Attachment A
Item Number: 2
City Council / Board of Directors
Public Hearing
Meeting of: March 5, 2024
Submitted By:
Joe Slegers, Building Official
Subject:
Award of Construction Contract to Monet Construction, Inc. and Notice of Exemption for the New Library Renovation and Expansion, Project JM24-051 Recommendation:
That the Honorable City Council:
1) Conduct the Public Hearing and receive testimony regarding the proposed project and contract;
2) Close the Public Hearing;
3) Find the proposed project categorically exempt from the California Environmental Quality Act (“CEQA”) under CEQA Guidelines Section 15332 – In-Fill Development Projects;
4) Approve a Construction Agreement in the amount not to exceed $8,621,000.00 to Monet Construction, Inc. for the City Library Renovation and Expansion, Project JM24- 051; and
5) Authorize the City Manager or his designee to execute change orders in an amount not to exceed $862,100.00 in total, representing a 10% project contingency.
Fiscal Impact:
Acting in accordance with the staff recommendation will result in a fiscal impact of $9,483,100.00, as summarized below.
Description Amount
Construction Agreement Total $8,621,000.00
Maximum Contingency (10%) $862,100.00
Fiscal Impact $9,483,100.00
The Building Forward Library Infrastructure Program Grant, provided by the California State Library, will only fund construction costs related to the base building and expansion of the clubhouse specifically designated for library space. Therefore, the services 3 5
1 4
provided by Monet Construction, Inc. will be funded by a combination of the Building Forward Grant Account (Fund 270) Accounts 2706030-55070-21379 and 2706030- 52110-21379, and Measure P (Fund 105) Account 1056030-52300-80075. Below is a summary of the available budget, construction agreement compensation, and remaining budget funds.
Account Available Funds
2706030-55070-21379 - State Grant Account $4,752,734.00 2706030-52110-21379 - State Grant Account $3,732,051.90 1056030-55060-80075 - Measure P Account $2,759,507.00
Total $11,247,474.00
Description Amount
Available Funds $11,244,292.90
Construction Agreement Compensation $8,621,000.00
Maximum Contingency (10%) $862,100.00
Remaining Budgeted Funds $1,761,192.90
Strategic Plan Goal:
The City of Victorville Strategic Plan 2023-2026 identifies multi-year strategic goals and various strategies to work toward achieving those goals. The New Library Renovation and Expansion Project assists in achieving Goal E, Invest in Infrastructure, create a healthy and livable community by maintaining the City’s assets through investment in infrastructure and innovations. Strategy 2 calls for implementation of the Library Master Plan to complete the relocation and expansion of the library to improve and enhance library services in the community.
Background:
Through the Master Plan process, it was determined that the current library facility has inadequate space to serve the City’s current population. The current library facility has a footprint of 8,229 square feet. The City needs approximately 14,990 square feet to serve the current population.
In May 2021, space became available at the Green Tree Golf Course Clubhouse (Clubhouse), prompting staff to investigate the potential for the Library’s relocation. The Clubhouse location was consistent with certain Master Plan recommendations in that it is centrally located, has natural lighting desired for library facilities, and has an improved outdoor area for programming and use by library patrons. Due to a more recent construction date, the Clubhouse site also provides a higher level of code compliance, including enhanced levels of ADA accessibility for visiting patrons. Because of these findings, staff elected to proceed and seek the services of an architectural design firm to redesign the Clubhouse into the City Library.
On March 15, 2022, Council unanimously awarded TR Design Group a contract to conceptualize the Clubhouse as a space that would accommodate both library services and golf operations. With funding for the design and construction supported solely by 3 5
1 4
Measure P, the scope of this project would only include the reconfiguration of the existing building footprint and would yield approximately 12,750 square foot of library space.
On November 4, 2022, staff was notified that the California State Library selected the Victorville City Library to receive $9,035,105.00 in Building Forward Grant funds. At the January 17, 2023, regular meeting, Council adopted Resolution No. 23-001, approving a budget amendment for Fiscal Year 2022/2023 to appropriate $9,035,105.00 in both revenue and expenditures related to the Building Forward Library Infrastructure Program Grant as awarded by the California State Library.
By receiving the State Grant, staff was able to revisit the Master Plan recommendations and explore an expansion of the Clubhouse to meet the space needed for the current population. On February 7, 2023, Council unanimously approved to increase the scope of services with TR Design Group to include a 5,094 square foot expansion of the Clubhouse facility, achieving and exceeding the Master Plan goal of producing a total of 17,844 square feet of Library space, which exceeds the current need by 2,854 square feet.
On June 20, 2023, staff presented Council with a conceptual design of the new Library design including a 5,094 square foot, Children’s Library expansion (Attachment A).
Council unanimously approved the conceptual design and granted staff and TR Design Group authorization to continue with generating the construction drawings. Staff has subsequently applied for the required Site Plan approval with an Environmental Exemption through the Planning Department, which was ultimately approved by the Planning Commission on November 3, 2023. A CEQA Notice of Exemption was provided through that process and has been recorded with San Bernardino County on December 4, 2023.
Discussion:
In December 2023, TR Design Group completed the construction drawings, materials specifications, and supporting documents for the new Library. After staff review and approval, a Notice Inviting Bids (NIB) was advertised. On December 13, 2023, staff posted the NIB on the City’s website, in the San Bernardino Sun, and in the Victorville Daily Press. A mandatory job walk was conducted on January 3, 2024, with bids due on February 1, 2024. The following is a summary of bids received.
Contractor Location Bid
Monet Construction, Inc. Tujunga, CA $8,621,000.00
Kemcorp Construction, Inc. Ontario, CA $8,950,000.00
Saifco Construction Company Westlake Village, CA $8,950,000.00 RC Construction Services Redlands, CA $9,464,000.00
ACC Construction, Inc. Cypress, CA $10,000,000.00
Aztec Telecom Corona, CA $10,622,166.07
After review and tabulation of the bid proposals, it was determined that Monet 3 5
1 4
Construction, Inc. is the lowest responsive and responsible bidder. Staff recommends that the City Council award a Construction Agreement (Attachment B) to Monet Construction, Inc. for the New Library Renovation and Expansion, Project JM24-051 in the amount not to exceed $8,621,000.00.
With a project of this size and due to the nature of the existing construction, minor modifications and scope additions are inevitable. The scope of this project includes the removal of finished surfaces and the exploration of the conditions within existing assemblies. The roof is currently known to have leaks and the infiltration of water may have caused damage that will not be apparent until the roof and ceiling assemblies are removed during the demolition stages. In addition, the expansion of the building requires excavation at depths of up to fifteen feet. Staff anticipates possible uncovering of water, sewer, or other utility lines that may need to be rerouted around the new building footprint. Staff anticipates encountering these and other items that could possibly add to the original scope of work in order to accomplish construction per plans. These situations, and situations similar in nature, typically constitute change orders. The timely execution of change orders is imperative to a project’s schedule, which will require completion by March of 2026 to comply with the deadlines within the grant award, and overall cost.
Municipal Code 2.28.180 (b) states, “the city manager shall have the authority to execute change orders; provided however, that if a single contract change order (or the cumulative amount of change orders on a given public project) exceeds fifteen percent of the total contract price or two hundred thousand dollars (whichever amount is less), the city manager shall obtain city council approval prior to executing the change order.” Due to the anticipated unforeseen situations mentioned above and to streamline the change order approval process, staff requests that the City Council proactively authorize the City Manager or his designee to execute change orders in an amount not to exceed $862,100.00 in total, representing a 10% contingency, as needed for project management. This 10% contingency is in line with the grant application and other documentation which has been provided to the California State Librarian for approval of the grant funding. Any change orders above the 10% contingency would be presented to the City Council for approval. Final project cost inclusive of change orders will be reported back to the City Council later as part of the Notice of Completion.
Pursuant to Section 15332 of the California Environmental Quality Act (CEQA) entitled “In-Fill Development Projects”, new construction of a building on a site less than five acres in size can be found Categorically Exempt from CEQA if the project meets certain benchmarks. In accordance with the noted CEQA Section 15332, staff finds that the subject proposal meets said benchmarks and is Categorically Exempt from CEQA because:
•The project site is less than five acres in size and substantially surrounded by urban development;
•The proposal is consistent with the underlying General Plan and zoning regulations;
3 5
1 4
•The site has no value as habitat for rare, endangered, threatened, or special status species as it is currently paved and fully improved;
•The development can be served by all required utilities and public services; and •Approval of the project will not result in any significant effects to traffic, noise, air or water or quality.
Staff is available for questions.
Attachments: A. Conceptual Library Design
B. Construction Agreement
Attachment A
Attachment B
CONSTRUCTION CONTRACT BY AND BETWEEN
THE CITY OF VICTORVILLE AND
MONET CONSTRUCTION, INC.
FOR
NEW LIBRARY RENOVATION AND EXPANSION PROJECT
CITY PROJECT NO. JM24-051
THIS CONSTRUCTION CONTRACT (the “Contract”) dated ______________________ for reference purposes only is made and entered into by and between the City of Victorville, a municipal corporation and charter city located in the County of San Bernardino, State of California, hereinafter referred to as the “City”, and Monet Construction, Inc., a California corporation, hereinafter referred to as the “Contractor”. The City and Contractor are sometimes hereinafter referred to as a “Party” and collectively referred to as the “Parties.”
RECITALS:
WHEREAS, the City requires construction of a renovation and expansion of its existing clubhouse at the Green Tree Golf Course to accommodate a new City library facility , as more fully described in the solicitation documents issued by the City for Project No. JM24-051 (the “Project”); and WHEREAS, on December 14, 2023, the City issued a Notic e Inviting Bids and solicitation documents to prospective bidders for the Project. In response, Contractor submitted a Bid which the City determined to be the lowest responsive and responsible bid; and WHEREAS, Contractor is a duly organized Corporation in good standing in the State of California, and represents that it has the background, knowledge, experience, expertise and resources to perform the Work and other obligations encompassed by this Contract; and WHEREAS, at its meeting held on ________________________, the Victorville City Council duly accepted Contractor’s Bid for the Project and directed that a written agreement for the Project be entered into with Contractor; and
WHEREAS, in light of the facts set forth above and the certifications made by Contractor as part of its Bid, the City desires to retain Contractor to perform the construction Work for the Project as set forth in this Contract and in the Contract Documents, as hereinafter described.
NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS, CONDITIONS, AND
PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into this Contract by this City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 1
reference, as though set forth herein.
Section 2. CONTRACT DOCUMENTS; ORDER OF PRECEDENCE
a. Contract Documents. The Contract Documents consist of the following documents, all of which are either attached hereto as exhibits or are incorporated herein by this reference. Said Contact Documents are complementary; what is called for in one is binding as if called for in all, and together constitute Contractor’s performance obligations:
(1) This Contract and its attached Exhibits, subject to the limitations in Sections 9 and 20 with respect to Exhibit “A” (Contractor’s submitted Bid Proposal as accepted by the City); (2) Change Orders issued and approved by the City;
(3) Regulatory Permits f
rom other agencies specified in Appendices A and B of the bid package or as may otherwise be required by law;
(4) Bid Addenda issued by the City;
(5) Notice Inviting Bids and Instructions to Bidders;
(6) Special Provisions
(7) Appendices
(8) Plans
(9) Bid Forms
and attachment thereto;
(10) Faithful Performance Bond;
(11) Payment Bond.
b. Interpretation. In the event of any conflict between any of the Contract Documents, the document highest in the order of precedence (from highest to lowest), as set forth in Subsection a. above shall control.
Section 3. C ONTRACTOR’S OBLIGATIONS
Contractor will perform all of the Work required for the Project, as specified in the Contract Documents.
Contractor must provide, furnish, and supply all things necessary and incidental for the timely per
formance and completion of the Work, including all necessary labor, materials, supplies, tools, equi
pment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract D
ocuments. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner
and to meet or exceed the performance standards required by the Contract Documents, and to the satisfaction of Joseph Slegers, Building Official, or his designee, (hereinafter the “Project Manager”).
Section 4. CONTRACT P
RICE; PAYMENT AND RETENTION
As full and complete compensation for Contractor’s timely performance and completion of t he Work in strict ac cordance with t he terms and conditions of the Contract D ocuments, C ity w ill pay Contractor Eight Million Six Hundred Twenty-one Thousand and 00/100 DOLLARS, ($8,621,000.00) (the “Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhea d costs, i n accordance with Contractor’s Bid Proposal (attached hereto as Exhibit “A”) subject to the provisions of this Contract and the Contract Documents.
Procedures relating to payment and retention are as follows:
On or about the first of each calendar month, Contractor shall request payment for all work City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 2
a.
b.
(1)
performed prior to such date. Each payment request shall be accompanied by an updated progress schedule indicating progress achieved to that date, properly completed payroll documents, and such other documentation/data as the City may reasonably require to substantiate Contractor’s estimate of Work completed to date. Upon approval by the City’s Building Official, or his/her designee, of the Contractor's estimate of Work completed, the City will make a progress payment to the Contractor in an amount equal to the approved estimate, less a retention of five percent (5%), and less the total of all previous payments made. In preparing payment requests/estimates, the material delivered on the site, preparatory work done, and the cost of bonds and insurance paid may be taken into consideration. The City shall make payments on any properly completed and undisputed payment request submitted by Contractor within thirty (30) day of receipt thereof; however, payment requests shall not be deemed properly completed unless all required documents, including the certified payroll documents specified in Section 9 of this Agreement, have been properly submitted and reviewed by the City.
(2) Upon receipt of not
ice from Contractor that the Work is ready for final inspection, the City shall make such inspection and shall accept the Work if it determines the Work has been fully and properly completed. Upon City’s acceptance of the Work, Contractor shall make a request for final payment, which request shall include appropriate invoices, lien releases, certified payrolls, and such other substantiating data as City may reasonably require. With the exception of any disputed amounts withheld in accordance with Public Contract Code Section 7106 and/or amounts required by law to be withheld by valid Stop Payment Notices , final payment shall be made and retention shall be released to Contractor by the City not less than sixty (60) days after the Work has been accepted.
Section 5. CONTRACT T
IME; NOTICE TO PROCEED
a. Contract Time. The Work under this Agreement shall be diligently prosecuted to completion before expiration of Eighteen (18) MONTHS, commencing within Fifteen (15) calendar days after the issuance of the Notice to Proceed. The City will not issue a Notice to Proceed to the Contractor until this Contract, including bonds and insurance documents, have been executed and/or approved by the City.
b. Notice to Proceed. No work, service, material, or equipment shall be performed or furnished
under this Contract unless and until a Notice to Proceed has been given to the Contractor by the City. Contractor shall commence Work pursuant to the Contract Documents and as directed by the City in the Notice to Proceed, and diligently execute the same to completion within the Contract Time.
Section
6. DISPUTE RESOLUTION AND CLAIMS PROCEDURES
a. Public Contract Code Section 9204. For purposes of any Public Works Claims filed by a Contractor or Subcontractor (as those terms are defined in Public Contract Code Section 9204) under this
Contract, the claims procedures in Public Contract Code Section 9204 (“Section 9204”) and the provisions of this Section shall apply. Public Contract Code Section 9204 is set forth in full in Section 2-10 of the Special Provis ions.
(1) In the event of a Section 9204 Public Works Claim, Contractor may not stop working pending resolution of the dispute, but must continue to comply with its duty to diligently prosecute the performance and timely completion of the Work during the Section 9204 process.
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 3
(2) Any Public Works Claims not resolved by the Section 9204 procedures (and/or any tort claims) shall be subject to Section 2.24.020 of the Victorville Municipal Code (“VMC”) and the provisions of the Government Claims Act (Government Code section 810 et seq.). b. For disputes or
claims that do not constitute Public Works Claims, City and Contractor agree to comply with the following process:
(1) Each Party s
hall designate a senior management or executive level representative to negotiate any dispute.
(2) The representati
ves shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority.
(3) If the iss
ue remains unresolved after ten (10) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by negotiation between the legal counsel for each Party.
If the above process fails, the Parties may mutually agree to engage in non-binding mediation or arbitration in which the Parties equally share the costs of any mediator or arbitrator, or may proceed with suit or other remedies, subject to the provisions of subparagraph (5) of this Subsection and other applicable provisions and laws.
(4) The alternativ
e dispute resolution process set forth herein is a material condition to Contract and must be exhausted as an administrative remedy prior to either Party initiating legal action. (5) Compliance w
ith VMC Section 2.24.020 and the provisions of the Government Claims Act (Government Code section 810 et seq.) is also required prior to initiating suit again the City.
Section 7. TE
RMINATION O F AGREEMENT FOR CONVENIENCE
a. The City may
, by providing thirty (30) days' advance written notice to Contractor, terminate this Agreement in whole or in part, whenever the City shall determine that such termination is in the best interests of the City, or when it becomes impracticable or impossible to proceed, or because of conditions or events beyond the control of the City. Any such termination shall be effected by delivery to Contractor of a Notice of Termination for Convenience, specifying the extent to which performance of Work under this Agreement is terminated, and the date upon which such termination becomes effective. Upon such termination, the obligations of the Contractor for portions of the Work already performed shall continue. b. Upon receipt of
a Notice of Termination for Convenience, the Contractor shall, unless the notice directs otherwise, do the following:
(1) Immediately discontinue the Work to the extent specified in the notice. (2) Place no further orders or subcontracts for materials, equipment, services, or facilities, except as may be necessary to complete such portion(s) of the Work that are not to be discontinued. (3) Promptly cancel, on the most favorable terms reasonably possible, all subcontracts to the extent that they relate to the performance of the discontinued portion of the Work. (4) Thereafter do only such Work as may be necessary to preserve and protect the Work already in progress and to protect materials, plants, and equipment on the Project site or in transit thereto. c. Upon such ter
mination, the Contractor will be paid without duplication for:
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 4
(1) Work completed in accordance with the Contract Documents prior to the effective date of the Notice of Termination for Convenience;
(2) Reasonable costs incurred in settlement of terminated contracts with Subcontractors, suppliers and others; and
(3) Reasonable expenses directly attributable to termination.
The Contract
or shall submit a final termination settlement proposal to the City no later than ninety (90) days from the effective date of termination, unless extended in writing by the City, upon written request by the Contractor. If the Contractor fails to submit a proposal, the City may determine the amount, if any, due the Contractor as a result of the termination. The City will pay the Contractor the amount it determines is reasonable. If the Contractor disagrees with the amount determined by the City as being reasonable, the Contractor shall provide notice to the City within thirty (30) Days of receipt of payment. Any amount due shall be subject to the dispute resolution provisions set forth in the Contract Documents. d. Contracto
r shall include provisions in all of its subcontracts, purchase orders, and other contracts permitting termination for convenience by Contractor on terms that are consistent with this Contract and that afford no greater rights of recovery against Contractor than are afforded to Contractor under this Section 7.
Section 8. TERM
INATIO N FOR CONTRACTOR’S DEFAULT
a. Default. The City may terminate this Contract for Contractor’s default as set forth in this Section. The City will consider the Contractor in default of this Contract if, prior to the City’s acceptance of the Work, the Contractor:
(1) becomes ins
olvent, assigns its assets for the benefit of its creditors, is unable to pay its debts as they become due, or is otherwise financially unable to complete the Work; (2) abandons the Work by failing to report to the Work site and diligently prosecute the Work to completion;
(3) disregards written instructions from the City or materially violates provisions of the Contract Documents;
(4) fails to prosecute the Work according to the schedule approved by the Engineer, (5) disregards laws or regulations of any public body having jurisdiction, or (6) commits continuous or repeated violations of regulatory or statutory safety requirements.
Notices, and other written communications regarding default between the Contractor, the City, and the Surety shall be transmitted in accordance with Section 21 of this Contract. b. Notice and Opportunity to Cure. The City will issue a written notice to cure the default to the Contractor and its Surety. The Contractor shall commence satisfactory corrective actions within five (5) Working Days after receipt. If the Contractor fails to commence satisfactory corrective action within five (5) Working Days after receipt of the notice to cure, or to diligently continue satisfactory and timely correction of the default thereafter, the City will consider the Contractor in default of the Contract and:
(1) will terminate the Contractor’s right to perform under the Contract by issuing a writ ten notice
of termination for default to the Contractor and its Surety; (2) may use any materials, equipment, tools or other facilities furnished by the Contractor to secure and maintain the Work site, and
(3) may furnish labor, equipment, and materials the City deems necessary to secure and maintain the Job Site;
c. Remedies Cumulative. The provisions of this Section shall be in addition to all other legal rights and City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 5
remedies available to the City. Termination of this Contract will not relieve the Surety of its obligation for any just claims arising out of the Work performed.
Section 9. PREVAI
LING WAG E
a. Compliance with State Prevailing Wage Requirements. Pursuant to California Labor Code Section 1773, the City has obtained from the Director of the Department of Industrial Relations (“ DIR”) the general prevailing rate of per diem wages and the general prevailing wage rate for holiday and overtime work applicable in San Bernardino County for each craft, classification, or type of worker needed to perform the Work required under this Contract. A copy of these prevailing wage rates are on file at the City’s Finance Department/Purchasing Division and shall be made available for review to any interested party on request. In addition, a copy of the prevailing rate of per diem wages may be obtained via the internet at: http://www.dir.ca.gov/DLSR/PWD. Contractor and all Subcontractors shall pay not less than said specified State of California rates to all workers employed by them in the execution of the Work contemplated by this Contract, including workers performing Work described in or encompassed by California Labor Code (“ Labor Code”) Sections 1720 through 1720.9, 1771, and 1772. Contractor shall be solely responsible for using the correct and current prevailing wage rates. and performing accordingly. An error on the part of any awarding body does not relieve the Contractor from the responsibility for payment of the correct prevailing wage, or compliance with the maintenance and inspection of payroll records, posting of prevailing wage rates at the work/job site, employment of apprentices, and other requirements of Labor Code Section 1720 et seq .; Labor Code Section 1810 et seq.; California Code of Regulations, Title 8, Section 16000 et seq.; and all other applicable State labor laws.
b. Conflict. It is further expressly agreed by and between the Parties hereto that should there be any conflict between the terms of this Section 9 and the provisions of Exhibit “A”, the terms of this Section 9 shall control and nothing herein shall be considered as an acceptance of the terms of Contractor’s submitted Bid Proposal conflicting with the requirements of this Section 9. c. Payroll Records. Contractor must comply with the provisions of Labor Code sections 1776 and 1812 and all implementing regulations, including without limitation, those set forth in Title 8 of the California Code of Regulations, Section 16000 et seq. (hereinafter the “ Regulations”), which are fully incorporated by this reference, including requirements for electronic submission of payroll records to the DIR.
(1) Contractor
and Subcontractor Obligations. Contractor and each Subcontractor must keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in connection with the Work. Each payroll record must contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(a) The informati
on contained in the payroll record is true and correct; and (b) Contract
or or the Subcontractor has complied with the requirements of Labor Code Sections 1771, 1811, and 1815 for any Work performed by its employees on the Project.
(2) Certified
Record. A certi fied copy of an employee’s payroll record must be made available for inspection or furnished to the employee or his or her authorized representative on City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 6
request, to City, to the Division of Labor Standards Enforcement, to the Division of Apprenticeship Standards of the DIR, and as further required by the Labor Code. (3) Enforc
ement. Upon notice of noncompliance with Labor Code § 1776, Contractor or Subcontractor has ten days in which to comply with the requirements of this section. If Contractor or Subcontractor fails to do so within the ten-day period, Contractor or Subcontractor will forfeit a penalty of $100.00 per day, or portion a day, for each worker for whom compliance is required, until strict compliance is achieved. Upon request by the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement, these penalties will be withheld from payments then due to Contractor.
d. Apprentices. Contractor is responsible for compliance with the requirements governing employment and payment of apprentices, as set forth in Labor Code section 1777.5, which is fully incorporated by reference.
e. Notices. Pursuant to Labor Code section 1771.4, Contractor is required to post all Job Site notices, including prevailing wage rates and other notices as required by regulation. f. Other Labor Requirements. Contractor has the responsibility for and shall comply with all other requirements of California Labor Code Section 1720 et seq., Labor Code Section 1810 et seq., the Regulations, and all other applicable State labor laws. Contractor further acknowledges and agrees that it will be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with those laws. Contractor shall require the same of all its Subcontractors. g. Statutory Penalties. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced as follows:
(1) Pursuant to
Labor Code section 1775, the Contractor and any Subcontractor under it shall forfeit as a penalty to the City not more than Two Hundred Dollars ($200.00), for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the DIR for such work or craft in which such worker is employed for any public work done under this Contract by it or by any Subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.
(2) Pursuant
to Labor Code Section 1813, Contractor or Subcontractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Contract by the respective Contractor or Subcontractor for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week, except as specified in Labor Code Section 1815. In accordance with the provisions of Labor Code Sections 1810 et seq., eight (8) hours is the legal working day. h. DIR Monitoring. Pursuant to Labor Code Section 1771.4, the Contract for this Project is subject to compliance monitoring and enforcement by the DIR. i. DIR Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its Subcontractors must be registered with the DIR prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currently registered with the DIR. Contractor shall maintain a current registration for the duration of the Project. Contractor shall further include the requirements of Labor Code sections City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 7
1725.5 and 1771.1 in any subcontract and ensure that all Subcontractors are registered at the time this Contract is entered into and maintain registration for the duration of the Project.
Section 10. LIQU IDATED DAMAGES
If Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) per day for each day of unexcused delay in completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.
Section 11. COMPLIANCE WITH LAWS
a. Contractor shall
comply with all local, state, and federal laws and regulations applicable to the performance of the Work required by the Contract Documents, including any rule, regulation, or bylaw governing the conduct or performance of Contractor, its employees, officers, board members, agents, independent contractors, and Subcontractors. Unless otherwise specified in the Contract Documents, all required permits and licenses, including a City business license and a valid California contractor’s license of the type/class(es) specified in the Contract Documents, shall be held or obtained by the Contractor at its sole expense prior to commencing any Work hereunder and maintained throughout the Contract term.
b. Contractor and al
l subcontractors shall further comply with: the California Fair Employment and Housing Act (Cal. Gov. Code §12900 et seq.) and the regulations promulgated thereunder (Cal. Code Regs., tit. 2, §11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§ 11135- 11139.5), and the regulations or standards adopted by the State Library to implement such article. Contractor shall not hire or employ any person to perform work within the City or allow any person to perform work required under this Contract unless such person is properly documented and legally entitled to be employed within the United States. The Contractor and all subcontractors shall also comply with the requirements of the Drug-Free Workplace Act of 1990 (Cal.
Gov. Code §8350 et seq.).
Section 12. WORKERS’ C
OMPEN SATION CERTIFICATION
Pursuant to Labor Code
§ 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”
Section 13. INSURANCE
a. Contractor shall procure and maintain at its own expense at all times during the period covered by this Contract (and through a five- year period following the date of City’s acceptance of the Project) the following policies of insurance:
(1) Commercial G
eneral Liability (“CGL”) Insurance: 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 $5,000,000 per occurrence resulting from the acts or omissions of the Cont ractor or its officers, employees, servants, volunteers, and agents, and independent contractors. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 8
project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
(2) Commercial V
ehicle Liability Insurance: Covering person injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit, covering any vehicle utilized by Contractor or its officers, employees, servants, volunteers, or agents and independent contractors in performing the Work required by this Contract. (3) Workers’ Compensa
tion Insurance: Providing coverage as required by the California State Workers’ Compensation Law and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. If any class of employees employed by Contractor is not protected by the California State Workers’ Compensation Law, Contractor shall provide adequate insurance for the protection of such employees to the satisfaction of the City. (4) Course of Constr
uction, Builders’ Risk, or Inland Marine Insurance for Work on Site: Issued on an occurrence basis, for all -risk or “all perils” coverage on a 100% completed value basis on the insurable portion of the Project for the benefit of City, that offers “Installation” coverage for all materials, supplies, equipment, and property obtained by, or for Contractor, which is to become part of the Work while such equipment and property is stored at the jobsite, at temporary locations, or while in transit to the Project from such temporary locations. Contractor shall also be responsible for insuring its owned, leased/rented, or borrowed equipment. (a) City of Vic
torville shall be named as a Loss Payee.
(b) If the Proj
ect does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery, and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery, or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the Project/Work site. b. Additional Insurance
Requirements. With respect to the policies of insurance set forth above, compliance with the following is also required:
(1) Additional Insur
eds. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation coverage, shall bear an endorsement whereby it is provided that, the City and its elected or appointed officials, officers, employees, servants, volunteers, agents and independent contractors, including, without limitation, the City Attorney, are named as Additional Insureds. The coverage shall contain no special limitations on the scope of protection afforded to the City of Victorville, its officers, officials, employees, agents, or volunteers. (2) Waiver of Subr
ogation Rights. Contractor shall require the carriers of all required insurance policies to waive all rights of subrogation against the City and its elected or appointed officers, officials, volunteers, employees, contractors, and subcontractors. Each poli cy of insurance shall be endorsed to reflect such waiver.
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 9
(3) Sufficiency of Insurers. Contractor must secure all policies of insurance required by this Contract from a good and responsible company or companies authorized to do insurance business in the State of California, with an AM Best’s rating of not less than A;VII. (4) Proof of I
nsurance Coverage Required Prior to Commencement of Work. Within ten (10) days of
the date Contractor receives this Contract from the City for execution (following award of same
by the City Council), certificates of insurance evidencing the policies of insurance, coverages,
and endorsements required by this Contract and satisfactory to and approved by the City shall be furnished by Contractor to the City’s Risk Manager. In no event shall any Work on the P
roject be permitted to commence until adequate proof of insurance and endorsements have been so furnished. The City reserves the option to require complete, certified copies of all required insurance policies, including endorsements required by this Contract at any time. (5) Grant Compliance. Contractor’s insurance must als o be in compliance with all insurance requirements set forth in the State Library Grant Agreement funding document referenced in Section 14 of this Contract. The stricter standard shall apply in the event of a conflict. (6) Other Required Endorsements.
(a) The policies shall be endorsed to provide that in the event of cancellation or amendment of any required insurance policy for any reason whatsoever, the City shall be notified by mail, postage prepaid, not less than thirty (30) days before the c ancellation or amendment is effectiv e. In the case of canc ellation for non-payment, ten (10) days advance written notice shall be given.
(b) The CGL and v ehicle liability policies shall be endorsed as Primary and Non- contributory. This requirement shall also apply to any Excess or Umbrella liability policies. c. Subcontractors. Contractor must ensure that each Subcontractor is required to obtain and maintain the same insurance coverage required under this Section 13 with respect to its performance of Work on the Project, including thos e requirements related to the Additional Ins ureds and waiver of subrogation. Contractor mus t confirm that each Subcontractor has complied with these insurance requirements before the Subcontractor is permitted to begin Work on the Project.
Upon request by the City, Contractor must provide certificates and endorsements submitted by each Subcontractor to prove compliance with this requirement. The insurance requirements for Subcontractors do not replace or limit the Contractor’s insurance obligations. d. Self-insured retenti
ons must be declared to and approved by the City.
e. The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Lability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and whic h also apply to a loss cov ered hereunder, s hall be called upon to contribute to a loss until the Contractor’s primary and umbrella or excess liability policies are exhausted.
f. If any coverage required is written on a claims-made coverage from:
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 10
(1) The retroac
tive date must be shown, and this date must be before the execution date of the Agreement or the beginning of work.
(2) Insurance
must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of work.
(3) If cove
rage is cancelled or non- renewed, and not replaced with another claims -made policy form with a retroactive date prior to the agreement effective, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of work.
(4) A copy of
the claims reporting requirements must be submitted to City for review. g. Commerc
ial General Liability and Umbrella or Excess Liability policies for any construction related work, including, but not limited to, maintenance, service, or repair work, shall continue coverage for a minimum of five (5) years from Completed Operations liability coverage. Such insurance must be maintained, and evidence of insurance must be provided for at least a number of five (5) years after completion of the contract Work.
h. Contractor
shall require and verify that all subcontractors maintain insurance meeting all 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. The Contractor shall not require certified Small Business subcontractors to carry Liability Insurance that exceeds the limit in Section (a)(1) of this Contract. The maximum required Liability Insurance limits in Section (a)(1) of this Contract shall apply to certified Small Business subcontractors for work performed on the Project, regardless of tier. i. The City re
serves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Section 14. A
DDITION AL STATE GRANT REQUIREMENTS
a. Contractor
has been advised and acknowledges that the Project is being funded in whole or in part with A California State Library Grant (Award Agreement Number BF-2- 21-011). Contractor shall be required to comply with all applicable provisions of that Grant Award Agreement, including without limitation, the following:
(1) Non-Discrimina tion. Contractor and subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status. Contractor shall insure that the evaluation and treatment of contractors, employees and applicants for employment are free from such discrimination and harassment.
(2) Access.
Contractor shall permit access by representatives of the Department of Civil Rights and the State Library upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or the State Library shall require ascertaining compliance with this clause. Contractor and its City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 11
subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (See Cal.
Code Regs., tit. 2, §11105.). Such access is in addition to the audit access requirements set forth in Section 17 of this Contract.
(3) Rus
sian Sanctions. Executive Order N-6- 22 – Russian Sanctions: On March 4, 2022, Governor Gavin Newsom issued Executive Order N6- 22 (the “EO”) regarding economic sanctions in response to Russian aggression in Ukraine. The EO is located at https://www.gov.ca.gov/wp-content/uploads/2022/03/3.4.22-Russia -Ukraine-Executive- Order.pdf.
(a) Com
pliance with the economic sanctions imposed in response to Russia’s actions in Ukraine is required, including with respect to, but not limited to, the federal EO identified in the EO and the sanctions identified on the U.S. Department of the Treasury website at https://home.treasury.gov/policy-issues/fi nancial-sanctions-
programs-and-and-country-information/ukraine-russia-related-sanctions. (b) Cont
ractor represents that it is not a target of economic sanctions. Should it be determined that Contractor is a target of economic sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this Contract.
b. Said G
rant Award Agreement is on file in the Victorville City Clerk’s Office and is hereby incorporated as part of this Contract by this reference.
Sect
ion 15. TIME OF THE ESSENCE
Time is of th
e essence in the performance of this Contract.
Sect
ion 16. INDEMNIF ICATION
a. Notwithstanding the limits of any insurance and to the fullest extent permitted by law, Contractor shall indemnify the City, its elected or appointed officials, officers, agents, volunteers and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (hereinafter "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 on the Project, or arising or alleged to arise from the 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 Contract, but excluding such Claims or Liabilities or portion of such Claims or Liabilities arising or alleged to arise from the active negligence, sole negligence, or willful misconduct of the City, its elected or appointed officials, officers, agents, volunteers, or employees, and in connection therewith:
(1) 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;
(2) Contractor will promptly pay any judgment rendered against the City, its elected or appointed officials, officers, agents, volunteers, 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') performance of or failure to perform such Work, operations or City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 12
activities hereunder; and Contractor agrees to save and hold the City, its elected or appointed officials, officers, agents, volunteers and employees harmless therefrom; (3) In the event the City, its elected or appointed officials, officers, agents, volunteers, 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 elected or appointed officials, officers, agents ,volunteers, or employees, any and all costs and expenses incurred by the City, its elected or appointed officers, officials, agents, volunteers, or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees for counsel acceptable to City; (4) Contractor's duty to defend, indemnify, and hold harmless as set out in this Section 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. b. Cit
y will timely notify Contractor upon receipt of any third- party claim relating to the Contract, as required by Public Contract Code § 9201. The Contractor's indemnification and defense obligations pursuant to this Section shall survive the termination of this Contract. Contractor shall require the same indemnification from all Subcontractors.
Secti
on 17. REPORTS; BOOKS AND RECORDS; AUDIT
a. Upon request by the Project Manager Contractor shall prepare and submit reports concerning Contractor's performance of the Work required by this Contract. b. Contractor shall keep such books and records as shall be necessary to perform the work required by this Contract and enable the Project Manager to evaluate the cost and the performance of such Work.
c. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles. The Project Manager shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
d. Records and supporting documents pertaining to the use of funds paid to Contractor hereunder and other financial records shall be retained by Contractor and made available to the Project Manager for purposes of performing an audit for a period of five (5) years from the date of termination of this Contract, or such later date as specified in Subsection e hereof. e. Contractor further agrees that the State Library, the Department of General Services, the State Auditor, or their designated representatives shall have the right to review, audit, inspect and copy any records and supporting documentation pertaining to the performance of this Agreement. Contractor agrees to maintain such records for possible audit for a minimum of five (5) years after the final payment made under this Contract, or State Library Grant term end date, whichever is later, unless a longer period of records retention is stipulated, or until completion of any action and resolution of all issues City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 13
which may arise as a result of any litigation, dispute, or audit, whichever is later. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records.
Sectio
n 18. MODIFIC ATIONS AND AMENDMENTS
This Contract may be modified or amended only by written Change Orders as specified in the Contract Documents or a written instrument signed by both Parties.
Section 19. E
NTIRE AGREEMEN T
a. This Contract supersedes any and all prior or contemporaneous agreements, either oral or written, between the City and Contractor with respect to the subject matter of this Contract. b. The Contract Documents contain all of the covenants and agreements between the Parties with respect to the subject matter herein, and each Party acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any Party, except those covenants and agreements in this Contract and the Contract Documents incorporated herein. c. No agreement, statement, or promise with respect to the subject matter of the Contract Documents, which is not contained in the Contract Documents, or in a valid modification or amendment to the Contract Documents, shall be valid or binding on either Party.
Section 20
. AMBIGUIT IES
This Cont
ract is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Contract. Notwithstanding the foregoing, the Parties agree that Exhibit “A” is attached hereto for reference purposes, and to the extent there are any ambiguities, inconsistencies, or conflicts between the terms of this Contract and Exhibit “A”, the terms of this Contract shall control and nothing set forth in Exhibit “A” shall be deemed to supersede any of the provisions of this Contract.
Section 21
. NOTICES
a. Any notice to be provided pursuant to this Contract shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:
To City:
To Contract
or:
_ __________
Joseph Slegers, Building Official_________________________________ Building Department_________________________________
14343 Civic Drive
Victorville, CA 92392
Richard Boctor, President______________________________ ___________________Monet Construction, Inc.
7610 Day St.______________________________
Tujunga, CA 91042______________________________
______________________________
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 14
To Surety: _______________________________
_______________________________
_______________________________
_______________________________
_______________________________
b. Notices, payments, and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail. c. Either Party, or the surety, may change its address by giving notice in writing to all other parties listed above, and thereafter notices shall be addressed and transmitted to such new address.
Secti
on 22. NON-LIABI LITY OF CITY OFFICERS AND EMPLOYEES
No officer or employee of the City shall be personally liable to 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 Contractor or to its successor(s), or for any breach of any obligation of the terms of this Contract.
Secti
on 23. REVIEW BY AT TORNEYS
Each Party hereto has consulted with and had its attorneys review this Contract and all related documents.
Secti
on 24. BONDS
Concurrently with the execution of this Contract by the Contractor, and before the commencement of any Work, Contractor shall furnish to the City a Faithful Performance Bond, and a Payment (Labor and Materials Bond) each in an amount equal to one hundred percent (100%) of the Contract Price written on the forms included in the Contract Documents. The Faithful Performance Bond must remain in force until the later of: (1) the expiration of the one-year guarantee period; or (2) one year from the date of completion of any corrective Work performed during the one-year guarantee period. Such bonds must be issued by a responsible corporate Surety, licensed and authorized to issue such bonds in the State of California with an AM Best’s Rating of at least A: VII.
Secti
on 25. CARE OF WO RK
Contractor must adopt reasonable methods during the life of the Contract to furnish continuous protection to the Work, and the equipment, materials, papers, documents, plans, studies, and other components to prevent losses or damages, and will be responsible for all damages, to persons or property, until acceptance of the Work by the City, except those losses or damages as may be caused by the City’s own negligence. The performance of the Work by Contractor or the payment of money by the City shall not relieve Contractor from any obligation to correct any incomplete, inaccurate, or defective Work (including the obligation to remedy any defective Work or materials during the one- year guarantee period after the City’s acceptance thereof) at no further cost to the City.
Secti
on 26. CAPTIONS A ND HEADINGS
The captions and headings contained in this Contract are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 27. OWNERSHIP OF DOCUMENTS
No portion of the Contract Documents may be used for any purpose other than construction of the Project, without prior written consent from City. Contractor is deemed to have conveyed the copyright in any designs, drawings, specifications, Shop Drawings, or other documents (in paper or electronic form) City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 15
developed by Contractor for the Project, and City will retain all rights to such works, including the right to possession.
Section 28. SUCCESSORS, HEIRS, AND ASSIGNS
Except as otherwise expressly provided herein, this Contract shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties. This Contract may not be assigned or transferred by Contractor without the concurrence of the surety and express written consent of the City.
Section 29. GENDER; PLURAL
In this Contract, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another.
Section 30. SEVERABILIT Y
If any one or more of the sentences, clauses, paragraphs, or sections contained herein is declared invalid, void, or unenforceable by a co urt of competent jurisdiction, the same shall be deemed severable from the remainder of this Contract and shall not affect, impair, or invalidate any of the remaining sentences, clauses, paragraphs, or sections contained herein.
Section 31. GOVERNING LAW
The validity of this Contract and any of its terms or provisions, as well as the rights and duties of the Parties under this Contract, shall be construed pursuant to and in accordance with California law.
Section 32. CUMULATIVE REM EDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Contract, 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 of any other default by the other Party.
Section 33. VENUE
All proceedings involving disputes over the terms, provisions, covenants, or conditions contained in this Contract and all proceedings involving any enforcement action related to this Contract shall be initiated and conducted in the applicable court or forum in San Bernardino County, California.
Section 34. EFFECTIVENESS OF CONTRACT
This Contract shall not be binding upon the City until signed by the authorized representative(s) of Contractor, approved by the City’s Risk Manager, and executed by the authorized City personnel or the Mayor.
Section
35. REPRESENTATI ONS OF PARTIES AND PERSONS EXECUTING CONTRACT Each of t
he Parties to this Contract hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Contract a binding obligation of each of the Parties hereto. The persons executing this Contract warrant that they are duly authorized to execute this Contract on behalf of and bind the Parties each purports to represent.
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 16
Section 36. WAIVER
No delay
or omission in the exercise of any right or remedy by a non- defaulting Party on any default under this Contract 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 Contract.
Secti
on 37. INDEPENDENT CO NTRACTOR STATUS; NOT AGENT OF THE CITY a. The Part
ies hereto acknowledge and agree that Contractor is and at all times shall remain as to the City a wholly independent contractor. All persons working for or under the direction of the Contractor are the Contractor's employees, agents, or subcontractors, and they shall not be deemed agents, servants, or employees of the City. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner.
b. The pers
onnel performing work or services under this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Contractor or any of Contractor’s officers, employees, or agents, except as may otherwise be set forth herein.
Secti
on 38. COUNTERPAR TS
This Contract may be executed by the Parties in counterparts, and when executed by each of the Parties, each counterpart shall be deemed to be a part of this Contract.
Secti
on 39. PROVISION S REQUIRED BY LAW DEEMED INSERTED
Each and ev
ery provision of law and clause required by Law to be inserted in this Contract shall be deemed to be inserted herein and the Contract shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not currently inserted, then upon application of either Party the Contract shall forthwith be physically amended to make such insertion or correction.
Secti
on 40. ATTORNEY' S FEES
If ei
ther Party commences an action against the other Party, either legal, administrative, or otherwise, arising out of or in connection with this Contract, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action.
Secti
on 41. CONFLI CTS OF INTEREST
Contr
actor covenants that it does not have any interest, nor shall it acquire any interest, directly or indirectly, which would conflict in any manner with the performance of Contractor’s Work under this Contract. Contractor further covenants that in the performance of Work under this Contract, no officer, employee, or agent of Contractor having such interest shall be employed by it. Furthermore, Contractor shall avoid the appearance of having any interest which would conflict in any manner with the performance of the Work pursuant to this Contract. Contractor further agrees to complete any statements City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 17
of economic interest (FPPC Form 700) if required by either City ordinance or State law and further certifies that it does not now have nor shall it acquire any financial or business interest that would conflict with the performance of the work and services under this Agreement and does not know of any fact which constitutes a violation of any conflict of interest law, including Section 81000 et seq. or Section 1090 et seq. of the California Government Code. In the event the City determines that Contractor must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Contractor shall file such Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the City Clerk. Acquisition or maintenance of a confl icting interest by Contractor may result in termination of this Contract by the City.
Secti
on 42. ASSIGNMENT OF UNFAIR BUSINESS PRACTICE CLAIMS
In ac
cordance with California Public Contract Code Section 7103.5, the Contractor and any Subcontractors offer and agree to assign to the City all rights, title, and interest in and to all causes of action the Contractor or any Subcontractors may have under Section 4 of the Clayton Act (15 U.S.C.
Section 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 this Agreement. This assignment shall be made and become effective at the time the City tenders final payment to the Contractor, without further acknowledgement by the Parties. (END OF T
HIS PAGE – SIGNATURE PAGE FOLLOWS)
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 18
IN WITNESS WHEREOF, the Parties hereto have caused this Contract to be executed as of the dates written below.
THE CITY OF VICTORVILLE MONET CONSTRUCTION, INC.
By: By: Contractor Authorized Officer(s)__
Elizabeth Becerra, Mayor
_______________________________
Name
_______________________________
Title
Dated: Dated: ____________________________
ATTEST
By:
Jennifer Thompson, City Clerk
Dated:
APPROVED AS TO STANDARD FORM
By:
Andre de Bortnowsky, City Attorney
Dated:
THE CITY OF VICTORVILLE
By:
Sandra Bostick, Risk Manager
Dated:
Richard Boctor
President
EX
HIBIT A
C
ONTRACTOR'S BID PROPOSAL
S
ee Attachment
City of Victorville, Project JM24-051 NEW LIBRARY
RENOVATION AND EXPANSION, MONET CONSTRUCTION, INC.
P a g e | 20
EXHIBIT A, CONTRACTOR'S BID PROPOSAL, PROJECT JM24-051
21/City of Victorville, Project JM24-051 New Library Renovation and Expansion EXHIBIT A, CONTRACTOR'S BID PROPOSAL, PROJECT JM24-051
22/City of Victorville, Project JM24-051 New Library Renovation and Expansion EXHIBIT A, CONTRACTOR'S BID PROPOSAL, PROJECT JM24-051
23/City of Victorville, Project JM24-051 New Library Renovation and Expansion EXHIBIT A, CONTRACTOR'S BID PROPOSAL, PROJECT JM24-051
24/City of Victorville, Project JM24-051 New Library Renovation and Expansion