Agenda Item No. 11
CITY COUNCIL STAFF REPORT
TO: Honorable Mayor and City Council DATE: June 26, 2023 FROM: Matthew Bronson, City Manager
PREPARED BY: Greg Ray, Public Works Director/City Engineer Javier Garcia, Assistant Engineer
SUBJECT: Award of Construction Contract for CIP 3002 – Corporation Yard Repaving Project
RECOMMENDATION
Award the Contract for Construction of CIP 3002 – Corporation Yard Repaving Project to Toste Grading & Paving, Inc. in the amount of $104,700; authorize the City Manager to sign and affirm contract change orders up to $20,000; and authorize the Mayor to execute the contract on behalf of the City.
BACKGROUND
The Capital Improvement Program includes a City Corporation Yard Improvements project (CIP 3002) which aligns with the Council Goal of “Building and Facility Improvements” to enhance City buildings, parks, and other facilities. An initial phase of this project is repaving the parking lot at the Corporation Yard which is the facility where City maintenance operations is based. The City received two bids for this work ranging from $104,700 to $205,700 as shown in Attachment 1.
The lowest responsive and responsible bidder is Toste Grading & Paving, Inc., from Grover Beach, with a bid of $104,700. Staff has completed a review of Toste Grading & Paving, Inc.’s qualifications and capability to complete the project and is recommending the Council award the construction contract to the firm.
Staff is recommending the Council award to Toste Grading & Paving, Inc., in the amount of $104,700 and authorize the City Manager to approve contract change orders, if necessary, up to $20,000.
FISCAL IMPACT
Funding for this project is included in the Capital Projects budget for FY 2022-23.
ALTERNATIVES
The Council has the following alternatives to consider:
1. Award the contract for construction of CIP 3002 – Corporation Yard Repaving Project to Toste Grading & Paving, Inc., in the amount of $104,700; authorize the City Manager to sign and affirm contract change orders up to $20,000; and authorize the Mayor to execute the contract on behalf of the City; or
2. Delay award of the project and provide additional direction to staff; or Amended to correct
scope of work
Staff Report: Award of Construction Contract for Corporation Yard Repaving Page 2 June 26, 2023
3. Reject all bids, modify the project, and re-advertise for bids as soon as possible.
PUBLIC NOTIFICATION
The agenda was posted in accordance with the Brown Act.
Attachments
1. Bid results
2. Contract
3. Scope of Work
City of Grover Beach Bid Opening Results
Bid Opening Date: Thursday, June 15, 2023
Bids for: Corporation Yard Repaving CIP 3002
Sealed Bids Received from:
No.
Company Name
& Address
Total Base Bid
1 R. Burke Corporation $205,700.00
2 Toste Grading & Paving, Inc. $104,700.00
3 4
5 6/20/2023 1 of 1
AGREEMENT
CITY OF GROVER BEACH, CALIFORNIA
CONSTRUCTION SERVICES
CIP 3002 – CORPORATION YARD RE-PAVING PROJECT
THIS AGREEMENT is made and entered into effective the 26th day of June 2023, by and between the CITY OF GROVER BEACH, a California municipal corporation (hereinafter referred to as "CITY"), and Toste Grading & Paving Inc. (hereinafter referred to as "CONTRACTOR").
RECITALS
WHEREAS, CITY desires to obtain construction services for the CIP 3002 – Corporation Yard Repaving Project more specifically identified in the Scope of Work, jointly attached as “Exhibit A” to this Agreement, herein referred to as the PROJECT; and
WHEREAS, CONTRACTOR is engaged in the business of asphalt paving services and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and
WHEREAS, this Agreement sets forth the terms and conditions under which CONTRACTOR shall perform work required in connection with the construction of said PROJECT, to be paid by the City of Grover Beach; and
WHEREAS, this Agreement will be administered for CITY by the Director of Public Works hereinafter referred to as DIRECTOR or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:
ARTICLE I. SCOPE OF SERVICES
CONTRACTOR shall furnish all labor, materials, equipment, tools, utility services, and transportation to perform and complete all work required in connection with the construction of said PROJECT described herein and more fully described in Exhibit A, and in accordance with local, State and Federal laws. This shall include all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A.
By entering into this Agreement, CONTRACTOR acknowledges that there may be other contractors on the site whose work will be coordinated with that of its own. CONTRACTOR expressly warrants and agrees that it will cooperate with other contractors and will do nothing to delay, hinder, or interfere with the work of other separate contractors. CONTRACTOR also expressly agrees that, in the event its work is hindered, delayed, interfered with, or otherwise affected by a separate contractor, its sole remedy will be a direct action against the separate contractor. To the extent allowed by law, the CONTRACTOR will have no remedy, and hereby expressly waives any remedy against the CITY, on account of delay, hindrance, interference or other events caused by a separate contractor.
Attachment 2
ARTICLE II. BEGINNING OF WORK AND TIME OF COMPLETION
The Contractor shall begin work within ten (10) calendar days after the contract has been approved by the City of Grover Beach. This work shall be diligently prosecuted to completion before the expiration of 20 working days beginning on the tenth calendar day after contract has been approved.
The Contractor shall pay to the City of Grover Beach the sum of zero ($0.00) per day, for each and every calendar days’ delay in finishing the work in excess of the number of working days prescribed above.
Hours of work shall be 7:00 a.m. to 5:00 p.m. on week days unless weekend or night work is approved.
Weekend or night work may be allowed when approved in writing by the City Engineer. No additional compensation will be allowed for weekend or night work.
ARTICLE III. COMPENSATION AND PAYMENT
A. CONTRACTOR’S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be performed on a not to exceed basis of $104,700.00 B. CONTRACTOR shall invoice CITY on a monthly basis, via detailed statement, which will be processed and payable in the normal course of CITY business, typically within 30 days of receipt of an invoice unless otherwise identified in this Agreement.
C. The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to CONTRACTOR’S compensation. Any change in the scope of services must be made by written Change Order to the Agreement signed by an authorized representative for each party.
CONTRACTOR shall not be entitled to any additional compensation if services are performed prior to a signed written Change Order.
D. The CONTRACTOR shall notify the CITY when all work under the contract has been completed. The CITY will promptly conduct a final inspection of the work and will advise the CONTRACTOR in writing of any additional work required to complete the PROJECT and process final payment. Upon acceptance of the work by the CITY, the final payment will be processed and payable in the normal course of CITY business, typically within 30 days of receipt of the final invoice unless otherwise identified in this Agreement.
ARTICLE IV. TERMINATION, REMEDIES, FORCE MAJEURE AND CONSOLIDATION OF DISPUTES A. This Agreement shall terminate without any liability of CITY to CONTRACTOR upon the earlier of:
(i) CONTRACTOR’S filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against CONTRACTOR; (ii) Seven (7) calendar days written notice, with or without cause, by either the CITY or CONTRACTOR;
(iii) Expiration of this Agreement.
B. Upon any termination or expiration of this Agreement, CONTRACTOR shall (i) Immediately stop all work hereunder;
(ii) Immediately cause any and all of its subcontractors to cease work; and (iii) Return to CITY any and all unearned payments and all properties and materials in the possession of CONTRACTOR that are owned by CITY. Subject to the terms of this Agreement,
CONTRACTOR shall be paid compensation for services satisfactorily performed prior to the effective date of termination. CONTRACTOR shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided.
C. In the event of termination due to failure of CONTRACTOR to satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY’S damages caused by such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement which may then exist on the part of CONTRACTOR, nor shall such payment impair or prejudice any remedy available to CITY with respect to the breach.
D. Upon any breach of this Agreement by CONTRACTOR, CITY may:
(i) Exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) Proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) Recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience.
E. CONTRACTOR shall provide CITY with adequate written assurances of future performance, upon the request of the Director or his/her designee, in the event CONTRACTOR fails to comply with any terms or conditions of this Agreement.
F. CONTRACTOR shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CONTRACTOR and without its fault or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. CONTRACTOR shall notify the Director or his/her designee in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Director or his/her designee of the cessation of such occurrence.
G. CONTRACTOR agrees that, notwithstanding any contrary provision in this Agreement, any dispute arising from or relating to this Agreement (including, without limitation, disputes based on contract, tort, equity or statute) may, at CITY’S option, be joined and consolidated with any other dispute or disputes arising from or relating to the PROJECT so that all disputes arising from or relating to the PROJECT may be resolved in a single proceeding. CONTRACTOR hereby specifically waives any objection it may otherwise have to such joinder and consolidation and specifically consents to mediation, arbitration or any other dispute resolution mechanism, forum or proceeding necessary to effectuate the joinder and consolidation contemplated by this provision.
ARTICLE IV. PREVAILING WAGE AND REGISTRATION REQUIREMENTS Pursuant to Section 1773 of the Labor Code, the general prevailing wage rates in the county in which the work is to be done have been determined by the Director of the California Department of Industrial Relations. These wages are set forth in the General Prevailing Wage Rates for this project available from the California Department of Industrial Relations’ Internet website at:
http://www.dir.ca.gov/OPRL/PWD/
This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Pursuant to Section 1771.1(a) of the Labor Code:
“A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.”
CONTRACTOR must be registered with the Department of Industrial Relations (DIR) of the State of California in order to be eligible to work on public works projects. CONTRACTOR must ensure registration with the DIR that is active and in good standing.
CONTRACTOR shall ensure that any subcontractor working on the PROJECT is registered and in good standing with the Department of Industrial Relations (DIR) of the State of California.
ARTICLE V. CONTRACTOR’S LICENSE
CONTRACTOR must possess at the time of commencing work and throughout the PROJECT duration, a Class A Contractor's License, issued by the State of California, which is current and in good standing.
CONTRACTOR shall ensure that any subcontractor working on the PROJECT possesses at the time of commencing work and throughout the Project duration, an appropriate Contractor's License for the work being performed, issued by the State of California, which is current and in good standing.
ARTICLE VI. INDEMNIFICATION AND DEFENSE
A. CONTRACTOR shall indemnify, defend with legal counsel approved by CITY, and hold harmless CITY, its officers, officials, employees and volunteers from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONTRACTOR's negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the CITY. Should conflict of interest principles preclude a single legal counsel from representing both CITY and CONTRACTOR, or should CITY otherwise find CONTRACTOR’s legal counsel unacceptable, then CONTRACTOR shall reimburse the CITY its costs of defense, including without limitation reasonable legal
counsel fees, expert fees and all other costs and fees of litigation. The CONTRACTOR shall promptly pay any final judgment rendered against the CITY (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of the CONTRACTOR’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
B. CONTRACTOR obligations under this section apply regardless of whether such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of the 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 the 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 the CITY.
C. If CONTRACTOR should subcontract all or any portion of the services to be performed under this Agreement, CONTRACTOR shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
This Article (VI) shall survive termination or expiration of this Agreement.
ARTICLE VII. INSURANCE
A. Throughout the life of this Agreement, CONTRACTOR shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either:
(i) Admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide; or (ii) As may be authorized in writing by CITY'S Administrative Services Director, or his/her successor, or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein.
B. If at any time during the life of the Agreement or any extension, CONTRACTOR or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to CONTRACTOR shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this Article (VII) shall in any way relieve CONTRACTOR of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
C. The fact that insurance is obtained by CONTRACTOR shall not be deemed to release or diminish the liability of CONTRACTOR, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and 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. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONTRACTOR, its principals, officers, agents, employees, persons under the supervision of CONTRACTOR, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.
D. If CONTRACTOR should subcontract all or any portion of the services to be performed under this Agreement, CONTRACTOR shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with CONTRACTOR and CITY prior to the commencement of any services by the subcontractor. CONTRACTOR and any subcontractor/sub-consultant shall establish additional insured status for CITY, its officers, officials, employees, agents and volunteers.
ARTICLE VIII. BUSINESS TAX CERTIFICATE
CONTRACTOR and all subcontractors shall obtain a City of Grover Beach Business Tax Certificate and pay all related fees prior to the start of work.
ARTICLE IX. NONDISCRIMINATION
To the extent required by controlling federal, state and local law, CONTRACTOR shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, CONTRACTOR agrees as follows:
A. CONTRACTOR will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement.
B. CONTRACTOR will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, gender identification, status as a disabled veteran or veteran of the Vietnam era. CONTRACTOR shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, gender identification, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to CONTRACTOR’S employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. CONTRACTOR agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause.
C. CONTRACTOR will, in all solicitations or advertisements for employees placed by or on behalf of CONTRACTOR in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
D. CONTRACTOR will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of CONTRACTOR’S commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
E. If CONTRACTOR should subcontract all or any portion of the services to be performed under this Agreement, CONTRACTOR shall cause each subcontractor to also comply with the requirements of this Article (IX).
ARTICLE X. INDEPENDENT CONTRACTOR
A. In the furnishing of the services provided for herein, CONTRACTOR is acting solely as an independent contractor. Neither CONTRACTOR, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venture, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which CONTRACTOR shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof.
B. This Agreement is not evidence of a partnership or joint venture between CONTRACTOR and CITY.
CONTRACTOR shall have no authority to bind CITY absent CITY’S express written consent. Except to the extent otherwise provided in this Agreement, CONTRACTOR shall bear its own costs and expenses in pursuit thereof.
C. Because of its status as an independent contractor, CONTRACTOR and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. CONTRACTOR shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, CONTRACTOR shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of CONTRACTOR'S employees, including, without limitation:
(i) Compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and
(ii) Any claim of right or interest in CITY employment benefits, entitlements, programs and/or funds offered employees of CITY whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, CONTRACTOR may be providing services to others unrelated to CITY or to this
Agreement.
ARTICLE XI. NOTICES
All notices, including notices of address changes, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed to the addresses listed below:
A. CITY: City of Grover Beach, Gregory A. Ray, Director of Public Works 154 South Eighth Street, Grover Beach, CA 93433
B. CONTRACTOR: Toste Grading & Paving, Inc., Anthony Toste, President, Mailing Address: P.O. Box 407, Grover Beach, CA 93433, Physical Address: 941 Griffin Street, Grover Beach, CA 93433 ARTICLE XII. BINDING
Subject to Article XIII, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.
ARTICLE XIII. ASSIGNMENT
A. This Agreement is personal to CONTRACTOR and there shall be no assignment by CONTRACTOR of its rights or obligations under this Agreement without the prior written approval of the Grover Beach City Council. Any attempted assignment by CONTRACTOR, its successors or assigns, shall be null and void unless approved by the Grover Beach City Council.
B. CONTRACTOR hereby agrees not to assign the payment of any monies due CONTRACTOR from CITY under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies due CONTRACTOR directly to CONTRACTOR.
ARTICLE XIV. COMPLIANCE THE LAW
In providing the services required under this Agreement, CONTRACTOR shall at all times comply with all applicable laws of the United States, the State of California and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
ARTICLE XV. WAIVER
The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
ARTICLE XVI. GOVERNING LAW AND VENUE
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be San Luis Obispo County, California.
ARTICLE XVII. HEADINGS
The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.
ARTICLE XVIII. SEVERABILITY
The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions.
ARTICLE XIX. INTERPRETATION
The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
ARTICLE XX. ATTORNEY’S FEES
If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.
ARTICLE XXI. EXHIBITS
Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement
ARTICLE XXII. PRECEDENCE OF DOCUMENTS
In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.
ARTICLE XXIII. CUMULATIVE REMEDIES
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
ARTICLE XXIV. NO THIRD-PARTY BENEFICIARIES
The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.
ARTICLE XXV. EXTENT OF AGREEMENT
Each party acknowledges that they have read and fully understand the contents of this Agreement and any documents issued that resulted in selection of CONTRACTOR for entry into this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersede all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CONTRACTOR.
AGREEMENT SIGNATURES
CITY OF GROVER BEACH, CALIFORNIA
CONSTRUCTION SERVICES
CIP 3002 – CORPORATION YARD RE-PAVING PROJECT
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement effective as of the day and year first written above.
CITY OF GROVER BEACH
Karen Bright, Mayor Date
Attest:
Wendi Sims, City Clerk Date
Approved as to Form:
David P. Hale, City Attorney Date
TOSTE GRADING & PAVING, INC.
Anthony Toste, President Date
CA Contractor’s License No.
CA DIR No.
Attachments:
1. Exhibit A - Scope of Services and Fee Schedule
2. Exhibit B - Insurance Requirements
EXHIBIT A
CONSTRUCTION SERVICES
CONTRACTOR SCOPE OF WORK
Toste Grading & Paving Inc.
Submitted 06/15/2023
9:29 am by Susanah Douglas
EXHIBIT B
CONSTRUCTION SERVICES
INSURANCE REQUIREMENTS
Without limiting CONTRACTOR’S indemnification of CITY, and prior to commencement of Work, CONTRACTOR shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to CITY.
General liability insurance. CONTRACTOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile liability insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONTRACTOR arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
Umbrella or excess liability insurance. CONTRACTOR shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; Pay on behalf of wording as opposed to reimbursement;
Concurrency of effective dates with primary policies;
Policies shall “follow form” to the underlying primary policies; and Insureds under primary policies shall also be insureds under the umbrella or excess policies.
Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’S employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
CONTRACTOR shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers.
Pollution liability insurance. Environmental Impairment Liability Insurance shall be written on a CONTRACTOR’S Pollution Liability form or other form acceptable to CITY providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage
for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites.
Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only the CITY has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below.
The named insureds shall be CONTRACTOR and CITY, including its officers, officials, employees, and agents. All Subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to the CITY. The CITY will act as a fiduciary for all other interests in the Project.
Policy shall be provided for replacement value on an "all risk" basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to Agency to ensure adequacy of terms and sublimits and shall be submitted to the Agency prior to commencement of construction.
Other provisions or requirements
Proof of insurance. CONTRACTOR shall provide certificates of insurance to CITY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by CITY’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with CITY at all times during the term of this contract. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage. CONTRACTOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by CONTRACTOR, his agents, representatives, employees or subconsultants.
Primary/noncontributing. Coverage provided by CONTRACTOR shall be primary and any insurance or selfinsurance procured or maintained by CITY shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance.
Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY before the CITY’S own insurance or self-insurance shall be called upon to protect it as a named insured.
Products/completed operations coverage. Products/completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The AGENCY, its officials, officers, agents, and employees, shall be included as additional insureds under the Products and Completed Operations coverage.
CITY’S rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONTRACTOR or CITY will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, CITY may cancel this Agreement.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the CITY’S Risk Manager.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against CITY, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of contract provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform CONTRACTOR of non-compliance with any requirement imposes no additional obligations on the CITY nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.
Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing.
Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any crossliability exclusions.
Pass through clause. CONTRACTOR agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by CONTRACTOR, provide the same minimum insurance coverage and endorsements required of CONTRACTOR.
CONTRACTOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. CONTRACTOR agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to CITY for review.
CITY’s right to revise specifications. The CITY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONTRACTOR ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the CITY and Consultant may renegotiate CONTRACTOR’S compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by CITY. CITY reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by CITY.
Timely notice of claims. CONTRACTOR shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’S performance under this AGREEMENT, and that involve or may involve coverage under any of the required liability policies.
Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
C i t y o f G r o v e r B e a c h
DEPARTMENT OF PUBLIC WORKS
154 S. 8th Street ❖Grover Beach, CA 93433 ❖805/473-4530 ❖[email protected] Visit our website at www.groverbeach.org
City of Grover Beach Corporation Yard Re-Paving CIP 3002 SCOPE OF WORK:
The City of Grover Beach Corporation Yard Re-Paving Project requires the need to remove and replace the existing pavement with 2.5” of asphalt concrete (HMA or AC) over 4” of base, minor grading at an abandoned stormwater inlet, adjusting utility valve cover elevations, removing and replacing gate traffic loop, installing gate access keypad, trenching and installing a compressed air line from the Mechanics Shop to Bay 3, and trenching and installing blank conduit for the areas inside the gated property. Additionally, the areas located outside the gate require the need to slurry seal and stripe the existing AC, relocation of a handicap sign, and trenching and laying blank conduit. Please see Exhibit A for the proposed scope map.
The corporation yard shall be in operation during construction and the Grover Beach Publics Works Crew must always have access to the yard during construction. Contractor shall coordinate and not interfere with the ongoing Metal Building Remodel and Modifications Project in Bay 3 of the corporation yard’s main material and storage building on south side of property.
Install Six (6) -
1" SCH 40 PVCUndergroundConduit Protect Existing Automatic Electric Chain Link Fence and Gate
1150 Farroll Rd. Property Boundary
Proposed Phase 1 Paving Limits Proposed Phase 2 Paving Limits Slurry Seal and Parking Lot Stripping Install Keypad Entry Systemto Match exterior
Install Underground Conduit per Exhibit Legend Approximate Areas of Regrading Abonded Inlet Pipe Remove and ReplaceTraffic Loop
Trench Airline from Mechanic Shop to Bay 3
N Mechanics Shop Bay 3 Install Six (6) -
1" SCH 40 PVCUndergroundConduit
Install Four (4) Fiberglass Polymer Utility Boxes EXHIBIT B: SCOPE OF WORK MAP 8 feet from Bay 4 removedfrom scope
Bay 4
Area byMaterial Bayremovedfrom scope
Conduit TrenchAlignmentChanged
A