ATTACHMENT B
CONSTRUCTION
AGREEMENT
1 Construction Agreement/ Vance Corporation / Project MS27-015
CONSTRUCTION AGREEMENT
BY AND BETWEEN
THE SOUTHERN CALIFORNIA LOGISTICS AIRPORT AUTHORITY
AND
VANCE CORPORATION
FOR
READINESS ROAD REHABILITATION PROJECT NO. MS27-015
THIS CONSTRUCTION AGREEMENT (the “Agreement”) dated this __________________ day of ______________, 20___, for reference purpose only, is made and entered into by and between the Southern California Logistics Airport Authority, a joint powers authority located in the County of San Bernardino, State of California, hereinafter referred to as “SCLAA”, and Vance Corporation, a California corporation, hereinafter referred to as the “Contractor”. The SCLAA and the Contractor are sometimes hereinafter referred to as a “Party” and collectively referred to as the “Parties.”
RECITALS:
WHEREAS, the SCLAA requires Readiness Road Rehabilitation as more fully described in the solicitation documents issued by the SCLAA for Project No. MS27-015 (the “Project”); and WHEREAS, in light of the facts set forth above, the SCLAA desires to retain Contractor to perform the construction work in connection with Readiness Road Rehabilitation as set forth in this Contract and in the Contract Documents, as hereafter 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 Agreement by this reference, as though set forth herein.
Section 2. TERM OF AGREEMENT
This Agreement shall commence within Fifteen (15) Calendar Days after issuance of Notice to Proceed (the “Commencement Date”) and shall terminate upon completion of the Project within Sixty (60) Calendar Days after Commencement Date (the “Termination Date”), unless sooner terminated in accordance with the provisions of this Agreement (the “Term”). From and after the Termination Date, and upon subsequent Agreement by the Parties, this Agreement may continue on a month-to-month basis until terminated pursuant to Section 3 below.
Section 3. TERMINATION OR SUSPENSION
a. This Agreement may be terminated or suspended without cause by either Party at any time, provided that the Party initiating the termination provides the other Party at least thirty (30) days advance written notice of such termination or suspension. In the event of such termination, the 2 Construction Agreement / Vance Corporation / Project MS27-015 SCLAA shall only be liable for payment under the payment provisions of this Agreement for satisfactory work rendered or supplies actually furnished prior to the effective date of termination. b. This Agreement may be terminated or suspended with cause by either Party at any time, provided that the Party initiating termination provides the other Party at least ten (10) days advance written notice of such termination or suspension. In the event of such termination, the SCLAA shall only be liable for payment under the payment provisions of this Agreement for satisfactory work rendered or supplies actually furnished prior to the effective date of termination.
Section 4. CONTRACT DOCUMENTS; PRIORITY
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 intended to be correlative and constitute Contractor’s performance obligations:
1. This Agreement.
2. Exhibits A & B.
3. Change Orders issued and approved by the SCLAA.
4. Bid Addenda issued by the SCLAA.
5. Notice Inviting Bids and Instructions to Bidders.
6. Specifications for the Project.
7. Special Provisions.
8. Accepted Proposal.
9. Bid Forms and attachment thereto.
10. Faithful Performance & Payment Bonds
11. Non-Collusion Declaration.
12. Guaranty.
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
4.a above shall control.
Section 5. CONTRACTOR’S OBLIGATIONS
Contractor shall complete the Project as specifically set forth in the Contract Documents.
Contractor shall furnish, at its own cost and expense, all labor, services, material, tools, equipment, supplies, transportation, and any other items and facilities necessary therefore, as provided in the Contract Documents.
Section 6. COMPENSATION
The Contractor agrees to receive and accept the following amount, not to exceed Seven Hundred Ninety-Four Thousand Seven Hundred Thirty and 87/100 Dollars ($794,730.87), (the “Contract Price”) as full compensation for furnishing; all materials, doing all the work contemplated and embraced in this contract, all loss or damage arising out of the nature of the work aforesaid, the action of the elements, any unforeseen difficulties or obstructions which may arise or be encountered in the execution of the work until its acceptance by the SCLAA, and for all risks of every description connected with the work, all expenses incurred by or in consequence of the suspension or discontinuance of work well and faithfully completing the whole work, thereof, according to the requirements of the Contract Documents and to the satisfaction of the SCLAA, 3 Construction Agreement / Vance Corporation / Project MS27-015 James Murawski, Airport Director, or his designee, to wit: See Exhibit “A”, Scope of Work.
Section 7. BID PROPOSAL FORMS
The SCLAA shall pay Contractor as provided in the Bid Proposal Forms, attached hereto as Exhibit “B”, and incorporated herein by this reference as though set forth in full, subject to approval of the SCLAA, when applicable.
Section 8. PREVAILING WAGES
a. Compliance with State Prevailing Wage Law. Pursuant to California Labor Code Section 1773, the SCLAA 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 for each craft, classification, or type of worker in San Bernardino County, California, where the Project is to be performed. Copies of these prevailing rate of per diem wages are on file at the City of Victorville Finance Department/Purchasing Division and shall be made available for review to any interested party on request. Copies of these prevailing rate of per diem wages are also available from the State of California via the internet at http://www.dir.ca.gov/DLSR/PWD. Contractor and its subcontractors shall pay not less than said specified prevailing rate of per diem wages to all workers employed by them in the performance of any work under this Agreement which constitutes “public works” or “public work”, including without limitation, Readiness Road Rehabilitation Project, and any other work or services 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. Designation as Contractor Not Determinative. For purposes of this Agreement, Contractor and its subcontractors shall be subject to and shall comply with all provisions of the Labor Code applicable to contractors and subcontractors when they are engaged in the performance of any work under this Agreement which constitutes “public works” or “public work” as defined in subsection a above, despite being designated as a Contractor. c. Conflict. It is further expressly agreed by and between the Parties hereto that should there be any conflict between the provisions of this Section and the terms of Exhibit “A” or Exhibit “B” of this Agreement, the provisions of this Section shall control and nothing herein shall be considered as an acceptance of the terms of Contractor’s Scope of Services, scope of work, bid proposal, cost proposal, and/or fee schedule which conflict with the provisions of this Section. d. Payroll Records. Contractor and its subcontractors 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, 4 Construction Agreement / Vance Corporation / Project MS27-015 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 information contained in the payroll record is true and correct; and (b) Contractor or subcontractor has complied with the requirements of Labor Code Sections 1771, 1811, and 1815 for any covered work performed by its employees on the Project.
(2) Certified Record. A certified 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 request, to the SCLAA, 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) Enforcement. Upon notice of noncompliance with Labor Code Section 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. (4) Payment of Invoices. Copies of the certified payrolls, proof of payroll submissions, and appropriate lien releases are required with each invoice to the SCLAA. Payment of the invoice may be delayed when payroll-related documents and/or lien releases are not included with the invoice.
e. 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.
f. 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. g. Other Labor Requirements. Contractor has the responsibility for and shall comply with all other applicable requirements of 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.
h. Statutory Penalties. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hours 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 SCLAA 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 5 Construction Agreement / Vance Corporation / Project MS27-015 worker is employed for any public work done under this Agreement 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 SCLAA, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement 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 Section 1810 et seq., eight (8) hours is the legal working day.
i. DIR Monitoring. Pursuant to Labor Code Section 1771.4, the Agreement for this Project is subject to compliance monitoring and enforcement by the DIR. j. 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 Agreement, 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 1725.5 and 1771.1 in any subcontract and ensure that all subcontractors are registered at the time this Agreement is entered into and maintain registration for the duration of the Project.
Section 9. WORKERS’ COMPENSATION INSURANCE
Contractor shall procure and maintain, at its own expense, during the Term of this Agreement, workers’ compensation insurance, providing coverage as required by the California State Workers’ Compensation Law. 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 SCLAA.
In conformance with current statutory requirements of Section 1860 et seq., of the Labor Code of the State of California, the undersigned confirms the following as their certification:
I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions before commencing the performance of the work of this contract.
Section 10. 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 SCLAA. Contractor shall commence work pursuant to the Contract Documents as directed by the SCLAA in the Notice to Proceed, and to diligently execute the same to completion within the time limits set forth in the Contract Documents.
6 Construction Agreement / Vance Corporation / Project MS27-015 Section 11. COMPLIANCE WITH LAWS
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 shall be held or obtained by the Contractor at its sole expense.
Section 12. COMMERCIAL GENERAL, AUTOMOBILE LIABILITY INSURANCE Contractor shall procure and maintain at its own expense, during the term of this Agreement, commercial general liability insurance, of not less than Two Million Dollars ($2,000,000) per occurrence, and Four Million Dollars ($4,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by the Contractor or its officers, employees, servants, volunteers, and agents and independent contractors.
Contractor shall further procure and maintain, at its own expense, during the Term of this Agreement, commercial vehicle liability insurance covering personal injury and property damage, of not less than Two Million Dollars ($2,000,000) Combined Single Limit, covering any vehicle(s) utilized by Contractor or its officers, employees, servants, volunteers, or agents and independent contractors in performing the services required by this Agreement.
Section 13. INSTALLATION FLOATER
“Installation Floater” coverage with limits sufficient to insure the full replacement value of any property or equipment stored either on or off the project site that provides property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the contract work, including during transit, installation, and testing at the project site. Such coverage shall name the SCLAA and City as a loss payee as its interest may appear.
Section 14. ADDITIONAL INSURED
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 SCLAA, the City of Victorville and their officers, employees, servants, volunteers, and agents and independent contractors, including, without limitation, the Authority Legal Counsel, are named as Additional Insureds.
Section 15. WAIVER OF SUBROGATION RIGHTS
Contractor shall require the carriers of all required insurance policies to waive all rights of subrogation against the SCLAA, the City of Victorville and their officers, volunteers, employees, contractors, and subcontractors. Each policy of insurance shall be endorsed to reflect such waiver.
7 Construction Agreement / Vance Corporation / Project MS27-015 Section 16. PROOF OF INSURANCE COVERAGE; REQUIRED PRIOR TO
COMMENCEMENT OF SERVICES
a. Contractor shall secure from a good and responsible company or companies authorized to do insurance business in the State of California the policies of insurance required by this Agreement and furnish to the Authority Secretary certificates of said insurance at least two (2) weeks prior to the commencement of any work to be performed under this Agreement. b. The certificates of insurance shall bear an endorsement whereby it is provided that, in the event of cancellation or amendment of any required insurance policy for any reason whatsoever, the SCLAA shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. In the case of non-payment, ten (10) days’ advance written notice shall be given.
c. The certificates of insurance shall bear an endorsement whereby it is provided that the respective insurance policy shall not be terminated or expire without first providing thirty (30) days written notice to the SCLAA of such termination or expiration. d. The commercial general liability and vehicle liability policies shall be endorsed to contain the following provision: “For any claims related to this contract, the Contractor’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects the SCLAA, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the SCLAA, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.” Section 17. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
Section 18. INDEMNIFICATION
Notwithstanding the limits of any insurance, Contractor shall indemnify the SCLAA, its 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, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising or alleged to arise out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising or alleged to arise from the negligent acts or omissions of Contractor hereunder, or arising or alleged to arise from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities or portion of such claims or liabilities arising or alleged to arise from the negligence or willful misconduct of the SCLAA its officials, officers, agents, volunteers or employees, and in connection therewith:
a. Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith;
b. Contractor will promptly pay any judgment rendered against the SCLAA, its officials, officers, agents or employees for any such claims or liabilities arising or alleged to arise 8 Construction Agreement / Vance Corporation / Project MS27-015 out of or in connection with Contractor's (or its agents', employees', subcontractors' or invitees') negligent performance of or failure to perform such work, operations or activities hereunder; and Contractor agrees to save and hold the SCLAA, its officials, volunteers, officers, agents, and employees harmless there from;
c. In the event the SCLAA, its 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 negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor shall pay to the SCLAA, its officials, volunteers officers, agents or employees, any and all costs and expenses incurred by the SCLAA, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees for counsel acceptable to the SCLAA; d. Contractor's duty to defend and indemnify 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; The Contractor's indemnification obligations pursuant to this Section shall survive the termination of this Agreement. Contractor shall require the same indemnification from all subcontractors.
Section 19. REPORTS
Upon request by SCLAA, James Murawski, Airport Director, or his designee, Contractor shall prepare and submit reports concerning Contractor's performance of the work required by this Agreement.
Section 20. RECORDS
a. Contractor shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable SCLAA, James Murawski, Airport Director, or his designee, to evaluate the cost and the performance of such services. b. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles.
c. SCLAA, James Murawski, Airport Director, or his designee, 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 shall be retained by Contractor and made available to SCLAA, James Murawski, Airport Director, or his designee, for purposes of performing an audit for a period of five (5) years from the date of termination of this Agreement. 9 Construction Agreement / Vance Corporation / Project MS27-015 Section 21. MODIFICATIONS AND AMENDMENTS
This Agreement may be modified or amended only by a written instrument signed by both Parties.
Section 22. ENTIRE AGREEMENT
a. This Agreement supersedes any and all prior or contemporaneous Agreements, either oral or written, between the SCLAA and Contractor with respect to the subject matter of this Agreement.
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 Agreement and the Contract Documents. 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 23. AMBIGUITIES
This Agreement 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 Agreement.
Notwithstanding the foregoing, the Parties agree that Exhibits “A” and “B” are attached hereto for reference purposes and to the extent there are any ambiguities, inconsistencies or conflicts between the terms of this Construction Agreement and Exhibits “A” and “B”, the terms of this Construction Agreement shall control and nothing set forth in Exhibits “A” and “B” shall be deemed to supersede any of the provisions of this Construction Agreement.
Section 24. NOTICES
a. Any notice to be provided pursuant to this Agreement 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 the SCLAA: James Murawski, Airport Director
Southern California Logistics Airport Authority
18374 Phantom West
Victorville, CA 92394
To Contractor: Derek Ritarita, President
Vance Corporation
459 Egan Avenue
Beaumont, CA 92223
10 Construction Agreement / Vance Corporation / Project MS27-015 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.
Section 25. NON-LIABILITY OF THE SCLAA OFFICERS AND EMPLOYEES No officer or employee of the SCLAA shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by the SCLAA 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 Agreement.
Section 26. REVIEW BY ATTORNEYS
Each Party hereto has had its attorneys review this Agreement and all related documents.
Each Party hereto has consulted with its attorneys and has negotiated the terms of this Agreement based on such consultation.
Section 27. CARE OF WORK
Contractor must adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and 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 SCLAA, except those losses or damages as may be caused by the SCLAA’s own negligence. The performance of the work by Contractor or the payment of money by the SCLAA shall not relieve Contractor from any obligation to correct any incomplete, inaccurate, or defective work at no further cost to the SCLAA, when such inaccuracies are due to the negligence of Contractor.
Section 28. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement 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 29. SUCCESSORS, HEIRS, AND ASSIGNS
Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties. This Agreement may not be assigned or transferred by Contractor without the concurrence of the surety and express written consent of the SCLAA, which may be withheld in the SCLAA’s sole discretion since the experience and qualifications of Contractor were material considerations for this Agreement.
Section 30. GENDER; PLURAL
In this Agreement, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another. 11 Construction Agreement / Vance Corporation / Project MS27-015 Section 31. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs, or sections contained herein is declared invalid, void, or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair, or invalidate any of the remaining sentences, clauses, paragraphs, or sections contained herein.
Section 32. GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.
Section 33. CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
Section 34. VENUE
All proceedings involving disputes over the terms, provisions, covenants, or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in San Bernardino County, California.
Section 35. ATTORNEY'S FEES
Should any litigation, specifically including but not limited to, arbitration and other non-judicial resolution of disputes be commenced between the Parties to this Agreement concerning this Agreement or the rights and duties of either in relation thereto, the Parties prevailing in such litigation or other proceeding shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for attorney fees in such litigation where the proceeding which, if not agreed upon by the Parties, shall be determined by the court or other entity in which such litigation or other proceeding is brought.
Section 36. CLAIMS AND DISPUTE RESOLUTION
Except for such claims as defined in and covered by California Public Contract Code Section 9204 (“Section 9204”), which are subject to the procedures set out in therein (the full text of Section 9204 is set forth below), any dispute arising out of or relating to the provisions of any construction Contract awarded for this Project, or the breach thereof, shall be settled in the manner set forth in the executed Contract, or if not specified therein, by the following process:
A. Each Party shall designate a senior management or executive level representative to negotiate any dispute.
B. The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority.
C. If the issue remains unresolved after ten (10) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by negotiation between the legal 12 Construction Agreement / Vance Corporation / Project MS27-015 counsel for each Party. If the above process fails, the Parities 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 paragraph (5) below and other applicable provisions and laws.
D. The alternative dispute resolutions process set forth herein is a material condition of any Contract entered into for the Project and must be exhausted as an administrative remedy prior to either Party initiating legal action.
E. Compliance with Victorville Municipal Code 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 against the City.
California Public Contract Code Section 9204.
(a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner. (b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project. (c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project. (B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contract pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled.
(C) Payment of an amount that is disputed by the public entity. (2) “Contractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project. (3) (A) “Public entity” means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a chart city and county, district, special district, public authority, political subdivision , public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the jurisdiction of that department.
(iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department.
(iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code.
13 Construction Agreement / Vance Corporation / Project MS27-015 (4) “Public works project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind.
(5) “Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor. (d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, with a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and contractor may, by mutual agreement, extend the time period provided in this subdivision. (B) The claimant shall furnish reasonable documentation to support the claim. (C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply. (2) (A) If the claimant disputes the public entity’s written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute. (B) Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim had been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parties of the claim remaining in dispute shall be subject to applicable procedures outside this section. (C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall confirm to the timeframes in this section.
14 Construction Agreement / Vance Corporation / Project MS27-015 (D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (E) This section does not preclude a public entity form requiring arbitration of disputes under private arbitration of the public Works Contract Arbitration Program, if mediation under this section does not resolve the parties’ dispute. (3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity’s failure to have responded to a claim, or is failure to otherwise meet the time requirements of this section , shall not constitute and adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor.
A subcontractor may request in writing, either on their own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so. (e) The text of this section or a summary o fit shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section. (f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section. (g) This section applies to contracts entered into on or after January 1, 2017. (h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2027, and as of that date is repealed unless a later enacted statute that is enacted before January 1, 2027, deletes or extends that date.
Section 37. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the SCLAA, until signed by the authorized representative(s) of Consultant, approved by the Authority Risk Manager, and executed by the authorized the SCLAA personnel or Authority Chairman.
15 Construction Agreement / Vance Corporation / Project MS27-015 Section 38. REPRESENTATIONS OF PARTIES AND PERSONS
EXECUTING AGREEMENT
a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.
b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.
Section 39. COUNTERPARTS
This Agreement 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 Agreement.
Section 40. CARB COMPLIANCE OBLIGATIONS
a. CARB Regulations. Contractor is aware of the California Air Resources Board (“CARB”) regulations mandating various emission reduction requirements. Contractor agrees to comply with all applicable CARB regulations (Title 13, Division 3 of the California Code of Regulations (“CCR”)) prior to commencing any work hereunder and maintain compliance throughout the duration of this Contract.
(1) Vehicles with a Gross Vehicle Weight Rating (GVWR) greater than 8,500 lbs. and light-duty package delivery vehicles operated in California may be subject to CARB’s Advanced Clean Fleets regulations. Such vehicles may therefore be subject to requirements to reduce emissions of air pollutants. For more information, please visit the CARB Advanced Clean Fleets (ACF) webpage at https://ww2.arb.ca.gov/ourwork/programs/advanced-clean-fleets. (2) Effective January 1, 2024, CARB implemented amendments to the In-Use OffRoad Diesel-Fueled Fleets Regulation (13 CCR Section 2449 et seq., the “Off-Road Regulation”) which apply broadly to all self-propelled off road diesel vehicles 25 horsepower or greater and other forms of equipment used in California (including any vehicles or equipment that is rented or leased). The Off-Road Regulation is available at:
https://ww2.arb.ca.gov/sites/default/files/barcu/regact/2022/off-roaddiesel/appa-1.pdf. b. Contractor must comply with all CARB regulations and requirements, including without limitation, all applicable sections of the Off-Road Regulation (as codified in 13 CCR Section 2449 et seq.) throughout the term of the Project and this Contract. Contractor shall be solely liable for all costs associated with complying with the regulations, as well as for any and all penalties, fines, damages, or costs associated with violations or failures to comply with the regulations. Contractor shall defend, indemnify, and hold harmless the SCLAA and the City of Victorville, its elected and appointed officials, officers, agents, and employees from and against any and all claims, liabilities, costs, penalties, interest or other damages arising out of Contractor’s failure or alleged failure to comply with CARB regulations. (END OF THIS PAGE)
16 Construction Agreement / Vance Corporation / Project MS27-015 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
SOUTHERN CALIFORNIA LOGISTICS VANCE CORPORATION
AIRPORT AUTHORITY
By:_________________________________ By:__________________________ Elizabeth Becerra, Derek Ritarita,
Authority Chairman President
Dated:______________________________ Dated:_______________________ ATTEST
By:________________________________
Jennifer Thompson,
Authority Secretary
Dated:______________________________
APPROVED AS TO STANDARD FORM
By:________________________________
Andre de Bortnowsky,
Authority Legal Counsel
Dated:______________________________
By:________________________________
Sandra Bostick,
Risk Manager
Dated:_____________________________
17 Construction Agreement / Vance Corporation / Project MS27-015
EXHIBIT A
SCOPE OF WORK
SCLAA agrees to engage Contractor and Contractor agrees to furnish all necessary labor, tools, materials, and equipment for and do the Work for the Project. The Work shall be performed in accordance with: (i) the Plans and Specifications and applicable Addenda (as generally described in the Request for Bid, Readiness Road Rehabilitation Project No. MS27-015, for the Project, portions of which are attached hereto for ease of reference as Exhibit "A" (if available), and the entirety of which is currently on file in office of the Authority Secretary); (ii) the prices set forth in Contractor’s Bid Proposal (attached as Exhibit "B").
18 Construction Agreement / Vance Corporation / Project MS27-015 Exhibit A
SCOPE OF WORK
The Readiness Road Rehabilitation Project will include the following tasks and specifications:
A. Site Preparation
o Conduct a thorough site survey to identify existing conditions and any potential obstacles.
o Implement necessary traffic control measures to ensure the safety of workers and the public.
o Remove any debris, vegetation, or other obstructions from the work area.
B. Milling
o Mill the existing asphalt surface to a depth of 2 inches. o Ensure that the milling process does not damage underlying structures or utilities. o Dispose of all milled materials in accordance with local regulations.
C. Paving
o Apply a tack coat to the milled surface to promote adhesion of the new asphalt layer. o Install a new asphalt layer with a minimum thickness of 2 inches, using hot mix asphalt (“HMA”) that meets Caltrans Standard Specifications Section 39. o Compact the new asphalt layer to achieve a smooth, even surface with a minimum compaction rate of 95% of the maximum theoretical density.
D. Striping and Markings
o Apply new pavement markings and striping in accordance with the Manual on Uniform Traffic Control Devices (MUTCD) standards.
o Use high-quality, durable traffic paint that meets Caltrans Standard Specifications Section 84.
E. Drainage Improvements
o Inspect and clean existing drainage structures, including catch basins and culverts. o Repair or replace any damaged drainage structures as needed. o Ensure that all drainage improvements comply with local stormwater management regulations.
F. Quality Control and Testing
o Conduct regular quality control tests to ensure compliance with project specifications and standards.
19 Construction Agreement / Vance Corporation / Project MS27-015 o Perform compaction tests, asphalt content tests, and other relevant tests as required. o Provide test results and documentation to the Southern California Logistics Airport Authority (“SCLAA”) staff for review and approval.
Service Requirements
The contractor shall adhere to the following service requirements:
A. Provide a detailed project schedule, including start and completion dates, for approval by the SCLAA staff.
B. Maintain open communication with the SCLAA project manager and provide regular progress updates.
C. Ensure that all work is performed in accordance with applicable safety regulations, including OSHA standards.
D. Minimize disruptions to local traffic and coordinate with local authorities as needed to implement traffic control measures.
E. Provide adequate signage and barriers to ensure the safety of workers and the public.
F. Ensure that all workers are properly trained and certified for the tasks they are performing.
G. Maintain a clean and organized worksite, with all debris and waste materials properly disposed of.
Delivery Requirements
The contractor shall adhere to the following delivery requirements:
A. Complete all work within the agreed-upon timeframe, with any delays promptly communicated to the SCLAA staff.
B. Deliver all materials and equipment to the worksite in a timely manner to avoid project delays.
C. Ensure that all materials and equipment meet the specified standards and are in good working condition.
D. Provide a final project report, including as-built drawings, test results, and any other relevant documentation, upon project completion.
E. Conduct a final walkthrough with the SCLAA project manager to ensure all work has been completed to the satisfaction of the SCLAA.
20 Construction Agreement / Vance Corporation / Project MS27-015 All work shall be performed in accordance with the approved Readiness Road Rehabilitation plans, applicable Authority Having Jurisdiction (AHJ) requirements, and all project specification requirements.
By adhering to the above scope of work, the contractor will ensure the successful completion of the Readiness Road Rehabilitation Project, resulting in a safer, more durable roadway for the tenants and staff of the Southern California Logistics Airport, as well as visitors, delivery and service personnel, emergency responders, and all other roadway users accessing the airport facilities. 21 Construction Agreement / Vance Corporation / Project MS27-015
EXHIBIT B
BID PROPOSAL FORMS
See Attachment
MS27-015 Readiness Road Rehabilitatin Project - Vance Corporation Line Item Description Quantity Unit of Measure Unit Cost Total 101
Mobilization & Demobilization, Insurance, and Bonds (6% Max of Base Bid, Base Bid Allowance, Schedule A, and Schedule A Allowance) 1 LS $30,325.29 $30,325.29 102 Quality Storm Water Pollution Prevention Plan Practitioner (“QSP”) Inspection 1 LS $2,401.76 $2,401.76 103 Prepare Temporary Traffic Control Plans 1 LS $1,260.92 $1,260.92 104 Implement Temporary Traffic Control (Per Approved Plans) 1 LS $17,949.82 $17,949.82 105 Worksite Maintenance, Water Pollution Control (F) 1 LS $5,536.74 $5,536.74 106 Utility Location and Protection 1 LS $2,317.48 $2,317.48 107
Pavement Reconstruction (3" Asphalt Concrete (“AC”) Over 9" Crushed Miscellaneous Base (“CMB”) ) In Accordance With The Readiness Road Rehabilitation Plans 80870 SF $4.12 $333,184.40 108 Remove 6" Curb and Gutter 95 LF $34.53 $3,280.35
109 Adjust Manhole/Valve Frames and Cover to Grade 14 EA $1,500.00 $21,000.00 110 Sawcut Existing Pavement 700 LF $3.60 $2,520.00
111 Provide and Install (2) 3" Conduit 360 LF $51.84 $18,662.40 112 Haul Excess Materials Approximately 1.5 Miles Away 2500 CY $33.37 $83,425.00 113 Place Thermoplastic Striping Per Striping Plan PG.13 1 LS $20,030.71 $20,030.71 114 Survey and Staking 1 LS $13,087.88 $13,087.88
115 Stormwater and Best Management Practices (“BMP”) 1 LS $5,536.74 $5,536.74 116 Quality Control Program 1 LS $13,149.66 $13,149.66
117
Allowance - Shall only be used to pay for extra work as authorized by the SCLAA via a written Contract Change Order. 1 LS $85,000.00 $85,000.00 201 QSP Inspection 1 LS $1,441.06 $1,441.06
202 Prepare Temporary Traffic Control Plans 1 LS $420.31 $420.31 203 Implement Temporary Traffic Control Plans 1 LS $3,988.85 $3,988.85 204 Worksite Maintenance, Water Pollution Control 1 LS $5,536.74 $5,536.74 205 Utility Location & Protection 1 LS $1,008.63 $1,008.63 206 Adjust Manhole / Valves Frame & Cover To Grade 4 EA $2,600.00 $10,400.00 207 Sawcut Existing Pavement 1400 LF $3.60 $5,040.00
208
Pavement Reconstruction (3" AC over 9" CMB) In Accordance With The Readiness Road Rehabilitation Plans 16010 SF $3.90 $62,439.00
209 Haul Excess Materials Approximately 1.5 Miles Away 500 CY $30.20 $15,100.00 210 Stormwater & BMP 1 LS $3,542.32 $3,542.32
211 Quality Control Program 1 LS $1,621.19 $1,621.19
212 Survey & Staking 1 LS $5,523.62 $5,523.62
213
Allowance - Shall only be used to pay for extra work as authorized by the SCLAA via a written Contract Change Order. 1 LS $20,000.00 $20,000.00 Total $243,944.88 $794,730.87
EXHIBIT B
BID PROPOSAL FORM, PROJECT MS27-015
22| Construction Agreement / Vance Corporation/ Project MS27-015