1 CONTRACT FOR:
(Asphalt Supply for Will Call and Delivery Services)
THIS AGREEMENT is made this day of , 2024, by the CITY OF GARDEN GROVE, a municipal corporation, ("CITY") and Calmat Co DBA Vulcan Materials Company , Western Division , herein after referred to as “CONTRACTOR”.
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to Garden Grove City Council authorization, dated ___________________.
2. CITY desires to utilize the services of CONTRACTOR to: Provide Asphalt Products for Will Call and Delivery to Various Job Locations in the City of Garden Grove per the bid specifications at the agreed upon delivery date and time, per Attachment “A”.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term and Termination. The term of the agreement shall be July 1, 2024 through June 30, 2025. This agreement may be terminated by the CITY without cause. In such event, the CITY will compensate CONTRACTOR for work performed to date in accordance with the City of Los Angeles Agreement which is attached as Attachment A and is hereby incorporated by reference. Contractor is required to present evidence to support performed work.
2. Services to be Provided. The services to be performed and equipment to be provided by CONTRACTOR shall consist of Provide and Deliver asphalt and related products to the City of Garden Grove per Attachment ”A”, which is incorporated herein by reference.
3. Compensation. CONTRACTOR shall be compensated as follows:
3.1 AMOUNT. Total Compensation under this agreement shall not exceed (NTE) amount of Four Hundred Thousand Dollars ($400,000.00), payable in arrears and in accordance with bid proposal in Attachment “B”.
Unless expressly provided otherwise, all prices and fees specified in Attachment “B”, attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by authorized representative. The total price shall include (i) all federal, state and local sales, 2 use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.
3.2 Payment. For asphalt delivered under this Agreement, payment shall be made per invoice for asphalt delivered.
3.3 Records of Expenses . CONTRACTOR shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement.
These records will be made available at reasonable times to CITY
3.4 Termination. CITY and CONTRACTOR shall have the right to terminate this agreement, w ithout cause, by giving thirty ( 30) days written notice of termination. If the Agreement is terminated by CITY, then the provisions of paragraph 3 would apply to that portion of the work completed.
4. Insurance requirements.
4.1 COMMENCEMENT OF WORK. CONTRACTOR shall not commence work under this Agreement until all certificates and endorsements have been received and approved by the CITY. All insurance required by this Agreement shall contain a Statement of Obligation on the part of the carrier to notify the CITY of any material change, cancellation, or termination at least thirty (30) days in advance. The insurers shall waive their rights of subrogation against the CITY, its officers, officials, agents, employees, and volunteers.
4.2 WORKERS COMPENSATION INSURANCE. During the duration of this Agreement, CONTRACTOR and all subcontractors shall maintain Workers Compensation Insurance in the amount and t ype required by law, if applicable. The insurer shall waive its rights of subrogation against the CITY, its officers, officials, agents, employees, and volunteers.
4.3 INSURANCE AMOUNTS . CONTRACTOR shall maintain the following insurance for the duration of this Agreement:
(a) Commercial general liability in the amount of $2,000,000 per occurrence; coverage to include XCU ( claims made and modified occurrence policies are not acceptable); Insurance companies must be acceptable to CITY and have an AM Best’s Guide Rating of A-, Class VII or better, as approved by the CITY. Endorsements for primary and n on- contributory.
(b) Automobile liability in the amount of $2,000,000 combined single limit; Policy must be endorsed to delete pollution exclusion. (claims made and modified occurrence policies are not acceptable); Insurance companies must be acceptable to CITY and have an AM Best’s Guide Rating of A -, Class VII or better, as approved by the CITY.
3 (c) Automobile pollution in an amount of $2,000,000 per occurrence; (claims made and modified occurrence policies are not
acceptable); Insurance companies must be acceptable to CITY and have an AM Best’s Guide Rating of A -, Class VII or better, as approved by the CITY.
(d) Excess liability, following form, coverage shall be provided for any underlying policy that does not meet the insurance requirements set forth herein (claims made and modified occurrence policies are not acceptable). Insurance companies must be acceptable to CITY and have a Best’s Guide Rating of A-Class VII or better, as approved by the CITY.
An Additional Insured Endorsement, ongoing and completed operations, for the policy under section 4.3 (a) shall designate CITY, its officers, officials, employees, agents, and volunteers as additional insureds for liability arising out of work or operations performed b y or on behalf of the CONTRACTOR.
CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to city’s requirements, as approved by the CITY.
An Additional Insured Endorsement for the policy under section 4.3 (b) shall designate CITY, its officers, officials, employees, agents, and volunteers as additional insureds for automobiles owned, leased, hired, or borrowed by the CONTRACTOR. CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’ s requirements, as approved by the CITY.
MCS 90 Endorsement for the policy under section 4.3 (c) shall designate CITY, its officers, officials, employees, agents, and volunteers as additional insureds.
CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY.
An Additional Insured Endorsement for the policy under section 4.3 (d) shall designate CITY, its officers, officials, employees, agents, and volunteers as additional insureds under the excess liability policy. CONTRACTOR shall provide to CITY proof of ins urance stating the excess liability policy follows form, additional insured endorsement forms, and the schedule of underlying policies with policy numbers that conform to CITY’s requirements, as approved by the CITY. Information for the excess policy only needs to be provided if the underlying policies do not meet the policy limits set forth herein.
For any claims related to this Agreement, CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, ag ents, and volunteers. Any insurance or self -insurance maintained by the CITY, its officers, officials, employees, agents, or volunteers shall by excess of the CONTRACTOR’s insurance and shall not contribute with it.
4 If CONTRACTOR maintains higher insurance limits than the minimums shown above, CONTRACTOR shall provide coverage for the higher insurance limits otherwise maintained by the CONTRACTOR.
5. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable to CONTRACTOR in the event of any default or breach by CITY, or for any amount which may become due to CONTRACTOR.
6. Non-Discrimination. CONTRACTOR covenants there shall be no discrimination against any person or group due to race, color, creed, religion, sex, marital status, age, handicap, national origin, or ancestry, in any activity pursuant to this Agreement.
7. Independent Contractor. It is agreed to that CONTRACTOR shall act and be an independent contractor and not an agent or employee of the CITY, and shall obtain no rights to any benefits which accrue to CITY'S employees.
8. Compliance with Law. CONTRACTOR shall comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local government.
9. Notices. All notices shall be personally delivered or mailed to the below listed address, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process.
a. (Address of Contractor)
Calmat Co. DBA Vulcan Materials Company, Western Division Attention: Tripp White, Area Manager
16013 Foothill Blvd.
Irwindale, CA 91702
b. (Address of CITY) (with a copy to):
City of Garden Grove Garden Grove City Attorney
11222 Acacia Parkway 11222 Acacia Parkway
Garden Grove, CA 92840 Garden Grove, CA 92840
10. CONTRACTOR'S PROPOSAL. Contractor shall be bound by all the terms, conditions and specifications set forth in the Port of Los Angeles Agreement attached as Attachment A hereto. In the event of any inconsistency between the terms of the Port of Los Angeles Agreement and the Agreement, the Agreement shall govern.
11. Licenses, Permits, and Fees. At its sole expense, CONTRACTOR shall obtain a Garden Grove Business License, all permits, and licenses as may be required by this Agreement.
12. Familiarity with Work. By executing this Agreement, CONTRACTOR warrants that: (1) it has investigated the work to be performed; (2) it has 5 investigated the site of the work and is aware of all conditions there; and (3) it understands the facilities, difficulties, and restrictions of the work under this Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY of this and shall not proceed, except at CONTRACTOR'S risk, until written instructions are received from CITY.
13. Time of Essence. Time is of the essence in the performance of this Agreement. The Supplier must immediately notify CITY in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights City may have under this Agreement or at law, Supplier shall pay City the sum of $[***INSERT AMOU NT***] per item of Goods for each calendar day for which the item of Goods is unavailable beyond the scheduled delivery date(s) specified in Attachment “B”.
14. Limitations Upon Subcontracting and Assignment. The experience , knowledge, capability, and reputation of CONTRACTOR, its principals and employees were a substantial inducement for CITY to enter into this Agreement. CONTRACTOR shall not contract with any other entity to perform the services required without written approval of the CITY. This Agreement may not be assigned voluntarily or by operation of law, without the prior written approval of CITY. If CONTRACTOR is permitted to subcontract any part of this Agreement, CONTRACTOR shall be responsible to CITY for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor and CITY. All persons engaged in the work will be considered employees of CONTRACTOR. CITY will deal directly with and will make all payments to CONTRACTOR.
15. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the parties are formally bound.
16. Prevailing Wages. The CITY has been advised that the Prevailing Wages Law applies to the work. CONTRACTOR shall be responsible for CONTRACTOR's compliance in all respects with the prevailing wage rates to all the laborers involved, and with California Labor Code Section 1770 et seq., including the keeping of all records required by the provisions of Labor Code Section 1776 and the implementing administrative regulations. The CITY shall be a third party beneficiary of the forgoing covenant with rights to enforce the same as against the CONTRACTOR.
17. Indemnification. CONTRACTOR agrees to protect, defend, and hold harmless CITY and its elective or appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damage to property, or interference with use of property, arising out of, or in any way connected with performance of the Agreement by CONTRACTOR, CONTRACTOR'S agents, officers, employees, subcontractors, or independent 6 contractors hired by CONTRACTOR. The only exception to CONTRACTOR'S responsibility to protect, defend, and hold harmless CITY, is due to the sole negligence of CITY, or any of its elective or appointive boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR.
18. Appropriations. This Agreement is subject to and contingent upon funds being appropriated therefor by the Garden Grove City Council for each fiscal year covered by the term of this Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the CITY.
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(Agreement Signature Block on Next Page)
7 IN WITNESS THEREOF, these parties have executed this Agreement on the day and year shown below.
Date:
ATTESTED:
"CITY"
CITY OF GARDEN GROVE
By:
City Manager
City Clerk
Date:
"CONTRACTOR"
Calmat Co DBA Vulcan
Materials Company, Western Division
By:
Name:
Title:_
Date:
Tax ID No.
APPROVED AS TO FORM:
Contractor’s License:
Expiration Date:
Garden Grove City Attorney
Date
If CONTRACTOR is a corporation, a
Corporate Resolution and/or Corporate
Seal is required. If a partnership,
Statement of Partnership must be
submitted to CITY.
8 ATTACHMENT “A”
IFB No. S-1327
Provide Asphalt Products for Will Call and Delivery to Various Job Locations in the City of Garden Grove per the bid specifications
CONTRACTOR/DELIVERY REQUIREMENTS: Vendor is required to deliver all asphalt and related products to the job locations as specified and agreed upon by the CITY. This contract does not guarantee any specific amount of products. Late deliveries result in operational problems and expense for the City; therefore, inconsistencies between vendor promised and actual delivery time may result in the City canceling the agreement or at minimum using alternate sources of supply.
Contractor provide the City with a direct number to the batch plant to allow for direct communication and must not have to go through multiple contacts to finally get to the hot plant.
Prior to the City ordering asphalt for delivery, the area is measured and calculated as to how many tons of asphalt will be needed for the job and then dispatch is called.
The City will attempt to call one week ahead of time to order the asphalt, and even two weeks in advance to ensure that we can get the asphalt delivered. It is up to the City to determine the speed of the asphalt delivery. Failure to meet the agreed upon delivery date and time may result in a penalty imposed on the contractor.
Contractor must obey all Federal, State, local ordinances and regulations.
Asphalt material is to be delivered in “End Dump Trucks Only”. Tarpaulins shall be used to cover all loads of asphalt concrete from plant to work site.
WILL CALL: The contract includes both delivery and Will-Call options. The City may also will call the asphalt and related products. The contractor will be notified of the option that the City selects.
PRODUCT SPECIFICATIONS: Grade for Asphalt Binder shall normally be PG-64-10
CONDITION OF THE PRODUCT: Asphalt arriving on the job site shall not be less than 280 degrees or more than 325 degrees F, as measured by City staff upon arrival.
The City reserves the right to reject any product that does not meet the proper specifications.
BID FORM (ATTACHMENT “B”): Bidder shall offer a price for each line item requested. Should the bidder offer an item with the unit price blank, the City reserves the right to deem the bid as non-responsive. Partial bids will not be accepted for any reason.
REQUEST FOR CLARIFICATION: All requests for clarification or questions, are to be submitted electronically via the City’s Planet Bids portal, using the Online Q&A feature by the deadline of Friday, May 10, 2024 at 2:00 p.m., local time. 9 ELECTRONIC BID SUBMITTAL ONLY : The City is NOT accepting walk -in/hand deliveries of bids. Bids must be submitted electronically via the City’s Planet Bids portal. Pricing must be submitted via the line item section on the City’s Planet Bids po rtal AND completed Attachment “B” Bid Form, Pages 20 -22 of this bid document, must also be submitted in the bid package. Instructions on how to submit an electronic bid via the Planet Bids portal can be found under the “Documents & Attachments” tab.
AWARD OF CONTRACT(S ): The City intends to award contracts to multiple companies to ensure that product availability and delivery as needed. The lowest bidder will be the first company contacted and if they do not respond in a timely manner or are unable to provide the product at the time it is needed, then the next lowest bidder will be contacted. The City reserves the right to reject any or all bids or to waive any irregularities or informalities in any bids or in the bidding process.
INSURANCE: Contractors are required to provide the insurance specified in the Sample contract (Pages 11-12) included in this bid document.
PREVAILING WAGE : The Director of Industrial Relations has determined the general prevailing rate of per diem wages in Orange County for each craft or type of worker needed to execute the Agreement, copies of which are on file and will be made available to any interested party upon request at City Office or online at http://www.dir.ca.gov/dlsr. The successful Bidder and all its subcontractor(s) shall comply with all applicable Labor Code provisions, which include, but are not limited to the payment of not less than the required prevailing rates to all workers employed by them in the execution of the Agreement, the employment of apprentices, the hours of labor and the debarment of contractors and subcontractors.
DIR REGISTRATION : Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work, must be registered with the Department of Industrial Relations. No Bid will be accepted nor any contract entered into without proof of contractor and subcontractors’ current registration with the Department of Industrial Relations to perform public work. If awarded a contract, the Bidder and its subcontractors, of any tier, shall maintain active registration with the Department of Industrial Relations for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements m andated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
BID PRICING: Suppliers are intended to hold their pricing for the full term of the contract. In the event that the supplier is unable to hold pricing for the contact term stated, supplier must provide the term for which they are able to hold pricing and the maximum price increase that will be i mposed on the City if contractor is unable to hold pricing. This must be stated as a percentage on top of the original pricing submitted in the bid package and must be include on Bid Form, Attachment “B”, Page 21, Section IV, Pricing, Agreement, of this bid document. 10 Advance notice of any price increases must be submitted to the CITY in writing and the CITY must agree to any price increases. The City reserves the right to factor in any price increases in calculating the lowest bidder(s) selected.