faithful Performance Bond
FAITHFUL PERFORMANCE BOND
PUBLIC WORK (CALIFORNIA)
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 and made a part hereof
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 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.
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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 anyway 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: Date:
Title:
Surety
By: Date:
Title:
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 )
(here insert name and title of the officer),
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 -
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(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
City Attorney
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EXHIBIT "C"
Labor and Materials Payment Bond
(Use of City Bond Form is Required)
LABOR AND MATERIAL PAYMENT BOND
PUBLIC WORK (CALIFORNIA)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, , as Principal, has entered into a
"Contract" the City
(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
and duly authorized to transact business in the sted endea the rava, 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 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
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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 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: Date:
Title:
Surety
By: Date:
Title:
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 sigı his Labor and Materials Payment Bond on behalf of Surety. This Declaration is signed or the City of _ State of California.
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--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,
personally appeared (here insert name and title of the officer), who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacityies), and that 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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EXHIBIT "D"
Warranty Bond
(Use of City Bond Form is Required)
WARRANTY BOND
PUBLIC WORKS
WHEREAS, the City Council of the City of
_ State of California,
entered into a written contract (the "Contract") dated - hereinalter designated as "Principal") hav whereby Principal agree
to install and complete certain designated public improvements, which Contract is hereby referred to and made a part hereof, and
guarantee and warranty of the work for a period of one (1) year following the completion and acceptance WHEREAS, said Principal is required under the terms of said Contract to furnish a bond for the 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
authorized to transact business in the State of California, as Surely, are held and firmly bound unto the City of - (hereinafter ($ 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.
shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by As a part of the obligation secured hereby and in addition to the face amount specified therefor, there City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
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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: Date:
Title:
Surety
By: Date:
Title:
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,
personally appeared (here insert name and title of the officer, , who proved to me on
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 -
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(Proof of signature authorization or power of attorney must be attached) APPROVED AS TO FORM:
City Attorney
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