CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
Contractor: BK Custom Concrete
4164 Markley Road
Yuba City CA, 95993
Owner: City of Marysville
526 C Street
Marysville CA, 95901
The City of Marysville (“Owner”) and BK Custom Concrete (“Contractor”) agree that Contractor will perform the following Work in accordance with the Terms and Conditions and Exhibits attached hereto.
This Agreement, when signed by both Parties, shall become effective on February 7, 2023, and supersedes all prior understandings and agreements regarding the Project. This Agreement may only be changed by a written amendment executed by both parties.
Scope of Work
Contractor will perform construction services as defined in Exhibit 1 (Engineering Plans and Specifications) and Exhibit 2 (BK Custom Concrete - Proposal # 1003 dated 1/30/23).
Compensation
Compensation is defined in Exhibit 2 (BK Custom Concrete - Proposal # 1003 dated 1/30/23) The compensation for the Work shall in no event shall exceed a guaranteed maximum price of ($215,674) without prior written authorization from Owner. The compensation is inclusive of all costs, expenses, and taxes. If the Work is phased, each phase is subject to separate authorization.
Payment shall be based on an itemized statement which shall be submitted to Owner in a form satisfactory to Owner describing services.
Schedule
The Work shall be performed starting as early as 02/08/2023 and completing no later than 03/24/2023. Time is of the essence in this Agreement for all obligations of Contractor.
Terms and Conditions
The Terms and Conditions are set forth on pages 2 through 9 of this Agreement, including:
CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
shall be solely responsible for safety in, on, or about its work sites. If applicable to the Work, Contractor shall comply with OSHA Construction Safety Orders (29 CFR 1926), Hazardous Waste Operations and Emergency Response Guidelines (29 CFR 1910), Owner's Site Safety Plan.
Contractor shall not perform any services under this Agreement until Owner issues a notice to proceed. Contractor's services shall be performed in sequence and timed to coordinate with Owner's schedule.
4. COMPENSATION. Compensation and payment shall be on a time and expense reimbursement basis following the Fee Schedule attached hereto as Exhibit 2, unless compensation is based upon a different method described in Exhibit 2.
a) Contractor shall maintain time and expense records showing all work performed, tests conducted, and materials supplied pursuant to this Agreement and shall prepare monthly invoices and progress reports which clearly indicate the progress to date and the amount of compensation due by virtue of that progress. Each invoice shall contain a brief description of the hours and type of work performed, the fee being charged and an itemized list of any tests, supplies or materials provided.
b) Contractor shall provide conditional stop-notice releases for itself and all of its subcontractors and suppliers together with its invoices. Contractor shall also provide unconditional stopnotice releases from itself and all of its subcontractors and suppliers after payments are received.
5. DELEGATION OF DUTIES. Contractor shall not delegate duties under this Agreement without the written consent of Owner. All subcontractors (any tier) and suppliers shall comply with these Terms and Conditions.
6. INDEMNITY. Contractor specifically agrees to indemnify, defend, and hold harmless the CITY, its officials, officers, members, agents, employees and volunteers (collectively the “Indemnitees”) from and against any and all actions, claims, demands, losses, and costs, (collectively “Losses”) arising out of or in any way connected with the performance of this Agreement. Contractor shall pay all costs and expenses that may be incurred by the CITY in enforcing this indemnity, including reasonable attorneys’ fees. The duty to defend Indemnitees from the Losses is a separate obligation from the obligation to indemnify. The duty to defend arises immediately upon notice of a claim and continues until such claim is finally resolved. The duty to defend applies even if the claim is meritless. The duty to defend applies even if it is claimed that the City is responsible for the alleged Losses. The provisions of this section survive the expiration, termination, or assignment of this Agreement.
7. IINSURANCE. Contractor shall maintain insurance for the duration of this Agreement, unless specified longer, in a company or companies admitted to issue insurance in all of the states where any of the work is being performed and where any waste is transported or deposited, with a Best'srating of not lessthanA:VllandacceptabletoOwner. a) Statutory Worker's Compensation Insurance and Employers' Liability Insurance with limits of at least $1 million per accident, per employee.
b) Contractor carries Umbrella Excess Liability Coverage, and General Liability Insurance of
CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
$2,000,000 each occurrence, General Aggregate $4,000,000 and auto combined single limit $1,000,000.
c) All policies and certificates shall contain a provision that:
i) Written notice of cancellation, termination or any reduction in coverage shall be delivered to Owner thirty (30) days in advance of the date thereof.
ii) The insurers waive all rights of subrogation against Owner. iii) Deductibles shall be the responsibility of Contractor. iv) Prior to commencement of work Contractor shall provide Owner with insurance policy endorsements for the required insurance which name the Owner as additional insured.
8. TERMINATION. Owner may terminate all or part of this Agreement for Owner's convenience, at any time, effective immediately upon written notice. In the event of termination, reimbursement will be for the reasonable services performed to the termination date only, shall not include profit on services not performed and shall not exceed the budget set forth herein above.
9. LITIGATION. The parties agree to first try to settle disputes through mediation before resorting to litigation or some other dispute resolution procedure. The mediator shall be an attorney experienced in mediating construction disputes and shall be chosen by agreement of the parties, but if no agreement then appointed by the Presiding Judge of the Superior Court. Each party shall bear its own costs and expenses of the mediation, including attorney's fees. The fees and costs of the mediator shall be borne equally by the parties. Should litigation or arbitration occur between the parties, all reasonable litigation or arbitration expenses, collection expenses, witness fees, court costs, and attorney's fees incurred by the prevailing party shall be paid by the non-prevailing party to the prevailing party. Owner shall be entitled to recover all reasonable litigation or arbitration expenses, collection expenses, witnessfees, court costs, and attorney's fees to enforce the indemnity provisionsin Paragraph 8.
10. DELAYS. Neither party shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond their control and Contractor's exclusive remedy for delays, interference or acceleration caused by Owner shall be an extension of time in the Agreement.
11. SEVERABILITY OF PROVISIONS, WAIVER. In the event any provisions of this Agreement shall be held to be invalid and unenforceable, it shall be rewritten and enforced to the maximum extent permitted by Law to accomplish as near as possible to the intent of the original provision and the remaining provisions shall be valid and binding upon the parties. No action or failure to act by Owner shall constitute a waiver of a right afforded or duty imposed under this Agreement.
12. LAWS, REGULATIONS, TAXES, LICENSES, FEES, PERMITS, AND PAYMENTS. Contractor shall comply with all applicable federal, state, and local Laws, codes, Regulations, and standards in the performance of its Work, shall obtain and maintain all permits and licenses, shall give all notices required by Law that are associated with its Work, shall pay all taxes, license and permit fees and shall make all payments to approved subcontractors in a prompt manner. Contractor shall defend,
CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
indemnify and hold Owner harmless for failure to comply with this provision.
13. NONDISCRIMINATION & EQUAL OPPORTUNITY.To the extent applicable, and during the performance of this contract, the Contractor agrees as follows:
a) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, 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. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
b) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive considerations for employment without regard to race, color, religion, sex, or national origin. c) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
d) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. e) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
f) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions as may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
g) The contractor will include the portion of the sentence immediately preceding paragraph (A) and the provisions of paragraphs (A) through (F) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding
CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency the contractor may request the United States to enter into such litigation to protect the interests of the United States.
14. COMPLIANCE WITH THE COPELAND "ANTI KICKBACK" ACT.
a) Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into thiscontract.
b) Subcontracts. The contractor or subcontractor shall insertinany subcontracts the clause above and such other clauses as the City may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The primecontractorshallberesponsibleforthe compliance by any subcontractor or lower tier subcontractorwith allofthesecontract clauses.
c) Breach. A breach of the contract clauses above may be grounds for termination of the contract and for debarment as a contractor and subcontractor as provided in29 C.F.R. § 5.12.
15. COMPLIANCE WITH THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT. a) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. b) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (a) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards. employed in violation of the clause set forth in paragraph (a) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (a) of this section. c) Withholding for unpaid wages and liquidated damages. The (write in the name of the Federal agency or the loan or grant recipient) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other
CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
federally assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b) of this section. d) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (a) through (d) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier.
16. SUSPENSION AND DEBARMENT.
a) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the contractor is required to verify that none of the contractor, its principals (defined at 2 C.F.R. § 180.995}, or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). b) The contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
c) This certification is a material representation of fact relied upon by subrecipient. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to subrecipient, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. d) The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
17. CLEAN AIR ACT.
a) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. b) The contractor agrees to report each violation to the (name of the state agency or local or Indian tribal government} and understands and agrees that the (name of the state agency or local or Indian tribal government} will, in turn, report each violation as required to assure notification to the (name of recipient}, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
18. FEDERAL WATER POLLUTIONCONTROL ACT.
a) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. b) The contractor agreesto report each violation to the California State Water Resources Control Board and understands and agrees that the California State Water Resources Control Board (current as of 1-9-17 8 government) will, in turn, report each violation as
CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
required to assure notification to the City of Marysville, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
19. BYRD ANTI-LOBBYING AMENDMENT, 31U.S.C. SECTION 1352 (AS AMENDED). Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connectionwith obtainingany Federal award. Such disclosures are forwarded from tierto tier up to the recipient.
20. PROCUREMENT OF RECOVERED MATERIALS. In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA designated items unless the product cannot be acquired- (i) Competitively within a timeframe providing for compliance with the contract performance schedule; (ii} Meeting contract performance requirements; or (iii)At a reasonable price.
21. INFORMATION AND REPORTS. Contractor shall provide all information and reports required by all Rules, Regulations, Laws and Directives and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be requested by Owner to ascertain compliance with such Rules, Regulations, Laws, Directives, Orders and instructions. Where any information required of the Contractor is in exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify and shall set forth what efforts it has made to obtain the information.
22. ACCESS TO RECORDS.
a) The contractor agrees to provide California Department of Industrial Relations, City of Marysville, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. b) The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. c) The contractor agrees to provide the City Administrator and/ or his authorized representatives access to construction or other work sites pertaining to work being completed under the contract.
23. NO OBLIGATION BY FEDERAL GOVERNMENT. The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non-Federal entity, contractor, or any other party pertaining to any matter resulting from the contract.
24. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and
CITY OF MARYSVILLE
PUBLIC WORKS DEPARTMENT
CONTRACT AGREEMENT
BRYANT FIELD EAST OUTFIELD CONCRETE RETAINING WALL
Statements) applies to the contractor's actions pertaining to this contract.
25. SOLICITING EMPLOYMENT. Contractor will not solicit, hire or make an offer of employment to an employee of Owner during the term of this Agreement, without prior written consent of Owner.
26. GOVERNING LAW. The Law of the State of California shall govern the interpretation of this Agreement and the rights, obligations, duties, and liabilities of the parties to this Agreement.
27. INTEGRATION. This Agreement represents the entire understanding of the parties relating to this Project and there are no other oral or written conditions, agreements or representations between the parties. No terms and conditions on Contractor's invoices or proposals shall modify or change the terms and conditions contained in this Agreement; any such terms and conditions inconsistent with these terms and conditions shall be null and void. This Agreement may only be modified by a written Work Authorization or amendment in which an appropriate budget modification will is stated and signed by both parties.
28. GUARANTY. Contractor shall guaranty the work under this Agreement against materials or faulty workmanship for a period of 1 year after the acceptance of work by the owner.
29. SURVIVAL. All provisions of this agreement allocating responsibility and liability between parties shall survive the completion of the work and termination of this Agreement, including without limitation, obligations of indemnity and insurance.
This Agreement represents the entire understanding of the parties relating to this Project and there are no other oral or written conditions, agreements or representations between the parties. No terms and conditions on Contractor's invoices or proposals shall modify or change the terms and conditions contained in this Agreement; any such terms and conditions inconsistent with these terms and conditions shall be null and void. This Agreement may only be modified by a written Work Authorization or amendment in which an appropriate budget modification will is stated and signed by both parties.