31 AGREEMENT
(To be completed and submitted for project award)
THIS AGREEMENT, made and entered into this day of , 20 , by and between the CITY OF SALINAS, a municipal corporation of the State of California, hereinafter called "City", and hereinafter called "Contractor",
WITNESSETH
FIRST: Contractor hereby covenants and agrees to furnish and provide all labor, materials, tools, appliances, equipment, plant , transportation, and all other things required or necessary to be furnished, provided or done, and build, erect, construct, and complete the work at the time and in the manner provided, and in strict accordance with the Plans and Specifications therefore, for CLOSTER PARK REVITALIZATION PROJECT NO. 9350,
2018 PARKS BOND ACT GRANT RECIPIENT PROJECT NO. SW-27-006 adopted by the Council of the City of Salinas on , 20 , and identified by the signature of Contractor and the signature of the Mayor of the City of Salinas.
SECOND: It is expressly understood and agreed that this Contract consists of the following documents, all of which are incorporated into this Agreement and made a part hereof as fully and completely as if set forth herein verbatim, to wit:
a. Notice Inviting Sealed Proposals.
b. Signed and executed Bid and Proposal of Contractor, and if any signed Addendum, as accepted by City.
c. Bidder’s Statement of Financial Responsibility, Technical Ability and Experience. d. Bidder’s Statement of Subcontractors Part I.
e. Bidder’s Statement of Subcontractors Part II.
f. Insurance Certification.
g. Completely executed and signed all required City of Salinas forms. h. Instructions to Successful Bidder and General conditions. i. Performance Bond.
j. Payment Bond (Labor and Materials Bond).
k. Certificate of Insurance.
l. The aforesaid Plans and Specifications.
m. Design Standards and Standard Specifications and Standard Plans, 2008 Edition, and revisions, or otherwise indicated in the specifications. n. 2023 State of California, Department of Transportation, Standard Specifications (For Construction of Local Streets and Roads.)
o. This Agreement.
Agreement – Cont.
32 THIRD: That said Contractor agrees to receive and accept the following prices as full compensation for furnishing all materials and for doing all the work embraced and contemplated in this Agreement , and as set forth in the Proposal adopted by the City of Salinas, a true copy thereof hereto attached; also, for all loss or damage arising out of the nature of said work, from the action of the elements , or from any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the wor k until the acceptance thereof by the City of Salinas, and for all risk connected with the work, and for well and faithfully completing the work, and the whole thereof, in the manner and according to the said Plans and Specifications and the Provisions of this agreement and the requirements of the City Engineer under them, to wit: The prices as set forth in the Proposal of said Contractor for the work to be constructed and completed under this Agreement, which prices shall be considered as though repeated herein.
The Contractor and City hereby agree that the Contractor shall perform the work, and be paid the amount of bid items No. specified in the Proposal of the Contractor, for the as total price of
($ ) Dollars.
The undersigned Contractor further agrees to so plan the work and to prosecute it with such diligence that said work, and all of it, shall be completed on or before the expiration of the time specified in the Proposal after execution of the Contract on behalf of the City of Salinas and the receipt from the City of Salinas of a Notice to Proceed with the work.
FOURTH: The City of Salinas hereby promise s and agrees with said Contractor to employ, and does hereby employ, said Contractor to provide the materials and to do the work according to the terms and conditions herein contained and referred to, for the price aforesaid, and hereby Contracts to pay the same at the time, in the manner , and upon the conditions set forth in the Specifications and the said parties, for themselves, their heirs, executors, administrators, successors, and assigns, do hereby agree to the full performance of the covenants herein contained
FIFTH: No interest in this Agreement shall be transferred by the Contractor to any other party, and any such transfer shall cause the annulment of this Contract, so far as the City of Salinas is concerned. All rights of action, however, for any breach of this Contract are reserved to City.
SIXTH: The Contractor shall keep harmless and indemnify the City of Salinas , its officers, agents, and employees from all loss, damage, cost , or expense that arises or is set up for infringement of patent rights of anyone for use by the City of Salinas, its officers, agents, or employees, or articles supplied by the Contractor under this Contract of which he/she is not entitled to use or sell. Contractor agrees to, at their own cost and expense, defend in court the City, its officers, agents, and employees in any action which may be commenced or maintained against them or any of the, on account of any claimed infringement of patent rights, arising out of this Agreement.
Contractor shall indemnify and save the City of Salinas, its officers, agents, and employees harmless against all claims for damages to person or property arising out of Contractor's execution of the work, or otherwise by the conduct of the Contractor or its employees, agents, Subcontractors, or others (includi ng the active and passive negligence of the City, its officers, agents, and employees) in connection with the execution of the work covered by this Contract and any and all costs, expenses, attorney's fees, and liability incurred by the City, its officers, agents, or employees in defending against such claims, whether the same proceed to Agreement – Cont.
33 judgment or not, except only those claims arising from the sole negligence or willful conduct of the City, its officers, agents, or employees. Further, Contractor at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees.
Contractor shall reimburse the City of Salinas for all costs and expense s (including but not limited to fees for architects, engineers, attorneys, and other professional and court costs) incurred by the City in enforcing the Provisions of this Section.
SEVENTH: The Contractor agrees to immediately repair and replace all defective material and workmanship discovered within 1 year after acceptance of final payment by Contractor and to indemnify said City of Salinas against all loss and damage occasioned by any such defect, discovered within said 1 year, even though the damage or loss may not be ascertained until after the expiration thereof. Provided, however, that if such failure of the Contractor to perform should not, by reasonable diligence, be discoverable or discovered within said 1 year, then the obligation of the Contractor to repair and replace said defective material or workmanship shall continue until one year after the actual discovery thereof.
EIGHTH: Contractor shall procure and maintain for the duration of this Agreement insurance meeting the requirements specified in Attachment A hereto.
NINTH: Contractor agrees to comply with all applicable federal, state and municipal laws and regulations, including but not limited to California Labor Code Division 2, Part 7, Chapter 1.
Apprenticeship utilization: The Contractor agrees to comply with the Department of Apprenticeship Standards of the California Labor Code Section 1777.5 and the following:
Prior to commencing work on the awarded contract, the Contractor shall submit contract award information (form DAS 140) to all applicable apprenticeship program(s) that can supply apprentices to the site of the public work. A copy of this information shall also be provided to the City of Salinas.
The ratio of work performed by apprentices to journeyman employed in a particular craft or trade on the public work shall be no less than one hour of apprentice work for every five hours of journeyman work.
At the end of each month of work on the contract, the Contractor and Subcontractors shall submit a record of utilization of apprentices for the previous months work.
Within 60 days after concluding work on the contract, each Contractor and Subcontractor shall submit to the City of Salinas and to the apprenticeship program a verified statement of the journeyman and apprentice hours performed on the contract.
TENTH: Contractor agrees to comply with all requirements of the City of Salinas Local Hiring Preference Ordinance 2330, Salinas City Code Chapter 12, Article IV, which hereby establishes local hiring requirement procedures on Public Works Contracts, with respect to person(s) hired directly by the Contractor and all persons hired by the Contractor’s Subcontractor(s).
Agreement – Cont.
34 IN WITNESS WHEREOF, City has caused this instrument to be executed and its corporate name and seal to be hereunto attached by its Mayor, pursuant to resolution theretofore duly adopted by the Council of the City of Salinas, and Contractor has caused this instrument to be executed the day and year first hereinabove written.
CITY OF SALINAS, A Municipal Corporation
ATTEST: BY
Mayor
City Clerk
(Attach Notary Acknowledgment) Contractor (signature in blue ink) NOTE: Please refer to the “General Instructions to Low Bidder” for specific signature requirements.
I hereby approved the form of the foregoing Contract this day of , 20 .
Attorney for the City of Salinas
Checked by the City Engineer on
City Engineer
ALL SIGNATURES SHALL BE NOTARIZED EXCEPT THOSE OF CITY OFFICIALS
CERTIFICATE OF INSURANCE – Attachment A
35 CERTIFICATE OF INSURANCE
CERTIFICATE OF INSURANCE - Requirements
Contractor shall procure and maintain for the duration of the contract, and for three years thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its officers, agents, representatives, employees, and/or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (“CGL”): Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an occurrence basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability : ISO Form CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation : as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards): with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate, on an annual basis.
If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the Contractor requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. At the option of the City, either the Contractor shall cause the insurer to reduce or eliminate such self -insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor.
General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
CERTIFICATE OF INSURANCE – Cont.
36 2. For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self -insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.
4. A copy of the claims reporting requirements must be submitted by Contractor to the City.
5. If the services involve lead -based paint or asbestos identification/remediation, the Contractor’s Pollution Liability policy shall not contain lead -based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractor’s Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.
Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.
Verification of Coverage
Contractor shall furnish the City with original Certificates of Insurance including an additional insured endorsement and all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a co py of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them.
The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Maintenance of Insurance
Maintenance of insurance by Contractor as specified shall in no way be interpreted as relieving Contractor of its indemnification obligations or any responsibility whatsoever and the Contractor may carry, at its own expense, such additional insurance as it deems necessary.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
37 DEPARTMENT OF INDUSTRIAL RELATIONS’ STATE LABOR CODE Labor Law Requirements
(CCR Title 8, Section 16421)
This public works project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (“DIR”). All work shall be in accordance with wage scales and applicable determinations made by the Director of the DIR, as p rovided by Article 2, Chapter 1, Division 2, Part 7 of the Labor Code of the State of California, commencing with §1771.
Penalties for violations may be applied by the DIR pursuant to the Labor Code §1813 and §1815.
The Contractor shall indemnify, hold harmless, and defend the City (with counsel reasonably approved by the City) against any claim for damages, compensation, fi nes, penalties, or other amounts arising out of the failure or alleged failure of any person or entity (including Contractor and its subcontractors) to pay prevailing wages as determined pursuant to Labor Code §1720, and hereby agrees to, §§1771- 1774; to e mploy apprentices pursuant to Labor Code §1777.5 et seq., and/or to comply with the other applicable provisions of Labor Code §1720 et seq., §§1771-1774, §1777.5 et seq., and the implementing regulations of the DIR in connection with the scope of work.
This indemnification section shall survive the expiration of the Term.
The Federal and State Labor Law requirements applicable to the Agreement are composed of, but not limited, to the following items:
1. Payment of Prevailing Wage Rates: All contractors, including subcontractors, shall pay no less than the prevailing rate of wages (Labor Code §1775), including the rates for holidays and overtime work (Labor Code §§1813 and 1815), to all workers employed in the execution of the contract (Labor Code §1774), pursuant to Labor Code §§1720-1784.
The prevailing rates are those issued as wage determinations by the DIR, for each craft, classification and type of work. The current wage rate information can be found at the DIR’s website at: https://www.dir.ca.gov/oprl/DPreWageDetermination.htm .
a. Copies of the prevailing rate of per diem wages are on file at City’s Public Works Department (principal place of office). Contractor shall post a copy of the determination of the Director of DIR of the prevailing rate of per diem wages at each job site.
2. Apprentices: Contractor and subcontractors shall employ registered apprentices on this public works Agreement pursuant to Labor Code §1777.5. All contractors on this project (prime and subcontractors) are required to submit the Division of Apprenticeship Standards’ (“DAS”) Public Works Contract Award Information (DAS 140) form to all applicable apprenticeship committees no later than 10 days before commencing work.
Additionally, all contractors are required to request registered apprentices (DAS 142 form).
a. Penalties for failure to pay prevailing wages (for non-exempt projects) and failure to employ apprentices include forfeitures and debarment under Labor Code §§1775 and 1777.7.
3. Certified Payroll Records: All contractors, including subcontractors, must maintain and file certified payroll records (“CPRs”) pursuant to Labor Code §1776. Additionally, all
38 contractors and subcontractors must furnish certified payroll records into the DIR’s Electronic Certified Payroll Reporting (“eCPRs”) database (https://efiling.dir.ca.gov/eCPR/pages/eCPROnlineForm.jsp ). Penalties apply to
Contractor and any Subcontractors for failure to do so under Labor Code §1777.
4. Subcontracting: Contractors are required to list all subcontractors hired to perform work on this public works agreement.
5. Proper Licensing/Registration: All contractors and subcontractors are required to be properly licensed, in accordance with the Provisions of Chapter 9 of Division 3 of the Business and Professions Code and subject to the requirements of §4104 of the Public Contract Code. In addition, all contractors including subcontractors must submit proof of current registration to perform public work, pursuant to Labor Code §1771.1. Contractors are required to be properly licensed and to require all subcontractors to be properly licensed. Penalties for employing workers while unlicensed under Labor Code §1021 and under the California Contractors License Law, found at Business and Professions Code §7000 et. seq.
6. Job Site Notices: Contractors are required to post all required notices (posters) on the job site in an area accessible to all workers, including subcontractors. Posters must be readable and placed in visible areas allowing workers to access the posters before, during, and after work shifts. Jobsites with multiple locations must include a portable poster board to ensure continued access to the information. Posters placed in foreman, supervisor, or employee vehicles, in an offsite job trailer, or inside a temporary restroom do not meet the posting requirement.
Posters may be printed from the DIR’s website at:
http://www.dir.ca.gov/wpnodb.html.
7. Nondiscrimination in Employment – Equal Employment Opportunity (“EEO”):
Employment discrimination is prohibited, pursuant to Labor Code §1777.6, the Government Code, and Title VII of the Civil Rights Act of 1964.
8. Kickbacks Prohibited: Contractors and subcontractors are prohibited from recapturing wages illegally by accepting or extracting “kickbacks” from employee wages pursuant to Labor Code §1778.
9. Acceptance of Fees Prohibited: Contractors and subcontractors are prohibited from accepting fees for registering any person for public work or for filling work orders on public works contracts, pursuant to Labor Code §§1779 and 1780.
10. Unfair Competition Prohibited: Contractors and subcontractors are prohibited from engaging in unfair competition as specified under Business and Professions Code §§17200 - 17208.
11. Workers’ Compensation: Contractors and subcontractors must be properly insured for Workers’ Compensation under Labor Code §1861. Contractor hereby represents that Contractor is aware of the provisions of Section 3700 of the Labor Code, which require every employee to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and Contractor will comply with such provisions before commencing the performance of the work of this agreement.
12. OSHA:
Contractors and subcontractors must abide by the Occupational, Safety, and Health Laws and regulations that apply.