STATE OF CALIFORNIA
COUNTY OF ORANGE
I, ROBERT S. MCKINNELL, City Clerk of the City of Placentia, do hereby certify that the foregoing resolution was adopted at a regular meeting of the City Council of the City of Placentia, held on the 25th day of July 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Councilmembers:
Council members:
Councilmembers:
Councilmembers:
Robert S. McKinnell, City Clerk
APPROVED AS TO FORM:
Christian L. Bettenhausen, City Attorney
Resolution R-2023-66
City of Placentia
STATEMENT OF
INVESTMENT POLICY
Adopted by the City Council on July 25, 2023
CITY OF PLACENTIA
INVESTMENT POLICY
CONTENTS
I. INTRODUCTION 1
II. SCOPE 1
III. PRUDENCE 1
IV. OBJECTIVES 2
V. DELEGATION OF AUTHORITY 3
VI. ETHICS AND CONFLICTS OF INTEREST 3
VII. INTERNAL CONTROLS 4
VIII. AUTHORIZED FINANCIAL INSTITUTIONS, DEPOSITORIES, AND BROKER/DEALERS 4 IX. AUTHORIZED INVESTMENTS 5
X. PROHIBITED INVESTMENT VEHICLES AND PRACTICES 9
XI. INVESTMENT POOLS/MUTUAL FUNDS 9
XII. COLLATERALIZATION 9
XIII. DELIVERY, SAFEKEEPING AND CUSTODY 1 0
XIV. MAXIMUM MATURITY 1 1
XV. DIVERSIFICATION 11
XVI. REVIEW OF INVESTMENT PORTFOLIO 11
XVII. PERFORMANCE EVALUATION 11
XVIII. REPORTING 11
XIX. REVIEW OF INVESTMENT POLICY 12
GLOSSARY OF INVESTMENT TERMS 12
I. INTRODUCTION
The purpose of this investment policy is to identify various policies and procedures that will foster a prudent and systematic investment program designed to seek the City of Placentia's objectives of safety, liquidity and return on investment through a diversified investment portfolio. This policy also serves to organize and formalize the City's investment -related activities, while complying with all applicable statutes governing the investment of public funds. This policy is written to incorporate industry best practices and recommendations from sources such as the Government Finance Officers Association (GFOA), California Municipal Treasurers Association (CMTA), California Debt and Investment Advisory Commission (CDIAC) and the Association of Public Treasurers (APT).
This investment policy was adopted by the City Council and is effective as of July 25, 2023, and replaces any previous versions.
II. SCOPE
This policy applies to all funds and investment activities under the direct authority of the City, as set forth in the State Government Code, Sections 53600 et seq., with the following exceptions:
• Proceeds of debt, which are governed by the investment provisions of their specific bond indentures.
• Pension and Other Post -Employment Benefit (OPEB) Trust Funds, which are invested in accordance with the provisions of the Trust Agreements. • Any other funds specifically exempted by the City Council.
POOLING OF FUNDS
Except for cash in certain restricted and special funds, the City will consolidate cash and reserve balances from all funds to maximize investment earnings and to increase efficiencies with regard to investment pricing, safekeeping, and administration. Investment income will be allocated to the various funds based on their respective participation and in accordance with generally accepted accounting principles.
III. PRUDENCE
Pursuant to California Government Code, Section 53600.3, all persons authorized to make investment decisions on behalf of the City are trustees and therefore fiduciaries subject to the Prudent Investor Standard:
"...all governing bodies of local agencies or persons authorized to make investment decisions on behalf of those local agencies investing public funds pursuant to this chapter are trustees and therefore fiduciaries subject to the prudent investor 1 standard. When investing, reinvesting, purchasing, acquiring, exchanging, selling, or managing public funds, a trustee shall act with care, skill, prudence, and diligence under the circumstances then prevailing, including, but not limited to, the general economic conditions and the anticipated needs of the Agency, that a prudent person acting in a like capacity and familiarity with those matters would use in the conduct of funds of a like character and with like aims, to safeguard the principal and maintain the liquidity needs of the Agency. Within the limitations of this section and considering individual investments as part of an overall strategy, investments may be acquired as authorized by law."
The Treasurer and other authorized persons responsible for managing City funds acting in accordance with written procedures and this investment policy and exercising due diligence shall be relieved of personal responsibility for an individual security's credit risk or market price changes provided that the Treasurer or other authorized persons acted in good faith. Deviations from expectations of a security's credit or market risk should be reported to the governing body in a timely fashion and appropriate action should be taken to control adverse developments.
IV. OBJECTIVES
The City's overall investment program shall be designed and managed with a degree of professionalism worthy of the public trust. The overriding objectives of the program are to preserve principal, provide sufficient liquidity, and manage investment risks, while seeking a market -rate of return.
1. SAFETY. Safety of principal is the foremost objective of the investment program.
Investments will be undertaken in a manner that seeks to ensure the preservation of capital in the overall portfolio. To attain this objective, the City will diversify its investments by investing funds among a variety of securities with independent returns. The City shall seek to preserve principal by mitigating the two types of risk: credit risk and market risk. a. Credit risk, defined as the risk of loss due to failure of the issuer of a security, shall be mitigated by investing in issuers that carry the direct or implied backing of the U.S. Government (including, but not limited to, the U.S. Treasury, U.S.
Government Agencies, and federally insured banks). The portfolio will be diversified so that the failure of any one issuer does not unduly harm the City's capital base and cash flow.
b. Market risk, (aka "interest rate risk") defined as market value fluctuations due to overall changes in the general level of interest rates shall be mitigated by limiting the maximum maturity of any one security to five years, structuring the portfolio based on historic and current cash flow analysis eliminating the need to sell securities prior to maturity and avoiding the purchase of long-term securities for the sole purpose of short-term speculation. Moreover, it is the City's full intent, at the time of purchase, to hold all investments until maturity to ensure the return of 2 all invested principal dollars. Limited exceptions will be granted for security swaps that would improve the portfolio's yield and/or credit quality.
2. LIQUIDITY. The investment portfolio will remain sufficiently liquid to meet all operating requirements that may be reasonably anticipated.
3. RETURN ON INVESTMENTS. The investment portfolio will be designed with the objective of attaining a market rate of return throughout budgetary and economic cycles, taking into account the investment risk constraints for safety and liquidity needs.
V. DELEGATION OF AUTHORITY
Authority to manage the City's investment program is derived from California Government Code, Sections 41006 and 53600 et seq.
The City Council is responsible for the management of the City's funds, including the administration of this investment policy. Management responsibility for the cash management of the City's funds is hereby delegated to the City Treasurer and will be reaffirmed annually. In the Treasurer's absence, the Treasurer delegates investment authority to the Deputy City Treasurer (Finance Director) as allowable per California Government Code Section 41006.
The Treasurer will be responsible for all transactions undertaken and will establish a system of procedures and controls to regulate the activities of subordinate officials and employees.
Such procedures will include explicit delegation of authority to persons responsible for investment transactions. No person may engage in an investment transaction except as provided under the terms of this policy and the procedures established by the City Treasurer.
The City may engage the services of one or more external investment advisers, who are registered under the Investment Advisers Act of 1940, to assist in the management of the City's investment portfolio in a manner consistent with the City's objectives. External investment advisers may be granted discretion to purchase and sell investment securities in accordance with this investment policy.
The City's overall investment program shall be designed and managed with a degree of professionalism that is worthy of the public trust. The City recognizes that in a diversified portfolio, occasional measured losses may be inevitable and must be considered within the context of the overall portfolio's return and the cash flow requirements of the City.
VI. ETHICS AND CONFLICTS OF INTEREST
All participants in the investment process shall act as custodians of the public trust.
Investment officials shall recognize that the investment portfolio is subject to public review and evaluation. Thus, employees and officials involved in the investment process shall refrain from personal business activity that could create a conflict of interest or the 3 appearance of a conflict with proper execution of the investment program, or which could impair their ability to make impartial investment decisions.
Employees and investment officials shall disclose to the City Administrator any material interests in financial institutions with which they conduct business, and they shall further disclose any large personal financial/investment positions that could be related to the performance of the investment portfolio. Employees and officers shall not undertake any personal investment transactions with the same individual with whom business is conducted on behalf of the Agency.
VII. INTERNAL CONTROLS
The City Treasurer is responsible for establishing and maintaining an internal control structure designed to ensure that the assets of the entity are protected from loss, theft, or misuse. The internal control structure shall be designed to provide reasonable assurance that these objectives are met. Internal controls shall include but are not limited to:
verification of all wire transfers from two of the four following officers: Mayor, City Treasurer, City Administrator, Finance Director, authorization of transactions, timely bank reconciliations and custodial safekeeping (investment securities are held by an independent financial institution and are recorded in the City's name). Annually, an independent auditing firm shall review internal controls in conjunction with the audit of the City's financial statements and provide written recommendations and observations regarding the adequacy of investment controls. These observations will be reviewed by the City's Financial Audit Oversight Committee as part of their annual audit review of the City's Annual Comprehensive Financial Report (ACFR). All banking and investment accounts held by approved financial institutions shall conform to the City of Placentia Wire and Funds Transfer Policy #443.
VIII. AUTHORIZED FINANCIAL INSTITUTIONS, DEPOSITORIES, AND BROKER/DEALERS To the extent practicable, the Treasurer shall endeavor to complete investment transactions using a competitive bid process whenever possible. The City's Treasurer will determine which financial institutions are authorized to provide investment services to the City. It shall be the City's policy to purchase securities only from authorized institutions and firms.
The Treasurer shall maintain procedures for establishing a list of authorized broker/dealers and financial institutions which are approved for investment purposes that are selected through a process of due diligence as determined by the City. Due inquiry shall determine whether such authorized broker/dealers, and the individuals covering the City are reputable and trustworthy, knowledgeable, and experienced in Public Agency investing and able to meet all of their financial obligations. These institutions may include "primary" dealers or regional dealers that qualify under Securities and Exchange Commission (SEC) Rule 15c3- 1 (uniform net capital rule).
In accordance with Section 53601.5, institutions eligible to transact investment business with the City include:
4 • Primary government dealers as designated by the Federal Reserve Bank and non - primary government dealers.
• Nationally or state -chartered banks.
• The Federal Reserve Bank.
• Direct issuers of securities eligible for purchase.
Selection of financial institutions and broker/dealers authorized to engage in transactions will be at the sole discretion of the City, except where the City utilizes an external investment adviser in which case the Agency may rely on the adviser for selection.
All financial institutions which desire to become qualified bidders for investment transactions (and which are not dealing only with the investment adviser) must supply the Treasurer with audited financials, proof of state registration, proof of NASD registration and a statement certifying that the institution has reviewed the California Government Code, Section 53600 et seq. and the City's investment policy. The Treasurer will conduct an annual review of the financial condition and registrations of such qualified bidders.
Public deposits will be made only in qualified public depositories as established by State law. Deposits will be insured by the Federal Deposit Insurance Corporation, or, to the extent the amount exceeds the insured maximum, will be collateralized in accordance with State law.
Selection of broker/dealers used by an external investment adviser retained by the City will be at the sole discretion of the adviser. Where possible, transactions with broker/dealers shall be selected on a competitive basis and their bid or offering prices shall be recorded.
If there is no other readily available competitive offering, best efforts will be made to document quotations for comparable or alternative securities. When purchasing original issue instrumentality securities, no competitive offerings will be required as all dealers in the selling group offer those securities at the same original issue price.
IX. AUTHORIZED INVESTMENTS
The City's investments are governed by California Government Code, Sections 53600 et seq. Within the investments permitted by the Code, the City seeks to further restrict eligible investments to the guidelines listed below. In the event a discrepancy is found between this policy and the Code, the more restrictive parameters will take precedence. Percentage holding limits listed in this section apply at the time the security is purchased.
Any investment currently held at the time the policy is adopted which does not meet the new policy guidelines can be held until maturity and shall be exempt from the current policy. At the time of the investment's maturity or liquidation, such funds shall be reinvested only as provided in the current policy.
An appropriate risk level shall be maintained by primarily purchasing securities that are of high quality, liquid, and marketable. The portfolio shall be diversified by security type and 5 institution to avoid incurring unreasonable and avoidable risks regarding specific security types or individual issuers.
1. CALIFORNIA LOCAL AGENCY BONDS include bonds of a local agency within the State of California and including bonds payable solely out of the revenues from a revenue - producing property owned, controlled, or operated by the local agency or by a department, board, agency, or authority of the local agency, provided that:
• The securities are rated in a rating category of "AA" or its equivalent or better by at least one nationally recognized statistical rating organization ("NRSRO"). • The maximum maturity does not exceed five (5) years.
2. CALIFORNIA LOCAL AGENCY OBLIGATIONS include obligations of a local agency within the State of California, provided that:
• The securities are rated in a rating category of "AA" or its equivalent or better by at least one nationally recognized statistical rating organization ("NRSRO"). • The maximum maturity does not exceed five (5) years.
3. STATE OBLIGATIONS (REGISTERED TREASURY NOTES OR BONDS) of any of the other 49 states in addition to California, including bonds payable solely out of the revenues from a revenue -producing property owned, controlled, or operated by a state or by a department, board, agency, or authority of any of the other 49 states, in addition to California.
• The securities are rated in a rating category of "AA" or its equivalent or better by at least one nationally recognized statistical rating organization ("NRSRO"). • The maximum maturity does not exceed five (5) years.
4. U.S. TREASURIES and other government obligations for which the full faith and credit of the United States are pledged for the payment of principal and interest. There are no limits on the dollar amount or percentage that the City may invest in U.S. Treasuries, provided that:
• The maximum maturity is five (5) years.
5. FEDERAL AGENCIES or United States Government -Sponsored Enterprise obligations, participations, or other instruments, including those issued by or fully guaranteed as to principal and interest by federal agencies or United States government -sponsored enterprises. There are no limits on the dollar amount that the City may invest in Federal Agency or Government -Sponsored Enterprises (GSEs), provided that:
• No more than 15% of the portfolio may be invested in any single Agency/GSE issuer.
• The maximum percent of federal agency obligations in the portfolio will be 30%. • The maximum maturity does not exceed five (5) years.
6 6. BANKER'S ACCEPTANCES, provided that:
• No more than 30% of the portfolio may be invested in Banker's Acceptances. • No more than 30% of the portfolio may be invested in any single issuer. • The maximum maturity does not exceed 180 days.
7. COMMERCIAL PAPER, provided that:
• The issuer is a corporation organized and operating in the United States with assets in excess of $500 million.
• The securities are rated "A-1" or its equivalent or better by at least one NRSRO. • They are issued by corporations which have long-term obligations rated in a rating category of "A" or its equivalent or better by at least one NRSRO. • No more than 25% of the portfolio may be invested in Commercial Paper. Under a provision sunsetting on January 1, 2026, no more than 40% of the portfolio may be invested in Commercial Paper if the Agency's investment assets under management are greater than $100,000,000.
• No more than 10% of the portfolio may be invested in any single issuer. • The maximum maturity does not exceed 270 days.
8. NEGOTIABLE CERTIFICATES OF DEPOSIT (NCDs) OR TIME DEPOSITS, issued by a nationally or state -chartered bank, a savings association, or a federal association, a state or federal credit union, or by a federally licensed or state -licensed branch of a foreign bank, provided that:
• The amount of the NCD insured up to the FDIC limit does not require any credit ratings.
• Any amount above the FDIC insured limit must be issued by institutions which have short-term debt obligations rated "A-1" or its equivalent or better by at least one NRSRO; or long-term obligations rated in a rating category of "A" or its equivalent or better by at least one NRSRO.
• No more than 30% of the total portfolio may be invested in NCDs (combined with CDARS).
• No more than $250,000 of the portfolio may be invested in any single issuer. • The maximum maturity does not exceed five (5) years.
9. REPURCHASE AGREEMENTS collateralized with securities authorized under California Government Code, maintained at a level of at least 110% of the market value of the Repurchase Agreement. There are no limits on the dollar amount that the City may invest, provided that:
• Securities used as collateral for Repurchase Agreements will be delivered to an acceptable third -party custodian.
• Repurchase Agreements are subject to a Master Repurchase Agreement between the City and the provider of the repurchase agreement. The Master Repurchase 7 Agreement will be substantially in the form developed by the Securities Industry and Financial Markets Association (SIFMA).
• Maximum percentage of portfolio does not exceed 30%.
• The maximum maturity does not exceed one (1) year.
1O. STATE OF CALIFORNIA LOCAL AGENCY INVESTMENT FUND (LAIF), provided that:
• The City may invest up to the maximum amount permitted by LAIF. • LAIF's investments in instruments prohibited by or not specified in the City's policy do not exclude the investment in LAIF itself from the City's list of allowable investments, provided LAIF 's reports allow the Treasurer to adequately judge the risk inherent in LAIF's portfolio.
11. MEDIUM TERM NOTES (MTNs), provided that:
• The issuer is a corporation organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States.
• The securities are rated in a rating category of "AA" or its equivalent or better by at least one NRSRO.
• No more than 30% of the total portfolio may be invested in MTNs. • No more than 5% of the portfolio shall be invested with a single issuer. • The maximum maturity does not exceed five (5) years.
12. MONEY MARKET FUNDS that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, provided that:
• Have attained the highest ranking or the highest letter and numerical rating provided by not less than two (2) NRSROs; or
• Have retained an investment adviser registered or exempt from registration with the Securities and Exchange Commission with not less than five years' experience managing money market mutual funds with assets under management in excess of $500 million.
• No more than 20% of the total portfolio may be invested in the shares of any one Money Market Mutual Fund.
• No more than 10% of the total portfolio may be invested in these securities.
13. PASSBOOK SAVINGS/ DEMAND DEPOSITS do not have a maximum maturity, maximum percentage of portfolio nor maximum investment in one issuer.
14. ORANGE COUNTY INVESTMENT POOL does not have a maximum maturity, maximum percentage of portfolio nor maximum investment in one issuer.
15. JOINT POWERS AUTHORITY POOLS (JPA), does not have a maximum maturity, maximum percentage of portfolio nor maximum investment in one issuer provided that:
8 • The pool retains an investment advisor who is registered with the SEC (or exempt from registration), has assets under management in excess of $500 million, and has at least five years' experience investing in instruments authorized by Section 53601, subdivisions (a) to (o).
X. PROHIBITED INVESTMENT VEHICLES AND PRACTICES
• State law notwithstanding, any investments not specifically described herein are prohibited, including, but not limited to futures and options. • In accordance with Government Code, Section 53601.6, investment in inverse floaters, range notes, or mortgage derived interest -only strips is prohibited. • Investment in any security that could result in a zero -interest accrual if held to maturity is prohibited. Under a provision sunsetting on January 1, 2026, securities backed by the U.S. Government that could result in a zero- or negative -interest accrual if held to maturity are permitted.
• The use of reverse repurchase agreements, derivatives, options, futures, zero coupon bonds, first mortgages or trust deeds, collateralized mortgage obligations, limited partnerships, real estate investment trusts (REITs), open-end mutual funds, closed -end mutual funds, mutual funds with a weighted average maturity greater than 180 days, common stock, preferred stock, commodities, precious metals, securities with a high price volatility and/or limited marketability (less than three active bidders), securities that may default on interest payments and any other speculative investment deemed inappropriate under the Prudent Investor standard.
XI. INVESTMENT POOLS
The City shall conduct a thorough investigation of any investment pool prior to making an investment, and on a continual basis thereafter. The Treasurer shall develop a questionnaire which will answer the following general questions:
• A description of eligible investment securities, and a written statement of investment policy and objectives.
• A description of interest calculations and how it is distributed, and how gains and losses are treated.
• A description of how the securities are safeguarded (including the settlement processes), and how often the securities are priced, and the program audited. • A description of who may invest in the program, how often, what size deposit and withdrawal are allowed.
• A schedule for receiving statements and portfolio listings. • A statement of how/if reserves and retained earnings are utilized by the pool/fund? • A fee schedule, and when and how is it assessed.
• Is the pool/fund eligible for bond proceeds and/or will it accept such proceeds? XII. COLLATERALIZATION
9 CERTIFICATES OF DEPOSIT (CDs). The City shall require any commercial bank or savings and loan association to deposit eligible securities with an agency of a depository approved by the State Banking Department to secure any uninsured portion of a Non -Negotiable Certificate of Deposit. The value of eligible securities as defined pursuant to California Government Code, Section 53651, pledged against a Certificate of Deposit shall be equal to 110% of the face value of the CD. The City Treasurer may waive the collateral requirements for deposits up to the maximum dollar amount which are covered by the Federal Deposit Insurance Corporation (FDIC) or the National Credit Union Administration (NCUA), currently $250,000.
COLLATERALIZATION OF BANK DEPOSITS. This is the process by which a bank or financial institution pledges securities, or other deposits for the purpose of securing repayment of deposited funds. The City shall require any bank or financial institution to comply with the collateralization criteria defined in California Government Code, Section 53651.
REPURCHASE AGREEMENTS. The City requires that Repurchase Agreements be collateralized only by securities authorized in accordance with California Government Code:
• The securities which collateralize the repurchase agreement shall be priced at Market Value, including any Accrued Interest plus a margin. The Market Value of the securities that underlie a repurchase agreement shall be valued at 110% or greater of the funds borrowed against those securities. • Financial institutions shall mark the value of the collateral to market at least monthly and increase or decrease the collateral to satisfy the ratio requirement described above.
• The City shall receive monthly statements of collateral.
XIII. DELIVERY, SAFEKEEPING AND CUSTODY
DELIVERY -VERSUS -PAYMENT (DVP). All investment transactions shall be conducted on a delivery -versus -payment basis.
SAFEKEEPING AND CUSTODY. To protect against potential losses due to failure of individual securities dealers, and to enhance access to securities, interest payments and maturity proceeds, all cash and securities in the City's portfolio shall be held in safekeeping in the City's name by a third -party custodian, acting as agent for the City under the terms of a custody agreement executed by the bank and the City. All investment transactions will require a safekeeping receipt or acknowledgment generated from the trade. A monthly report will be received by the City from the custodian listing all securities held in safekeeping with current market data and other information.
The only exceptions to the foregoing shall be depository accounts and securities purchases made with: (i) local government investment pools, and (ii) time certificates of deposit since the purchased securities are not deliverable.
10 XIV. MAXIMUM MATURITY
To the extent possible, investments shall be matched with anticipated cash flow requirements and known future liabilities.
The City will not invest in securities maturing more than five (5) years from the date of trade settlement, unless the City Council has by resolution granted authority to make such an investment.
XV. DIVERSIFICATION
The City shall diversify the investments within the portfolio to avoid incurring unreasonable risks inherent in over -investing in specific instruments, individual financial institutions, or maturities. To promote diversification, no more than 5% of the portfolio may be invested in the securities of any one issuer, regardless of security type, excluding U.S. Treasuries, federal agencies, and pooled investments such as LAIF, money market funds, or local government investment pools.
XVI. REVIEW OF INVESTMENT PORTFOLIO
The Treasurer shall periodically, but no less than quarterly, review the portfolio to identify investments that do not comply with this investment policy and establish protocols for reporting major and critical incidences of noncompliance to the City Council.
XVII. PERFORMANCE EVALUATION
The investment portfolio shall be designed to attain a market -average rate of return throughout budgetary and economic cycles, taking into account the City's risk constraints, the cash flow characteristics of the portfolio, and state and local laws, ordinances or resolutions that restrict investments.
The Treasurer shall monitor and evaluate the portfolio's performance relative to the chosen market benchmark(s), which will be included in the Treasurer's quarterly report. The Treasurer shall select an appropriate, readily available index to use as a market benchmark.
The market benchmark for 2022-2023 will be the Intercontinental Exchange (ICE) Bank of America Merrill Lynch (BAML) 1-5 Year U.S. Treasury/Agency Index.
XVIII. REPORTING
QUARTERLY REPORTS
The Treasurer will prepare a quarterly investment report, which provides full disclosure of the City's investment activities. The quarterly investment report shall be so submitted within 45 days following the end of the quarter covered by the report, the report will be made available to the public and the City Council, which can be obtained from the City's website. These reports will disclose, at a minimum, the following information about the City's portfolio:
11 1. An asset listing showing par value, cost, and independent third -party fair market value of each security as of the date of the report, the source of the valuation, type of investment, issuer, maturity date and interest rate.
2. Transactions for the period.
3. A description of the funds, investments, and programs (including lending programs) managed by contracted parties (i.e., LAIF, investment pools, outside money managers and securities lending agents)
4. A one -page summary report that shows:
a. Average maturity of the portfolio and modified duration of the portfolio. b. Maturity distribution of the portfolio.
c. Percentage of the portfolio represented by each investment category. d. Average portfolio credit quality; and,
e. Time -weighted total rate of return for the portfolio for the prior one month, three months, twelve months and since inception compared to the City's market benchmark returns for the same periods.
5. A statement of compliance with investment policy, including a schedule of any transactions or holdings which do not comply with this policy or with the California Government Code, including a justification for their presence in the portfolio and a timetable for resolution.
6. A statement that the City has adequate funds to meet its cash flow requirements for the next six months.
XIX. REVIEW OF INVESTMENT POLICY
The investment policy will be reviewed and adopted at least annually, to ensure its consistency with the overall objectives of preservation of principal, liquidity and return, and its relevance to current law and financial and economic trends.
Any recommended modifications or amendments shall be presented by Staff to the City Council for their consideration and adoption.
GLOSSARY OF INVESTMENT TERMS
AGENCIES. Shorthand market terminology for any obligation issued by a government -sponsored entity (GSE), or a federally related institution. Most obligations of GSEs are not guaranteed by the full faith and credit of the US government. Examples are:
FFCB. The Federal Farm Credit Bank System provides credit and liquidity in the agricultural industry. FFCB issues discount notes and bonds. 12 FHLB. The Federal Home Loan Bank provides credit and liquidity in the housing market.
FHLB issues discount notes and bonds.
FHLMC. Like FHLB, the Federal Home Loan Mortgage Corporation provides credit and liquidity in the housing market. FHLMC, also called "FreddieMac" issues discount notes, bonds, and mortgage pass -through securities.
FNMA. Like FHLB and FreddieMac, the Federal National Mortgage Association was established to provide credit and liquidity in the housing market. FNMA, also known as "FannieMae," issues discount notes, bonds, and mortgage pass -through securities.
GNMA. The Government National Mortgage Association, known as "GinnieMae," issues mortgage pass -through securities, which are guaranteed by the full faith and credit of the US Government.
PEFCO. The Private Export Funding Corporation assists exporters. Obligations of PEFCO are not guaranteed by the full faith and credit of the US government.
TVA. The Tennessee Valley Authority provides flood control and power and promotes development in portions of the Tennessee, Ohio, and Mississippi River valleys. TVA currently issues discount notes and bonds.
ASSET BACKED SECURITIES. Securities supported by pools of installment loans or leases or by pools of revolving lines of credit.
AVERAGE LIFE. In mortgage -related investments, including CMOs, the average time to expected receipt of principal payments, weighted by the amount of principal expected.
BANKER'S ACCEPTANCE. A money market instrument created to facilitate international trade transactions. It is highly liquid and safe because the risk of the trade transaction is transferred to the bank which "accepts" the obligation to pay the investor.
BENCHMARK. A comparison security or portfolio. A performance benchmark is a partial market index, which reflects the mix of securities allowed under a specific investment policy.
BROKER. A broker brings buyers and sellers together for a transaction for which the broker receives a commission. A broker does not sell securities from his own position.
CALLABLE. A callable security gives the issuer the option to call it from the investor prior to its maturity. The main cause of a call is a decline in interest rates. If interest rates decline, the issuer will likely call its current securities and reissue them at a lower rate of interest.
CERTIFICATE OF DEPOSIT (CD). A time deposit with a specific maturity evidenced by a certificate.
CERTIFICATE OF DEPOSIT ACCOUNT REGISTRY SYSTEM (CDARS). A private placement service that allows local agencies to purchase more than $250,000 in CDs from a single financial institution (must be a participating institution of CDARS) while still maintaining FDIC insurance coverage. CDARS is currently the only entity providing this service. CDARS facilitates the trading of deposits between the California institution and other participating institutions in amounts that are less than $250,000 each, so that FDIC coverage is maintained.
COLLATERAL. Securities or cash pledged by a borrower to secure repayment of a loan or repurchase agreement. Also, securities pledged by a financial institution to secure deposits of public monies.
COLLATERALIZED BANK DEPOSIT. A bank deposit that is collateralized at least 100% (principal plus interest to maturity). The deposit is collateralized using assets set aside by the issuer such as Treasury securities or other qualified collateral to secure the deposit in excess of the limit covered by the Federal Deposit Insurance Corporation.
COLLATERALIZED MORTGAGE OBLIGATIONS (CMO). Classes of bonds that redistribute the cash flows of mortgage securities (and whole loans) to create securities that have different levels of prepayment risk, as compared to the underlying mortgage securities.
COLLATERALIZED TIME DEPOSIT. Time deposits that are collateralized at least 100% (principal plus interest to maturity). These instruments are collateralized using assets set aside by the issuer such as Treasury securities or other qualified collateral to secure the deposit in excess of the limit covered by the Federal Deposit Insurance Corporation.
COMMERCIAL PAPER. The short-term unsecured debt of corporations. 13 COUPON. The rate of return at which interest is paid on a bond.
CREDIT RISK. The risk that principal and/or interest on an investment will not be paid in a timely manner due to changes in the condition of the issuer.
DEALER. A dealer acts as a principal in security transactions, selling securities from and buying securities for his own position.
DEBENTURE. A bond secured only by the general credit of the issuer.
DELIVERY VS. PAYMENT (DVP). A securities industry procedure whereby payment for a security must be made at the time the security is delivered to the purchaser's agent.
DERIVATIVE. Any security that has principal and/or interest payments which are subject to uncertainty (but not for reasons of default or credit risk) as to timing and/or amount, or any security which represents a component of another security which has been separated from other components ("Stripped" coupons and principal). A derivative is also defined as a financial instrument the value of which is totally or partially derived from the value of another instrument, interest rate, or index.
DISCOUNT. The difference between the par value of a bond and the cost of the bond, when the cost is below par. Some short-term securities, such as T -bills and banker's acceptances, are known as discount securities. They sell at a discount from par and return the par value to the investor at maturity without additional interest. Other securities, which have fixed coupons, trade at a discount when the coupon rate is lower than the current market rate for securities of that maturity and/or quality.
DIVERSIFICATION. Dividing investment funds among a variety of investments to avoid excessive exposure to any one source of risk.
DURATION. The weighted average time to maturity of a bond where the weights are the present values of the future cash flows. Duration measures the price sensitivity of a security to changes interest rates.
FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC). The Federal Deposit Insurance Corporation (FDIC) is an independent federal agency insuring deposits in U.S. banks and thrifts in the event of bank failures. The FDIC was created in 1933 to maintain public confidence and encourage stability in the financial system through the promotion of sound banking practices.
FEDERALLY INSURED TIME DEPOSIT. A time deposit is an interest -bearing bank deposit account that has a specified date of maturity, such as a certificate of deposit (CD). These deposits are limited to funds insured in accordance with FDIC insurance deposit limits.
LEVERAGE. Borrowing funds in order to invest in securities that have the potential to pay earnings at a rate higher than the cost of borrowing.
LIQUIDITY. The speed and ease with which an asset can be converted to cash.
LOCAL AGENCY INVESTMENT FUND (LAIF). A voluntary investment fund open to government entities and certain non-profit organizations in California that is managed by the State Treasurer's Office.
LOCAL GOVERNMENT INVESTMENT POOL. Investment pools that range from the State Treasurer's Office Local Agency Investment Fund (LAIF) to county pools, to Joint Powers Authorities (JPAs). These funds are not subject to the same SEC rules applicable to money market mutual funds.
MAKE WHOLE CALL. A type of call provision on a bond that allows the issuer to pay off the remaining debt early. Unlike a call option, with a make whole call provision, the issuer makes a lump sum payment that equals the net present value (NPV) of future coupon payments that will not be paid because of the call. With this type of call, an investor is compensated, or "made whole."
MARGIN. The difference between the market value of a security and the loan a broker makes using that security as collateral.
MARKET RISK. The risk that the value of securities will fluctuate with changes in overall market conditions or interest rates.
MARKET VALUE. The price at which a security can be traded. 14 MATURITY. The final date upon which the principal of a security becomes due and payable.
MEDIUM TERM NOTES. Unsecured, investment -grade senior debt securities of major corporations which are sold in relatively small amounts on either a continuous or an intermittent basis.
MTNs are highly flexible debt instruments that can be structured to respond to market opportunities or to investor preferences.
MODIFIED DURATION. The percent change in price for a 100 -basis point change in yields. Modified duration is the best single measure of a portfolio's or security's exposure to market risk.
MONEY MARKET. The market in which short-term debt instruments (T -bills, discount notes, commercial paper, and banker's acceptances) are issued and traded.
MONEY MARKET MUTUAL FUND. A mutual fund that invests exclusively in short-term securities.
Examples of investments in money market funds are certificates of deposit and U.S.
Treasury securities. Money market funds attempt to keep their net asset values at $1 per share.
MORTGAGE PASS -THROUGH SECURITIES. A securitized participation in the interest and principal cash flows from a specified pool of mortgages. Principal and interest payments made on the mortgages are passed through to the holder of the security.
MUNICIPAL SECURITIES. Securities issued by state and local agencies to finance capital and operating expenses.
MUTUAL FUND. An entity which pools the funds of investors and invests those funds in a set of securities which is specifically defined in the fund's prospectus. Mutual funds can be invested in various types of domestic and/or international stocks, bonds, and money market instruments, as set forth in the individual fund's prospectus. For most large, institutional investors, the costs associated with investing in mutual funds are higher than the investor can obtain through an individually managed portfolio.
NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION (NRSRO).
A credit rating agency that the Securities and Exchange Commission in the United States uses for regulatory purposes. Credit rating agencies provide assessments of an investment's risk. The issuers of investments, especially debt securities, pay credit rating agencies to provide them with ratings. The three most prominent NRSROs are Fitch, S&P, and Moody's.
NEGOTIABLE CERTIFICATE OF DEPOSIT (CD). A short-term debt instrument that pays interest and is issued by a bank, savings or federal association, state or federal credit union, or state - licensed branch of a foreign bank. Negotiable CDs are traded in a secondary market and are payable upon order to the bearer or initial depositor (investor).
PRIMARY DEALER. A financial institution (1) that is a trading counterparty with the Federal Reserve in its execution of market operations to carry out U.S. monetary policy, and (2) that participates for statistical reporting purposes in compiling data on activity in the U.S.
Government securities market.
PRUDENT PERSON (PRUDENT INVESTOR) RULE. A standard of responsibility which applies to fiduciaries. In California, the rule is stated as "Investments shall be managed with the care, skill, prudence and diligence, under the circumstances then prevailing, that a prudent person, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of like character and with like aims to accomplish similar purposes." REPURCHASE AGREEMENT. Short-term purchases of securities with a simultaneous agreement to sell the securities back at a higher price. From the seller's point of view, the same transaction is a reverse repurchase agreement.
SAFEKEEPING. A service to bank customers whereby securities are held by the bank in the customer's name.
SECURITIES AND EXCHANGE COMMISSION (SEC). The U.S. Securities and Exchange Commission (SEC) is an independent federal government agency responsible for protecting investors, maintaining fair and orderly functioning of securities markets, and facilitating capital formation. It was created by Congress in 1934 as the first federal regulator of securities markets. The SEC promotes full public disclosure, protects investors against fraudulent 15 and manipulative practices in the market, and monitors corporate takeover actions in the United States.
SECURITIES AND EXCHANGE COMMISSION SEC) RULE 15c3-1. An SEC rule setting capital requirements for brokers and dealers. Under Rule 15c3-1, a broker or dealer must have sufficient liquidity in order to cover the most pressing obligations. This is defined as having a certain amount of liquidity as a percentage of the broker/dealer's total obligations. If the percentage falls below a certain point, the broker or dealer may not be allowed to take on new clients and may have restrictions placed on dealings with current client.
STRUCTURED NOTE. A complex, fixed income instrument, which pays interest, based on a formula tied to other interest rates, commodities, or indices. Examples include inverse floating rate notes which have coupons that increase when other interest rates are falling, and which fall when other interest rates are rising, and "dual index floaters," which pay interest based on the relationship between two other interest rates - for example, the yield on the ten- year Treasury note minus the Libor rate. Issuers of such notes lock in a reduced cost of borrowing by purchasing interest rate swap agreements.
SUPRANATIONAL. A Supranational is a multi -national organization whereby member states transcend national boundaries or interests to share in the decision making to promote economic development in the member countries.
TOTAL RATE OF RETURN. A measure of a portfolio's performance over time. It is the internal rate of return, which equates the beginning value of the portfolio with the ending value; it includes interest earnings, realized and unrealized gains, and losses in the portfolio.
U.S. TREASURY OBLIGATIONS. Securities issued by the U.S. Treasury and backed by the full faith and credit of the United States. Treasuries are considered to have no credit risk and are the benchmark for interest rates on all other securities in the US and overseas. The Treasury issues both discounted securities and fixed coupon notes and bonds.
TREASURY BILLS. All securities issued with initial maturities of one year or less are issued as discounted instruments and are called Treasury bills. The Treasury currently issues three - and six-month T -bills at regular weekly auctions. It also issues "cash management" bills as needed to smooth out cash flows.
TREASURY NOTES. All securities issued with initial maturities of two to ten years are called Treasury notes and pay interest semi-annually.
TREASURY BONDS. All securities issued with initial maturities greater than ten years are called Treasury bonds. Like Treasury notes, they pay interest semi-annually.
YIELD TO MATURITY. The annualized internal rate of return on an investment which equates the expected cash flows from the investment to its cost.
16 TO:
VIA:
FROM:
DATE:
SUBJECT:
Placentia Cit Council
AGENDA REPORT
CITY COUNCIL
CITY ADMINISTRATOR
DIRECTOR OF FINANCE
JULY 25, 2023
RESOLUTION APPROVING THE ADOPTION OF THE MULTIPLE EMPLOYER OPEB/PENSION 115 TRUST ADMINISTERED BY SHUSTER ADVISORY
GROUP, LLC
FISCAL
IMPACT: ESTIMATED SAVINGS OF $293,000 OVER 10 -YEARS, $1.1 MILLION OVER 20 - YEARS, AND $2.9 MILLION OVER 30 -YEARS
SUMMARY:
Assets in a 115 Trust are irrevocably committed for the government function specific in the applicable trust agreement. Additionally, monies held in such trusts can be invested in accordance with the rules governing those trusts, which are different than the investment rules for the City's pooled investments. Investment restrictions that apply to the general fund of a City (CA Government Code 53601) do not apply to the assets held in an Irrevocable Section 115 Trust, thus allowing for more flexibility in the investment strategy. Setting aside funds in a Section 115 Trust can potentially earn a higher rate of return than funds invested within 53601 guidelines.
Staff has analyzed Shuster Advisory Group, LLC's (Shuster) pricing model and the information provided in comparison to the current Public Agency Retirement Services (PARS) program. The 115 Trust arrangement from Shuster results in a 58% reduction in the annualized expenses of the program in comparison to the current PARS program. The fee schedule from the PARS program results in a 0.60% annualized fee currently, or $15,594, whereas the Shuster program would result in a 0.25% annualized fee currently, or $6,478. Assuming both programs earned an average 6% gross annual rate of return and annual contributions were made to both plans totaling $500,000 (80% to the OPEB and 20% to the Pension Stabilization), the reduction in fees alone will result in an estimated $293 thousand in savings over 10 -years, $1.1 million over 20 -years, and $2.9 million over 30 -years. These results assume there are no fee changes, no distributions, and assume $2.6 million of assets as of May 31, 2023 ($1.8 million of OPEB assets and $793 thousand of Pension Stabilization assets). Additional contributions by the city will only increase the comparative savings.
1.h.
July 25, 2023
City Council Agenda
July 25, 2023
RECOMMENDATION:
It is recommended that the City Council take the following action:
1. Adopt Resolution 2023-67 approving the adoption of the Multiple Employer OPEB/Pension 115 Trust administered by Shuster Advisory Group, LLC and the discontinuance of the City's current participation in the PARS Post -Retirement Health Care Plan Trust administered by Public Agency Retirement Services ("PARS") and U.S Bank; and
2. Direct Staff to return to City Council with an update to Policy 431, "Section 115 Funding Policy", incorporating an OPEB and pension mitigation funding strategy.
STRATEGIC PLAN STATEMENT:
This item is consistent with the City Council approved 5 -Year Strategic Goal #1 to ensure long- term fiscal sustainability under Objective #1.5, which is to continue seeking ways to diversify the City's revenue sources to prevent over -reliance on any one source.
DISCUSSION:
City Council approved the establishment of a Section 115 trust with PARS on October 20, 2020, with subsequent approval of a Section 115 trust policy and initial funding of $2.4 million on September 20, 2022. The goal in establishing the Section 115 trust is to pre -fund OPEB and pension liabilities and mitigate the impact of CaIPERS investment losses on the City's finances.
The trust is irrevocable, with funds committed solely for the purpose of funding pension and OPEB costs such as reimbursing the City for annual CaIPERS pension expenses, making additional one-time payments directly to CaIPERS, payments for retiree medical expenses, and for other pension related expenses (i.e., plan audits or actuarial valuations).
The City is not obligated to stay in the current trust arrangement with PARS, or any provider for that matter. To the extent that cost savings for administering the trust can be achieved, that is additional money that will stay in the trust and earn interest over time.
Based on available options, significant savings in administration costs are available from Shuster.
Shuster is the same firm that took over fiduciary responsibilities of the employees' 457(b) deferred compensation and 401(a) plans in July 2022. Through that change, employees, participants, and retirees have realized significant savings on the fees of those accounts as well as access to an enhanced institutional investment menu.
In March of 2022, the City was introduced to Shuster Advisory Group, LLC and chose to engage Shuster as the retirement plan consultant and investment fiduciary for our 457(b) and 401(a) plans beginning in July 2022. Shuster issued a Request for Information (RFI) to our incumbent record - keeper and completed a comprehensive review, identifying that the fees for record -keeping and administration were high and not transparent, and the quality of the investment menu needed improvement. Based on the information obtained through the RFI, Shuster subsequently
City Council Agenda
July 25, 2023
conducted a Request for Proposal (RFP) for administration and recordkeeping services for the Plans. The results of the RFP proved that our administration and record -keeping fees could significantly be reduced, and the City could implement an open architecture investment menu and fee transparent platform, benefiting participants. The City decided to remain with the incumbent recordkeeper, MissionSquare (formerly known as ICMA-RC) at an 88% negotiated reduction in record keeping costs. Also, Shuster negotiated a higher crediting rate for the safety of principal investment option, is implementing an improved investment menu for plan participants and has implemented a comprehensive fiduciary oversight process.
Public Agency Retirement Services (PARS)
The PARS option for OPEB is the Public Agencies Post -Employment Benefits Trust, a multiple employer trust arrangement to which cities adopt the Trust to hold assets. It is important to note that although PARS provides services to public agencies, PARS is not a public agency or public retirement system. PARS provides trust administration for the PARS Post -Retirement Healthcare Plan. The advisor to the PARS investment portfolios is US Bank and HighMark Capital Management serves as the sub -advisor to US Bank, managing the portfolios. US Bank also serves as Trustee for the multiple employer trust. The fees for PARS administrative services and US Bank trust and investment advisory services are separate fees, both a tiered structure based on assets. The PARS program generally provides five HighMark active investment strategies and another five portfolios of the same strategies, but as passive (index) strategies.
Shuster Advisory Group, LLC
Shuster is an independent investment advisory firm and fiduciary. They provide governmental and institutional retirement plan consulting services as well as private wealth management. Shuster is a SEC -Registered Investment Advisor with over $5 billion in assets under management focusing on serving the unique needs of governmental agencies and special districts serving over 60 cities, agencies and public entities. Shuster serves as fiduciary to plan investments and provides investment selection, monitoring and management.
Shuster serves currently as the fiduciary investment advisor and plan consultant for the MissionSquare 457(b) Deferred Compensation and 401(a) Plan. The services provided by Shuster are unique with a low-cost transparent structure and white glove services. Shuster entered the public retirement plan sector after analyzing the sector and realizing that cities and agencies were being underserved and over -charged for their retirement plans, directly impacting the supplemental retirement savings of the public employees. Hiring Shuster for these services resulted in a 28% reduction in total plan costs for the 457(b) and 401(a) plans, in addition to a significant improvement in the quality of the investments available in the retirement plan. Shuster has proven to be responsive, analytical, and a true partner to the City.
Shuster has conducted the same analysis of the Section 115 Trust programs available to cities and agencies and again determined that the cities were being over -charged and underserved which has a direct result on the taxpayer -funded savings that a city is putting aside for their future obligations. Shuster also found that the programs available generally lacked investment flexibility, customization, transparency, and high-level customer service. As a result, Shuster created and offers a Section 115 Trust program that provides cities with enhanced services at a fraction of the
City Council Agenda
July 25, 2023
cost currently being paid. With Shuster's ongoing oversight and exceptional service model, Staff expects similar results with the 115 Trust as experienced with the MissionSquare 457(b) and 401(a) plans.
Impact on OPEB Liability
Per the Fiscal Year 2021-22 Annual Comprehensive Financial Report (ACFR), the City has an OPEB liability of $24,910,487, a decrease of $6.4 million due to changes in actuarial assumptions including a decrease in assumptions for the discount rate, salary increases and inflation as well as a decrease in the number of retirees receiving benefits. Staff is working with our OPEB actuary to determine the impact on our OPEB liability the reduced fees and anticipated rate of return will have in the long term as well as a funding strategy to address the City's OPEB liability and any future pension liabilities incurred as a result of CaIPERS investment performance and will return to the City Council with a recommendation.
FISCAL IMPACT
Assuming both programs earned an average 6% gross annual rate of return and annual contributions were made to both plans totaling $500,000 (80% to the OPEB and 20% to the Pension Stabilization), the reduction in fees alone will result in an estimated $293 thousand in savings over 10 -years, $1.1 million over 20 -years, and $2.9 million over 30 -years. These results assume there are no fee changes, no distributions, and assume $2.6 million of assets as of May 31, 2023 ($1.8 million of OPEB assets and $793 thousand of Pension Stabilization assets).
Increased contributions by the City will only increase the comparative savings.
Lastly, Shuster will provide ten investment strategies that combine both active and passive (index) investment solutions to take advantage of the optimum mix of investments from both an investment return and cost perspective. If desired by the City, Shuster will also provide a custom portfolio at no additional cost.
Prepared by:
Jennifer Lampman
Director of Finance
Reviewed and approved:
Darpien R. Arrula
City Administrator
Attachment:
Resolution No. 2023-67
RESOLUTION NO. 2023-67
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PLACENTIA, CALIFORNIA APPROVING THE ADOPTION OF THE
MULTIPLE EMPLOYER OPEB/PENSION 115 TRUST
ADMINISTERED BY SHUSTER ADVISORY GROUP, LLC
A. Recitals
(i). WHEREAS, Shuster Advisory Group, LLC ("Shuster") has made available the Multiple Employer OPEB/Pension 115 Trust ("Trust") for the purpose of pre -funding pension obligations and/or OPEB obligations; and
(ii). WHEREAS, the City of Placentia ("City") is eligible to participate in a tax- exempt trust performing an essential governmental function within the meaning of Section 115 of the Internal Revenue Code, as amended, and the Regulations issued there under, and the Trust is a tax-exempt trust under the relevant statutory provisions of the State of California; and
(iii). WHEREAS, Alta Trust Company satisfies the Trustee requirements under IRC section 115; and
(iv). WHEREAS, all qualified assets currently held in the City's Public Agency Retirement Services ("PARS") Public Agencies Post -Employment Benefits Trust are irrevocably dedicated to prefunding the City's OPEB and pension obligations; and (v). WHEREAS, the City's adoption and operation of the Trust has no effect on any current or former employee's entitlement to post -employment benefits; and (vi). WHEREAS, the terms and conditions of post -employment benefit entitlement, if any, are governed by contracts separate from and independent of the Trust; and
(vii). WHEREAS, the City Council has prudently set aside funds for the OPEB liability and pre -funding pension obligations; and
(viii). WHEREAS, the City's funding of the Trust does not, and is not intended to, create any new vested right to any benefit nor strengthen any existing vested right; and
(ix). WHEREAS, the City reserves the right to make contributions, if any, to the Trust.
B. Resolution
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PLACENTIA DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
1. The City Council hereby adopts the Shuster Multiple Employer OPEB/Pension 115 Trust, effective July 25th, 2023; and
2. The City Council hereby authorizes the termination of the City of Placentia's participation in the PARS Public Agencies Post -Employment Benefits Trust Program, all services, administration, and investment contracts with PARS and US Bank, N.A. ("U.S. Bank"), including the services of U.S. Bank as Trustee; and
3. The City Council hereby authorizes the appointment of Alta Trust Company as successor Trustee and Charles Schwab Trust Bank as custodian of the assets. The transfer of assets is contingent upon the acceptance of the successor Trustee and custodian; and
4. The City Council certifies that the successor trust satisfies the requirements of Section 115 of the Internal Revenue Code and that all assets held by that trust shall qualify as "plan assets" that are irrevocably dedicated to the prefunding of OPEB and pension obligations; and
5. The City Council hereby authorizes the liquidation and transfer of all assets to Charles Schwab Trust Bank, as soon as administratively practicable; and
6. Upon the complete transfer of assets on or around October 31, 2023, PARS is removed as trust administrator and U.S. Bank is removed as Trustee; and
7. The City Council hereby appoints the position of City Administrator, or his/her successor or his/her designee as the City's Administrator for the Trust; and
8. The City's Administrator is hereby authorized to execute the legal and administrative documents on behalf of the City and to take whatever additional actions are necessary to maintain the City's participation in the Trust and to maintain compliance with any relevant regulation issued or as may be issued; therefore, authorizing him/her to take whatever additional actions are required to administer the City's Trust.
APPROVED AND ADOPTED this 25th day of July, 2023.
ATTEST: Ward L. Smith, Mayor
Robert S. McKinnell, City Clerk
RESO. NO. 2023-67 -2-
STATE OF CALIFORNIA
COUNTY OF ORANGE
I, Robert S. McKinnell, City Clerk of the City of Placentia do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 25th day of July, 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Robert S. McKinnell, City Clerk
APPROVED AS TO FORM:
Christian L. Bettenhausen, City Attorney
RESO. NO. 2023-67 -3-
Placentia City Council
AGENDA REPORT
TO: CITY COUNCIL
VIA: CITY ADMINISTRATOR
FROM: DEPUTY CITY ADMINISTRATOR / PUBLIC SERVICES AND INFRASTRUCTURE DATE: JULY 25, 2023
SUBJECT: AWARD OF CONSTRUCTION CONTRACT TO MARK COMPANY ASPHALT
AND CONCRETE FOR THE CROWTHER AVENUE STREET RESURFACING PROJECT, PROJECT NO. 1401
FISCAL
IMPACT: EXPENSE: $259,865 CONSTRUCTION CONTRACT
$ 25,986 CONTINGENCY AMOUNT
BUDGETED: $285,851 FY2023-24 CIP BUDGET (719800-6740 JL#24101) SUMMARY:
The scope of work for this project entails the partial rehabilitation of Crowther Avenue along with Evelyn and Goetz Streets. As part of the JPI Cenza development in the Transit Oriented District, the developer is responsible for paving Crowther Avenue along the frontage of their project site.
This action provides the City with an opportunity to advance street resurfacing work and achieve some cost efficiencies by paying the incremental cost to JPI's contractor to repave the balance of Crowther Avenue to Melrose Avenue as well as two (2) adjacent streets, Goetz Place and Evelyn Place. The cost proposal in the amount of $259,865 covers the cost of all the paving; and new signing, striping, markings, and pavement legends which is in line with the amount the City has recently paid for similar work. The total construction cost for this work amounts to $285,851. This amount includes the cost proposal provided by Mark Company Asphalt and Concrete (Mark Company) and a construction contingency amount of 10%. Staff recommends that the City Council award a Public Works Agreement to Mark Company in the amount of $259,865 to complete this project.
RECOMMENDATION
It is recommended that the City Council take the following actions:
1. Approve a Public Works Agreement for Project No. 1401 with Mark Company Asphalt and Concrete for an amount not -to -exceed $259,865; and
2. Authorize the City Administrator to approve contract change orders up to 10% of the contract not -to -exceed amount, or $25,986; and
3. Authorize the City Administrator and/or his designee to execute all necessary documents, in a form approved by the City Attorney.
1a'■
July 25, 2023
City Council Agenda
July 25, 2023
STRATEGIC PLANNING STATEMENT
This agenda item meets Strategic Planning Goal 5, Objective 5.8, Implement Public Infrastructure to Meet Community Needs — Implement the 2022 Pavement Management Plan Report to Prioritize Streets and Roads.
DISCUSSION:
As part of the JPI Cenza development project on Crowther Avenue within the City's Transit Oriented District, the developer was conditioned to repave Crowther Avenue along their entire property frontage as part of their project. The street paving rehabilitation work includes a two (2) inch milling and asphalt concrete capping of the entire roadway. However, this provides an opportunity for the City to advance much needed road resurfacing work by capturing economies of scale and paying the incremental cost to resurface the balance of Crowther Avenue to Melrose Avenue as well as two (2) intersecting streets, Goetz Place and Evelyn Place, since the paving contractor will already be mobilized on site performing the same work. Mark Company provided the City with a cost proposal for rehabilitation of these streets for a similar cost the City has paid recently for like work. The total construction cost of this work amounts to $285,851. This amount includes the proposal submitted by Mark Company and a construction contingency of 10%. Staff recommends that the City Council award a Public Works Agreement to Mark Company in the amount of $259,865 to repave Crowther Avenue along with Goetz Place and Evelyn Place.
FISCAL IMPACT:
The total construction cost for this work amounts to $285,851. This cost consists of the cost proposal amount submitted by Mark Company in the amount of $259,865 and a construction contingency in the amount of $25,986. Sufficient funds are budgeted and available in the Fiscal Year 2023-24 Capital Improvement Program Budget to cover this expense. As such, sufficient funds exist for the recommended actions.
Prepared, by: r�
Luis Estevez
Reviewed and approved:
Jennifer/Lampman
Deputy City Administrator Director of Finance
Reviewed and approved:
2 666'.-Z)
Damien R. Arrula
City Administrator
Attachment:
Public Works Agreement with Mark Company
Project No.
CITY OF PLACENTIA
PUBLIC WORKS AGREEMENT FOR
CROWTHER AVE STREET RESURFACING PROJECT
THIS AGREEMENT (herein "Agreement"), is made and entered into this 25T" day of July, 2023 by and between the CITY OF PLACENTIA, a municipal corporation and charter city, (herein "City") and Mark Company Asphalt and Concrete (herein "Contractor"). The parties hereto agree as follows:
WITNESSETH:
A. WHEREAS, City requires the construction of street improvements on Crowther Ave and surrounding area as set forth more fully in this Agreement.
B. WHEREAS, Contractor represents to City that Contractor is qualified to perform said work and has submitted a proposal to City for the same.
C. WHEREAS, City desires to have Contractor perform said services on the terms and conditions set forth herein.
D. WHEREAS, no official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, City and Contractor hereby agree as follows:
1.0 DEFINITIONS
1.1 Definitions. As used in this Agreement, the following definitions shall be applicable:
(a) Contractor. Contractor shall mean Mark Company Asphalt and Concrete a (California corporation, partnership, individual) located at 2288 North Batavia Street, Orange, CA 92865.
(b) City. City shall mean the City of Placentia, a Municipal Corporation and Charter City, located at 401 E. Chapman, Placentia, California 92870.
(c) City Council. City Council shall mean the City Council of the City of Placentia.
(d) Contract Officer shall mean the person designated by the City Administrator or City Engineer of City and shall have the duties set forth in Section 5.2.
1 Project No.
(e) Services. Services shall mean the services to be performed by the Contractor pursuant to this Agreement.
(f) Satisfactory. Satisfactory shall mean satisfactory to the City Administrator or his/her designee.
2.0 SERVICES OF CONTRACTOR
2.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended.
2.2 Documents Included in Contract. This contract consists of this Agreement and any Exhibits, which are incorporated herein by this reference. In the event of an inconsistency, the terms of this Agreement shall govern.
2.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered, including but not limited to, the claims procedure set forth in Public Contract Code Section 9204, a summary of which is attached to this agreement as Exhibit "E."
2.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement, including registration with the Department of Industrial Relations of the State of California as required by Labor Code Section 1725.5 before commencing performance under this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder.
Contractor shall be responsible for all subcontractors' compliance with this Section 2.4.
2.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform 2 Project No.
the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer.
2.6 Standard of Performance. Contractor, its subcontractors and their employees, in the performance of Contractor's work under this Agreement shall be responsible for exercising the degree of skill and care required by customarily accepted good professional practices and procedures used in the Contractor's field.
Any costs for failure to meet the foregoing standard or to correct otherwise defective work that requires re -performance of the work, shall be borne in total by the Contractor and not by the City. The failure of a project to achieve the performance goals and objectives stated in this Agreement is not a basis for requesting re -performance unless the work conducted by Contractor and/or its subcontractors is deemed by the City to have failed the foregoing standard of performance.
In the event Contractor fails to perform in accordance with the above standard:
1. Contractor will re -perform, at its own expense, any task which was not performed to the reasonable satisfaction of City. Any work re -performed pursuant to this paragraph shall be completed within the time limitations originally set forth for the specific task involved.
Contractor shall work any overtime required to meet the deadline for the task at no additional cost to the City;
2. The City shall provide a new schedule for the re -performance of any task pursuant to this paragraph in the event that re -performance of a task within the original time limitations is not feasible; and
3. The City shall have the option to direct Contractor not to re -perform any task which was not performed to the reasonable satisfaction of the City Project Manager pursuant to application of (1) and (2) above. In the event the City directs Contractor not to re - perform a task, the City shall negotiate a reasonable settlement for satisfactory work performed. No previous payment shall be considered a waiver of the City's right to reimbursement.
Nothing contained in this section is intended to limit any of the rights or remedies which the City may have under law.
2.7 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence.
2.8 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. Contractor shall require all subcontractors to comply with the provisions of this agreement. 3 Project No.
2.9 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum as set forth in Section
3.1, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of twenty five percent (25%) or less of the Contract Sum, or in the time to perform of one hundred eighty (180) days or less may be approved by the Contract Officer. Any increases, taken either separately or cumulatively, that result in the Contract Sum exceeding $25,000 must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore.
2.10 Prevailing Wage Laws. Contractor represents and warrants that it is registered with the Department of Industrial Relations pursuant to SB 854 and Labor Code 1725.5.
Contractor shall ensure that its subcontractors comply with said requirements. In accordance with Labor Code Section 1770 et seq., the Director of the Department of Industrial Relations of the State of California has ascertained a general prevailing rate of wages, which is the minimum amount, which shall be paid to all workers employed to perform the work pursuant to this Agreement. A copy of the general prevailing wage rate determination is on file in the Office of the City Clerk and is hereby incorporated by reference into this Agreement. In accordance with the provisions of Labor Code Section 1810 et seq., eight (8) hours is the legal working day. Contractor must forfeit to the City Twenty Five Dollars ($25.00) a day for each worker who works in excess of the minimum working hours when Contractor does not pay overtime. Contractor is required to post a copy of such wage rates at all times at the contract site. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced. Contractor also shall comply with State law requirements to maintain payroll records and shall provide for certified records and inspection of records as required by California Labor Code Section 1770 et. seq., including Section 1776. Contractor shall comply with all statutory requirements relating to the employment of apprentices.
3.0 COMPENSATION
3.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated as specified herein, but not exceeding the maximum contract amount of Two -hundred fifty nine thousand eight hundred sixty five Dollars ($ 259,865.00) (herein "Contract Sum"), except as provided in Section 2.9. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings.
3.2 Progress Payments. Prior to the first day of the month, during the progress of the work, commencing on the day and month specified in the Agreement, Contractor shall submit to the Contract Officer a complete itemized statement of all labor and materials incorporated into the work during the preceding month and the portion of the contract sum applicable thereto. Upon approval in writing by the Contract Officer, payment shall be made in thirty (30) days. City shall pay Contractor a sum based upon ninety-five percent (95%) of the 4 Project No.
contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security. Refer to Section 8.4 of this Agreement for retention of funds.
4.0 PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "B", and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Scope of Services may be approved in writing by the Contract Officer.
4.3 Force Ma'eure. The time period(s) specified in the Scope of Services for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes for the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 8.9 of this Agreement, this Agreement shall continue in full force and effect until final approval and acceptance of the project by the Contract Officer. Notwithstanding the foregoing, this Agreement shall terminate no later than July 25, 2024, unless the parties mutually agree in writing to extend the term.
5M COORDINATION OF WORK
5.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Mark Company Asphalt and Concrete_
Attn: Melinda Pack, CFO
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. 5 Project No.
For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.
5.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Administrator or City Engineer of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions that must be made by City to the Contract Officer.
Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
5.3 Prohibition Against Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
5.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its subcontractors, agents or employees, performs the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, subcontractors, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its subcontractors, agents or employees are agents or employees of City.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venture or a member of any joint enterprise with Contractor.
5.5 Identity of Persons Performing Work. Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services set forth herein. Contractor represents that the tasks and services required herein will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services.
5.6 Utility Relocation. City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse contractor for any costs incurred in locating, repairing damage not caused by contractor and removing or relocating such unidentified utility facilities, including equipment idled during such work. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities. 6 Project No.
5.7 Trenches or Excavations. Pursuant to California Public Contract Code Section 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply.
(a) Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) Subsurface or latent physical conditions at the site different from those indicated; or (3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the contract.
(b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work shall issue a change order per Section 2.9 of this Agreement.
(c) That, in the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused form any scheduled completion date provided for by the contract, but shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting parties.
6.0 INSURANCE, INDEMNIFICATION AND BONDS
6.1 Insurance. The Contractor and all subcontractors, if any, shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, insurance as set forth in Exhibit "C" attached hereto and incorporated herein by this reference.
Conditions:
In accordance with Public Contract Code Section 20170, the insurance of surety companies who provide or issue the policy shall have been admitted to do business in the State of California with a credit rating of A- or better.
This insurance shall not be canceled, limited in scope or coverage or non -renewed until after thirty (30) days prior written notice has been given to the Community Development Director, City of Placentia, 401 E. Chapman Ave., Placentia, California 92870. 7 Project No.
Any insurance maintained by the City of Placentia shall apply in excess of and not combined with insurance provided by this policy.
The City of Placentia, its officers, employees, representatives, attorneys, and volunteers shall be named as additional named insureds.
Prior to commencement of any work under this contract, Contractor shall deliver to the City insurance endorsements confirming the existence of the insurance required by this contract, and including the applicable clauses referenced above.
Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signator's company affiliation and title. Should it be deemed necessary by the City, it shall be Contractor's responsibility to see that the City receives documentation, acceptable to the City, which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company.
If the Contractor fails to maintain the aforementioned insurance, or secure and maintain the aforementioned endorsement, the City may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the agreement. However, procuring of said insurance by the City is an alternative to other remedies the City may have, and is not the exclusive remedy for failure of Contractor to maintain said insurance or secure said endorsement. In addition to any other remedies the City may have upon Contractor's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Contractor to stop work hereunder, and/or withhold any payment(s) which became due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof.
Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractor's performance of the work covered under this agreement.
Each contract between the Contractor and any subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 6.1.
6.2 Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. The certificates of insurance and endorsements shall be attached to this Agreement as Exhibit "D", and are incorporated herein by this reference.
6.3 Indemnification. Contractor shall defend, indemnify, hold free and harmless the City of Placentia, its elected and appointed officials, officers, agents and employees, at Contractor's sole expense, from and against any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising or alleged to arise out of or in connection with the performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising or alleged to arise from the negligent acts or omissions of Contractor hereunder, or arising or alleged to arise from 8 Project No.
Contractor's performance of or failure to perform any term, provision, covenant or condition of this Agreement.
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith. (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising or alleged to arise out of or in connection with Contractor's (or its agents', employees', subcontractors' or invitees') negligent performance of or failure to perform such work, operations or activities hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom.
(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising or alleged to arise out of or in connection with the performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor shall pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees for counsel selected by City. (d) Contractor's duty to defend and indemnify as set out in this Section 6.3 shall include any claims, liabilities, obligations, losses, demands, actions, penalties, suits, costs, expenses or damages or injury to persons or property arising or alleged to arise from, in connection with, as a consequence of or pursuant to any state or federal law or regulation regarding hazardous substances, including but not limited to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Resource Conservation and Recovery Act of 1976 ("RCRA"), the Hazardous and Solid Waste Amendments of 1984, the Hazardous Material Transportation Act, the Toxic Substances control Act, the Clean Air Act, the Clean Water Act, the California Hazardous Substance Account Act, the California Hazardous Waste Control Law or the Porter -Cologne Water Quality Control Act, as any of those statutes may be amended from time to time.
Notwithstanding the foregoing, Contractor shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City.
The Contractor's indemnification obligations pursuant to this Section 6.3 shall survive the termination of this Agreement. Contractor shall require the same indemnification from all subcontractors.
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6.5 Sufficiency of Insurer or Surety. Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City due to unique circumstances. In the event the Senior Management Analyst of City ("Senior Management Analyst") determines that the work or services to be performed under this Agreement creates an increased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies required by this Section 6 may be changed accordingly upon receipt of written notice from the Senior Management Analyst; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Senior Management Analyst to the City Council of City within ten (10) days of receipt of notice from the Senior Management Analyst.
6.6 Substitution of Securities. Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any monies withheld to ensure performance under the contract for the work to be performed will be permitted at the request and expense of the successful bidder.
7.0 RECORDS AND REPORTS
7.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement.
For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
7.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records (including but not limited to payroll records as required herein) as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required.
7.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any 10 Project No.
documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.
7.4 Public Records Act Disclosure. Contractor has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Contractor informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
8.0 GENERAL PROVISIONS
8.1 Governing Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 Representatives. The City Administrator or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
The Principal set forth in Section 5.1 above shall be the representative for Contractor for purposes of this Agreement, and shall be authorized to issue all consents, approvals, directives and agreements on behalf of Contractor called for by this Agreement, except as otherwise expressly provided in this Agreement.
8.3 Disputes. In the event either party fails to perform its obligations hereunder, the nondefaulting party shall provide the defaulting party written notice of such default. The defaulting party shall have ten (10) days to cure the default; provided that, if the default is not reasonably susceptible to being cured within said ten (10) day period, the defaulting party shall have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, so long as the defaulting party commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the defaulting party shall take such immediate action as may be necessary. Notwithstanding the foregoing, the nondefaulting party may, in its sole and absolute discretion, grant a longer cure period. Should the defaulting party fail to cure the default within the time period provided in this Section, the nondefaulting party shall have the right, in addition to any other rights the nondefaulting party may have at law or in equity, to terminate this Agreement. Compliance with the provisions of this Section 8.3 shall be a condition precedent to bringing any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 11 Project No.
8.4 Retention of Funds. Progress payments shall be made in accordance with the provisions of Section 3.2 of this Agreement. In accordance with said section, City shall pay Contractor a sum based upon ninety-five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security to be paid to the Contractor within sixty (60) days after final acceptance of the work by the City Council, after Contractor shall have furnished City with a release of all undisputed contract amounts if required by City. In the event there are any claims specifically excluded by Contractor from the operation of the release, the City may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount in dispute. City's failure to deduct or withhold shall not affect Contractor's obligations hereunder.
8.5 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
8.6 Rights and Remedies. Rights and Remedies are cumulative except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
8.7 Lecal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.8 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City Five Hundred Dollars ($500) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Scope of Services (Exhibit A) or Schedule of Performance (Exhibit B). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages.
8.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, Contractor shall vacate any City owned property which Contractor is permitted to occupy hereunder and City may, after compliance with the provisions of Section 8.3, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated.
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8.10 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the US Mail, prepaid, first-class mail, return receipt requested, addressed as follows:
To City:
To Contractor:
City of Placentia
401 E. Chapman Ave
Placentia, California 92870
Attn.: Kevin Koura
Mark Company Asphalt and Concrete
2288 North Batavia Street
Orange, CA 92865
Attn: Melinda Pack, CFO
8.11 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.12 Conflict of Interest. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Contractor and its officers, employees, associates and subcontractors, if any, will comply with all conflict of interest statutes of the State of California applicable to Contractor's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Contractor and its officers, employees, associates and subcontractor shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Contractor is not currently performing work that would require Contractor or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
8.13 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. To the extent required by law, contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry.
8.14 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
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8.15 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
8.16 Hiring of Illegal Aliens Prohibited. Contractor shall not hire or employ any person to perform work within the City of Placentia or allow any person to perform work required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Further, Contractor shall comply with the following:
(a) Unauthorized Aliens. Contractor hereby represents and warrants that it will comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of any work and/or services under this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to reimburse City for any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, or penalties which arise out of or are related to such employment, together with any and all costs, including attorneys' fees, incurred by City.
(b) E -Verify. If Contractor is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Contractor shall enroll in the E - Verify program within fifteen (15) days of the effective date of this Agreement to verify the employment authorization of employees assigned to perform work hereunder. Contractor shall verify employment authorization within three (3) days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov , or access the registration page at https://e- verify.uscis.gov/enroll. Contractor shall certify its registration with E -Verify and provide City its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated.
8.17 Unfair Business Practices Claims. In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C.
Sec. 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body renders final payment to the contractor without further acknowledgment by the parties. (Sec. 7103.5, California Public Contract Code).
14 Project No.
8.18 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound.
8.19 PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
8.20 Cooperation. In the event any claim or action is brought against City relating to Contractor's performance or services rendered under this Agreement, Contractor shall render any reasonable assistance and cooperation which City might require.
8.21 Legal Responsibilities. The Contractor shall keep itself informed of City, State, and Federal laws, ordinances and regulations, which may in any manner affect the performance of its services pursuant to this Agreement. The Contractor shall at all times observe and comply with all such laws, ordinances and regulations. Neither the City, nor its officers, agents, or employees shall be liable at law or in equity as a result of the Contractor's failure to comply with this section.
8.22 Termination for Convenience. The City may terminate this Agreement without cause for convenience of the City upon giving contractor 30 days prior written notice of termination of the Agreement. Upon receipt of the notice of termination the Contractor shall cease all further work pursuant to the Agreement. Upon such termination by the City the Contractor shall not be entitled to any other remedies, claims, actions, profits, or damages except as provided in this paragraph. Upon the receipt of such notice of termination Contractor shall be entitled to the following compensation:
1. The contract value of the work completed to and including the date of receipt of the notice of termination, less the amount of progress payments received by contractor.
2. Actual move -off costs including labor, rental fees, equipment transportation costs, the costs of maintaining on -site construction office for supervising the mover -off. 15 Project No.
3. The cost of materials custom made for this Agreement which cannot be used by the Contractor in the normal course of his business, and which have not been paid for by City in progress payments.
4. All costs shall not include any markups as might otherwise be allowed by any plans or specifications which were a part of the Agreement.
The provisions of this paragraph shall supersede any other provision of the Agreement or any provision of any plans, specification, addendums or other documents which are or may become a part of this Agreement. City and Contractor agree that the provisions of this paragraph are a substantive part of the consideration for this Agreement.
8.23 Responsibility for Errors. Contractor shall be responsible for its work and results under this Agreement. Contractor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Contractor occurs, then Contractor shall, at no cost to City, provide all necessary design drawings, estimates and other Contractor professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.
8.24 Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
8.25 Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
8.26 No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Contractor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
8.27 Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
8.28 Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
8.29 Counterparts. This Agreement may be executed in one or more counterparts, 16 Project No.
each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
8.30 Funding Source Conditions — Contractor's Obligation. Contractor acknowledges that the City may be paying for the Project by using funds it receives or will receive from various funding sources in the form of grants and/or subsidies, and the like under certain terms and conditions. Contractor acknowledges and agrees that any failure of the Contractor and/or its subcontractors to perform its obligations under the Contract, including, but not limited to, timely submitting accurate reports and records, that in any way results in the City not meeting the terms and conditions placed on the funds by the funding source, or forfeiting its entitlement to or, otherwise, not receiving, the funds, then the Contractor shall be liable to pay the City for the funds not granted to the City on the Project.
8.31 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above.
ATTEST:
CITY OF PLACENTIA,
A municipal corporation and Charter City
Date:
Damien R. Arrula, City Administrator
ATTEST:
Robert S. McKinnell, City Clerk
APPROVED AS TO FORM:
CONTRACTOR
lu t tiv,p6. pa&
Signature
Melinda Pack
Melinda Pack, CFO
17 Date:
7/17/2023
Project No.
95-2660802
Social Security or Taxpayer ID Number
Date:
Christian L. Bettenhausen, City Attorney
APPROVED AS TO INSURANCE:
Date:
Rosanna Ramirez, Deputy City Administrator
APPROVED AS TO CONTENT:
KEVIN KOIWA
Kevin Koura, Project Manager
DEPARTMENTAL APPROVAL
bAis fsitu.ti5
Luis Estevez, Deputy City Administrator
18 Date:
Date:
7/17/2023
7/17/2023
Project No.
(Use of City form is required)
SUPPLEMENTAL INFORMATION TO BE COMPLETED BY PRINCIPAL
If an individual, so state. If a firm or co -partnership, state the firm and give the names of all individual co-partners composing the partnership. If a Corporation, state legal name of corporation; state also the names of the president, secretary, treasurer and manager thereof.
Business Address:
Telephone Number:
Date:
Print Name:
Principal
Signature:
Title
Project No.
(Use of City form
is required)
TAX IDENTIFICATION NUMBER
The Tax Equity and Fiscal Responsibility Act of 1982 requires the payer (City of Placentia) to report to the Internal Revenue Service taxable payments to payees.
You (as a payee) are required by law to provide us with your Taxpayer Identification Number (if an individual or partnership, your Social Security Number). If you do not provide us with your correct identification number, you may be subject to a penalty imposed by the Internal Revenue Service. The payments subject to withholdings may include, but are not limited to, interest, dividends, or other payments the City of Placentia and/or the Placentia Redevelopment Agency made to you. Other payments may include rents, royalties, commissions and fees for service of non -employees.
If you are exempt from income tax, we are still required, by law, to maintain a Tax Identification Number on file. PLEASE PROVIDE YOUR TAX IDENTIFICATION NUMBER next to the appropriate listing below, sign, date and return to:
CITY OF PLACENTIA FINANCE DEPARTMENT
401 E. Chapman
Placentia, CA 92870
Exempt: Yes No Telephone ( )
CORPORATION:
U.S.A. OR ANY AGENCIES THEREOF:
IRS CODE #501 TAX-EXEMPT ORGANIZATION:
A NON-COMMISSIONED CITY OF PLACENTIA EMPLOYEE:
SOLE PROPRIETOR:
A PARTNERSHIP:
OTHER: (Explain)
Signature/Title: Date:
Project No.
BID GUARANTEE
TO THE CITY OF PLACENTIA
PROJECT NO.
As a material inducement to the City to award the contract for Project No. to , the undersigned ("Guarantor") has agreed to enter into this guarantee. The Guarantor hereby unconditionally guarantees to the fullest extent allowed by law the following work included in this project: ("the work").
Guarantor guarantees that the materials and equipment used by itself and its subcontractors will be free from defects and that the work will conform to the plans and specifications. Should any of the materials or equipment prove defective or should the work as a whole, or any part thereof, prove defective for any reason whatsoever (except due to intentional torts by the City), or should the work as a whole or any part thereof fail to operate properly or fail to comply with the plans and specifications, Guarantor will, at the City's sole election: 1) reimburse the City, upon written demand, for all of the City's expenses incurred replacing or restoring any such equipment or materials, including the cost of any work necessary to make such replacement or repairs; or 2) replace any such defective material or equipment and repair said work completely, all without any cost to the City. Guarantor further guarantees that any such repair work will conform to the plans and specifications for the project. This guarantee will remain in effect for five years from the date on which the contracted for work is accepted for use by the City.
Guarantor understands and agrees that the City shall have the unqualified option to make any replacements or repairs itself or to have such replacement, repair, performed by the undersigned. The City shall have no obligation to consult with Guarantor before the City proceeds to perform any repair, replacement, or work itself. If the City elects to have Guarantor perform said repair, replacement, or work, Guarantor agrees that the repair, replacement, or work shall be performed within 15 days after receipt of a written demand from the City.
If the City elects to perform the replacement, repairs itself, Guarantor agrees to make reimbursement payment within 15 days after receipt of a written demand for payment from the City.
If the Guarantor fails or refuses to comply with this guarantee, the City shall be entitled to all costs and expenses, including attorneys and expert fees, reasonably incurred by reason of Guarantor's failure or refusal.
Guarantor
Contractor:
Melinda Pack
Title:
CFO
Date:
By:
Project No.
STATEMENT OF NON COLLUSION BY CONTRACTOR
The undersigned who submits herewith to the City of Placentia a bid or proposal does hereby certify:
a. That all statements of fact in such bid or proposal are true; b. That such bid or proposal was not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization or corporation; c. That such bid or proposal is genuine and not collusive or sham; d. That said bidder has not, directly or indirectly by agreement, communication or conference with anyone, attempted to induce action prejudicial to the interest of the City of Placentia or of any other bidder or anyone else interested in the proposed procurement; e. Did not, directly or indirectly, collude, conspire, connive or agree with anyone else that said bidder or anyone else would submit a false or sham bid or proposal, or that anyone should refrain from bidding or withdraw his bid or proposal;
f. Did not in any manner, directly or indirectly seek by agreement, communication or conference with anyone to raise or fix the bid or proposal price of said bidder or of anyone else, or to raise or fix any overhead, profit or cost element of his bid or proposal price, or that of anyone else; Did not, directly or indirectly, submit his bid or proposal price or any breakdown thereof, or the contents thereof, or divulge information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member agent thereof, or to any individual or group of individuals, except to the City of Placentia, or to any person or persons who have a partnership or their financial interest with said bidder in his business. h. Did not provide, directly or indirectly to any officer or employee of the City of Placentia any gratuity, entertainment, meals, or anything of value, whatsoever, which could be objectively construed as intending to invoke any form of reciprocation or favorable treatment. i. That no officer or principal of the undersigned firm is related to any officer or employee of the city by blood or marriage within the third degree or is employed, either full or part time, by the City of Placentia either currently or within the last two (2) years.
That no officer or principal of the undersigned firm nor any subcontractor to be engaged by the principal has been convicted by a court of competent jurisdiction of any charge of fraud, bribery, collusion, conspiracy or any other act in violation of any state or federal antitrust law in connection with the bidding upon award of, or performance of, any public work contract, with any public entity, within the last three years.
g.
j•
I certify, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct and that this certification was executed:
On at California.
Firm
Street
City
State Zip
(Signature)
(Print Name & Title) Melinda Pack, CFO.
Project No.
EXHIBIT A
SCOPE OF SERVICES
Project No.
EXHIBIT B
SCHEDULE OF PERFORMANCE
Project No.
EXHIBIT C
INSURANCE REQUIREMENTS
Contractor shall maintain and shall require all of its subcontractors, consultants, and other agents to maintain the insurance listed below. Any requirement for insurance to be maintained after completion of the work shall survive this agreement.
CITY reserves the right to review any and all of the required insurance policies and/or endorsements, but has no obligation to do so. Failure to demand evidence of full compliance with the insurance requirements set forth in this agreement or failure to identify any insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this agreement.
A. Workers Compensation & Employers Liability Insurance • Workers Compensation insurance with statutory limits as required by the Labor Code of the State of California.
• Employers Liability with limits of $1,000,000 per Accident; $1,000,000 Disease per employee; $1,000,000 Disease per policy.
• The policy shall include a written waiver of the insurer's right to subrogate against CITY.
• Required Evidence Of Coverage:
1. Subrogation waiver endorsement; and
2. Properly completed Certificate of Insurance.
B. General Liability Insurance
• Commercial General Liability Insurance no less broad than Insurance Services Office (ISO) form CG 00 01.
• Coverage shall be on a standard occurrence form. Claims -Made forms are not acceptable without prior written consent. Modified, limited or restricted Occurrence forms are not acceptable without prior written consent. • Minimum Limits: $1,000,000 per Occurrence; $2,000,000 General Aggregate; $2,000,000 Products/Completed Operations Aggregate. The General Aggregate shall apply separately to each project. The required
Project No.
limits may be provided by a combination of General Liability Insurance and Commercial Excess or Umbrella Liability Insurance. If contractor maintains higher limits than the specified minimum limits, CITY requires and shall be entitled to coverage for the higher limits maintained by contractor. • Any deductible or self -insured retention shall be shown on the Certificate of Insurance. If the deductible or self -insured retention exceeds $25,000 it must be approved in advance by CITY. Contractor is responsible for any deductible or self -insured retention and shall fund it upon CITY'S written request, regardless of whether Contractor has a claim against the insurance or is named as a party in any action involving CITY. • Coverage shall be continued for one (1) year after completion of the work. • CITY shall be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of the contractor. CITY shall continue to be an additional insured for completed operations for (1) year after completion of the work.
• The policy definition of "insured contract" shall include assumptions of liability arising out of both ongoing operations and the products -completed operations hazard ("f" definition of insured contract in ISO form CG 00 01, or equivalent).
• The insurance provided to the additional insureds shall be primary to, and non-contributory with, any insurance or self-insurance program maintained by them.
• The policy shall cover inter -insured suits and include a "Separation of Insureds" or "severability" clause which treats each insured separately. • The policy shall be endorsed to include a written waiver of the insurer's right to subrogate against all persons or entities that are, or are required to be, additional insureds.
• The policy shall not contain a Contractors' Warranty or other similar language which eliminates or restricts insurance because of a subcontractor's failure to carry specific insurance or to supply evidence of such insurance.
Project No.
• Required Evidence of Coverage:
1. Copy of the additional insured endorsement or policy language granting additional insured status;
2. Copy of the endorsement or policy language indicating that coverage applicable to the additional insureds is primary and non-contributory;
3. Properly completed Certificate of Insurance; and
4. Completed and signed Agent/Broker Questionnaire with supporting documentation as required.
C. Automobile Liability Insurance
• Minimum Limit: $1,000,000 combined single limit per accident. • Coverage shall apply to all owned, hired and non -owned vehicles. • CITY shall qualify as an insured.
• Required Evidence of Coverage:
1. Copy of the endorsement or policy language indicating that CITY is an insured; and
2. Properly completed Certificate of Insurance.
D. Contractors Pollution Liability Insurance
• Minimum Limits: $1,000,000 per Pollution Incident; $1,000,000 Aggregate; • Coverage shall apply to pollution incidents at or from any location at which Contractor is performing work under this agreement.
• Any deductible or self -insured retention shall be shown on the Certificate of Insurance. If the deductible or self -insured retention exceeds $25,000 it shall be approved in advance by CITY. Contractor is responsible for any deductible or self -insured retention and shall fund it upon CITY written request, regardless of whether Contractor has a claim against the insurance or is named as a party in any action involving CITY. • CITY shall be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of the Contractor.
Additional insured status shall continue for one (1) year after completion of
Project No.
the work.
• The insurance provided to the additional insureds shall apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by them.
• If the insurance is on a Claims -Made basis, the retroactive date shall be no later than the commencement of work.
• The insurance shall be continued for one (1) year after completion of the work. If the insurance is on a Claims -Made basis, the continuation coverage may be provided by: (a) renewal of the existing policy; (b) an extended reporting period endorsement; or (c) replacement insurance with a retroactive date no later than the commencement of the work. • Required Evidence of Coverage:
1. Copy of the additional insured endorsement or policy language granting additional insured status;
2. Copy of the endorsement or policy language indicating that coverage for the additional insureds is primary and non- contributory;
3. Properly completed Certificate of Insurance.
E. Standards for Insurance Companies
• Insurers, other than the California State Compensation Insurance Fund, shall have an A.M. Best's rating of at least A:VII.
F. Documentation
• The Certificate of Insurance shall include the following reference: the construction of the street improvements of Crowther Ave and surroundings.
• The name and address for Additional Insured endorsements and Certificates of Insurance is: City of Placentia
Project No.
• Contractor shall provide immediate written notice if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; or (3) the deductible or self -insured retention is increased.
• Current Evidence of Coverage shall be provided for the entire required period of insurance.
• Upon written request, certified copies of required insurance policies shall be provided within thirty (30) days.
EXHIBIT D
CERTIFICATES OF INSURANCE AND ENDORSEMENTS
Project No.
EXHIBIT E
CLAIMS PROCEDURE
SUMMARY OF PUBLIC CONTRACT CODE § 9204
The following procedure will apply to any claims by the Contractor on the City:
A "claim" is a separate demand on the City by a contractor on a public works project and sent by registered mail or certified mail with return receipt requested, for one or more of the following:
• A time extension, including relief from penalties for delay • Payment by the City of money damages under the terms of the contract • Payment of an amount that is disputed by the City
Initial Review
The claim must be supported by appropriate documentation. The City has 45 days within which to review the claim and provide the contractor with a written statement identifying the disputed and undisputed portions of the claim. If the City does not issue a written statement, the claim is deemed rejected in its entirety. The City will pay any undisputed portion of the claim within 60 days of issuing the statement.
Meet & Confer
If the contractor disputes the City's written response, or if the City does not issue one, the contractor may request in writing an informal conference to meet and confer for possible settlement of the claim. The City will schedule the meet and confer conference within 30 days of this request and provide a written statement identifying the remaining disputed and undisputed portions of the claim within 10 business days of the meet and confer. The City will pay the undisputed portion within 60 days of issuing this statement.
Mediation
With respect to any disputed portion remaining after the meet and confer, the City and contractor will submit the matter to nonbinding mediation, agree to a mediator within 10 business days after issuing the written statement, and share mediation costs equally. If mediation is unsuccessful, then the terms of the public works agreement and applicable law will govern resolution of the dispute.
Miscellaneous Provisions
Amounts not paid by the City in a timely manner bear interest at 7% per annum. Subcontractors may submit claims via this procedure through the general contractor. The City and contractor may waive the requirement to mediate, but cannot otherwise waive these claim procedures.
2288 North Batavia Street
Orange, CA 92865
Submitted To:
Address:
Project Name:
Project Location:
City Of Placentia
401 E. Chapman Avenue
Placentia, CA 92870
Crowther Grind And Overlay
505 W Crowther Ave, Placentia, CA
Phone: 714-685-3462
Fax: 714-685-3474
Contact:
Phone:
Fax:
Bid Number: 36608
Bid Date: 7/10/2023
Kevin Koura
(714) 993-8117
Line # Item Descrintion
Ouantitv Unit Unit Price Total Price
100 Lower Manhole / Valve Prior To Cold Plane
101 Cold Plane 2" Asphalt
102 Pave 2" ARHM Overlay
103 Cold Mix Temp AC Ramp At Work Limits, Manholes,
Water Valves, And Vaults For Vehicular Traffic
104 Raise Manholes To Grade One Time, Pour Collar, And
Patch Asphalt
105 Raise Water Valves To Grade One Time, Pour Collar,
And Patch Asphalt
106 Replace Striping Within Limits Of New Pave
107 Replace Traffic Loops Within Limits Of New Pave
108 Traffic Control
109 Engineered Traffic Control Plans
110 Temporary Construction Water Meter
Notes:
Payment Terms:
24.00 59,110.00
59,110.00
1.00 EACH
SF
SF
LS
$650.00
$0.70
$2.10
$6,850.00
$15,600.00
$41,377.00
$124,131.00
$6,850.00
12.00 EACH $1,590.00 $19,080.00
12.00 EACH $1,220.00 $14,640.00
1.00 LS
10.00 EACH
1.00 LS
1.00 LS
1.00 LS
Total Price for above
$8,671.00 $8,671.00
$1,760.00 $17,600.00
$6,250.00 $6,250.00
$4,416.00 $4,416.00
$1,250.00 $1,250.00
Items: $259,865.00
Total Bid Price: $259,865.00
• Proposal For Grind And Overlay On W. Crowther Avenue Per Emailed Exhibit Dated 03/21/2023.
Includes Goetz & Evelyn Per Email Dated 06/13/23.
• Proposal Includes (1) Mobilization. Additional Mobilizations Will Be Priced At $13,700. • Proposal Excludes Trench And Existing Asphalt Repair. • Proposal Excludes Redwood Header Where No Curb Present. Grind And Overlay To Terminate Inside Of Sign Limits.
• Proposal Excludes Petromat/Fabric Removal. Asphalt With Petromat/Fabric Will Be Subject To Additional Fees.
• Material Pricing Is Good Through 07/31/2023. Any Increases Past This Date Will Be Passed On.
ACCEPTED:
The above prices, specifications and conditions are satisfactory and are hereby accepted.
Buyer:
Signature:
Date of Acceptance:
CONFIRMED:
Mark Company Asphalt and Concrete
Authorized Signature:
Estimator: Tyler Huddleston
(714) 685-3462 ext 102
7/10/2023 4:48:29 PM Page 1 of 1
MARKCOM-03
SEDGE1
ACORO CERTIFICATE OF LIABILITY INSURANCE
DATE(MMIDD/Y1YY)
7/12/2023
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER License # 0757776
HUB
PO BoInternational Insurance Services Inc.
Riverside, CA 92517
CONTACT
NAME:
((NCC, ONo, Ext): (951) 788-8500 r FAX
(Alc, No)a( 951) 788-8502
E-MAIL
ADDRESS:
INSURER(S) AFFORDING COVERAGE
NAIC #
INSURER A : Executive Risk Indemnity
35181
INSURED
Santa Ana Creek Development Co. dba: Mark Company
2288 & 2290 North Batavia Street
Orange, CA 92865
INSURER B :Federal Insurance Company 20281
INSURER c : Starr Indemnity and Liability 38318
INSURER D :
INSURER E :
INSURER F :
COVERAGES
CERTIFICATE NUMBER:
•
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLIC ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR
TYPE OF INSURANCE
ADDL SUBR POLICY NUMBER
INSD WVD
POLICY EFF
(MM/DD/YYYYI
POLICY EXP LIMITS
(MM/DD/YYYY)
A
X
COMMERCIAL GENERAL LIABILITY
X
'54309583
12/1/2022
12/1/2023
EACH OCCURRENCE
$ 1,000,000
CLAIMS -MADE I X
OCCUR
r DAMAGE TO RENTED P
REMISES (Ea occurrenceL
100,000
_$
X
Deductible: $5,000
MED EXP (Any one personL
5 5,000
PERSONAL & ADV INJURY
5 1,000,000
GEN'L
X
X
AGGREGATE
POLICY X
OTHER: Per Proj
LIMIT APPLIES
JEaf
Gen Agg
per
PER:
LOC
contract
GENERAL AGGREGATE
$ 2,000,000
PRODUCTS - COMP/OP AGG
5 2,000,000
$
B
AUTOMOBILE
X
LIABILITY
ANY AUTO
OWNED
—
_
SCHEDULED
X
54309582
12/1/2022
12/1/2023
COMBINED SINGLE LIMIT
_(Ea accident)
1,000,000
5 _BODILY INJURY (Per persT21
$
BODILY INJURY (Per accident)
$
PROPERTY DAMAGE
(Per accident)
$
$
UMBRELLA LIAB
EXCESS LIAB
OCCUR
CLAIMS -MADE
EACH OCCURRENCE
$
AGGREGATE
$
DED i RETENTION $
$
B WORKERS COMPENSATION AND EMPLOYRS' LIABILIITY
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
If yes, describe under
DESCRIPTION OF OPERATIONS below
YIN
-
N / A
X
54309584
12/1/2022
12/1/2023
X
STATUTE ! EH
ER
E.L. EACH ACCIDENT
1,000,000
S
E.L. DISEASE - EA EMPLOYEE
$ 1'000'000
E.L. DISEASE - POLICY LIMIT
1,000,000
$
C Pollution Liability
X
1000066364211
12/1/2021
12/1/2023
Per Occur/Aggregate:
1,000,000
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: All operations performed by the Named Insured during the current policy period.
The City of Placentia, its officers, employees and volunteers are included as Additional Insureds where required by an executed written contract as respects General Liability, Auto Liability and Pollution Liability per attached endorsements.
This Insurance shall apply as Primary and Non -Contributory where required by an executed written contract as respects General Liability, Auto Liability and Pollution Liability per attached endorsements.
Waiver of Subrogation applies where required by an executed written contract as respects Workers' Compensation per attached endorsement.
CERTIFICATE HOLDER
CANCELLATION
City of Placentia
401 E. Chapman Avenue
Placentia, CA 92870
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
AGENCY CUSTOMER ID: MARKCOM-03
SEDGEI
ACOR0
LOC #: 1
ADDITIONAL REMARKS SCHEDULE
AGENCY License # 0757776
HUB International Insurance Services Inc.
NAMED INSURED
Santa Ana Creek Development Co. dba: Mark Company
2288 & 2290 North Batavia Street
Orange, CA 92865
POLICY NUMBER
SEE PAGE 1
CARRIER
SEE PAGE 1
NAIC CODE
SEE P 1
EFFECTIVE DATE: SEE PAGE 1
ADDITIONAL REMARKS
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Cancellation:
Should the policy(ies) be cancelled before the expiration date, Hub International Insurance Services Inc. (Hub), independent of any rights which may be afforded within the policies to the certificate holder named below, will provide to such certificate holder notice of such cancellation within thirty (30) days of the cancellation date, except in the event the cancellation is due to non-payment of premium, in which case Hub will provide to such certificate holder notice of such cancellation within ten (10) days of the cancellation date.
ACORD 101 (2008/01)
© 2008 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
POLICY NUMBER: 54309583 COMMERCIAL GENERAL LIABILITY
CG 20 37 12 19
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person(s)
Or Organization(s)
Location And Description Of Completed Operations
WHERE REQUIRED BY WRITTEN CONTRACT, BUT
ONLY WHEN THE CONTRACT SPECIFIES COVERAGE
FOR COMPLETED OPERATIONS
ALL LOCATIONS WHERE REQUIRED BY WRITTEN
CONTRACT
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II — Who Is An Insured is amended to
include as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury" or
"property damage" caused, in whole or in part, by
"your work" at the location designated and
described in the Schedule of this endorsement
performed for that additional insured and
included in the "products -completed operations
hazard".
However:
1. The insurance afforded to such additional
insured only applies to the extent permitted
by law; and
2. If coverage provided to the additional insured
is required by a contract or agreement, the
insurance afforded to such additional insured
will not be broader than that which you are
required by the contract or agreement to
provide for such additional insured.
B. With respect to the insurance afforded to these
additional insureds, the following is added to
Section III — Limits Of Insurance:
If coverage provided to the additional insured is
required by a contract or agreement, the most we
will pay on behalf of the additional insured is the
amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable Limits of
Insurance shown in the Declarations;
whichever is less.
This endorsement shall not increase the applicable
Limits of Insurance shown in the Declarations.
CG 20 37 12 19
© Insurance Services Office, Inc., 2012 Page 1 of 1
POLICY NUMBER: 54309583 COMMERCIAL GENERAL LIABILITY
CG 20 12 12 19
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - STATE OR GOVERNMENTAL
AGENCY OR SUBDIVISION OR POLITICAL
SUBDIVISION - PERMITS OR AUTHORIZATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
State Or Governmental Agency Or Subdivision Or Political Subdivision:
Where required by written contract or permit.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II — Who Is An Insured is amended to
include as an additional insured any state or
governmental agency or subdivision or political
subdivision shown in the Schedule, subject to the
following provisions:
1. This insurance applies only with respect to
operations performed by you or on your behalf
for which the state or governmental agency or
subdivision or political subdivision has issued a
permit or authorization.
However:
a. The insurance afforded to such additional
insured only applies to the extent permitted
by law; and
b. If coverage provided to the additional
insured is required by a contract or
agreement, the insurance afforded to such
additional insured will not be broader than
that which you are required by the contract
or agreement to provide for such additional
insured.
2. This insurance does not apply to:
a. "Bodily injury", "property damage" or
"personal and advertising injury" arising out
of operations performed for the federal
government, state or municipality; or
b. "Bodily injury" or "property damage"
included within the "products -completed
operations hazard".
B. With respect to the insurance afforded to these
additional insureds, the following is added to
Section III — Limits Of Insurance:
If coverage provided to the additional insured is
required by a contract or agreement, the most we
will pay on behalf of the additional insured is the
amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable limits of
insurance;
whichever is less.
This endorsement shall not increase the
applicable limits of insurance.
CG 20 12 12 19
© Insurance Services Office, Inc., 2018 Page 1 of 1
POLICY NUMBER: 54309583 COMMERCIAL GENERAL LIABILITY
10-02-2461 (Ed. 7-15)
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
PRIMARY INSURANCE FOR
SCHEDULED ADDITIONAL INSURED
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Additional Insured: Location Of Covered Operations:
WHERE REQUIRED BY WRITTEN CONTRACT. ALL LOCATIONS
(If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)
With respect only to the Additional Insured and at the
Location Of Covered Operations shown in the
Schedule, the following is added to SECTION IV -
COMMERCIAL GENERAL LIABILITY CONDITIONS,
Paragraph 4. Other lnsurance and supersedes any
provision to the contrary:
Primary And Noncontributory Insurance
This insurance is primary to and will not seek
contribution from any other insurance available to
the Additional Insured with respect to the Location
Of Covered Operations shown in the Schedule
under this policy provided that:
(1) The Additional Insured is a named insured
under such other insurance; and
(2) You have agreed in writing in a contract or
agreement that this insurance would be
primary and would not seek contribution from
any other insurance available to the
Additional Insured.
10-02-2461 (Ed. 7-15) Includes copyrighted material of Insurance Services Office, Inc., Page 1 of 1 with its permission.
POLICY NUMBER: 54309583
This
COMMERCIAL GENERAL LIABILITY
CG 25 03 05 09
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
DESIGNATED CONSTRUCTION PROJECT(S)
GENERAL AGGREGATE LIMIT
endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Designated Construction Project(s):
All of your designated construction projects where required by written contract Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. For all sums which the insured becomes legally
obligated to pay as damages caused by
"occurrences" under Section I — Coverage A, and
for all medical expenses caused by accidents
under Section I — Coverage C, which can be
attributed only to ongoing operations at a single
designated construction project shown in the
Schedule above:
1. A separate Designated Construction Project
General Aggregate Limit applies to each
designated construction project, and that limit
is equal to the amount of the General
Aggregate Limit shown in the Declarations.
2. The Designated Construction Project General
Aggregate Limit is the most we will pay for the
sum of all damages under Coverage A,
except damages because of "bodily injury" or
"property damage" included in the "products -
completed operations hazard", and for
medical expenses under Coverage C
regardless of the number of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims or
bringing "suits".
3. Any payments made under Coverage A for
damages or under Coverage C for medical
expenses shall reduce the Designated
Construction Project General Aggregate Limit
for that designated construction project. Such
payments shall not reduce the General
Aggregate Limit shown in the Declarations
nor shall they reduce any other Designated
Construction Project General Aggregate Limit
for any other designated construction project
shown in the Schedule above.
4. The limits shown in the Declarations for Each
Occurrence, Damage To Premises Rented To
You and Medical Expense continue to apply.
However, instead of being subject to the
General Aggregate Limit shown in the
Declarations, such limits will be subject to the
applicable Designated Construction Project
General Aggregate Limit.
CG 25 03 05 09
© Insurance Services Office, Inc., 2008 Page 1 of 2
B. For all sums which the insured becomes legally
obligated to pay as damages caused by
"occurrences" under Section I — Coverage A, and
for all medical expenses caused by accidents
under Section I — Coverage C, which cannot be
attributed only to ongoing operations at a single
designated construction project shown in the
Schedule above:
1. Any payments made under Coverage A for
damages or under Coverage C for medical
expenses shall reduce the amount available
under the General Aggregate Limit or the
Products -completed Operations Aggregate
Limit, whichever is applicable; and
2. Such payments shall not reduce any
Designated Construction Project General
Aggregate Limit.
C. When coverage for liability arising out of the
"products -completed operations hazard" is
provided, any payments for damages because of
"bodily injury" or "property damage" included in
the "products -completed operations hazard" will
reduce the Products -completed Operations
Aggregate Limit, and not reduce the General
Aggregate Limit nor the Designated Construction
Project General Aggregate Limit.
D. If the applicable designated construction project
has been abandoned, delayed, or abandoned
and then restarted, or if the authorized
contracting parties deviate from plans, blueprints,
designs, specifications or timetables, the project
will still be deemed to be the same construction
project.
E. The provisions of Section III — Limits Of
Insurance not otherwise modified by this
endorsement shall continue to apply as
stipulated.
© Insurance Services Office, Inc., 2008 CG 25 03 05 09
Policy No. 54309582 COMMERCIAL AUTOMOBILE
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
This endorsement modifies the Business Auto Coverage Form.
1. EXTENDED CANCELLATION CONDITION
Paragraph A.2.b. — CANCELLATION - of the
COMMON POLICY CONDITIONS form IL 00 17 is
deleted and replaced with the following:
b. 60 days before the effective date of cancellation if we cancel for any other reason.
2. BROAD FORM INSURED
A. Subsidiaries and Newly Acquired or Formed
Organizations As Insureds
The Named Insured shown in the Declarations is
amended to include:
1. Any legally incorporated subsidiary in which
you own more than 50% of the voting stock on
the effective date of the Coverage Form.
However, the Named Insured does not include
any subsidiary that is an "insured" under any
other automobile policy or would be an
"insured" under such a policy but for its
termination or the exhaustion of its Limit of
Insurance.
2. Any organization that is acquired or formed by
you and over which you maintain majority
ownership. However, the Named Insured
does not include any newly formed or acquired
organization:
(a) That is an "insured" under any other
automobile policy;
(b) That has exhausted its Limit of Insurance
under any other policy; or
(c) 180 days or more after its acquisition or
formation by you, unless you have given
us written notice of the acquisition or
formation.
Coverage does not apply to "bodily injury" or
"property damage" that results from an "accident"
that occurred before you formed or acquired the
organization.
B. Employees as Insureds
Paragraph A.1. — WHO IS AN INSURED — of
SECTION II — LIABILITY COVERAGE is amended to
add the following:
d. Any "employee" of yours while using a
covered "auto' you don't own. hire or
borrow in your business or your personal
affairs.
C. Lessors as Insureds
Paragraph A.1. — WHO IS AN INSURED — of
SECTION II — LIABILITY COVERAGE is
amended to add the following:
e. The lessor of a covered "auto" while the
"auto" is leased to you under a written
agreement if:
(1) The agreement requires you to
provide direct primary insurance for
the lessor; and
(2) The "auto" is leased without a driver.
Such leased "auto" will be considered a
covered "auto" you own and not a covered
"auto" you hire.
However, the lessor is an "insured" only
for "bodily injury" or "property damage"
resulting from the acts or omissions by:
1. You;
2. Any of your "employees" or agents;
or
3. Any person, except the lessor or
any "employee" or agent of the
lessor, operating an "auto" with the
permission of any of 1. and/or 2.
above.
Persons And Organizations As Insureds
Under A Written Insured Contract
Paragraph A.1 — WHO IS AN INSURED — of
SECTION II — LIABILITY COVERAGE is
amended to add the following:
f. Any person or organization with respect to
the operation, maintenance or use of a
covered "auto", provided that you and
such person or organization have agreed
under an express provision in a written
"insured contract", written agreement or a
written permit issued to you by a
governmental or public authority to add
such person or organization to this policy
as an "insured".
However, such person or organization is
an "insured" only:
Form: 16-02-0292 (Rev. 11-16) Page 1 of 3
"Includes copyrighted material of Insurance Services Office, Inc. with its permission"
(1) with respect to the operation,
maintenance or use of a covered
"auto"; and
(2) for "bodily injury" or "property damage"
caused by an "accident" which takes
place after:
(a) You executed the "insured
contract" or written agreement; or
(b) The permit has been issued to
you.
3. FELLOW EMPLOYEE COVERAGE
EXCLUSION B.5. - FELLOW EMPLOYEE — of
SECTION II — LIABILITY COVERAGE does not apply.
4. PHYSICAL DAMAGE - ADDITIONAL TEMPORARY
TRANSPORTATION EXPENSE COVERAGE
Paragraph A.4.a. — TRANSPORTATION EXPENSES
— of SECTION III — PHYSICAL DAMAGE
COVERAGE is amended to provide a limit of $50 per
day for temporary transportation expense, subject to a
maximum limit of $1,000.
5. AUTO LOAN/LEASE GAP COVERAGE
Paragraph A. 4. — COVERAGE EXTENSIONS - of
SECTION III - PHYSICAL DAMAGE COVERAGE is
amended to add the following:
c. Unpaid Loan or Lease Amounts
In the event of a total "loss" to a covered "auto", we will pay any unpaid amount due on the loan or lease for a
covered "auto" minus:
1. The amount paid under the Physical Damage
Coverage Section of the policy; and
2. Any:
a. Overdue loan/lease payments at the time of
the "loss";
b. Financial penalties imposed under a lease for
excessive use, abnormal wear and tear or
high mileage;
c. Security deposits not returned by the lessor:
d. Costs for extended warranties, Credit Life
Insurance, Health, Accident or Disability
Insurance purchased with the loan or lease;
and
e. Carry-over balances from previous loans or
leases.
We will pay for any unpaid amount due on the loan or
lease if caused by:
1. Other than Collision Coverage only if the
Declarations indicate that Comprehensive
Coverage is provided for any covered "auto";
2. Specified Causes of Loss Coverage only if the
Declarations indicate that Specified Causes of
Loss Coverage is provided for any covered "auto";
or
3. Collision Coverage only if the Declarations indicate that Collision Coverage is provided for any
covered "auto.
6. RENTAL AGENCY EXPENSE
Paragraph A. 4. — COVERAGE EXTENSIONS — of
SECTION III — PHYSICAL DAMAGE COVERAGE
is amended to add the following:
7. 8.
9. d. Rental Expense
We will pay the following expenses that you or
any of your "employees" are legally obligated
to pay because of a written contract or
agreement entered into for use of a rental
vehicle in the conduct of your business:
MAXIMUM WE WILL PAY FOR ANY ONE
CONTRACT OR AGREEMENT:
1. $2,500 for loss of income incurred by the
rental agency during the period of time that
vehicle is out of use because of actual
damage to, or "loss" of, that vehicle, including
income lost due to absence of that vehicle for
use as a replacement;
2. $2,500 for decrease in trade-in value of the
rental vehicle because of actual damage to
that vehicle arising out of a covered "loss"; and
3. $2,500 for administrative expenses incurred
by the rental agency, as stated in the contract
or agreement.
4. $7,500 maximum total amount for paragraphs
1., 2. and 3. combined.
EXTRA EXPENSE — BROADENED COVERAGE
Paragraph A.4. — COVERAGE EXTENSIONS — of
SECTION III - PHYSICAL DAMAGE COVERAGE
is amended to add the following:
e. Recovery Expense
We will pay for the expense of returning a
stolen covered 'auto" to you.
AIRBAG COVERAGE
Paragraph B.3.a. - EXCLUSIONS — of SECTION
III - PHYSICAL DAMAGE COVERAGE does not
apply to the accidental or unintended discharge of
an airbag. Coverage is excess over any other
collectible insurance or warranty specifically
designed to provide this coverage.
AUDIO, VISUAL AND DATA ELECTRONIC
EQUIPMENT - BROADENED COVERAGE
Paragraph C.1.b. — LIMIT OF INSURANCE - of
SECTION III - PHYSICAL DAMAGE is deleted
and replaced with the following:
b. $2,000 is the most we will pay for "loss" in any
one "accident" to all electronic equipment that
reproduces, receives or transmits audio, visual
or data signals which, at the time of "loss", is:
(1) Permanently installed in or upon the
covered "auto" in a housing, opening or
other location that is not normally used by
the "auto" manufacturer for the installation
of such equipment;
(2) Removable from a permanently installed
housing unit as described in Paragraph
2.a. above or is an integral part of that
equipment; or
An integral part of such equipment.
(3)
10. GLASS REPAIR — WAIVER OF DEDUCTIBLE
Form: 16-02-0292 (Rev. 11-16) Page 2 of 3
"Includes copyrighted material of Insurance Services Office, Inc. with its permission"
POLICY NUMBER: 54309582 COMMERCIAL AUTO
16-02-0316 Ed. 10 14
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
PRIMARY AND NON-CONTRIBUTORY LIABILITY
INSURANCE
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement.
This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below.
Named Insured: Santa Ana Creek Development Co. dba Mark Company Endorsement Effective Date: 12/01/2022
SCHEDULE
Name(s) Of Person(s) Or Organization(s):
Where Required By Written Contract.
Information recuired to complete this Schedule, if not shown above, will be shown in the Declarations.
The following is added to Item 5. — "Other
Insurance" of Item B. — "General Conditions" under
Section IV — "Business Auto Conditions":
e. Regardless of the provisions of Paragraph 5.a.
through d. above, for any liability arising out of the
ownership, maintenance, use, rental, lease, loan, hire
or borrowing by an "insured" of a covered "auto" for
which an "insured" is contractually obligated to
provide primary insurance coverage to a client, this
Coverage Form will be primary and non-contributory
with respect to the Persons or Organizations in the
schedule, regardless of the availability or existence of other collectible insurance under any other Coverage
Form or policy that applies on a primary basis.
16-02-0316 Ed. 10 14 Page 1 of 1
Workers' Compensation and Employers' Liability Policy
Named Insured
Santa Ana Creek Development Co. dba: Mark Company
Po icy Number
54309584
Policy Period
12/01/2022 to 12/01/2023
Effective Date of
Endorsement 12/01/2022
Issued By (Name of Insurance Company)
FEDERAL INSURANCE COMPANY
Insert the policy number. The remainder of the information is to be completed only when this endorsement is issued subsequent to the preparation of the policy.
CALIFORNIA WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement applies only to the insurance provided by the policy because California is shown in Item 3.A. of the Information Page.
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule, where you are required by a written contract to obtain this waiver from us.
You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule.
Schedule
1. ( ) Specific Waiver
Name of person or organization:
( X ) Blanket Waiver
Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver.
2. Operations:
ALL
3. Premium:
The premium charge for this endorsement shall be 1% percent of the California premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described.
4. Minimum Premium: $0
WC 90 03 75 (05/18)
Starr Indemnity & Liability Company
Dallas, TX 1-866-519-2522
Primary and Non-contributory, Additional Insured and
Waiver of Subrogation
Policy Number: 1000066364211 Effective Date: 12/01/2021 at 12:01 A.M.
Named Insured: Santa Ana Creek Development dba: Mark Company This endorsement modifies the insurance coverage form(s) listed below that have been purchased by you and evidenced as such on the Declarations page. Please read the endorsement and respective policy(ies) carefully.
Commercial General Liability Coverage Form
Owners and Contractors Protective Liability Coverage form Products/Completed Operations Liability Coverage Form
Contractors Pollution Liability Coverage Form
Professional Liability Coverage Form
Site Pollution Liability Coverage Form
SCHEDULE
All as required by written, signed or executed contract.
A. SECTION II - WHO IS AN INSURED is amended to include as an insured the person or organization shown in the schedule of this endorsement, but only with respect to liability arising out of "your work" for that insured by or for you.
B. As respects additional insureds as defined above, this insurance also applies to "bodily injury" or "property damage" arising out of your negligence when the following written contract requirements are applicable:
1. Coverage available under this coverage part shall apply as primary insurance. Any other insurance available to these additional insured's shall apply as excess and not contribute as primary to the insurance afforded by this endorsement.
2. We waive any right of recovery we may have against these additional insured's because of payments we make for injury or damage arising out of "your work" done under a written contract with the additional insured.
3. The term insured is used separately and not collectively, but the inclusion of more than one insured shall not increase the limits or coverage provided by this insurance.
Insureds and Agents are advised that certificates of insurance should be used only to provide evidence of insurance in lieu of an actual copy of the applicable insurance policy. Certificates should not be used to amend, expand or otherwise alter the terms of the actual policy.
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.
OG - 023 (06/11) Page 1 of 2
Copyright © C. V. Starr & Company and Starr Indemnity & Liability Company. All rights reserved.
Includes copyrighted material of ISO Properties, Inc., used with its permission.
Steve Blakey. President
Starr Indemnity & Liability Company
Dallas, TX 1-866-519-2522
Signed for STARR INDEMNITY & LIABILITY COMPANY
Nehemiah E. Ginsburg. General Counsel
OG - 023 (06/11) Page 2 of 2
Copyright © C. V. Starr & Company and Starr Indemnity & Liability Company. All rights reserved.
Includes copyrighted material of ISO Properties, Inc., used with its permission.
TO:
VIA:
FROM:
DATE:
SUBJECT:
Placentia Cit Council
GENDA REPORT
CITY COUNCIL
CITY ADMINISTRATOR
DEPUTY CITY ADMINISTRATOR / PUBLIC SERVICES & INFRASTRUCTURE JULY 25, 2023
APPROVAL OF PLANS & SPECIFICATIONS AND AWARD OF CONSTRUCTION CONTRACT TO PCN3, INC., FOR PHASE II CONSTRUCTION OF THE PLACENTIA PUBLIC SAFETY CENTER PROJECT NO. 5213
FISCAL
IMPACT: EXPENSE: $ 9,888,000
$ 988,000
$10,876,000
SUMMARY:
TOTAL CONSTRUCTION CONTRACT AMOUNT
TOTAL CONSTRUCTION CONTINGENCY AMOUNT
TOTAL AMOUNT
AVAILABLE
BUDGET: $21,616,963 FISCAL YEAR 2023-24 CIP BUDGET
The City has broken ground on the Placentia Public Safety Center which is being delivered in two separate project phases. The project was phased in order to advance construction of the new police evidence and storage space ahead of the main building to expedite completion of that portion of the project before the lease expires on the existing rented facility. Phase I construction activities have been completed and the assembly of the Butler Building is underway. Phase II of this project entails construction of the main building where the new 911 emergency communications center will be housed along with a new shooting range, a new EOC/training room along with associated office and workspaces, restrooms and locker rooms.
On March 7, 2023, the City Council rejected all bids received for Phase II of this project and authorized Staff to solicit new bids from prequalified contractors. On April 11, 2023, a total of four (4) contractors submitted bids with the low bid submitted by PCN3, Inc. After a careful review of PCN's bid and references it was determined that PCN3 submitted the lowest responsive, responsible bid. Staff recommends awarding a construction contract in the amount of $9,888,000 to PCN3, Inc. to complete Phase II of the Placentia Public Safety Center.
RECOMMENDATION:
It is recommended that the City Council take the following actions:
1. Approve the engineered and architectural construction plans & specifications prepared by PBK Architects, Inc., and approve a Public Works Agreement with PCN3 Inc. for the construction of Phase II of the Placentia Public Safety Center in the amount of $9,888,000; and
1.j.
July 25, 2023
City Council Agenda
July 25, 2023
2. Reject all other bids received and authorize return of the bid bonds; and
3. Authorize the City Administrator to approve contract change orders up to ten percent (10%) of the contract amount, or $988,000 for a total construction contract not -to - exceed amount of $10,876,000; and
4. Adopt Resolution No. R-2023-70, A Resolution of the City Council of the City of Placentia, California authorizing a budget amendment in Fiscal Year 2023-24 in compliance with City Charter of the City of Placentia §§1206 and §§1209 pertaining to appropriations for actual expenditures; and
5. Authorize the City Administrator and/or his designee to execute all agreements in a form approved by the City Attorney.
STRATEGIC PLAN STATEMENT:
This item conforms to Strategic Plan Goal 5, Implement Public Infrastructure to Meet Community Needs, and Objective 5.4, Construct the Placentia Public Safety Center.
DISCUSSION:
On March 1, 2022, the City Council selected a preferred project alternative for the Placentia Public Safety Center and directed Staff to finalize the construction drawings and bid documents to construct the Placentia Public Safety Center. The new 18,805 square foot facility, which consists of two phases will house the Police Department's evidence and property storage operations (Phase I) as well as a new public safety communications center and emergency operations and training center and shooting range (Phase II). The City currently leases a light industrial/commercial building for property and evidence storage. The new facility will consist of a manufactured steel Butler Building that will be used for property and evidence storage and the main building that includes the shooting range which will be constructed with CMU block. Since the City's lease for its existing property and evidence building is set to expire in December 2023, the project is being phased to allow the construction of the Butler Building to proceed first so that it can be completed prior to the expiration of the City's current lease. Phase I construction has been completed and entailed the demolition, grading, subsurface utility work, and the footings and slab for the Butler Building. Phase II construction entails the construction of the main building and shooting range. On April 11, 2023, the City received four (4) bids to construct Phase II. The following table provides the total bid amounts received from each contractor:
Contractor
Bid Amount
PCN3, INC
$9,888,000.00
Woodcliff Corporation
$10,133,000.00
Macro -Z -Technology Company
$10,778,000.00
AMG & Associates, Inc.
$10,788,000.00
City Council Agenda
July 25, 2023
After a thorough review of the bid proposals received, it was determined that PCN3 submitted the lowest responsive, responsible bid. Both Macro -Z and Woodcliff Corp submitted bid protests; however, after careful review and consideration, Staff determined that the protests were without merit. Based upon PCN3's reference check and submitted bid, Staff recommends awarding a construction contract to PCN3 for Phase II of the Public Safety Center Project.
FISCAL IMPACT
The total construction cost for Phase II of the project amounts to $10,876,000. This cost consists of the bid amount submitted by PCN3 in the amount of $9,888,000, and a construction contingency in the amount of $988,000. Budget Amendment R-2023-70 is presented for the City Council's consideration to allocate the additional funds previously approved by the City Council on July 11th as part of the restructuring of the financing package for this project. Accordingly, sufficient funds exist for the recommended actions.
Prepared
Reviewed and approved:
Luis Estevez Jennifer Lampman
Deputy City Administrator Director of Finance
Reviewed and approved:
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Dami n R. Arrula €�
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City Administrator
Attachments:
1. Public Works Agreement with PCN3, Inc.
2. Budget Amendment R-2023-70
Project No. 5213
CITY OF PLACENTIA
PUBLIC WORKS AGREEMENT FOR
PCN3, INC
THIS AGREEMENT (herein "Agreement"), is made and entered into this 25th day of July, 2023 by and between the CITY OF PLACENTIA, a municipal corporation and charter city, (herein "City") and PCN3, INC. (herein "Contractor"). The parties hereto agree as follows:
WITNESSETH:
A. WHEREAS, City requires the construction of Placentia Public Safety Center Project — Phase 2 as set forth more fully in this Agreement.
B. WHEREAS, Contractor represents to City that Contractor is qualified to perform said work and has submitted a proposal to City for the same.
C. WHEREAS, City desires to have Contractor perform said services on the terms and conditions set forth herein.
D. WHEREAS, no official or employee of City has a financial interest, within the provisions of Sections 1050-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, City and Contractor hereby agree as follows:
1.0 DEFINITIONS
1.1 Definitions. As used in this Agreement, the following definitions shall be applicable:
(a) Contractor. Contractor shall mean PCN3, Inc. a California corporation, located at 11082 Winners Circle, Unit B Los Alamitos, CA 90702
(b) City. City shall mean the City of Placentia, a Municipal Corporation and Charter City, located at 401 E. Chapman, Placentia, California 92870.
(c) City Council. City Council shall mean the City Council of the City of Placentia.
(d) Contract Officer shall mean the person designated by the City Administrator or City Engineer of City and shall have the duties set forth in Section 5.2.
(e) Services. Services shall mean the services to be performed by the Contractor pursuant to this Agreement.
1 Project No. 521.3
(f) Satisfactory. Satisfactory shall mean satisfactory to the City Administrator or his/her designee.
2.0 SERVICES OF CONTRACTOR
2.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended.
2.2 Documents Included in Contract. This contract consists of this Agreement and any Exhibits, which are incorporated herein by this reference. In the event of an inconsistency, the terms of this Agreement shall govern.
2.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered, including but not limited to, the claims procedure set forth in Public Contract Code Section 9204, a summary of which is attached to this agreement as Exhibit "E."
2.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement, including registration with the Department of Industrial Relations of the State of California as required by Labor Code Section 1725.5 before commencing performance under this Agreement. Contractor shall have the sole obligation to pay for any fees. assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments; taxes penalties or interest levied, assessed or imposed against City hereunder.
Contractor shall be responsible for all subcontractors' compliance with this Section 2.4.
2.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed. (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer.
2 Project No. 5213
2.6 Standard of Performance. Contractor, its subcontractors and theft employees, in the performance of Contractor's work under this Agreement shall be responsible for exercising the degree of skill and care required by customarily accepted good professional practices and procedures used in the Contractor's field.
Any costs for failure to meet the foregoing standard or to correct otherwise defective work that requires re -performance of the work, shall be borne in total by the Contractor and not by the City. The failure of a project to achieve the performance goals and objectives stated in this Agreement is not a basis for requesting re -performance unless the work conducted by Contractor and/or its subcontractors is deemed by the City to have failed the foregoing standard of performance.
In the event Contractor fails to perform in accordance with the above standard:
Contractor will re -perform, at its own expense, any task which was not performed to the reasonable satisfaction of City. Any work re -performed pursuant to this paragraph shall be completed within the time limitations originally set forth for the specific task involved.
Contractor shall work any overtime required to meet the deadline for the task at no additional cost to the City;
2. The City shall provide a new schedule for the re -performance of any task pursuant to this paragraph in the event that re -performance of a task within the original time limitations is not feasible; and
3. The City shall have the option to direct Contractor not to re -perform any task which was not performed to the reasonable satisfaction of the City Project Manager pursuant to application of (1) and (2) above. In the event the City directs Contractor not to re - perform a task, the City shall negotiate a reasonable settlement for satisfactory work performed. No previous payment shall be considered a waiver of the City's right to reimbursement.
Nothing contained in this section is intended to limit any of the rights or remedies which the City may have under law.
2.7 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence.
2.8 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. Contractor shall require all subcontractors to comply with the provisions of this agreement.
2.9 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to 3 Project No. 5213
the Contractor, incorporating therein any adjustment in (i) the Contract Sum as set forth in Section
3.1, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of twenty five percent (25%) or less of the Contract Sum, or in the time to perform of one hundred eighty (180) days or less may be approved by the Contract Officer. Any increases, taken either separately or cumulatively, that result in the Contract Sum exceeding $25,000 must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore.
2.10 Prevailing Wage Laws. Contractor represents and warrants that it is registered with the Department of Industrial Relations pursuant to SB 854 and Labor Code 1725.5.
Contractor shall ensure that its subcontractors comply with said requirements. In accordance with Labor Code Section 1770 et seq., the Director of the Department of Industrial Relations of the State of California has ascertained a general prevailing rate of wages, which is the minimum amount, which shall be paid to all workers employed to perform the work pursuant to this Agreement. A copy of the general prevailing wage rate determination is on file in the Office of the City Clerk and is hereby incorporated by reference into this Agreement. In accordance with the provisions of Labor Code Section 1810 et seq., eight (8) hours is the legal working day. Contractor must forfeit to the City Twenty Five Dollars ($25.00) a day for each worker who works in excess of the minimum working hours when Contractor does not pay overtime. Contractor is required to post a copy of such wage rates at all times at the contract site. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced. Contractor also shall comply with State law requirements to maintain payroll records and shall provide for certified records and inspection of records as required by California Labor Code Section 1770 et. seq., including Section 1776. Contractor shall comply with all statutory requirements relating to the employment of apprentices.
3.0 COMPENSATION
3.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated as specified herein, but not exceeding the maximum contract amount of Nine Million Eight Hundred Eighty Eight Thousand Dollars ($9,888,000) (herein "Contract Sum"), except as provided in Section 2.9. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings.
3.2 Procress Payments. Prior to the first day of the month, during the progress of the work, commencing on the day and month specified in the Agreement, Contractor shall submit to the Contract Officer a complete itemized statement of all labor and materials incorporated into the work during the preceding month and the portion of the contract sure applicable thereto. Upon approval in writing by the Contract Officer, payment shall be made in thirty (30) days. City shall pay Contractor a sum based upon ninety-five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security. Refer to Section 8.4 of this Agreement for retention of funds.
4 Project No. 5213
4.0 PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "B", and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Scope of Services may be approved in writing by the Contract Officer.
4.3 Force Maieure. The time period(s) specified in the Scope of Services for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes for the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 8.9 of this Agreement, this Agreement shall continue in full force and effect until final approval and acceptance of the project by the Contract Officer. Notwithstanding the foregoing, this Agreement shall terminate no later than July 25, 2025, unless the parties mutually agree in writing to extend the term.
5.0 COORDINATION OF WORK
5.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Brian Abghari, President
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder.
For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.
5.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Administrator or City Engineer of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services 5 Project No. 5213
and the Contractor shall refer any decisions that must be made by City to the Contract Officer.
Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
5.3 Prohibition Acainst Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Neither this Agreement nor any interest herein may be transferred. assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
5.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its subcontractors, agents or employees, performs the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, subcontractors, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its subcontractors, agents or employees are agents or employees of City.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venture or a member of any joint enterprise with Contractor.
5.5 Identity of Persons Performing Work. Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services set forth herein. Contractor represents that the tasks and services required herein will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services.
5.6 Utility Relocation. City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse contractor for any costs incurred in locating, repairing damage not caused by contractor and removing or relocating such unidentified utility facilities, including equipment idled during such work. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
5.7 Trenches or Excavations. Pursuant to California Public Contract Code Section 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply.
(a)
Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 6 Project No. 5213
25117 of the Health and Safety Code, that is required to be removed to a Class I, Class I I, or Class I I I disposal site in accordance with provisions of existing law; (2) Subsurface or latent physical conditions at the site different from those indicated; or (3) Unknown physical conditions at the site of any unusual nature. different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the contract.
(b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work shall issue a change order per Section 2.9 of this Agreement.
(c) That, in the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused form any scheduled completion date provided for by the contract, but shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting parties.
6.0 INSURANCE, INDEMNIFICATION AND BONDS
6.1 Insurance. The Contractor and all subcontractors, if any, shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, insurance as set forth in Exhibit "C" attached hereto and incorporated herein by this reference.
Conditions:
In accordance with Public Contract Code Section 20170, the insurance of surety companies who provide or issue the policy shall have been admitted to do business in the State of California with a credit rating of A- or better.
This insurance shall not be canceled, limited in scope or coverage or non -renewed until after thirty (30) days prior written notice has been given to the Community Development Director, City of Placentia, 401 E. Chapman Ave., Placentia, California 92870.
Any insurance maintained by the City of Placentia shall apply in excess of and not combined with insurance provided by this policy.
The City of Placentia, its officers, employees, representatives, attorneys: and volunteers shall be named as additional named insureds.
Prior to commencement of any work under this contract, Contractor shall deliver to the City insurance endorsements confirming the existence of the insurance required by this contract, and including the applicable clauses referenced above. 7 Project No. 5213
Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signator's company affiliation and title. Should it be deemed necessary by the City, it shall be Contractor's responsibility to see that the City receives documentation, acceptable to the City, which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company.
If the Contractor fails to maintain the aforementioned insurance, or secure and maintain the aforementioned endorsement, the City may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the agreement. However, procuring of said insurance by the City is an alternative to other remedies the City may have. and is not the exclusive remedy for failure of Contractor to maintain said insurance or secure said endorsement. In addition to any other remedies the City may have upon Contractor's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Contractor to stop work hereunder, and/or withhold any payment(s) which became due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof.
Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractor's performance of the work covered under this agreement.
Each contract between the Contractor and any subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 6.1.
6.2 Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. The certificates of insurance and endorsements shall be attached to this Agreement as Exhibit "D", and are incorporated herein by this reference.
6.3 Indemnification. Contractor shall defend, indemnify, hold free and harmless the City of Placentia, its elected and appointed officials, officers, agents and employees, at Contractor's sole expense, from and against any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising or alleged to arise out of or in connection with the performance of the work, operations or activities of Contractor, its agents; employees, subcontractors, or invitees, provided for herein, or arising or alleged to arise from the negligent acts or omissions of Contractor hereunder, or arising or alleged to arise from Contractor's performance of or failure to perform any term, provision, covenant or condition of this Agreement.
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith. 8 Project No. 5213
(b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising or alleged to arise out of or in connection with Contractor's (or its agents', employees', subcontractors' or invitees') negiigent performance of or failure to perform such work, operations or activities hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom.
(c) In the event the City, its officers. agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising or alleged to arise out of or in connection with the performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor shall pay to the City, its officers. agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees for counsel selected by City. (d) Contractor's duty to defend and indemnify as set out in this Section 6.3 shall include any claims, liabilities, obligations, losses, demands, actions, penalties, suits, costs, expenses or damages or injury to persons or property arising or alleged to arise from, in connection with, as a consequence of or pursuant to any state or federal law or regulation regarding hazardous substances, including but not limited to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Resource Conservation and Recovery Act of 1976 ("RCRA"), the Hazardous and Solid Waste Amendments of 1984, the Hazardous Material Transportation Act, the Toxic Substances control Act, the Clean Air Act, the Clean Water Act, the California Hazardous Substance Account Act, the California Hazardous Waste Control Law or the Porter -Cologne Water Quality Control Act, as any of those statutes may be amended from time to time.
Notwithstanding the foregoing, Contractor shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City.
The Contractor's indemnification obligations pursuant to this Section 6.3 shall survive the termination of this Agreement. Contractor shall require the same indemnification from all subcontractors.
6.4 Labor and Materials and Performance Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City a labor and materials bond and a performance bond each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secures the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 9 Project No. 5213
6.5 Sufficiency of Insurer or Surety. Insurance required by this Agreement shad be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City due to unique circumstances. In the event the Senior Management Analyst of City ("Senior Management Analyst") determines that the work or services to be performed under this Agreement creates an increased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies required by this Section 6 may be changed accordingly upon receipt of written notice from the Senior Management Analyst: provided that the Contractor shall have the right to appeal a determination of increased coverage by the Senior Management Analyst to the City Council of City within ten (10) days of receipt of notice from the Senior Management Analyst.
6.6 Substitution of Securities. Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any monies withheld to ensure performance under the contract for the work to be performed will be permitted at the request and expense of the successful bidder.
7.0 RECORDS AND REPORTS
7.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement.
For this reason, Contractor agrees that if Contractor becomes aware of any facts. circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
7.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records (including but not limited to payroll records as required herein) as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required.
7.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any 10 Project No. 5213
documents or materials prepared by them, and in the event Contractor fails to secure such assignment. Contractor shall indemnify City for all damages resulting therefrom.
7.4 Public Records Act Disclosure. Contractor has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Contractor informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
8.0 GENERAL PROVISIONS
8.1 Governing Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 Representatives. The City Administrator or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
The Principal set forth in Section 5.1 above shall be the representative for Contractor for purposes of this Agreement, and shall be authorized to issue all consents, approvals, directives and agreements on behalf of Contractor called for by this Agreement, except as otherwise expressly provided in this Agreement.
8.3 Disputes. In the event either party fails to perform its obligations hereunder, the nondefaulting party shall provide the defaulting party written notice of such default. The defaulting party shall have ten (10) days to cure the default; provided that, if the default is not reasonably susceptible to being cured within said ten (10) day period, the defaulting party shall have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, so long as the defaulting party commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the defaulting party shall take such immediate action as may be necessary. Notwithstanding the foregoing, the nondefaulting party may, in its sole and absolute discretion, grant a longer cure period. Should the defaulting party fail to cure the default within the time period provided in this Section, the nondefaulting party shall have the right, in addition to any other rights the nondefaulting party may have at law or in equity, to terminate this Agreement. Compliance with the provisions of this Section 8.3 shall be a condition precedent to bringing any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 11 Project No. 5213
8.4 Retention of Funds. Progress payments shall be made in accordance with the provisions of Section 3.2 of this Agreement. In accordance with said section, City shall pay Contractor a sum based upon ninety-five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security to be paid to the Contractor within sixty (60) days after final acceptance of the work by the City Council, after Contractor shall have furnished City with a release of all undisputed contract amounts if required by City. In the event there are any claims specifically excluded by Contractor from the operation of the release, the City may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount in dispute. City's failure to deduct or withhold shall not affect Contractor's obligations hereunder.
8.5 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
8.6 Rights and Remedies. Rights and Remedies are cumulative except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
8.7 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default. to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.8 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City Five Hundred Dollars ($500) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Scope of Services (Exhibit A) or Schedule of Performance (Exhibit B). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages.
8.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, Contractor shall vacate any City owned property which Contractor is permitted to occupy hereunder and City may, after compliance with the provisions of Section 8.3, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated.
12 Project No. 5213
8.10 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the US Mail, prepaid, first-class mail, return receipt requested, addressed as follows:
To City:
To Contractor:
City of Placentia
401 E. Chapman Ave
Placentia, California 92870
Attn: Luis Estevez, Deputy City Administrator
PCN3, INC
Brian Abghari
President
11082 Winner Circle, Unit B
Los Alamitos, California 90720
8.11 Non -liability of City Officers and Employees. No of icer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.12 Conflict of Interest. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Contractor and its officers, employees, associates and subcontractors, if any, will comply with all conflict of interest statutes of the State of California applicable to Contractor's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Contractor and its officers, employees, associates and subcontractor shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Contractor is not currently performing work that would require Contractor or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
8.13 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors. assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. To the extent required by law. contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin. or ancestry.
8.14 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
13 Project No. 5213
8.15 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
8.16 Hiring of Illegal Aliens Prohibited. Contractor shall not hire or employ any person to perform work within the City of Placentia or allow any person to perform work required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Further, Contractor shall comply with the following:
(a) Unauthorized Aliens. Contractor hereby represents and warrants that it will comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of any work and/or services under this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to reimburse City for any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements. damages, demands, orders, or penalties which arise out of or are related to such employment, together with any and all costs, including attorneys' fees, incurred by City.
(b) E-Verifv. If Contractor is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Contractor shall enroll in the E - Verify program within fifteen (15) days of the effective date of this Agreement to verify the employment authorization of employees assigned to perform work hereunder. Contractor shall verify employment authorization within three (3) days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov , or access the registration page at https://e- verify.uscis.gov/enroll. Contractor shall certify its registration with E -Verify and provide City its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated.
8.17 Unfair Business Practices Claims. In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract. the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C.
Sec. 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body renders final payment to the contractor without further acknowledgment by the parties. (Sec. 7103.5, California Public Contract Code).
14 Project No. 5213
8.18 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement. such party is formally bound to the provisions of this Agreement. and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound.
8.19 PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors. as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
8.20 Cooperation. In the event any claim or action is brought against City relating to Contractor's performance or services rendered under this Agreement, Contractor shall render any reasonable assistance and cooperation which City might require.
8.21 Lecal Responsibilities. The Contractor shall keep itself informed of City, State, and Federal laws, ordinances and regulations, which may in any manner affect the performance of its services pursuant to this Agreement. The Contractor shall at all times observe and comply with all such laws, ordinances and regulations. Neither the City, nor its officers, agents, or employees shall be liable at law or in equity as a result of the Contractor's failure to comply with this section.
8.22 Termination for Convenience. The City may terminate this Agreement without cause for convenience of the City upon giving contractor 30 days prior written notice of termination of the Agreement. Upon receipt of the notice of termination the Contractor shall cease all further work pursuant to the Agreement. Upon such termination by the City the Contractor shall not be entitled to any other remedies, claims, actions, profits, or damages except as provided in this paragraph. Upon the receipt of such notice of termination Contractor shall be entitled to the following compensation:
1. The contract value of the work completed to and including the date of receipt of the notice of termination, less the amount of progress payments received by contractor.
2. Actual move -off costs including labor, rental fees, equipment transportation costs, the costs of maintaining on -site construction office for supervising the mover -off. 15 Project No, 5213
3. The cost of materials custom made for this Agreement which cannot be used by the Contractor in the normal course of his business, and which have not been paid for by City in progress payments.
4. All costs shall not include any markups as might otherwise be allowed by any plans or specifications which were a part of the Agreement.
The provisions of this paragraph shall supersede any other provision of the Agreement or any provision of any plans, specification, addendums or other documents which are or may become a part of this Agreement. City and Contractor agree that the provisions of this paragraph are a substantive part of the consideration for this Agreement.
8.23 Responsibility for Errors. Contractor shall be responsible for its work and results under this Agreement. Contractor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Contractor occurs, then Contractor shall, at no cost to City, provide all necessary design drawings, estimates and other Contractor professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.
8.24 Order of Precedence. In the event of an inconsistency it this Agreement and any of the attached Exhibits. the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
8.25 Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
8.26 No Third Party Beneficiary Richts. This Agreement is entered into for the sole benefit of City and Contractor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
8.27 Headincs. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
8.28 Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
8.29 Counterparts. This Agreement may be executed in one or more counterparts, 16 Project No. 5213
each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
8.30 Funding Source Conditions — Contractor's Oblication. Contractor acknowledges that the City may be paying for the Project by using funds it receives or will receive from various funding sources in the form of grants and/or subsidies, and the like under certain terms and conditions. Contractor acknowledges and agrees that any failure of the Contractor and/or its subcontractors to perform its obligations under the Contract, including, but not limited to, timely submitting accurate reports and records. that in any way results in the City not meeting the terms and conditions placed on the funds by the funding source, or forfeiting its entitlement to or, otherwise, not receiving, the funds, then the Contractor shall be liable to pay the City for the funds not granted to the City on the Project.
8.31 Entire Acreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above.
ATTEST:
CITY OF PLACENTIA,
A municipal corporation and Charter City
Date:
Damien R. Arrula, City Administrator
ATTEST:
Robert S. McKinnell, City Clerk
APPROVED AS TO FORM:
CONTRACTOR
619/2 02 3
Date:
Signature
Brian Abghari, President
Name and Title
17 Project No. 5213
95-4738509
Social Security or Taxpayer ID Number
Date:
Christian L. Bettenhausen, City Attorney
APPROVED AS TO INSURANCE:
Date:
Rosanna Ramirez, Deputy City Administrator
APPROVED AS TO CONTENT:
Luis fsfwut"y
Luis Estevez, Deputy City Administrator
DEPARTMENTAL APPROVAL
()xis f S6tA)
Luis Estevez, Deputy City Administrator
18 Date
Date:
7/20/2023
7/20/2023
CITY OF PLACENTIA
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENT: That,
BOND NUMBER: 602-' 30095-1
BOND PREMIUM: $71 355.00
BOND EXECUTED IN TRIPLICATE
PREMIUM IS FOR THE. CONTRACT TERM
AND IS SUBJECT TO ADJUSTMENT
BASED ON FINAL CONTRACT PRICE
WHEREAS, the CITY OF PLACENTIA (hereinafter called the "City") has awarded to PCN3, Inc. a California corporation (hereinafter "Principal"), an Agreement, dated June 6 , 2Q23 ("Agreement") whereby Principal agreed to provide construction services including Placentia Public Safety Center Project Phase 2 WHEREAS, the Public Work to be performed by the Principal is more particularly set forth in the Agreement which is incorporated herein by reference and made a part hereof; and WHEREAS, said Principal is required under the terms of the Agreement to furnish a bond for the faithful performance of the Agreement;
NOW, THEREFORE, we, PCN3, Inc. as Principal, and United Stales Fire Insurance Company as Surety, are held and firmly bound unto the City in the Sum of Nine Million Eight Hundred Eighty Eight Thousand & 00/100 Dollars ($ 9.888,000.00 ) this amount being not less than one hundred percent (l00%) of the total contract price under Agreement, lawful money of the United States of America for payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, the obligation shall become null and void if the above -bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by well and truly keep and perform all the undertakings, terms, covenants, conditions, and agreements in the said Agreement and any alteration thereof, made as therein provided, all within the time and in the manner therein designated and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officer, agents and employees, as therein stipulated; otherwise it shall be and remain in full force and virtue.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable attorneys' fees. incurred in successfully enforcing the obligation on the bond, all to be taxed as costs and included in any judgment rendered.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or modification of the Agreement, the contract documents or of the work to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extensions of time, alteration or modification of Agreement, the contract documents or of the work to be performed thereunder.
Surety's obligation shall be a guarantee of payment and performance and shall not be diminished by any bankruptcy or reorganization in bankruptcy or liquidation or the result of the foregoing or otherwise of Principal. Accordingly, the filing of any petition in bankruptcy or for rearrangement or reorganization or liquidation (or proceedings similar in purpose or effect) of Principal under any federal or state laws ("Insolvency Case") will not toll or delay the date due for payment or performance hereunder as more particularly specified in of the Construction Management Agreement. The City shall be not be required to await the outcome of an Insolvency Case or to enforce any of their respective rights under the Agreement, respectively, prior to obtaining payment in full from Surety. If for any reason payment received by the City in respect of the obligations of the Principal under the Agreement guaranteed pursuant to this bond is rescinded or must be returned or restored by the City, this bond shall be automatically reinstated and shall continue to be in effect as if such payment had not been made.
Collection of liquidated damages by City due to Principal's failure to timely achieve Substantial Completion shall not limit, modify, or act as an offset or credit against Surety's obligation to arrange for or cause the completion of the Public Work as and when required by the Agreement.
IN WITNESS WHEREOF three (3) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety named herein, on the 6th day of June , 20 23 , the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.
(Sea!)
SURETY United States Fire Insurance Company
y )
By
Terah Lane, Attorney -In -Fact
305 Madison Avenue
(Seal)
PRINCIPAL PCN3, Inc.
By X
X
11082 Winners Circle
/3/IPA 4J?, OfJ) P./c.\i,
Ie1, Secrc. t
Morristown, NJ 07960 Los Alamitos, CA 90720
ADDRESS
APPROVED:
from all
CITY ATTORNEY
INSTRUCTIONS
ADDRESS
Two (2) Notarized Signatures required
Corporations.
l . The above bond must be executed by both the Principal and the Surety.
2. If the Principal is a corporation, the bond must be executed in the corporate name and signed by the President or a Vice -President and the Secretary or Assistant Secretary, and the corporate seal affixed.
If the Principal is a partnership, all partners must sign it. If the Principal is an individual doing business under a fictitious name, it must be signed by all persons having an interest in the business, and the fictitious name must be signed also. The bond must be notarized by both the Principal and the Surety.
3. The City Attorney of the City of Placentia must approve the bond.
4. The bond, after approval, must be filed with the City Clerk of the City of Placentia.
CALIFORNIA ACKNOWLEDGMENT
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CIVIL CODE § 1189
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Orange
On
Dote
personally appeared
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before me, Portia C. Moore. notary public
Here Insert Name and Title of the Officer
Brian Aoghari
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
POR T IA C,. MOORE��
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Notary Pu`aic • Callfnrnia o
/ Los Anceies County
My Comm. Expires Jan. 27, 2025
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Place Notary Seal and/or Stamp Above
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
OPTIONAL
T O
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Signature of Notary Public
Completing this information can deter alteration of the document or fraudulent reattachment of this form to on unintended document.
Description of Attached Document
Title or Type of Document: L\ ' �, LC- \ C x t
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Document Date: , ), :x r� _" t; s: Z_ i .�� Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Brian Abghari
j Corporate Officer — Title(s): ?resicent �x (r ,1}\ ❑
❑ Partner — ❑ Limited ❑ General O❑
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
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Signer's Name:
Corporate Officer — Title(s):
Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
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Signer is Representing: Signer is Representing:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness. accuracy, or validity of that document.
State of California
County of Orange )
On
before me.
Vanessa Copeland Notary Public.
personally appeared Terah Lane
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/the- executed the same in his/her/their authorized capacity(ics), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
VANESSA COPELAND
Notary Public - California
Orange County
Commission N 2424393 —
My Comm. Expires Oct 31, 2026
Place Notary Seal Above
--------- ------- -------------------------- ---------- OPTIONAL -------------------------------------------------------- Though the information below is not required by law. it may prove valuable to persons relying on the document and could present fraudulent and reattachment of this form to another document.
Description of Attached Document
1 certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is tnie and correct.
WITNESS my hand and official seal.
)
Sigiurtrre orNotary Public
Signature:
I
Type or Title of Document:
Document Date:
Signer(s) Other Than Named Above: _
Capacity(ies) Claimed by Signer(s)
Signer's Name: Terah Lane
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner: ❑Limited ❑ General
❑ Attorney in Fact
E Trustee
❑ Guardian or Conservator
E Other:
Number of Pages:
Signer Is Representing:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
E Individual
E Corporate Officer — Title(s):
❑ Partner: ❑Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Rev. 1-15
POWER OF ATTORNEY
UNITED STATES FIRE INSURANCE COMPANY
PRINCIPAL OFFICE - MORRISTOWN, NEW JERSEY
01016
KNOW ALL MEN BY THESE PRESENTS: That United States Fire Insurance Company. a corporation duly organized and existing under the laws of the state of Delaware. has made. constituted and appointed. and does hereby make. constitute and appoint:
Eric Lowey. Mark Richardson, Vanesa Copeland. Kevin Cathcart. Lisa Pellerito. Terah Lane each. its true and lawful Attorney(s)-in-Fact. with full power and authority hereby conferred in its name. place and stead. to execute. acknowledge and deliver: Any and all bonds and undertakings of surety and other documents that the ordinary course of surety business may require. and to bind United States Fire Insurance Company thereby as fully and to the same extent as if such bonds or undertakings had been duly executed and acknowledged by the regularly elected officers of United States Fire Insurance Company at its principal office. in amounts or penalties: Fifty Million Dollars (S50,000,000).
This Power of Attorney limits the act of those named therein to the bonds and undertakings specifically named therein. and they have no authority to bind United States Fire Insurance Company except in the manner and to the extent therein stated.
This Power of Attorney is granted pursuant to Article 1V of the 13y -Laws of United States Fire Insurance Company as now in full force and effect, and consistent with Article III thereof. which Articles provide, in pertinent part:
Article IV. Execution of Instruments - Except as the Board of Directors may authorize by resolution. the Chairman of the Board. President. any Vice -President. any Assistant Vice President. the Secretary, or any Assistant Secretary shall have power on behalf of the Corporation:
(a) to execute, affix the corporate seal manually or by facsimile to. acknowledge. verify and deliver any contracts, obligations, instruments and documents whatsoever in connection with its business including. without limiting the foregoing. any bonds. guarantees. undertakings, recognizances, powers of attorney or revocations of any powers of attorney. stipulations. policies of insurance. deeds. leases. mortgages. releases. satisfactions and agency agreements:
(b) to appoint. in writing, one or more persons for any or all of the purposes mentioned in the preceding paragraph (a). including affixing the seal of the Corporation.
Article III. Officers, Section 3.1 I. Facsimile Signatures. The signature of any officer authorized by the Corporation to sign any bonds. guarantees. undertakings, recognizances. stipulations. powers of attorney or revocations of any powers of attorney and policies of insurance issued by the Corporation may he printed, facsimile, lithographed or otherwise produced. In addition_ if and as authorized by the Board of Directors, dividend warrants or checks. or other numerous instruments similar to one another in form, may be signed by the facsimile signature or signatures. lithographed or otherwise produced, ol'such officer or officers of the Corporation as from time to time may he authorized to sign such instruments on behalf of the Corporation. The Corporation may continue to use for the purposes herein stated the facsimile signature of any person or persons who shall have been such officer or officers of the Corporation. notwithstanding the fact that he may have ceased to be such at the time when such instruments shall be issued.
IN WITNESS WHEREOF, United States Fire Insurance Company has caused these presents to be signed and attested by its appropriate officer and its corporate seal hereunto affixed this 28th day of September, 2021.
UNITED STATES FIRE INSURANCE COMPANY
Matthew E. Lubin, President
State of New Jersey).
County of Morris ;
On this 28th day of September. 2021, before me. a Notary public of the State ofNew Jersey. came the above named officer of United States Fire Insurance Company. to me personally known to be the individual and officer described herein. and acknowledged that he executed the foregoing instrument and affixed the seal of United States Fire Insurance Company thereto by the authority of his office.
MELISSA H. D'ALESSIO
NOTARY FILM OF Neil JERSEY
Cematiaclon 0 5012: 33
My E;,;t 417171O5
'0161)44-,14 tott .6,-
Melissa H. D'Alessio (Notary Public)
L the undersigned officer of United States Fire Insurance Company. a Delaware corporation. do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy is still in force and effect and has not ben revoked.
IN WITNESS WHEREOF. 1 have hereunto set my hand and affixed the corporate seal of United States Fire Insurance Company on the 6th day of June zo 23
UNITED STATES FIRE INSURANCE COMPANY
/r l flu- (1.)---4-47-'
Michael C. Fay, Senior Vice President
Project No. 5213
BOND NUMBER: 602-130095-1
BOND PREMIUM: INCLUDED IN PERFORMANCE BOND
BOND EXECUTED IN TRIPLICATE
PREMIUM IS FOR THE CONTRACT TERM AND IS
SUBJECT TO ADJUSTMENT BASED ON FINAL
CONTRACT PRICE
(Use of City Bond Form is Required)
LABOR AND MATERIAL PAYMENT BOND
PUBLIC WORK (CALIFORNIA)
KNOW ALL MEN BY THESE PRESENT:
WHEREAS, PCN3, Inc. , as Principal, has
entered into a contract dated June 6, 2023 , with the City of Placentia (Obligee) referred to and made a part hereof to perform the following work, to wit: Placentia Public Safety Center Project Phase 2 and all appurtenant work in accordance with PROJECT NO. 5213 which requires Principal to file this bond to secure claims made in relation to the project.
NOW THEREFORE, we, PCN3, Inc. , as Principal,
and United States Fire Insurance Company , a corporation organized under the laws of Delaware and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of Placentia, as Obligee, and all sub- contractors, laborers, material persons and other persons employed in the performance of the referenced agreement, in the sum of Nine Million Eight Hundred Eighty Eight Thousand & 00/100 Dollars '$ 9,888,000 .00), lawful money of the United States of America, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
If the above bounden PRINCIPAL, his or its heirs, executors, administrators, successors, assigns, or any of his or its sub -contractors, fails to pay for any materials, provisions, provender, or other supplies, or teams, implements or machinery, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor to persons named in Section 9100 or the Civil Code, thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor deducted, withheld and paid over to the Employment Development Department from the wages of employees of the contractor and sub -contractors pursuant to Section 13020 of the Unemployment Insurance Code, that the SURETY on this bond will pay the same, in an amount not exceeding the sum specified in this bond, AND ALSO, in case suit is brought upon this bond, a reasonable attorney's fee, which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment herein rendered.
As part of the obligation secured hereby, the SURETY shall not be exonerated or released from the obligation of the bond by any change, alteration, or modification in or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement or pertaining or relating to the furnishing of labor, materials, or equipment therefor, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme of work of improvement, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under
Project No. 5213
any such contract or agreement, or under the bond, nor, where the bond is given for the benefit of claimants, by any fraud practiced by any person other than the claimant seeking to recover on the bond.
This bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under the Civil Code so as to give them a right of action in a suit on this bond.
This bond is executed for the purpose of complying with the laws of the State of California and shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code of the State of California.
IN WITNESS THEREOF, we have hereunto set our hands and seals this 6th day of June 20 23,
(Corporate Seal)
(Corporate Seal)
APPROVED AS TO FORM:
/s/ Christian L. Bettenhausen
City Attorney
PCN3, Inc.
Principal
By
Title
/tics /4 Sec CC. Z`elp
United States Fire Insurance Company
Principal
,
Terah Lane, Attorney -In -Fact
Title
CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189
t tatoa03sc -04,44-n. 4,u4a0irtkotsAkooa0asta144ia0**spa a+144facotioF mEa 0oOtt 0st0yr3o 0*044t*a ►4444 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Orange
On ) \�� `-;t C2,'7,�
Date
personally appeared
1 before me, Portia C. Moore, notary public
Here Insert Name and Title of the Officer
Brian Abghari
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
COMM. #2343877 z
War: Public California 0
Los Angeles County 1
My Comm. Expires Jan, 27, 202.5_1
Place Notary Seal and/or Stamp Above
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Signature of Notary Public
OPTIONAL
Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: =,ti';ti` t C,r-1C1 YYY ' %/ is)..V) \� t : ice', ;1 �C l t ->> ��►..,� _ _r
Document Date: 1. \.„\Y-1<.. t � ,' �� - ? 1 Number of Pages:
Signer(s) Other Than Named Above:
Ca pacity(ies) Claimed by Sig ner(s)
Signer's Name: Brian Abqhari
J Corporate Officer — Title(s): Pres.cen'
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
©2019 National Notary Association
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document.
State of California
County of Orange
On C() 3
before me.
Vanessa Copeland , Notary Public,
personally appeared Terah Lane
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/thcr executed the same in his/her/their authorized capacity(res), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instnument.
VANESSA COPELAND
Notary Public - California
Orange County
• ;F' Commission M 2424393
My Comm. Expires Oct 31, 2026
Place Notary Seal Above
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS
Signature:' _
OPTIONAL
my hand and official seal.
Though the information below is not required by law, it may prove valuable to persons relying on the document and could present fraudulent and reattachment of this form to another document.
Description of Attached Document
Type or Title of Document:
Document Date:
Signer(s) Other Than Named Above: _
Capacity(ies) Claimed by Signer(s)
Signer's Name: Terah Lane
❑ Individual
D Corporate Officer — Title(s):
Number of Pages:
❑ Partner: ELimited ❑ General
❑ Attorney in Fact
❑ Tnistee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Capacity(ies) Claimed by Signer(s)
Signers Name:
❑ individual
❑ Corporate Officer — Title(s):
❑ Partner: ['Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Rev. 1-15
POWER OF ATTORNEY
UNITED STATES FIRE INSURANCE COMPANY
PRINCIPAL OFFICE-MORRISTOWN, NEW JERSEY
01016
KNOW ALL MEN BY THESE PRESENTS: That United States Fire Insurance Company. a corporation duly organized and existing under the laws of the state of Delaware. has made. constituted and appointed. and does hereby make. constitute and appoint:
Eric Lowey. Mark Richardson. Vanesa Copeland, Kevin Cathcart, Lisa Fellerito, Terah Lane each. its true and lawful Attorney(s)-1n-Fact, with full power and authority hereby conferred in its name, place and stead. to execute. acknowledge and deliver: Any and all bonds and undertakings of surety and other documents that the ordinary course of surety business may require. and to bind United States Fire Insurance Company thereby as fully and to the same extent as if such bonds or undertakings had been duly executed and acknowledged by the regularly elected officers of United States Fire Insurance Company at its principal office. in amounts or penalties: Fifty Million Dollars ($50,000,000).
This Power of Attorney limits the act of those named therein to the bonds and undertakings specifically named therein, and they have no authority to bind United States Fire Insurance Company except in the manner and to the extent therein stated.
This Power of Attorney is granted pursuant to Article IV of the By -Laws of United States Fire Insurance Company as now in full force and effect, and consistent with Article III thereof. which Articles provide. in pertinent part:
Article IV, Execution of Instruments - Except as the Board of Directors may authorize by resolution. the Chairman of the Board. President. any Vice -President. any Assistant Vice President. the Secretary. or any Assistant Secretary shall have power on behall'of the Corporation:
(a) to execute. affix the corporate seal manually or by facsimile to, acknowledge. verify and deliver any contracts. obligations, instruments and documents whatsoever in connection with its business including. without limiting the foregoing. any bonds, guarantees. undertakings. recognizances, powers of attorney or revocations of any powers of attorney. stipulations. policies of insurance. deeds. leases. mortgages. releases. satisfactions and agency agreements:
(b) to appoint, in writing, one or more persons for any or all of the purposes mentioned in the preceding paragraph (a). including affixing the seal of the Corporation.
Article III. Officers. Section 3.11. Facsimile Signatures. The signature of any officer authorized by the Corporation to sign any bonds. guarantees, undertakings. recognizances, stipulations. powers of attorney or revocations of any powers of attorney and policies of insurance issued by the Corporation may be printed, facsimile. lithographed or otherwise produced. In addition, if and as authorized by the Board of' Directors. dividend warrants or checks. or other numerous instruments similar to one another in form. may be signed by the facsimile signature or signatures. lithographed or otherwise produced. of such officer or officers of the Corporation as from time to time may be authorized to sign such instruments on behalf of the Corporation. The Corporation may continue to use for the purposes herein stated the facsimile signature of any person or persons who shall have been such officer or officers oldie Corporation. notwithstanding the fact that he may have ceased to be such at the time when such instruments shall be issued.
IN WITNESS WHEREOF, United States Fire Insurance Company has caused these presents to be signed and attested by its appropriate officer and its corporate seal hereunto affixed this 28th day of September, 2021.
UNITED STATES FIRE INSURANCE COMPANY
Matthew E. Lubin. President
State of New Jersey;
County of Morris )
On this 28th day of September, 2021, before me, a Notary public of'the State ofNew Jersey, came the above named officer of United States Fire Insurance Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed the seal of United States Fire Insurance Company thereto by the authority of his office.
MELISSA N. D'ALESSIiO
NOTARY FUEUC OF NEW JERSEY
Con:nibs:on g- 50126833
My Co r1lt:Icct E it 4!112025
1. the undersigned officer of United States Fire Insurance Company. a the foregoing is a full. true and correct copy is still in force and effect IN WITNESS WHEREOF. I have hereunto set my hand and affixed of June 20 23
q%VI r,L44-0, 14 6 toL&-
Melissa H. D'Alessio (Notary Public)
Delaware corporation, do hereby certify that the original Power of Attorney of which and has not been revoked.
the corporate seal of United States Fire Insurance Company on the 6th
UNITED STATES FIRE INSURANCE COMPANY
Y A1.4.„e: t_., -' 1 t!".€ ,f„
(l
Michael C. Fay, Senior Vice President
day
Project No. 5213
(Use of City form is required)
SUPPLEMENTAL INFORMATION TO BE COMPLETED BY PRINCIPAL
If an individual, so state. If a firm or co -partnership, state the firm and give the names of all individual co-partners composing the partnership. If a Corporation, state legal name of corporation; state also the names of the president, secretary, treasurer and manager thereof.
PCN3, Inc.
Brian Abghari is the President, Secretary, treasurer and Manager of PCN3, Inc.
Business Address:
11082 Winners Circle, Unit B, Los Alamitos, CA, 90720
Telephone Number:
Date:
Print Name:
Signature:
562-493-4124
6/9/2023
Brian Abghari
Principal
Preside -Fit —
Title
Project No. 5213
(Use of City form
is required)
TAX IDENTIFICATION NUMBER
The Tax Equity and Fiscal Responsibility Act of 1982 requires the payer (City of Placentia) to report to the Internal Revenue Service taxable payments to payees.
You (as a payee) are required by law to provide us with your Taxpayer Identification Number (if an individual or partnership, your Social Security Number). If you do not provide us with your correct identification number, you may be subject to a penalty imposed by the Internal Revenue Service. The payments subject to withholdings may include, but are not limited to, interest, dividends, or other payments the City of Placentia and/or the Placentia Redevelopment Agency made to you. Other payments may include rents, royalties, commissions and fees for service of non -employees.
If you are exempt from income tax, we are still required, by law, to maintain a Tax Identification Number on file. PLEASE PROVIDE YOUR TAX IDENTIFICATION NUMBER next to the appropriate listing below, sign, date and return to:
CITY OF PLACENTIA FINANCE DEPARTMENT
401 E. Chapman
Placentia, CA 92870
Exempt: Yes No X Telephone ( 562 ) 493-4124
CORPORATION: 95-4738509
U.S.A. OR ANY AGENCIES THEREOF:
n/a
IRS CODE #501 TAX-EXEMPT ORGANIZATION:
n/a
A NON-COMMISSIONED CITY OF PLACENTIA EMPLOYEE: n/a
SOLE PROPRIETOR: n/a
A PARTNERSHIP: n/a
OTHER: n/a (Explain)
Signature/Ti.k -resident v Date: 6/9/2023
Project No. 5213
BlD GUARANTEE
TO THE Ci T Y OF PLACENTIA
PROJECT NO.
As a material inducement to the City to award the contract for Project No. 5213 to PCN3. INC. , the undersigned ("Guarantor") has agreed to enter into this guarantee. The Guarantor hereby unconditionally guarantees to the fullest extent allowed by law the following work included in this project: anP--ia Dill in Safe)/ C.en-er ("the work").
Phase 2
Guarantor guarantees that the materials and equipment used by itself and its subcontractors will be free from defects and that the work will conform to the plans and specifications. Should any of the materials or equipment prove defective or should the work as a whole, or any part thereof, prove defective for any reason whatsoever (except due to intentional torts by the City), or should the work as a whole or any part thereof fail to operate properly or fail to comply with the plans and specifications, Guarantor will, at the City's sole election: 1) reimburse the City, upon written demand, for all of the City's expenses incurred replacing or restoring any such equipment or materials, including the cost of any work necessary to make such replacement or repairs; or 2) replace any such defective material or equipment and repair said work completely, all without any cost to the City. Guarantor further guarantees that any such repair work will conform to the plans and specifications for the project. This guarantee will remain in effect for five years from the date on which the contracted for work is accepted for use by the City.
Guarantor understands and agrees that the City shall have the unqualified option to make any replacements or repairs itself or to have such replacement, repair, performed by the undersigned. The City shall have no obligation to consult with Guarantor before the City proceeds to perform any repair, replacement, or work itself. If the City elects to have Guarantor perform said repair, replacement, or work, Guarantor agrees that the repair, replacement, or work shall be performed within 15 days after receipt of a written demand from the City.
If the City elects to perform the replacement, repairs itself, Guarantor agrees to make reimbursement payment within 15 days after receipt of a written demand for payment from the City.
If the Guarantor fails or refuses to comply with this guarantee, the City shall be entitled to all costs and expenses, including attorneys and expert fees, reasonably incurred by reason of Guarantor's failure or refusal.
Guarantor Date:
Contractor: PCN3, INC.
Title: President
6/9/2023
By:
g rico- 4 17141/,'
Project No. 5213
STATEMENT OF NON COLLUSION BY CONTRACTOR
The undersigned who submits herewith to the City of Placentia a bid or proposal does hereby certify:
a. That all statements of fact in such bid or proposal are true; b. That such bid or proposal was not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization or corporation; c. That such bid or proposal is genuine and not collusive or sham; d. That said bidder has not, directly or indirectly by agreement, communication or conference with anyone, attempted to induce action prejudicial to the interest of the City of Placentia or of any other bidder or anyone else interested in the proposed procurement; e. Did not, directly or indirectly, collude, conspire, connive or agree with anyone else that said bidder or anyone else would submit a false or sham bid or proposal, or that anyone should refrain from bidding or withdraw his bid or proposal;
f. Did not in any manner, directly or indirectly seek by agreement, communication or conference with anyone to raise or fix the bid or proposal price of said bidder or of anyone else, or to raise or fix any overhead, profit or cost element of his bid or proposal price, or that of anyone else:
Did not, directly or indirectly, submit his bid or proposal price or any breakdown thereof, or the contents thereof, or divulge information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member agent thereof, or to any individual or group of individuals, except to the City of Placentia, or to any person or persons who have a partnership or their financial interest with said bidder in his business. h. Did not provide, directly or indirectly to any officer or employee of the City of Placentia any gratuity, entertainment, meals, or anything of value, whatsoever, which could be objectively construed as intending to invoke any form of reciprocation or favorable treatment.
That no officer or principal of the undersigned firm is related to any officer or employee of the city by blood or marriage within the third degree or is employed, either full or part time, by the City of Placentia either currently or within the last two (2) years. j. That no officer or principal of the undersigned firm nor any subcontractor to be engaged by the principal has been convicted by a court of competent jurisdiction of any charge of fraud, bribery, collusion, conspiracy or any other act in violation of any state or federal antitrust law in connection with the bidding upon award of, or performance of, any public work contract, with any public entity, within the last three years.
I certify, under penalty of perjury under the laws of the State of California. that the foregoing is true and correct and that this certification was executed:
On 6/9/2023
Firm PCN3, INC.
at Los Alamitos California.
Street 11082 Winners Circle, Unit B
City Los Alamitos State CA Zip 90720
Signature) — =_
Brian Abghari, President
(Print Name & Title)
Project No. 5213
EXHIBIT A
SCOPE r SER> C- ,
.�.�17�c'J; •mac: JI.,f-v
Project No. 5213
EXHIBIT Es
SCHEDULE OF PERFORMANCE
Project No. 5213
EXHIBIT C
INSURANCE REQUIREME'h1TS
Contractor shall maintain and shall require all of its subcontractors, consultants, and other agents to maintain the insurance listed below. Any requirement for insurance to be maintained after completion of the work shall survive this agreement.
CITY reserves the right to review any and all of the required insurance policies and/or endorsements, but has no obligation to do so. Failure to demand evidence of full compliance with the insurance requirements set forth in this agreement or failure to identify any insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this agreement.
A. Workers Compensation & Employers Liability Insurance O Workers Compensation insurance with statutory limits as required by the Labor Code of the State of California.
• Employers Liability with limits of $1.000,000 per Accident; $1,000,000 Disease per employee; $1,000,000 Disease per policy.
The policy shall include a written waiver of the insurer's right to subrogate against CITY.
• Required Evidence Of Coverage:
1. Subrogation waiver endorsement; and
2. Properly completed Certificate of Insurance.
B. General Liability Insurance
• Commercial General Liability Insurance no less broad than Insurance Services Office (ISO) form CG 00 01.
Coverage shall be on a standard occurrence form. Clairns-Made forms are not acceptable without prior written consent. Modified, limited or restricted Occurrence forms are not acceptable without prior written consent. • Minimum Limits: $1,000,000 per Occurrence; $2,000,000 General Aggregate; $2,000,000 Products/Completed Operations Aggregate. The General Aggregate shall apply separately to each project. The required
Project No. 5213
limits may be provided by a combination of General Liability Insurance and Commercial Excess or Umbrella Liability Insurance. If contractor maintains higher limits than the specified minimum limits, CITY requires and shall be entitled to coverage for the higher limits maintained by contractor. • Any deductible or self -insured retention shall be shown on the Certificate of Insurance. If the deductible or self -insured retention exceeds $25,000 it must be approved in advance by CITY. Contractor is responsible for any deductible or self -insured retention and shall fund it upon CITY'S written request, regardless of whether Contractor has a claim against the insurance or is named as a party in any action involving CITY. • Coverage shall be continued for one (1) year after completion of the work. • CITY shall be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of the contractor. CITY shall continue to be an additional insured for completed operations for (1) year after completion of the work.
The policy definition of "insured contract" shall include assumptions of liability arising out of both ongoing operations and the products -completed operations hazard ("f' definition of insured contract in ISO form CG 00 01, or equivalent).
• The insurance provided to the additional insureds shall be primary to, and non-contributory with, any insurance or self-insurance program maintained by them.
• The policy shall cover inter -insured suits and include a "Separation of Insureds" or "severability" clause which treats each insured separately. • The policy shall be endorsed to include a written waiver of the insurer's right to subrogate against all persons or entities that are, or are required to be, additional insureds.
The policy shall not contain a Contractors' Warranty or other similar language which eliminates or restricts insurance because of a subcontractor's failure to carry specific insurance or to supply evidence of such insurance.
Project No. 5213
Required Evidence of Coverage:
1. Copy of the additional insured endorsement or policy language granting additional insured status;
2. Copy of the endorsement or policy language indicating that coverage applicable- to the additional insureds is primary and non-contributory;
3. Properly completed Certificate of Insurance; and
4. Completed and signed Agent/Broker Questionnaire with supporting documentation as required.
C. Automobile Liability Insurance
e
Minimum Limit: $1,000,000 combined single limit per accident.
Coverage shall apply to all owned, hired and non -owned vehicles.
CITY shall qualify as an insured.
Required Evidence of Coverage:
1. Copy of the endorsement or policy language indicating that CITY is an insured; and
2. Properly completed Certificate of Insurance.
Contractors Pollution Liability Insurance
Minimum Limits: $1,000,000 per Pollution Incident; $1,000,000 Aggregate; Coverage shall apply to pollution incidents at or from any location at which Contractor is performing work under this agreement.
Any deductible or self -insured retention shall be shown on the Certificate of Insurance. If the deductible or self -insured retention exceeds $25,000 it shall be approved in advance by CITY. Contractor is responsible for any deductible or self -insured retention and shall fund it upon CITY written request, regardless of whether Contractor has a claim against the insurance or is named as a party in any action involving CITY.
O CITY shall be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of the Contractor.
Project No. 5213
Additional insured status shall continue for one (1) year after completion of the work.
The insurance provided to the additional insureds shall apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by them.
• If the insurance is on a Claims -Made basis, the retroactive date shall be no later than the commencement of work.
The insurance shall be continued for one (1) year after completion of the work. If the insurance is on a Claims -Made basis, the continuation coverage may be provided by: (a) renewal of the existing policy; (b) an extended reporting period endorsement; or (c) replacement insurance with a retroactive date no later than the commencement of the work. • Required Evidence of Coverage:
1. Copy of the additional insured endorsement or policy language granting additional insured status;
2. Copy of the endorsement or policy language indicating that coverage for the additional insureds is primary and non- contributory;
3. Properly completed Certificate of Insurance.
E. Surety Bonds
Bid bond.
Performance and payment bonds for the entire contract price.
The surety must be authorized to issue these bonds in the State of California.
F. Standards for Insurance Companies
• Insurers, other than the California State Compensation Insurance Fund, shall have an A.M. Best's rating of at least A:VII.
Project No. 5213
G. Documentation
The Certificate of Insurance shall include the following reference:
[Placentia Public Safety Center Project, Phase 2 (Project Number 5213) The name and address for Additional Insured endorsements and Certificates of Insurance is: City of Placentia
Contractor shall provide immediate written notice if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; or (3) the deductible or self -insured retention is increased.
Current Evidence of Coverage shall be provided for the entire required period of insurance.
Upon written request, certified copies of required insurance policies shall be provided within thirty (30) days.
Project No. 5213
EXHIBIT D
CE=RTIFICATES OF INSURANCE AND ENDORSEMENTS
Project No. 5213
EXHIBIT E
CLAIMS PROCEDUR E
SUMMARY OF PUBLIC CONTRACT CODE § 9204
The following procedure will apply to any claims by the Contractor on the City:
A "claim" is a separate demand on the City by a contractor on a public works project and sent by registered mail or certified mail with return receipt requested, for one or more of the following:
• A time extension, including relief from penalties for delay • Payment by the City of money damages under the terms of the contract • Payment of an amount that is disputed by the Cite
initial Review
The claim must be supported by appropriate documentation. The City has 45 days within which to review the claim and provide the contractor with a written statement identifying the disputed and undisputed portions of the claim. If the City does not issue a written statement, the claim is deemed rejected in its entirety. The City will pay any undisputed portion of the claim within 60 days of issuing the statement.
Meet & Confer
If the contractor disputes the City's written response. or if the City does not issue one, the contractor may request in writing an informal conference to meet and confer for possible settlement of the claim. The City will schedule the meet and confer conference within 30 days of this request and provide a written statement identifying the remaining disputed and undisputed portions of the claim within 10 business days of the meet and confer. The City will pay the undisputed portion within 60 days of issuing this statement.
Mediation
With respect to any disputed portion remaining after the meet and confer. the City and contractor will submit the matter to nonbinding mediation. agree to a mediator within 10 business days after issuing the written statement. and share mediation costs equally. If mediation is unsuccessful, then the terms of the public works agreement and applicable law will govern resolution of the dispute.
Miscellaneous Provisions
Amounts not paid by the City in a timely manner bear interest at % per annum. Subcontractors may submit claims via this procedure through the general contractor. The City and contractor may waive the requirement to mediate, but cannot otherwise waive these claim procedures.
A� EP CERTIFICATE OF LIABILITY INSURANCE
DATE(MMIDDIYYYY)
05/30/2023
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the pa icy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER
AP Tutton Insurance Services
2913 S Pullman St
License #0B89376
Santa Ana CA 92705
CONTACT Certificate Department
NAME:
PHONE (949) 261-5335 FAX (949) 261-1911
(A/C, No, Ext): {AIC, No):
-MAIL
ADDRESS:
INSURER(S) AFFORDING COVERAGE
NAIC k
INSURER A: Middlesex Insurance Company
23434
INSURED
PCN3, Inc.
11082 Winner Circle #B
Los Alamitos CA 90720
INSURER B : Starstone National Insurance Company
25496
INSURER C : Continental Ins Co
35289
INSURER D :
INSURER E :
INSURER F :
COVERAGES
CERTIFICATE NUMBER: 23-24 GL, BA, UMB, XS,
REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW P1AVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLIC ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR
TYPE OF INSURANCE
ADOL
INSO
SUER
WVD
POLICY NUMBER
POLICY EFF
MM/DD/YYYY)
POLICY EXP
(MMIDD/YYYY)
LIMITS
A
X
COMMERCIAL GENERAL LIABILITY
A0144715001
01/13/2023
01/13/2024
EACH OCCURRENCE
S 1,000,000
CLAIMS -MADE
X
OCCUR
DAMAGE TO RENTED
PREMISES (Ea occurrence)
S 500,000
MED EXP (Any one person)
5 5,000
PERSONAL &AOV INJURY
5 1,000,000
GEN'L
AGGREGATE
X
LIMIT APPLIES PER'
PO
JERCT LOC
GENERAL AGGREGATE
5 3,000,000
PRODUCTS-COMP/OP AGG
2 0,000
5 .00 000
S
A
AUTOMOBILE
X
LIABILITY
ANY AUTO
OWNED
AUTOS ONLY
HIRED
AUTOS ONLY
SCHEDULED
AUTOS
NON -OWNED
AUTOS ONLY
A0144715003
01/13/2023
01/13/2024
COMBINED SINGLE LIMIT
(Ea accident)
S 1,000,000
BODILY INJURY (Per person)
S
BODILY INJURY (Per accident)
S
PROPERTY DAMAGE
(Per accident)
S
Medical payments
5 5,000
A
X
^
UMBRELLA LIAB
EXCESSLIAB
X
OCCUR
CLAIMS-MADE A0144715002
01/13/2023
01/13/2024
EACH OCCURRENCE _
S 5,000,000
AGGREGATE
S 5,000,000
DED RETENTION S
S
B
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY YIN
ANY PROPRIETOR/PARTNER/EXECUTIVE Y
OFFICER/MEMBER EXCLUDED
(Mandatory in NH)
If yes. describe under
DESCRIPTION OF OPERATIONS below
NIA
710230890
04!01!2023
04/0112024
X STATUTE ERH
E.L. EACH ACCIDENT
$ 1,000,000
E.L. DISEASE- EA EMPLOYEE
S 1,000,000
E.L. DISEASE - POLICY LIMIT
S 1,000,000
C
Excess Liability
Per Occurrence
6080220330
01/13/2023
01/13/2024
Each Occurrence
Aggregate
$5,000,000
$5,000,000
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: 2999 East La Jolla Ave., Anaheim, CA, 92806
City of Placentia is named as additional insured per attached Additional Insured per CO2037.0413 complt ops and CG2010.0413 Premises/contract, Waiver of Subrogation per CG2404.0509, Primary Non Contributory per CG2001.0413. Automobile Additoinal Insured per CA8904.1014, Primary Non Contrubutory per CA7601.0615, Waiver of Subrogation per CA0444.1013. Workers Compensation Waiver of Subrogation per WC040306.0484. $1M/$2M pollution limit for policy # ENP000989301
CERTIFICATE HOLDER
CANCELLATION
City of Placentia
401 E. Chapman
Placentia
CA 92870
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
POLICY NUMBER: A0144715001
COMMERCIAL GENERAL LIABILITY
CG 20 37 04 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. .)
C Ai T CTRS CC i1 PLC !E, 11 0 NQ
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE
Marne Of Additional Insured Person(s)
Or Orgnnization(s)
Location And Description Of Completed
Operations
Any person or organization you are required to add as an additional insured under a written contract or agreement in effect prior to any accident, injury, loss or damage All locations and jobs performed that have a written
contract, agreement or permit
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II - Who Is An Insured is amended to
include as an additional insured the person(s) or
organization(s) shown in the Schedule, but only
with respect to liability for "bodily injury" or
"property damage" caused, in whole or in part, by
"your work" at the location designated and
described in the Schedule of this endorsement
performed for that additional insured and included
in the "products -completed operations hazard'.
However:
1. The insurance afforded to such additional
insured only applies to the extent permitted by
law; and
2. If coverage provided to the additional insured
is required by a contract or agreement, the
insurance afforded to such additional insured
will not be broader than that which you are
required by the contract or agreement to
provide for.such additional insured.
CG 20 37 04 13
A0144715
Middlesex Insurance Company
1 CC= 00000000OJ 22018 0 N
B. With respect to the insurance afforded to these
additional insureds, the following is added to
Section ill - Limits Of Insurance:
If coverage provided to the additional insured is
required by a contract or agreement, the most we
will pay on behalf of the additional insured is the
amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable Limits of
Insurance shown in the Declarations;
whichever is less.
This endorsement shall not increase the
applicable Limits of Insurance shown in the
Declarations.
© Insurance Services Office, Inc., 2012
77e99237-7970-4c15-8b9d-72d201caf3e7