28 August 2024
SECTION 5 – AGREEMENT
CONSTRUCTION AGREEMENT
THIS AGREEMENT is made this 22nd day of October, 2024, by the CITY OF GARDEN GROVE (“CITY”), and ALL CITIES ENGINEERING, INC., hereinafter referred to as (“CONTRACTOR”) RECITALS:
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to City of Garden Grove Council Authorization dated October 22, 2024.
2. City desires to utilize the services of CONTRACTOR to furnish material, equipment, and labor for the Chapman Avenue & Dale Street Water Improvement Project - CP No. 1361000 -- Drawing No. W-632.
3. CONTRACTOR is qualified by virtue of experience, training, education, and expertise to accomplish services.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
General Conditions . CONTRACTOR certifies and agrees that all the terms, conditions and obligations of the Contract Documents as hereinafter defined, the location of the job site, and the conditions under which the work is to be performed have been thoroughly reviewed, and e nters into this Contract based upon CONTRACTOR'S investigation of all such matters and is in no way relying upon any opinions or representations of CITY. It is agreed that this Contract represents the entire agreement. It is further agreed that the Contract Documents including the Notice Inviting Bids, Special Instructions to Bidders, if any, Plans, Specifications and CONTRACTOR's Proposal, are incorporated in this Contract by reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its SUBCONTRACTORs, if any, will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the work covered by this Contract. "Project" as used herein defines the entire scope of the work covered by all the Contract Documents. Anything mentioned in the Specifications and not indicated in the Plans, or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of discrepancy in the Plans or Specifications, the matter shall be immediately submitted to CITY’S Engineer, without whose decision CONTRACTOR shall not adjust said discrepancy save only at CONTRACTOR's own risk and expense. The decision of the Engineer shall be final.
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Materials and Labor. CONTRACTOR shall furnish, under the conditions expressed in the Plans and Specifications, at CONTRACTOR'S own expense, all labor and materials necessary, except such as are mentioned in the Specifications to be furnished by the CITY, to construct and complete the project, in good workmanlike and substantial order. If CONTRACTOR fails to pay for labor or materials when due, CITY may settle such claims by making demand upon the surety to this Agreement. In the event of the failure or refusal of the surety to satisfy said claims, CITY may settle them directly and deduct the amount of payments from the Contract price and any amounts due to CONTRACTOR. In the event CITY receives a stop noti ce from any laborer or material supplier alleging non-payment by CONTRACTOR, CITY shall be entitled to deduct all of its costs and expenses incurred relating thereto, including but not limited to administrative and legal fees.
Project. The PROJECT is descr ibed as: Chapman Avenue & Dale Street Water Improvement Project - CP No. 1361000 -- Drawing No. W-639.
Plans and Specifications . The work to be done is shown in a set of detailed Plans and Specifications entitled: Chapman Avenue & Dale Street Water Improve ment Project - CP No. 1361000 -- Drawing No. W-639.
Said Plans and Specifications and any revision, amendments or addenda thereto are attached hereto and incorporated herein as part of this Contract and referred to by reference. The work to be done must also be in accordance with the General Provisions, Standard Specifications and Standard Plans of the CITY, which are also incorporated herein and referred to by, reference.
Time of Commencement and Completion . CONTRACTOR shall have twenty-one (21) calendar days from the award of the Contract to execute the Contract and supply CITY with all of the documents and information required by the Instruction to Bidders and the other Contract Documents, including but not limited to, the necessary bonds and insurance certificates and endorsements. Once the CITY receives the executed Contract and all of the other properly drafted and executed documents and information, it may issue a Notice to Proceed to the CONTRACTOR. If CONTRACTOR refuses or fails to execute the Cont ract or refuses or fails to provide the required documents and information within the twenty -one (21) calendar days, the CITY may then rescind the award of the Contract and then award the Contract to the next lowest responsive and responsible bidder.
Upon receipt of the Notice to Proceed, CONTRACTOR agrees to submit shop drawings, proof of payment for materials from supplier and traffic control plans within fourteen (14) calendar days . Further, upon receipt of the Notice to Proceed the CONTRACTOR shall diligently prosecute the work to completion within one hundred twenty (120) total working days excluding delays caused or authorized by the CITY as set forth in Sections 5.7, 5.8 and 5.9 hereof.
Time is of the Essence . Time is of the essence of this Contr act. As required by the Contract Documents, CONTRACTOR shall prepare and obtain approval of all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of CONTRACTOR'S work in conformance with an approved con struction progress schedule. CONTRACTOR shall coordinate the work covered by this Contract with that of all other CONTRACTORs, SUBCONTRACTORs and of the CITY, in a manner that will facilitate the efficient completion of the entire work in accordance with S ection 5.5 herein. CITY shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time or order in which the various portions of the work shall be installed or the priority of the work of other SECTION 5 - AGREEMENT (Continued)
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SUBCONTRACTORS, and, in general, all matters representing the timely and orderly conduct of the work of CONTRACTOR on the premises.
Excusable Delays . CONTRACTOR shall be excused for any delay in the prosecution or completion of the Project caused by acts of God; inclement weather; damages caused by fire or other casualty for which CONTRACTOR is not responsible; any act of negligence or default of CITY; failure of CITY to make timely payments to CONTRACTOR; late delivery of materials required by this CONTRACT to be furnished by CITY; combined action of the workers in no way caused by or resulting from default or collusion on the part of CONTRACTOR; a lockout by CITY; or any other delays unforeseen by CONTRACTOR and beyond CONTRACTOR's reasonable control.
CITY shall extend the time fixed in Section 5.5 herein for completion of the Project by the number of days CONTRACTOR has thus been delayed, provided that CONTRACTOR presents a written request to CITY for such time extension within fifteen (15) days of the commencement of such delay and CITY finds that the delay is justified. CITY 'S decision will be conclusive on the parties to this Contract. Failure to file such request within the time allowed shall be deemed a waiver of the claim by CONTRACTOR.
No claims by CONTRACTOR for additional compensation or damages for delays will be allowed unless CONTRACTOR satisfies CITY that such delays were unavoidable and not the result of any action or inaction of CONTRACTOR and that CONTRACTOR took all available measures to mitigate such damages. Extensions of time and extra compensation as a result of incurring undisclosed utilities would be determined in accordance with SPECIAL PROVISIONS and Section 3-3 of the Standard Specifications for Public Works Construction 2009 Edition (GREEN BOOK). The CITY’S decision will be conclusive on all parties to this Contract.
Extra Work . The Contract price includes compensation for all work performed by CONTRACTOR, unless CONTRACTOR obtains a written change order signed by a designated representative of CITY specifying the exact nature of the extra work and the amount of extra compensation to be paid all as more particularly set forth in Section 5.9 hereof.
CITY shall extend the time fixed in Section 5.5 for completion of the Project by the number of days reasonably required for CONTRACTOR to perform the extra work, as determined by CITY’S Engineer. The decision of the Engineer shall be final.
5.6 Changes in Project.
5.9.1 CITY may at any time, without notice to any surety, by written order designated or indicated to be a change order, make any change in the work within the general scope of the Contract, including but not limited to changes:
a. In the Specifications (including drawings and designs); b. In the time, method or manner of performance of the work; c. In the CITY -furnished facilities, equipment, materials, services or site; or d. Directing acceleration in the performance of the work.
If CONTRACTOR believes that the written order issued as part of this Section
5.9.1 has caused an increase in costs or time, the CONTRACTOR shall submit a written request for equitable adjustment to the CITY that includes a detailed cost breakdown and time impact analysis in sufficient detail to allow the CITY to analyze the request. Said notice shall be submitted via certified mail within twenty SECTION 5 - AGREEMENT (Continued)
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(20) days of the CONTRACTOR’S receipt of the written order. CONTRACTOR’S failure to submit the written request for equitable adjustment within the required twenty (20) days shall constitute a waiver of any potential change order or claim for said alleged change. The CITY shall review CONTRACTOR’S request and shall provide a written response within thirty (30) days of receipt of the request either approving or denying the request.
5.9.2 A change may also be any other conflict, difficulty or issue which the CONTRACTOR believes caused any change to the CONTRACTOR’S costs or project schedule, provided CONTRACTOR gives the CITY written notice and a request for equitable adjustment that includes a detailed cost breakdown an d time impact analysis in sufficient detail to allow the CITY to analyze the request.
The notice shall also state the date the CONTRACTOR became aware of the issue, circumstances and source of the issue and that CONTRACTOR regards the issue as a change ord er. Said written notice shall be delivered to the CITY via certified mail within twenty (20) days of CONTRACTOR’S first notice of the issue. CONTRACTOR’S failure to submit the notice, which includes the written request for equitable adjustment within the r equired twenty (20) days shall constitute a waiver of ant potential change order or claim for said alleged change.
The CITY shall review CONTRACTOR’S request and shall provide a written response within thirty (30) days of receipt of the request either appr oving or denying the request.
5.9.3 Except as provided in this Section 5.9, no order, statement or conduct of the CITY or its representatives shall be treated as a change under this Section 5.9 or entitle CONTRACTOR to an equitable adjustment.
5.9.4 Except for claims based on defective specifications, no claim for any change under paragraph 5.9.1 or 5.9.2 above shall be allowed for any work performed more than 20 days before the CONTRACTOR gives written notice as required in paragraphs 5.9.1 and 5.9.2. In the case of defective specifications for which the CITY is responsible, the equitable adjustment shall include any increased direct cost CONTRACTOR reasonably incurred in attempting to comply with those defective specifications.
5.9.5 If CONTRACTOR intend s to assert a claim for an equitable adjustment under this Section 5.9, it must, within thirty (30) days after receipt of a denial of a request for equitable adjustment under paragraphs 5.9.1 and 5.9.2, submit a written statement to the CITY setting forth the general nature and monetary extent of such claim. The CITY may extend the 30-day period. CONTRACTOR’S failure to submit the notice of a claim, within the required thirty (30) days shall constitute a waiver of the claim by the CONTRACTOR.
5.9.6 No claim by CONTRACTOR for an equitable adjustment shall be allowed if made after final payment under this Agreement.
5.9.7 CONTRACTOR hereby agrees to make any and all changes, furnish the materials and perform the work that CITY may require without nullifyi ng this Contract. CONTRACTOR shall adhere strictly to the Plans and Specifications unless a change there from is authorized in writing by the CITY. Under no condition shall CONTRACTOR make any changes to the Project, either in additions or deductions, without the written order of the CITY and the CITY shall SECTION 5 - AGREEMENT (Continued)
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not pay for any extra charges made by CONTRACTOR that have not been agreed upon in advance in writing by the CITY. CONTRACTOR shall submit immediately to the CITY written copies of its firm's cost or cre dit proposal for change in the work. Disputed work shall be performed as ordered in writing by the CITY and the proper cost or credit breakdowns therefore shall be submitted without delay by CONTRACTOR to CITY.
5.10 Liquidated Damages for Delay. The parties agree that if the total work called for under this Contract, in all parts and requirements, is not completed within the time specified in Section 5.5 herein, plus the allowance made for delays or extensions authorized under Sections 5.7, 5.8 and 5.9 herein, the CITY will sustain damage which would be extremely difficult and impractical to ascertain. The parties therefore agree that CONTRACTOR will pay to CITY the sum of One Thousand Five Hundred dollars ($1,500.00) per day for each and every calenda r day during which completion of the Project is so delayed.
CONTRACTOR agrees to pay such liquidated damages and further agrees that CITY may offset the amount of liquidated damages from any monies due or that may become due CONTRACTOR under the Contract.
5.11 Contract Price and Method of Payment . CITY agrees to pay and the CONTRACTOR agrees to accept as full consideration for the faithful performance of this Contract, subject to any subsequent additions or deductions as provided in approved change orders, the sum of _Four million one hundred twenty nine thousand nine hundred and eighty Dollars and 00/100 ($ 4,129,980.00) as itemized in the bid proposal.
Progress payments shall be made to the CONTRACTOR on a monthly basis for each successive month as the work pr ogresses. The CONTRACTOR shall be paid such sum as will bring the total payments received since the commencement of the work up to ninety-five percent (95%) of the value of the work completed, less all previous payments, provided that the CONTRACTOR submits the request for payment prior to the end of the day required to meet the payment schedule. The CITY will retain five percent (5%) of the amount of each such progress estimate and material cost until 35 days after the recordation of the Notice of Completion.
Payments shall be made on demands drawn in the manner required by law, accompanied by a certificate signed by the CITY’S Engineer, stating that the work for which payment is demanded has been performed in accordance with the terms of the Contract. Partial payments of the Contract price shall not be considered as an acceptance of any part of the work.
5.12 Substitution of Securities in Lieu of Retention of Funds. Pursuant to Public Contract Code § 22300, the CONTRACTOR will be entitled to post approved secur ities with the CITY or an approved financial institution in order to have the CITY release funds retained by the CITY to ensure performance of the Contract. CONTRACTOR shall be required to execute an addendum to this Contract together with escrow instructi ons and any other documents in order to effect this substitution.
5.13 Completion. Within 10 days after the contract completion date of the Project, CONTRACTOR shall file with the CITY’S Engineer its affidavit stating that all workers and persons employed, all firms supplying materials, and all SUBCONTRACTORs upon the Project have been paid in full, and that there are no claims outstanding against the Project for either labor or material, except those certain items, if any, to be set forth in an affidavit covering disputed claims, or items in connection with Stop Notices which have been filed SECTION 5 - AGREEMENT (Continued)
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under the provisions of the statutes of the State of California. CITY may require affidavits or certificates of payment and/or releases from any SUBCONTRACTOR, laborer or material supplier.
5.14 CONTRACTOR's Employees Compensation
5.14.1 General Prevailing Rate . CITY has ascertained that State prevailing wage requirements of the California Labor Code including Sections 1770, 1771.5, 1773, 1777.5, and 1776 are required to execute this Con tract. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the general prevailing wage rates determined by the Director of the California Department of Industrial Relations for similar classifications of labo r, the CONTRACTOR and the SUBCONTRACTORs shall pay not less than the higher wage rate. The CITY will not accept the lower State wage rates. This includes “helper” (or other classifications based on hours of experience) or any other classification. A copy o f the prevailing rate of per diem wages shall be posted at the job site.
5.14.2 Forfeiture for Violation. CONTRACTOR shall, as a penalty to the CITY, forfeit one hundred dollars ($100.00) for each calendar day or portion thereof for each worker paid (either by the CONTRACTOR or any SUBCONTRACTOR under it) less than the greater of State minimum wage rate associated with the duties of the employee in question, in accordance with the State prevailing wage requirements of the California Labor Code, including Sections 1770, 1771.5, 1773, 1777.5, and 1776.
5.14.3 Apprentices. The greater of Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices is applicable to this Contract and the CONTRACTOR shall comply therewith if the prime contract involves thirty thousand dollars ($30,000.00) or more or twenty (20) working days, or more; or if contracts of specialty CONTRACTORs not bidding for work through the general or prime CONTRACTOR are two thousand dollars ($2,000.00) or more for five (5) working days or more.
5.14.4 Workday. In the performance of this Contract, not more than eight (8) hours shall constitute a day's work, and CONTRACTOR shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (5.14.2) above. CONTRACTOR shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seq.) of the Labor Code of the State of California, and shall forfeit to the CITY as a penalty, the sum of twenty -five Dollars ($25.00) for each worker employed in the execution of this Contract by CONTRACTOR or any SUBCONTRACTOR for each calendar day during which any worker is required or permitted to labor more than eight (8) hours in any one calendar day and forty (40) hours in any one week in violation of said Article.
CONTRACTOR shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by CONTRACTOR in connection with the Project.
5.14.5 Record of Wages: Inspection. CONTRACTOR agrees to maintain accurate payroll records showing the name, address, social security number, work classification, straight-time and overtime hours worked each day and week, and SECTION 5 - AGREEMENT (Continued)
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the actual State prevailing wage paid to each journeyman, apprentice, worker or other employee employed by it in connection with the Project and agrees to require that each of its SUBCONTRACTORs does the same. The applicable CONTRACTOR or SUBCONTRACTOR or its agent having authority over such matters sh all certify all payroll records as accurate. CONTRACTOR further agrees that its payroll records and those of its SUBCONTRACTORs shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Section 1776, in general.
CONTRACTOR shall comply with all the provisions of Labor Code Section 1776, and shall submit payroll records to the Labor Commissioner pursuant t o Labor Code Section 1771.4(a)(3). The CONTRACTOR shall submit copies of certified payroll reports and cancelled checks for laborers, every week to the CITY.
Certified payroll and cancelled checks submittals are due one month after start of construction and every week thereafter. If the certified payroll and cancelled checks are not submitted, the CONTRACTOR will be notified that compliance is required within five (5) working days or contract work must cease. The CITY will not be responsible for any delay or acceleration charges or any incurred costs or damages as a result of the work stoppage due to CONTRACTOR’s failure to comply. Work shall be ceased in an orderly, safe fashion with all vehicle access restored, should this not occur, CITY will correct the deficiencies and deduct the cost from funds due to the CONTRACTOR. In addition, no progress payment shall be made until the copies of certified payroll reports and cancelled checks are submitted.
5.14.6 Contractor Registrat ion. CONTRACTOR and its subcontractors must be registered with the California Department of Industrial Relations pursuant to Labor Code Section 1725.5. This Agreement shall not be effective until CONTRACTOR provides proof of registration to the CITY.
5.14.7 Posting of Job Site Notices. CONTRACTOR shall comply with the job site notices posting requirements established by the Labor Commissioner pursuant to Title 8, California Code of Regulations Section 16461(e) or other regulation promulgated pursuant to Labor Code Section 1771.4(a)(2).
5.14.8 Notice of DIR Compliance Monitoring and Enforcement. Pursuant to Labor Code Section 1771.4, this Project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations.
5.15 Surety Bonds. CONTRACTOR shall, upon entering into performance of this Agreement, furnish bonds in the amount of one hundred percent (100%) of the Contract price bid, to guarantee the faithful performance of the work, and the other in the amount of one hundred percent (100%) of the Contract price bid to guarantee payment of all claims for labor and materials furnished. This Contract shall not become effective until such bonds are supplied to and approved by the CITY.
5.16 Insurance.
5.16.1 CONTRACTOR is also aware of the provisions of Secti on 3700 of the Labor Code, which requires every employer to be insured against liability for Workers’ Compensation or undertake self-insurance in accordance with the provisions of SECTION 5 - AGREEMENT (Continued)
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that Code, and will comply with such provisions before commencing the performance of the work of this Contract.
5.16.2 CONTRACTOR and all SUBCONTRACTORs shall carry workers' compensation insurance for the protection of its employees during the progress of the work.
The insurer shall waive its rights of subrogation against the CITY, its O fficers, Official Agents Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the City and shall issue an insurance certificate and waiver of subrogation to the policy evidencing same.
5.16.3 CONTRACTOR shall at all times carry, on all operations hereunder, bodily injury, including death, and property damage liability insurance, including automotive operations bodily inju ry and property damage coverage; and builders' all risk insurance. Follows Form excess liability insurance shall be provided for any underlying policy that does not meet the policy limits required by this contract.
All insurance coverage shall be in amount s specified by the CITY in the Insurance Requirements and shall be evidenced by the issuance of a certificate and additional insured endorsement in forms prescribed by the CITY and shall be underwritten by insurance companies satisfactory to the CITY for a ll operations, subcontract work, contractual obligations, product or completed operations, all owned vehicles and non -owned vehicles. Claims made and modified occurrence policies shall not be accepted. Said insurance coverage obtained by the CONTRACTOR, ex cepting workers' compensation coverage, shall name the CITY, its Officers, Official, Agents, Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the CITY, as additional insured on said policies. Additional insured status shall be evidenced in the form of an Additional insured Endorsement (CG 20 10 1185). A sample is included in the appendix of the specifications f or reference.
For any claims related to this Project, the Contractor’s insurance coverage shall be primary insurance as respects the CITY, its Officers, Officials, Agents, Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents, and Employees, as determined by the CITY. Any insurance or self - insurance maintained by the CITY, its Officers, Officials, Agents, Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents, and Employees, as determined by the CITY shall be excess of the CONTRACTOR’s insurance and not contribute with it.
5.16.4 Before CONTRACTOR performs any work at, or prepares or delivers materials to, the site of construction, CONTRACTOR shall furnish:
COMMENCEMENT OF WORK . CONTRACTOR shall not commence work under this Agreement until all certificates and endorsements have been received and approved by CITY. All insurance required by this Agreement shall contain a Statement of Obligation on the part of the carrier to notify CITY of any material SECTION 5 - AGREEMENT (Continued)
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change, cancellation, or termination at least thirty (30) days in advance.
Contractor shall also provide a waiver of subrogation for each policy.
INSURANCE AMOUNTS. CONTRACTOR shall maintain all of the foregoing insurance coverage in force until the work under this Contract is fully completed.
The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by CONTRACTOR under Section 5.17 of this Contract. Notwithstanding nor diminishing the obligations of CONTRACTOR with respect to the foregoing, CONTRACTOR shall subscribe for a nd maintain in full force and effect during the life of this Contract, the following insurance in amounts not less than the amounts specified and issued by a company admitted and licensed in California and having a Best's Guide Rating of A -Class VII or better (Claims made and modified occurrence policies are not acceptable):
Workers’ Compensation As required by the State of California.
Employer’s Liability $1,000,000 per accident for bodily injury or disease.
Commercial General Liability
(including operations, products and
completed operations, and not
excluding XCU)
$5,000,000 per occurrence for bodily
injury, personal injury and property
damage. Coverage shall include mobile
equipment.
Automobile Liability, including
non-owned and hired vehicles
$2,000,000 combined single limit for
bodily injury and property damage.
Contractor’s Pollution Legal Liability $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
Excess liability, follows form coverage, shall be provided for any underlying policy that does not meet the policy limits required and set forth herein. Insurance companies must be acceptable to CITY and have a Best’s Guide Rating of A -, Class VII or better, as approved by CITY.
An Additional Insured Endorsement, ongoing and products -completed operations, and including mobile equipment, for the Commercial General Liability policy shall designate CITY, its Officers, Officials, Agents, Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the CITY as additional insureds for liability arising out of work or operations performed by 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 Automobile Liability policy shall designate CITY, its Officers, Officials, Agents, Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the CITY as additional insureds for automobiles owned, leased, hired, or borrowed by the CONTRACTOR. CONTRACTOR shall provide to CITY SECTION 5 - AGREEMENT (Continued)
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proof of insurance and endorsement forms that conform to City’s requirements, as approved by CITY.
An Additional Insured Endorsement for Contractors’ Pollution Legal Liability policy shall designate CITY, its Officers, Officials, Agents, Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the CITY as additional insureds for liability arising out of work or operations performed by 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.
In the event any of CONTRACTOR’S underlying policies do not meet policy limits within the insurance requirements, CONTRACTOR shall provide coverage under an excess liability policy. The policy must be a follows form excess/umbrella policy. CONTRACTOR shall provide the schedule of underlying polices for an excess/umbrella liability policy, state that the excess/umbrella policy follows form on the insurance certificate, and provide an additional insured endorsement for the excess/umbrella liability policy designating CITY, it s Officers, Officials, Agents, Employees, Engineers, Volunteers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the CITY as additional insureds.
A primary/non -contributory endorsement shall be provided to CITY for each policy. For any claims related to this Agreement, CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, agents, employees, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees as determined by CITY. Any insurance or self-insurance maintained by CITY, its officers, officials, agents, employees, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by CITY shall be excess of the CONTRACTOR’s insurance and shall not contribute with it. CONT RACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY.
CITY or its representatives shall at all times have the right to inspect and receive the original or a certified copy of all said policies of insurance, including certificates. CONTRACTOR shall pay the premiums on the insurance hereinabove required.
If CONTRACTOR maintains higher insurance limits than the minimums shown above, CONTRACTOR shall provide coverage for the higher in surance limits otherwise maintained by the CONTRACTOR.
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5.17 Risk and Indemnification . All work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of CONTRACTOR alone. CONTRACTOR agrees to save, indemnify and keep the CITY, its Officers, Agents, Employees, Engineers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their directors, Officers, Agents and Employees harmless against any and all liability, claims, judgments, costs and demands, including demands arising from injuries or death of persons (CONTRACTOR'S employees included) and damage to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by CONTRACTOR, save and except claims or litigation arising through the negligence or willful misconduct of CITY and will make good to reimburse CITY for any expenditures, including reasonable attorneys' fees CITY may incur by reason of such matters, and if requested by CITY, will defend any such suits at the sole cost and expense of CONTRACTOR.
5.18 Termination.
5.18.1 This Contract may be terminated in whole or in part in writing by the CITY for its convenience, provided that the CONTRACTOR is given (1) not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination.
5.18.2 If termination for default or convenience is effected by the CITY, an equitable adjustment in the price provided for in this Contract shall be ma de, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the CONTRACTOR at the time of termination may be adjusted to cover any additional costs to the CITY because of the CONTRACTOR'S default.
5.18.3 Upon receipt of a termination action under paragraph (5.18.1) or (5.18.2) above, the CONTRACTOR shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the CONTRACTOR in performing this Contract whether completed or in process.
5.18.4 Upon termination under paragraphs (5.18.1) and (5.18.2) above, the CITY may take over the work and may award another party an agreement to complete the work under this Contract.
5.19 Warranty. The CONTRACTOR agrees to perform all work under this Contract in accordance with the CITY 's designs, drawings and specifications.
The CONTRACTOR guarantees for a period of one (1) year from the date of the notice of completion of the work that the completed work is free from all defects due to faulty materials, equipment or workmanship and that he shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs or any damage to other parts of the system resulting from such defects. The CITY shall promptly give notice to the CONTRACTOR of observed defects. In the event that the CONTRACTOR fails to make adjustments, repairs, corrections or other work made necessary by such defects, the CITY may do so and charge the CONTRACTOR the cost incurred. The performance bond shall remain in full force and effect through the guarantee period.
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The CONTRACTOR'S obligations under this clause are in addition to the CONTRACTOR'S other express or implied assurances of this Contract or state law and in no way diminish any other rights that the CITY may have against the CONTR ACTOR for faulty materials, equipment or work.
5.20 Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Contract, each shall bear its own attorneys' fees, costs and necessary disbursements. Notwithstanding the foregoing, if any action is brought against the CONTRACTOR or any SUBCONTRACTOR to enforce a Stop Notice or Notice to Withhold, which named the CITY as a party to said action, the CITY shall be entitled to reasonable attorneys' fees, costs and necessary disbursements arising out of the defense of such action by the CITY. The CITY shall be entitled to deduct its costs for any Stop Notice filed, whether court action is involved or not.
5.21 Notices. Any notice required or permitted under this Contract may be g iven by ordinary mail at the address set forth below. Any party whose address changes shall notify the other party in writing.
To CITY: TO CONTRACTOR:
City of Garden Grove Javier Castro
Public Works Department All Cities Engineering, Inc.
Attention: Jessica Polidori 2930 E. Inland Empire Blvd. 13802 Newhope Street Ontario, CA 91764
Garden Grove, CA 92843 (951) 255-3964
(714) 741-5349, (909) 494-4011 Fax
(714) 638-9906 Fax
SIGNATURE ON NEXT PAGE
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IN WITNESS THEREOF , these parties have executed this Construction Agreement on the day and year shown below.
"CITY"
CITY OF GARDEN GROVE
Date:____________________________ By:
Lisa Kim
City Manager
ATTEST:
City Clerk
Date:
"CONTRACTOR"
ALL CITIES ENGINEERING, INC.
___________________________________________
CONTRACTOR'S State License No.
(Expiration Date: )
By:
Title:
Date:
APPROVED AS TO FORM:
______________________________
City of Garden Grove
City Attorney
If CONTRACTOR is a corporation, a Corporate
Resolution and/or Corporate Seal is required.
Date:___________________________
SECTION 5 - AGREEMENT (Continued)
- 41 –
August 2024
FAITHFUL PERFORMANCE BOND
Bond No.
Premium
NOTICE: TO WHOM IT MAY CONCERN: those we, ,
,
as Principal, and
as Surety, are held and firmly bound unto The City of Garden Grove, (CITY) in the sum of ____________________________________________________________________________ _
Lawful money of the United States, for the payment of which we bind heirs, our executors , administrators, successors, and ourselves jointly and severally.
That the Surety's office is located at ,
telephone no. ; the Surety is licensed to do business in the State of California; and the California Insurance Agent's License No., address, and telephone no. are as follows:
License No.:
Address:
Telephone No.:
That the following clause must be completed if, in fact, a non-resident agent for the Surety is a party to the transaction:
Name of non-resident agent:
Non-resident agent's office address:
Telephone No.:
THE CONDITION OF THIS OBLIGATION IS SUCH, that:
1. The Principal has agreed entered into a contract attached hereto, dated the ___day of __________, 2024, with THE CITY OF GARDEN GROVE for Construction of Chapman Avenue & Dale Street Water Improvement Project - CP No. 1361000 -- Drawing No.
W-639.
2. If the Principal shall well and truly perform, or cause to be performed, each and all of the requirements and obligations of the contract to be performed by the Principal, as set forth in the contract, then this bond shall be null and void; otherwise, it shall remain in full force and effect. In the event that suit is instituted to recover on this bond, the Surety will pay reasonable attorneys' fees.
3. Further, the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents or of work performed shall in any way affect its obligation on this bond, and it does here by waive notice of any change, extension of time, alteration, or modification of the contract documents, or of work to be performed.
SECTION 5 - AGREEMENT (Continued)
- 42 –
August 2024
FAITHFUL PERFORMANCE BOND (Continues)
Executed this day of , 20___
Principal Principal
By:
Surety
By:
Attorney-in-Fact
California Resident Agent
By:
Non-resident Agent - Attorney-in-Fact
STATE OF CALIFORNIA )
)
COUNTY OF ) ss.
On this day of , 20 , before me, a Notary Public in and for said County, residing therein, duly commissioned and sworn, personally appeared known to me to be the Attorney-in-Fact of the , of (Corporation)
, and acknowledged that it executed the attached bond to the (State)
Garden Grove Sanitary City as such Attorney -in-Fact and as the free act and deed of the corporation, and that the bond was executed on behalf of the corporation by authority of its Board of Directors.
IN WITNESS WHEREOF, I have herewith set my hand and affixed my Official Seal, the day and year in this certificate first above written.
(Acknowledgment by Non -
resident Agent as Attorney -
in-Fact must be attached.)
Notary Public in and for said County and State
My Commission expires:
SECTION 5 - AGREEMENT (Continued)
- 43 –
August 2024
LABOR AND MATERIAL BOND
Bond No.
Premium
NOTICE: TO WHOM IT MAY CONCERN: those we,
,
as Principal, and , as Surety,
are held and firmly bound unto The City of Garden Grove, California ("CITY") in the sum of Dollars ($ ), lawful money of the United States, for the payment of the sum, we bind heirs, our executors, administrators, successors, and ourselves jointly and severally.
That the Surety's office is located at ,
telephone no. ; the Surety is licensed to do business in the State of California; and the California Insurance Agent's License No., address, and telephone no. are as follows:
License No.:
Address:
Telephone No.:
That the following clause must be completed if, in fact, a non-resident agent for the Surety is a party to the transaction:
Name of non-resident agent:
Non-resident agent's office address:
Telephone No.:
THE CONDITION OF THIS OBLIGATION IS SUCH, that:
1. The Principal has entered into a contract attached hereto, dated day of _____________, 20 ___, with the CITY OF GARDEN GROVE for Construction of Chapman and Dale Water Improvement Project - CP No. 1361000 -- Drawing No.
W 639.
2. If the Principal, its heirs, executors, administrators, successors, or assigns, or SUBCONTRACTORs, shall fail 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 improvement, or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to work or labor, and provided th at the claimant shall have complied with the provision of the code, the Surety or Sureties will pay for same in the amount not exceeding the sum specified in this bond; otherwise, the above obligation shall be void. In case suit is brought upon this bond, the Surety will pay reasonable attorneys' fees.
3. The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents, or of work performed, shall in any way affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, alteration, or modification of the contract documents, or of work to be performed.
SECTION 5 - AGREEMENT (Continued)
- 44 –
August 2024
LABOR AND MATERIAL BOND (Continued)
4. This bond shall inure to the benefit of any and all persons, companies, and corporations entitled to the claims under Civil Code 3181 et seq., so as to give a right of action to them or their assignees in any suit brought upon this bond.
Executed this day of , 20 .
Principal Principal
By:
Surety
By:
Attorney-in-Fact
California Resident Agent
By:
Non-resident Agent - Attorney-in-Fact
STATE OF CALIFORNIA )
)
COUNTY OF ) ss.
On this day of , 2024, before me, a Notary Public in and for said County and State, personally appeared known to me to be the
Attorney-in-Fact of the ,of , and acknowledged
(Corporation) (State)
that it executed the attached bond to the Garden Grove Sanitary City as such Attorney-in-Fact and as the free act and deed of the corporation, and that the bond was executed on behalf of the corporation by authority of its Board of Directors.
IN WITNESS WHEREOF, I have herewith set my hand and affixed my Official Seal, the day and year in this certificate first above written.
(Acknowledgment by Non -
resident Agent as Attorney -
in-Fact must be attached.)
Notary Public in and for said County and State
My Commission expires:
SECTION 5 - AGREEMENT (Continued)
- 45 –
August 2024
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION This Escrow Agreement is made and entered into by and between whose address is ,
hereinafter called "Owner", ,
whose address is ,
hereinafter called "CONTRACTOR", ,
and , whose address
is ,
hereinafter called "escrow agent."
For the consideration hereinafter set forth, the Owner, CONTRACTOR, and escrow agent agree as follows:
(1) Pursuant to Section 22300 of the Public Contract Code of the State of California, the CONTRACTOR has the option to deposit securities with the escrow agent as a substitute for retention earnings required to be withheld by the Owner pursuant to the construction contract entered into between the Owner and CONTRACTOR for in the amount of dated (hereafter referred to as the "contract"). Alternatively, on written request of the CONTRACTOR, the Owner shall make payments of the retention earnings directly to the escrow agent. When the CONTRACTOR deposits the securities as a substitute for the contract earnings, the escrow agent shall notify the Owner within ten days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the contract between the Owner and CONTRACTOR. Securities shall be held in the name of the , and shall designate the CONTRACTOR as the beneficial Owner.
(2) The Owner shall make progress payments to the CONTRACTOR for those funds which otherwise would be withheld from progress payments p ursuant to the contract provision, provided that the escrow agent holds securities in the form and amount specified above. (3) When the Owner makes payment of retentions earned directly to the escrow agent, the escrow agent shall hold them for the benefit of t he CONTRACTOR until such time as the escrow created under this contract is terminated. The CONTRACTOR may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the escrow agent directly.
(4) The CONTRACTOR shall be responsible for paying all fees for the expenses incurred by the escrow agent in administering the escrow account. These expenses and payment terms shall be determined by the CONTRACTOR and escrow agent. (5) The interest earned on the securities or the money market accounts held in escrow and all interest on the interest shall be the sole account of CONTRACTOR and shall be subject to withdrawal by CONTRACTOR at any time and from time to time without notice to the Owner. (6) The CONTRACTOR shall have the right to withdraw all or any part of the principal in the escrow account only by written notice to the escrow agent accompanied by written authorization from the Owner to the escrow agent that the Owner consents to the withdrawal of the amount sought to be withdrawn by CONTRACTOR.
SECTION 5 - AGREEMENT (Continued)
- 46 –
August 2024
(7) The Owner shall have a right to draw upon the securities in the event of default by the CONTRACTOR. Upon seven days' written notice to the escrow agent from the Owner of the default, the escrow agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the Owner.
(8) Upon receipt of written notification from the Owner certifying that the contrac t is final and complete, and that the CONTRACTOR has complied with all requirements and procedures applicable to the contract, the escrow agent shall release to the CONTRACTOR all securities and interest on deposit less escrow fees and charges of the escro w account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payment of fees and charges.
(9) The escrow agent shall rely on the written notifications from the Owner and the CONTRACTOR pursuant to Sections (1) to (8), inclusive, of this agreement and the Owner and CONTRACTOR shall hold the escrow agent harmless from the escrow agent's release, conversion, and disbursement of the securities and interest as set forth above. (10) The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of the CONTRACTOR in connection with the foregoing, and exemplars of their respective signatures are as follows:
On behalf of the Owner: On behalf of the CONTRACTOR:
On behalf of the Owner: On behalf of the CONTRACTOR:
Title Title
Name Name
Signature Signature
Address Address
SECTION 5 - AGREEMENT (Continued)
- 47 –
August 2024
On behalf of the escrow agent:
Title Title
Name Name
Signature Signature
Address Address
At the time the escrow account is opened, the Owner and CONTRACTOR shall deliver to the escrow agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above.
Owner/CONTRACTOR Date:
Title/Title
Approved as to Form
City of Garden Grove
City Attorney