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Home My WebLink AboutNOBEST, INC. - 2005-06-20.l� City of Huntington Beach INTER -DEPARTMENT COMMMUNICATION HUNTINGTON BEACH TO: THOSE LISTED HEREON FROM: James Jones, Maintenance Operations Manager#.. DATE: January 10, 2006 SUBJECT: Retention Release Payment Company Name: Nobest, Inc. Address: P.O. Box 874 City, State and Zip Code: Westminster, CA 92684 Phone Number. (714) 892-5583 Business License Number: A186848 Local Address: NIA Notice of Completion Date: December 5, 2005 Contract Purpose: Construction of Curb Ramps @ Various Locations and' Reconstruction of Santa Anita Lane and Cleveland Drive; MSC — 427 The conformed copy of the Notice of Completion for the above contract has been filed. The thirty-five (35) day waiting period has elapsed or will elapse before payment is made. Processing of the retention payment is recommended so long as no stop notices or outstanding invoices are on file with the City. I certify that no stop notices are on file on the ject at this time. / 11 a Zi / - Date Robert F. Beardsley, Public Works Director I certify that there are no outstanding invoices on file. Z 3-o Date , City Treasurer I certify that no stop notices are on file on the subject contract, and that a guaranty bond has been filed with this office. Date ynn, City Clerk WHEN RECORDED MAIL TO: CITY OF HUNTINGTON BEACH Attn: Jason J. Churchill P.O. Box 190 — 2000 Main Street Huntington Beach, CA 92648 Recorded in Official Records, orange County Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINOFEE 005000993612 04:11 pm 12113105 2 227 92 N12 1 0.00 0.00 0.00 NOTICE OF COMPLETION 0.00 0.00 0.00 0.00 o.00 NOTICE IS HEREBY GIVEN by the City of Huntington Beach, owner in fee, 2000 Main Street, Huntington Beach, CA 92648, that the contract heretofore awarded to Nobest Incorporated who was the company thereon for doing the following work to -wit: CONSTRUCTION OF CURB RAMPS @ VARIOUS LOCATIONS AND RECONSTRUCTION OF SANTA ANNTA LANE AND CLEVELAND DRIVE; MSC — 427 That said work was completed December 5, 2005 by said company according to plans and specifications and to the satisfaction of the City Engineer of the City of Huntington Beach and that said work was accepted by the Director of Public Works on December 5, 2005, per City Council Resolution No. 2003-70 adopted October 6, 2003. That upon said contract Contractors Bonding and Insurance Company was surety for the bond given by the said company as required by law. This document is solely for the official business of the City of Huntington Beach, as contem ed under Government Code Section 6103 and should be recorded free of charge. Dated at Huntington Beach, California, this December 5, 2005. A Director ofRublic WdrKCs or City Engineer City of Huntington Beach, California STATE OF CALIFORNIA) County of Orange ) ss: City of Huntington Beach ) I, the undersigned, say: I am an Agent of the City of Huntington Beach, owner in fee, in the foregoing NOTICE OF COMPLETION. I have read said NOTICE OF COMPLETION and know the contents thereof; the same is true of my knowledge. I declare under penalty of perjury that the foregoing is true and correct, and that/faid NOTICE Oh OMPLETION was duly and regularly ordered to be recorded in the Office of the County Recorder of Or a County. , Dated at Huntington Beach, California, this December 5, 2005 Director of Public Works or City Engineer City of Huntington Beach, California • City of Huntington Beach- Department of Public Works 2000 Main Street/P.O. Box 190 Huntington Beach, CA 92648 Subject: Certification of Compliance with Title VII of the Civil Rights Act and Equal Employment Opportunity Act of 1972 Gentlemen: The undersigned, contractor on: M s Lf. qZ 7 Ca -As r, ern 1/A Project No. Title ±4A." 7T4 AA-7 I 7-4 T eL AA y, hereby certifies that all laborers, mechanics, apprentices, trainees, watchmen and guards employed by him or by any subcontractor performing work under the contract on the project have been paid wages at rates not less than those required by the contract provisions, and that the work performed by each such laborer, mechanic, apprentice or trainee conformed to the classifications set forth in the contract or training program provisions applicable to the wage rate paid. ORM CftyAtomn, ./ ylto gIbIIowup\cashconftashcon 1.doc procedure #14 • NOBEST, INC. P.O. Box 874 Westminster, CA 92684 DECLARATION OF SATISFACTION OF CLAIMS - ,w "0z>WUA41> v-t'-- 'A4C>z, 57- .=N , state: Of 1. 1 am the general contractor for the City of Huntington Beach, as to the project more fully described in the public works contract entitled: i > A45e. ~Yz7 C>AJ S7- - Ca<13 R Ay??? s V 4 K . 4c c REcOA) and dated 2. All workers and persons employed, all firms supplying materials, and all subcontractors for the above -mentioned project have been paid in full. 3. The following are either disputed claims, or items in connection with Notices to Withhold, which have been filed under the provisions of the statutes of the State of California: (if none, state "NONE") declare under penalty off perjury that the foregoing is true and correct. Executed at C on this 1 day of Mhynwt 200 S-I (Location) ( g:followuplcashcont\cashcon2.doc procedure #15 Contractor) A PPRO VEDAS TO FORM � NTFER McgRATH, CityAltom y arab s,� j 21 � 1 ° 3 eputy City Attorney RECEIVED BY: (Name) CITY CLERK RECEIPT COPY Return DUPLICATE to City Clerk's office after signing/dating (Date) j CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: Sh Freidenrich, City Treasurer FROM: . / DATE: ,b SUBJECT: Bond Acceptance I have received the bonds for r�� % Z,, v (company Name) Faithful Performance Bond No. Labor and Material Bond No. Monument Bond No. Maintenance Bond No. Re: Tract No. CC No. MSC No. Approved ( cil Approval Date) 2, f-:, 3 L, /-/ Agenda Item No. City Clerk Vault No. a/ 6.A -1 .. No -66b. po #27 g /follomp/bondletter doc • • KNOW ALL MEN BY THESE PRESENTS: MAINTENANCE BOND Bond No. CE 3417 That, Nobest Incorporated as Principal, and Contractors Bonding and Insurance Company , a corporation organized under the laws of the State of Washington and authorized to do a surety business in the State of California , as Surety, are held and firmly bound unto the City of Huntington Beach in the sum of Four hundred fourteen thousand two hundred ninety-eight and no/100 (S 414,298.00 ), lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents: SEALED with our seals and dated this November 21, 2005 WHEREAS, on the , the said Nobest Incorporated as contractor, entered into a contract for Construction of Curb Ramps @ Various Locations and Reconstruction of Santa Anita Lane and Cleveland Drive MSC- 427 for the sum of Three hundred eighty two thousand two and no/lWs (S 382,002.00 ); and, WHEREAS, under the terms of the specifications for said wor) , the said Nobest Incorporated is required to give a bond for Four hundred fourteen thousand two hundred ninety-eiAht and no/100 (S 414,298.00 ), to protect the City of Huntington Beach against the result of faulty materials or workmanship for a period of one year from and after the date of the completion and acceptance of same, namely. until a period of one year Now, THEREFORE, if the said Nobest Incorporated shall for a period of one year from and after the date of the completion and acceptance of same by said Nobest Incorporated replace any and all defects arising in said work whether resulting from defective materials or defective workmanship, then the above obligation to be void; otherwise to remain in full force and effect. Nobest EOM Contractors BonAine and Insurance Com oRsc n5 is (4-93) Coats, Attorney in Fact ACKNOWLEDGMENT State of : California County of Orange On J i " 2) -b� , befpre me Ray E. Anderson/Notary Public , Date 0 Name and Tide of Officer (e.g., "Jane Doe, Notary Publid') personally appeared Larry Nodland Name(s) of Signer (s) KAY E.ANDERSON 1— COMM. #1579M A Li NOTMYPUBM-CALFORMA owwc� cotn�rrr Place Notary Sea] Above personally known to me [ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal of CALIFOItNIA ALL - PA(SE ACKNOWLEDGLIEEN7'• State of California Counq of Orange On NOV 21 2003 before me, personally appeared ® Personally known to me - or - ❑ CMRISTME M. Qr COMM. # 1494618 X n NOTARY PUSUC.CALIFORNIA N rr ORANGE COUNTY My Comm, Expires JULY 9, 2008 � Christine M. Rapp, Notary Public NAME, MIX OF OFFICER Linda D. Coats NAME OF SIGNERS) Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SIGNATURE OF OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL/OWNER ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LmrmD - ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT uvs+s�slwc� Nod Vaud forBonds Executed ft On r Aer. s+ Rs, 2006 i 1 F6JCITY • OF HUNTINGTON BEACH 2000 Main Street P.O. Box 1 90 Huntington Beach, CA 92648 LETTER OF TRANSMITTAL Attention: Joan Flynn To: City Clerk's Office 2000 Main Street Huntington Beach, CA 92648 Fax (714) 374-1573 Date: 112412006 Project/C.C. No.: MSC 427 Regarding: Construction of Curb Ramps and Reconstruct of Santa Anita and Cleveland ® We are sending you: ❑ By Mail ❑ By Fax Mail(Number of pages including this sheet:) ❑ We are hand delivering: ❑ Attached ❑ Under a separate cover via the following items: ElShop drawings ❑ Prints ElPlans ❑ Samples El specifications ❑ Copy of letter ❑ Change Order ® Other: See Description Item # Copies Pages I Description 1 1 1 Notice of Completion 2 1 1 Certificate of Compliance 3 1 1 Satisfaction of Claims 4 1 4 Maintenance Bond 5 1 j These are transmitted as checked below: ❑ For approval ❑ Approved as submitted ❑ Resubmit copies for approval ® For your use ❑ Approved as noted ❑ Submit copies for distribution ® For your action ❑ Returned for corrections ❑ Return corrected prints ❑ For review/comment ❑ Other: Remarks: Attached are the final documents for MSC-427. Please contact me at extension 5042 with any questions you may have. c: file By: son Churchill, Street/Facility Supervisor DADocumerns arm smTwGs\cxuecHU\Mv DocumEm\GRANn AND CONTRAm\CDB GRANT\05\TRANsmrrrAL FINAL MSC 427.Dm RECEIVED (Name) (Date) CITY CLERK RECEIPT COPY Return DUPLICATE to City Clerk's Office after signing/dating CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: Sha ' Freidenrich, City Treasurer FROM: 7 2 ('-''')2 � ~, : �` `71 DATE: SUBJECT: Bond Acceptance have received the bonds for (1 L (CompanyName) Faithful Performance Bond No. Labor and Material Bond No. Monument Bond No. Maintenance Bond No. � � ZZ7= Re: Tract No. CC No. MSC No. Approved Agenda Item No. (Cou cil Approval Date) City Clerk Vault No. . 10 #27 g:/followup/bondletter doc CITY OF HUNTINGTON BEACH 2000 MAIN STREET August 1, 2005 Nobest, Inc. P. O. Box 874 Westminster, CA 92684-0874 Attn: Mike Lewis OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK CALIFORNIA 92648 Re: Construction of Curb Ramps at Various Locations & Reconstruction of Santa Anita Lane & Cleveland Avenue — MSC-427 The City Council awarded the bid to your company for the above referenced project. Enclosed is a copy of the executed contract with the City of Huntington Beach. A Declaration of Satisfaction of Claims and a Certificate of Compliance form must be returned to this office after the project is completed but prior to the release of retention funds. In addition, the following item must also be on file, with this office before the City can release any retention funds: A warranty bond guaranteeing the final amount of work and materials for one year. If your performance bond does not include specific wording for a one-year warranty, then a rider or separate bond must be submitted. Should you have any questions or concerns regarding the enclosures or items that must be on file in this office prior to release of retention funds, please call the Public Works Department at 536-5432. Sincerely, 0�_ Joan L. Flynn City Clerk JF:pe Enclosures: Copy of Contract including Proposal Copies of insurance/bonds Declaration of Satisfaction Certificate of Compliance Bid Bond (original) g:followup\cashcont\cashcon-letter.doc ( Telephone: 714-536-5227 ) DECLARATION OF SATISFACTION OF CLAIMS state: (Name of Contractor) 1. 1 am the general contractor for the City of Huntington Beach, as to the project more fully described in the public works contract entitled: i and dated 2. All workers and persons employed, all firms supplying materials, and all subcontractors for the above -mentioned project have been paid in full. 3. The following are either disputed claims, or, items in connection with Notices to Withhold, which have been filed under the provisions of the statutes of the State of California:. (if none, state "NONE") I declare under penalty of perjury that the foregoing is true.and correct. Executed at on this day of (Location) glollowuplpshcontcashconUm procedure #15 (Signature of Contractor) , 20_. A PPRO VED AS TO FORM 4 N1FER McGRATH, CityAttmncy, sotto„ � z/ � 1a 3 eputy City Attorney 0 . • City of Huntington Beach' Department of Public Works 2000 Main Street/P.O. Box 190 Huntington Beach, CA 92648 Subject: Certification of Compliance with Title VII of the Civil Rights Act and Equal Employment Opportunity Act of 1972 i Gentlemen: The undersigned, contractor on Project No. Title hereby certifies that all laborers, mechanics, apprentices, trainees, watchmen and guards employed by him or by any subcontractor performing work under the contract on the project have been paid wages at rates not less than those required by the contract provisions, and that the work performed by each such laborer, mechanic, apprentice or trainee conformed to the classifications set forth in the contract or training program provisions applicable to the wage rate paid. (Signature and Title) APPROVED AS TO FORM ;S&Zrah IFER McGRATH, CityAt�ey Sutton City AttoMW ! Z% `/ f g.JoIIowup\cashcont\cashcon 1.doc procedure #14 FEDERALLY FUNDED COMMUNITY DEVELOPMENT BLOCK GRANT CONSTRUCTION CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND NOBEST, INC. FOR CONSTRUCTION OF CURB RAMPS AT VARIOUS LOCATIONS AND RECONSTRUCTION OF SANTA ANITA LANE AND CLEVELAND AVENUE THIS AGREEMENT ("Agreement") made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and NOBEST, INC., a California corporation, hereinafter referred to as "CONTRACTOR." WHEREAS, CITY has solicited bids for a public works project, hereinafter referred to as "PROJECT," more fully described as construction of curb ramps at various locations in the City of Huntington Beach and reconstruction of Santa Anita Lane and Cleveland Avenue; and The PROJECT to which the construction work covered by this Agreement pertains is being assisted by the United States of America and Federal Labor Standards Provisions are included in this Agreement pursuant to the provisions applicable to such Federal assistance. Housing and Urban Development Act of 1968, as amended in 1992, Section 3, Title 24, Code of the Federal Regulations, Part 135, Economic Opportunities for Low- and Very Low - Income Persons, Section 3 contract clauses, the work to be performed under this Agreement is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low- income persons, particularly persons who are recipients of HUD assistance for housing; and CONTRACTOR has been selected and is to perform said work; 05agree/nobest I • • NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows: 1. STATEMENT OF WORK; ACCEPTANCE OF RISK CONTRACTOR shall complete and construct the PROJECT pursuant to this Agreement and the Contract Documents (as hereinafter defined) and furnish, at its own cost and expense, all labor, plans, tools, equipment, supplies, transportation, utilities and all other items, services and facilities necessary to complete and construct the PROJECT in a good and workmanlike manner. CONTRACTOR agrees to fully assume the risk of all loss or damage arising out of the nature of the PROJECT, during its progress or prior to acceptance by CITY, from the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description in connection with the work, including, but not limited to, all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in this Agreement, and in accordance with the requirements of CITY for the compensation set forth in the accepted bid proposal. 2. ACCEPTANCE OF CONDITIONS OF WORK; PLANS AND SPECIFICATIONS CONTRACTOR acknowledges that it is fully familiar with all the terms, conditions and obligations of this Agreement and the Contract Documents (as defined below in this Section), the location of the job site, and the conditions under which the work is to be 05agree/nobest 2 performed, and that it enters into this Agreement based upon its thorough investigation of all such matters and is relying in no way upon any opinions or representations of CITY. It is agreed that the Contract Documents are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by the Contract Documents insofar as they relate in part or in any way, directly or indirectly, to the work covered by this Agreement. "Contract Documents" as defined herein mean and include: A. This Agreement; B. Bonds covering the work herein agreed upon; C. The CITY's standard Plans and Specifications and special contractual provisions, including those on file in the office of the Director of Public Works of CITY and adopted by the City Council, and any revisions, amendments or addenda thereto; D. The current edition of Standard Specifications for Public Works Construction, published by Builders' News, Inc., 10801 National Boulevard, Los Angeles, CA 90064, and all amendments thereto, written and promulgated by the Southern California chapter of the American Public Works Association and the Southern California District Associated General Contractors of the California Joint Cooperative Committee; E. Bid documents including the Notice Inviting Bids, the Special Instructions to Bidders and the CONTRACTOR's proposal, (which is attached hereto as Exhibit "A" and incorporated herein by this reference); 05agree/nobest 3 0 F. The particular Plans, Specifications, Special Provisions and Addenda applicable to the PROJECT. Anything mentioned in the Specifications and not indicated in the Plans or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of a discrepancy between any Plans, Specifications, Special provisions, or Addenda, the matter shall be immediately submitted by CONTRACTOR to the Department of Public Works of CITY (hereinafter referred to as "DPW"), and CONTRACTOR shall not attempt to resolve or adjust the discrepancy without the decision of DPW, save only at its own risk and expense. Should there be any conflict between the terms of this Agreement and the bid or proposal of CONTRACTOR, then this Agreement shall control and nothing herein shall be considered as an acceptance of the terms of the bid or proposal which is in conflict herewith. 3. COMPENSATION CITY agrees to pay and CONTRACTOR agrees to accept as full compensation for the faithful performance of this Agreement, subject to any additions or deductions made under the provisions of this Agreement or the Contract Documents, a sum not to exceed Three Hundred Eighty Two Thousand and Two Dollars ($382,002.00), as set forth in the Contract Documents, to be paid as provided in this Agreement. 4. COMMENCEMENT OF PROJECT CONTRACTOR agrees to commence the PROJECT within ten (10) working days after the Notice To Proceed is issued and diligently prosecute the PROJECT to completion 05agree/nobest 4 within sixty (60) consecutive working days from the day the Notice to Proceed is issued by DPW, excluding delays provided for in this Agreement. 5. TIME OF THE ESSENCE The parties hereto recognize and agree that time is of the essence in the performance of this Agreement and each and every provision of the Contract Documents. CONTRACTOR shall prepare and obtain approval as required by the Contract Documents for all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of its work in conformance with the progress schedule set forth in the Contract Documents. CONTRACTOR shall coordinate its work with the work of all other contractors, subcontractors, and CITY forces working on the PROJECT in a manner that will facilitate the efficient completion of the PROJECT and in accordance with the terms and provisions of this Agreement. CITY shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time and order in which the various portions of the work shall be performed and the priority of the work of other contractors, subcontractors and CITY forces and, in general, all matters concerning the timely and orderly conduct of the work of CONTRACTOR on the premises. 6. CHANGES CONTRACTOR shall adhere strictly to the plans and specifications set forth in the Contract Documents unless a change therefrom is authorized in writing by DPW. CONTRACTOR agrees to make any and all changes, furnish materials and perform all work necessary within the scope of the PROJECT as DPW may require in writing. Under no condition shall CONTRACTOR make any changes without the prior written order or acceptance of DPW, 05agree/nobest 5 and CITY shall not pay any extra charges made by CONTRACTOR that have not been agreed upon in writing by DPW. When directed to change the work, CONTRACTOR shall submit immediately to DPW a written cost proposal reflecting the effect of the change. Should DPW not agree to such cost proposal, the work shall be performed according to the changes ordered in writing by DPW and the proper cost thereof shall be negotiated by the parties upon cost and pricing data submitted by CONTRACTOR; thereupon, CITY will promptly issue an adjusted change order to CONTRACTOR and the Agreement price will be adjusted upward or downward accordingly. 7. NOTICE TO PROCEED No work, services, material, or equipment shall be performed or furnished under this Agreement unless and until a Notice to Proceed has been given to CONTRACTOR by CITY. CITY does not warrant that the work will be available on the date the Notice to Proceed is issued. In the event of a delay in commencement of the work due to unavailability of the job site, for any reason, relief to CONTRACTOR shall be limited to a time extension equal to the delay due to such unavailability. 8. BONDS Only bonds issued by California admitted sureties will be accepted. CONTRACTOR shall, prior to its performance of this Agreement, furnish the following two (2) bonds approved by the City Attorney: One in the amount of one hundred percent (100%) of the Agreement price to guarantee the CONTRACTOR's faithful performance of the work, and one in the amount of one hundred percent of the Agreement price to guarantee payment of all claims for labor and materials furnished. 05agree/nobest CJ • In addition, CONTRACTOR shall submit to CITY a bond in the amount of one hundred percent (100%) of the final Agreement price, including all change orders, to warrant such performance for a period of one (1) year after CITY's acceptance thereof within ten (10) days of filing of the Notice of Completion. 9. WARRANTIES CONTRACTOR unconditionally guarantees all work done under this Agreement including, but not limited to, any workmanship, installation, fabrication, material or structural facilities constructed. CONTRACTOR, within ten (10) days after notice by CITY of any defect in the work, shall have the option to make appropriate repairs or replace the defective item or items. Upon expiration of such ten- (10) day period, CITY may then make appropriate repair or replacement at CONTRACTOR's risk and own cost and expense. 10. INDEPENDENT CONTRACTOR It is understood and agreed that CONTRACTOR is, and shall be, acting at all times hereunder as an independent contractor and not an employee of CITY. CONTRACTOR shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONTRACTOR and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services performed hereunder. 11. LIQUIDATED DAMAGES/DELAYS It is agreed by the parties hereto that in case the total work called for hereunder is not in all parts and requirements finished or completed within the number of calendar days as set forth herein, damage will be sustained by CITY; and that it is, and would be, impractical and extremely difficult to ascertain and determine the actual damage which CITY would sustain in 05agree/nobest 7 the event of and by reason of such delay. It is, therefore, agreed that CONTRACTOR will pay to CITY, as liquidated damages and not as a penalty, the sum of Five Hundred Dollars ($500.00) per day for each and every working day's delay in completing the work in excess of the number of working/calendar days set forth herein, which represents a reasonable endeavor by the parties hereto to estimate a fair compensation for the foreseeable damages CITY would sustain in the event of and by reason of such delay; and CONTRACTOR agrees to pay these damages herein provided, and further agrees that CITY may deduct the amount thereof from any monies due or that may become due to CONTRACTOR hereunder. CONTRACTOR will be granted an extension of time and will not be assessed damages for any portion of the delay in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of CONTRACTOR, including, but not limited to, acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions, strikes, unsuitable weather, or delays of subcontractors due to such causes. CONTRACTOR shall, within fifteen (15) days from the beginning of any such delay (unless DPW shall grant a further period of time), notify DPW in writing of the cause of the delay and CITY shall extend the time for completing the work if, in its judgment, the findings of fact thereon justify the delay; and the decision of DPW shall be conclusive on the parties hereto. Should CONTRACTOR be delayed in the prosecution or completion of the work by the act, neglect or default of CITY, or should CONTRACTOR be delayed by waiting for materials required by this Agreement to be furnished by CITY, or by damage caused by fire or other casualty at the job site for which CONTRACTOR is not responsible, or by the combined action of the workers, in no way caused by or resulting from default or collusion on the part of 05agree/nobest 8 0 CONTRACTOR, or in the event of a lockout by CITY, then the time herein fixed for the completion of the work shall be extended by the number of days CONTRACTOR has thus been delayed, but no allowance or extension shall be made unless a claim therefor is presented in writing to CITY within fifteen (15) days of the commencement of such delay. No claims for additional compensation or damages for delays, irrespective of the cause thereof, and including without limitation the furnishing of materials by CITY or delays by other contractors or subcontractors, will be allowed and an extension of time for completion shall be the sole remedy of CONTRACTOR. 12. DIFFERING SITE CONDITIONS A. Notice: CONTRACTOR shall promptly, and before such conditions are disturbed, notify DPW in writing of: (1) Subsurface or latent physical conditions at the job site differing materially from those indicated in this Agreement or the Contract Documents; or (2) Unknown physical conditions at the job site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent to work of the character to be performed under this Agreement. DPW shall promptly investigate the conditions and if it finds that such conditions do materially so differ and cause an increase or decrease in the time required for performance of any part of the work under this Agreement, whether or not changed as a result of such conditions, an equitable 05agree/nobest 9 • adjustment shall be made and the agreement modified in writing accordingly. B. Time Extension: No claim of CONTRACTOR under this Section shall be allowed unless CONTRACTOR has given the notice required hereunder provided, however, the time prescribed therefor may be extended by CITY. 13. VARIATIONS IN ESTIMATED QUANTITIES The quantities listed in the bid schedule will not govern final payment. Payment to CONTRACTOR will be made only for the actual quantities of Agreement items used in construction of the PROJECT, in accordance with the plans and specifications. Upon completion of the PROJECT, if the actual quantities used are either more than or less than the quantities listed in the bid schedule, the bid price shall prevail subject to the provisions of this Section. DPW may, at its sole discretion, when warranted by the facts and circumstances, order an equitable adjustment, upwards or downwards, in payment to CONTRACTOR where the actual quantities used in construction of the PROJECT are in variation to the quantities listed in the bid schedule. No claim by CONTRACTOR for an equitable adjustment in price or time for completion shall be allowed if asserted after final payment under this Agreement. If the quantity variation is such as to cause an increase in the time necessary for completion, DPW shall ascertain the facts and circumstances and make such adjustment for extending the completion date as in its sole judgment the findings warrant. 14. PROGRESS PAYMENTS Each month DPW will make an estimate in writing of the work performed by CONTRACTOR and the value thereof. From each progress estimate, ten percent (10%) will be 05agree/nobest 10 deducted and retained by CITY and the remainder of the progress estimate, less the amount of all previous payments since commencement of the work, will be paid to CONTRACTOR. When CONTRACTOR has, in the judgment of DPW, faithfully executed fifty percent (50%) or more of the value of the work as determined from the bid schedule, and if DPW finds that satisfactory progress has been and is being made, CONTRACTOR may be paid such sum as will bring the payments of each month up to one hundred percent (100%) of the value of the work completed since the commencement of the PROJECT, as determined in its sole discretion by DPW, less all previous payments and less all previous retained amounts. CITY's final payment to CONTRACTOR, if unencumbered, or any part thereof unencumbered, shall be made thirty-five (35) days after the acceptance of the work and the filing of a Notice of Completion by CITY. Payments shall be made on demands drawn in the manner required by law, each payment to be accompanied by a certificate signed by DPW, affirming that the work for which payment is demanded has been performed in accordance with the terms of the Agreement and that the amount stated in the certificate is due under the terms of the Agreement. Partial payments on the Agreement price shall not be considered as a acceptance of any part of the work. 15. WITHHELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES At the request and at the sole cost and expense of CONTRACTOR, who shall retain beneficial ownership and receive interest, if any thereon, CITY shall permit the substitution and deposit therewith of securities equivalent to the amount of any monies withheld by CITY to ensure performance under the terms of this Agreement. 05agree/nobest 1 1 CJ C� 16. AFFIDAVITS OF SATISFACTION OF CLAIMS After the completion of the work contemplated by this Agreement, CONTRACTOR shall file with DPW its affidavit stating that all workers and persons employed, all firms supplying materials and all subcontractors working upon the PROJECT have been paid in full and that there are no claims outstanding against the PROJECT for either labor or material, except certain items, if any, to be set forth in CONTRACTOR's affidavit covering disputed claims, or items in connection with Notices to Withhold, which have been filed under the provisions of the statutes of the State of California. 17. WAIVER OF CLAIMS The acceptance by CONTRACTOR of the payment of the final certificate shall constitute a waiver of all claims against CITY under or arising out of this Agreement. 18. INDEMNIFICATION, DEFENSE, HOLD HARMLESS CONTRACTOR hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all, claims, damages, losses, expenses, judgments, demands defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injury to CONTRACTOR's employees and damage to CONTRACTOR's property, arising directly or indirectly out of the obligations or operations herein undertaken by CONTRACTOR, caused in whole or in part by any negligent act or omission of the CONTRACTOR, any subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY. CONTRACTOR will conduct all defense at its sole cost and expense 05ag ee/nobest 12 0 0 and CITY shall approve selection of CONTRACTOR's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR. 19. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE Pursuant to California Labor Code Section 1861, CONTRACTOR acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers' compensation; CONTRACTOR covenants that it will comply with such provisions prior to commencing performance of the work hereunder. CONTRACTOR shall maintain workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. CONTRACTOR shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. CONTRACTOR shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation and employer's liability insurance and CONTRACTOR shall similarly require all subcontractors to waive subrogation. 20. INSURANCE In addition to the workers' compensation and employer's liability insurance and CONTRACTOR's covenant to indemnify CITY, CONTRACTOR shall obtain and furnish to CITY, a policy of general public liability insurance, including motor vehicle coverage covering the PROJECT. This policy shall indemnify CONTRACTOR, its officers, employees and agents while acting within the scope of their duties, against any and all claims arising out or in 05agree/nobest 13 9 0 connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000) for this PROJECT. This policy shall name CITY, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the PROJECT shall be deemed excess coverage and that CONTRACTOR's insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. 21. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS Prior to commencing performance of the work hereunder, CONTRACTOR shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; the certificates shall: 1. provide the name and policy number of each carrier and policy; 2. state that the policy is currently in force; and 3. promise to provide that such policies will not be canceled or modified without thirty (30) days' prior written notice of CITY. CONTRACTOR shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY. 05agree/nobest 14 9 0 The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of CITY by CONTRACTOR under the Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all the policies of insurance. CONTRACTOR shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. CONTRACTOR shall provide a separate copy of the additional insured endorsement to each of CONTRACTOR's insurance policies, naming CITY, its officers, elected and appointed officials, employees, agents and volunteers as Additional Insureds, to the City Attorney for approval prior to any payment hereunder. 22. NOTICE OF THIRD PARTY CLAIM Pursuant to Public Contracts Code §9202, CITY shall provide notice to CONTRACTOR of receipt of any claim filed with CITY or a court of competent jurisdiction which arises out of performance of this agreement within ten (10) days of receipt of such claim or claims. 23. DEFAULT AND TERMINATION If CONTRACTOR fails or refuses to prosecute the work hereunder with diligence, or fails to complete the work within the time specified, or is adjudged bankrupt or makes an assignment for the benefit of creditors or becomes insolvent, or violates any provision of this Agreement or the Contract Documents, CITY may give CONTRACTOR notice in writing of its intention to terminate this Agreement. Unless the violation is cured within ten (10) days after such Notice of Intention has been served on CONTRACTOR, CITY may, without prejudice to any other remedy it may have, terminate this Agreement upon the expiration of that time. Upon such default by CONTRACTOR, CITY may elect not to terminate this Agreement; in such 05agree/nobest 15 event CITY may make good the deficiency in which the default consists and deduct the resulting costs from the progress payments then or to become due to CONTRACTOR. If it is subsequently determined by a court of competent jurisdiction that CITY's termination of this Agreement under this Section was wrongful, such termination shall be converted to a termination for convenience under Section 23 and any damages shall be assessed as set forth in Section 23. 24. TERMINATION FOR CONVENIENCE CITY may terminate this Agreement for convenience at any time with or without cause, and whether or not PROJECT is fully complete upon seven (7) calendar days' written notice to CONTRACTOR. In the event of termination, under this Section CITY shall pay CONTRACTOR for value of work in place on the PROJECT through the termination period plus seven and one-half percent (7 %2 %) for overhead and profit less all such payments already made. Such payment by CITY shall be CONTRACTOR's sole and exclusive remedy for termination by CITY for its convenience and CITY shall have no further obligation to CONTRACTOR. 25. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONTRACTOR agrees that upon completion of the work to be performed hereunder, or upon expiration or earlier termination of this Agreement, all original plans, specifications, drawings, reports, calculations, maps and other documents pertaining to this Agreement shall be delivered to CITY and become its sole property at no further cost. 26. NONASSIGNABILITY CONTRACTOR shall not sell, assign, transfer, convey or encumber this Agreement, or any part hereof, or any right or duty created herein, without the prior written consent of CITY and the surety. 05agree/nobest 16 27. CITY EMPLOYEES AND OFFICIALS CONTRACTOR shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the California Government Code. 28. STOP NOTICES; RECOVERY OF ADMINISTRATIVE COSTS CITY shall be entitled to all reasonable administrative costs and necessary disbursements arising out of the processing of Stop Notices, Notices to Withhold, or any similar legal document. This obligation shall be provided for in the labor and materials payment bond required of CONTRACTOR. CITY may charge an administrative fee of One Hundred Dollars ($100) for every Stop Notice filed in excess of two (2), regardless of whether or not CITY is named in an action to enforce such stop notices. CITY may set off any unreimbursed cost or expense so incurred against any sum or sums owed by CITY to CONTRACTOR under this Agreement. 29. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONTRACTOR's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below; provided that CITY and CONTRACTOR, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: 05agree/nobest 17 r: l� TO CITY: City of Huntington Beach ATTN Director of Public Works 2000 Main Street Huntington Beach, CA 92648 30. SECTION HEADINGS TO CONTRACTOR: Mike Lewis Nobest, Inc. P.O. Box 874 Westminster, CA 92684 - o9'+4 The titles, captions, section, paragraph, and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of maters included or excluded from such provisions, and do not interpret, define, limit or' describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 31. IMMIGRATION CONTRACTOR shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of United States Code Section 1324a regarding employment verification. 32. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONTRACTOR and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONTRACTOR understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONTRACTOR. 05agree/nobest 18 • 0 33. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees and the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing party. 34. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 35. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 05agree/nobest 19 • 0 36. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 37. CONSENT Where CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be consent/approval to any subsequent occurrence of the same or any other transaction or event. 38. COMPLIANCE WITH APPLICABLE REGULATIONS. The parties to this Agreement agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this Agreement, the parties to this Agreement certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. CONTRACTOR agrees to send to each labor organization or representative of workers with which the CONTRACTOR has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or worker's representative of the CONTRACTOR's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the persons taking applications for each of the positions; and the anticipated date the work shall begin. 05agree/nobest 20 • 0 CONTRACTOR agrees to include the Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. CONTRACTOR will not subcontract with any subcontractor where CONTRACTOR has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. CONTRACTOR will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the Agreement is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed were not filled to circumvent the CONTRACTOR's obligations under 24 CFR part 135. CONTRACTOR agrees and understands that noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this Agreement for default, and debarment or suspension from future HUD assisted contracts, and With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this Agreement. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment subcontracts shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to this Agreement that are subject to the provisions of Section 3 and Section 7(b) agree to 05agree/nobest 21 comply with Section 3 to the maximum extent feasible, but in derogation of compliance with Section 7(b). 39. MINIMUM WAGES All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the CONTRACTOR and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each 05agree/nobest 22 0 0 classification for the time actually worked therein; provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under 29 CFR Part 5.5(a)(1)(ii) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the CONTRACTOR and its subcontractors at the site of the work in a prominent and accessible place where it con be easily seen by the workers. Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the Agreement shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. If the CONTRACTOR and the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within 05agree/nobest 23 the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215-0140.) In the event the CONTRACTOR, the laborers or mechanics to be employed in the classification or their representatives, and HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommendation of HUD or its designee, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(b) or (c) of this paragraph, shall be paid to all workers performing work in the classification under this Agreement from the first day on which work is performed in the classification. Whenever the minimum wage rate prescribed in the Agreement for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the CONTRACTOR shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. If the CONTRACTOR does not make payments to a trustee or other third person, the CONTRACTOR may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided that the Secretary of Labor has found, upon the written request of the CONTRACTOR, 05agree/nobest 24 0 0 that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the CONTRACTOR to set aside in a separate account assets for the meeting of obligations under the plan or program (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) 40. PREVAILING WAGE LAW. The CITY has ascertained from the U. S. Department of Housing and Urban Development ("HUD") the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Agreement, and the same has been set forth by resolution on file in the office of the City Clerk of CITY. CONTRACTOR and any subcontractor under it shall pay not less than said prevailing wage rates to all workers employed on this Public Works Agreement. CONTRACTOR agrees to secure payment of compensation to every employee. 41. WITHHOLDING. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the CONTRACTOR under this Agreement or any other Federal contract with the same prime contractor, or any other Federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees and helpers, employed by the CONTRACTOR or any subcontractor the full amount of wages required by the Agreement. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work (or 05agree/nobest 25 0 0 under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the Agreement, HUD or its designee may, after written notice to the CONTRACTOR, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased, HUD or its designee may, after written notice to the CONTRACTOR, disburse such amounts withheld for and on account of the CONTRACTOR or subcontractor to the respective employees to whom the are due. The Comptroller General shall make such disbursements in the case of direct Davis -Bacon Act contracts. 42. HEALTH AND SAFETY. No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health standards promulgated by the Secretary of Labor by regulation. The CONTRACTOR shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 (formerly part 1518) and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act (Public Law 91-54, 83 Stat. 96). The CONTRACTOR shall include the provisions of this Article in every subcontract so that such provisions will be binding on each subcontractor. The CONTRACTOR shall take such action with respect to any subcontract as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions. 05agree/nobest 26 0 0 43. PAYMENT OF TRAVEL AND SUBSISTENCE ALLOWANCE. Section 1773.8 of the California Labor Code, regarding the payment of travel and subsistence payments, is applicable to this PROJECT. 44. APPRENTICES AND TRAINEES. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the CONTRACTOR as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. 05agree/nobest 27 0 0 Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship[ program, the CONTRACTOR will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless 05agree/nobest 28 0 the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the CONTRACTOR will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. 45. PAYROLLS AND BASIC RECORDS. Payrolls and basic records relating thereto shall be maintained by the CONTRACTOR during the course of the work preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in Section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section 05agree/nobest 29 i 1(b)(2)(B) of the Davis Bacon Act, the CONTRACTOR shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers 1215-0140 and 1215-0017.) The CONTRACTOR shall submit weekly for each week in which any Agreement work is performed a copy of all payrolls to HUD or its designee if the agency is a party to the Agreement, but if the agency is not such a party, the CONTRACTOR will submit the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR Part 5.5(a)(3)(i). This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, DC 20402. The prime CONTRACTOR is responsible for the submission of copies of payrolls by all subcontractors. (Approved by the Office of Management and Budget under OMB Control Number 1215-0149.) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the CONTRACTOR or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Agreement and shall certify the following: 05agree/nobest 30 0 That the payroll for the payroll period contains the information required to be maintained under 29 CFR Part 5.5(a)(3)(I) and that such information is correct and complete; That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the Agreement during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR Part 3; That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Agreement. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph A.3.(ii)(b) of this section. The falsification of any of the above certifications may subject the CONTRACTOR or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code. The CONTRACTOR or subcontractor shall make the records required under this section available for inspection, copying, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the CONTRACTOR or subcontractor fails to submit the required records or to make them available, HUD or its designee may, after written notice to CONTRACTOR, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, 05agree/nobest 31 failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR Part 5.12. 46. WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the CONTRACTOR or subcontractor under any such contract or any other Federal contract with the same prime contract, or any other Federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime CONTRACTOR such sums as may be determined to be necessary to satisfy any liabilities of such CONTRACTOR or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph. 47. SUBCONTRACTS. The CONTRACTOR or subcontractor shall insert in any subcontracts the clauses set forth in Section 44 of this Agreement and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in Section 48. FEDERAL PARTICIPATION. The PROJECT pursuant to which the work covered by this Agreement is being executed is being assisted by the United States of America. Several Agreement provisions embodied herein are included in this Agreement in accordance with the provisions applicable to such federal assistance. As federal funds are financing all or part of this work, all of the statutes, 05agree/nobest 32 0 0 rules and regulations promulgated by the Federal Government and applicable to the work will apply, and CONTRACTOR agrees to comply therewith. 49. DAVIS-BACON ACT. CONTRACTOR agrees to pay and require all subcontractors to pay all employees on said PROJECT a salary or wage at least equal to the prevailing rate of per diem wage as determined by the Secretary of Labor in accordance with the Davis -Bacon Act (40 USC section 176a, et seq.) for each craft or type of worker needed to perform this Agreement. CONTRACTOR agrees to comply with all applicable federal labor standards provisions; said provisions are incorporated herein by this reference. 50. DISPUTES CONCERNING LABOR STANDARDS. Disputes arising out of the labor standards provisions of this Agreement. Such disputes shall be resolved in accordance with the with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the CONTRACTOR (or any of its subcontractors) and HUD or its designee, the U.S. Department of Labor, or the employees or their representatives. 51. CERTIFICATION OF ELIGIBILITY. By entering into this Agreement, the CONTRACTOR certifies that neither it (nor he or she) nor any person or firm who has an interest in the CONTRACTOR's firm is a person or firm ineligible to be awarded Government contracts by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. No part of this Agreement shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 05agree/nobest 33 0 s 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal Code, Section 1010, Title 18, U.S.C. "Federal Housing Administration transactions", provides in part "Whoever, for the purpose of -influencing in any way the action of such Administration ... makes, utters or publishes any statement, knowing the same to be false... shall be fined not more than $5,000 or imprisoned not more than two years, or both." 52. DISCRIMINATION. MINORITIES, ALIENS. CONTRACTOR shall not discriminate nor allow its employees, agents, principals, or subcontractors to discriminate against any employee or applicant for employment on the basis of race, religious creed, national origin or sex. CONTRACTOR shall take affirmative steps to hire local qualified minority individuals when job opportunities occur and utilize local business firms when possible. 53. EQUAL EMPLOYMENT OPPORTUNITY. The CONTRACTOR will comply with all provisions of Executive Order 11246, as amended, and 29 CFR Part 30. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements. CONTRACTOR is required to have an affirmative action plan which declares that it does not discriminate on the basis of race, color, religion, creed, national origin, sex or age to ensure equality of opportunity in all aspects of employment. 05agree/nobest 34 0 U Section 503 of the Rehabilitation Act of 1973 (29 USC Section 701, et seq.) prohibits job discrimination because of handicap and requires affirmative action to employ and advance in employment qualified handicapped workers. Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC Section 219 et seq.)prohibits job discrimination and requires affirmative action to comply and advance in employment (1) qualified Vietnam veterans during the first four (4) years after their discharge and (2) qualified disabled veterans throughout their working life if they have a thirty percent (30%) or more disability. To ensure compliance with these requirements, the CONTRACTOR shall provide the City with its written affirmative action plan prior to commencement of work. The CONTRACTOR is required to provide the CITY with a listing of its subcontractors together with a completed affirmative action program from each subcontractor when applicable. 54. COPELAND "ANTI -KICKBACK" ACT. CONTRACTOR and its subcontractors shall comply with the requirements of 29 CFR Part 3, which Act provides that each shall be prohibited from including, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. 55. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT. The CONTRACTOR shall comply with the provisions of Section 103 and 107 of the contract Work Hours and Safety Standards Act (40 USC 327 et seq.) as supplemented by Department of Labor regulations (29 CFR, part 5). Under Section 103 of the Act each CONTRACTOR shall be required to compute the wages of every mechanic and laborer on the basis of a standard workday of eight (8) hours and standard workweek of forty (40) hours. Work 05agee/nobest 35 • in excess of the standard workday or workweek is permissible provided that the worker is compensated at a rate of not less than 1-1/2 times the basic rate of pay for all hours worked in excess of eight (8) hours in any calendar day or forty (40) hours in the workweek. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety as determined under construction, safety and health standards promulgated by the secretary of Labor. These requirements do not apply to the purchase of supplies or materials or articles ordinarily available on the open market or contracts for transportation. guards. As used in this section, the terms "laborers" and "mechanics" include watchmen and 56. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT. A. CONTRACTOR stipulates that all facilities to be utilized in the performance of this Agreement were not listed, on the date of contract award, on the United States Environmental protection Agency (EPA) List of Violating Facilities, pursuant to 40 CFR 15.20. B. The CONTRACTOR agrees to comply with all of the requirements of Section 114 of the clean Air Act and section 308 of the Federal Water Pollution control Act and all regulations and guidelines listed thereunder. C. The CONTRACTOR shall promptly notify the CITY of the receipt of any communication from the Director, office of Federal Activities, EPA, 05agree/nobest 36 u indicating that a facility to be utilized pursuant to this Agreement is under consideration to be listed on the EPA List of Violating facilities. D. The CONTRACTOR agrees to include or cause to be included the requirements of paragraph (a) thorough (d) of this section in every nonexempt subcontract, and further agrees to take such action as the Government may direct as a means of enforcing such requirements. 57. ENERGY CONSERVATION. Agreements with federal participation shall recognize mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and conservation Act (42 USC Section 6201, et seq. ). 58. HOUSING AND URBAN DEVELOPMENT. CONTRACTOR agrees to comply with any and all rules, regulations, guidelines, procedures and standards of the United States Department of Housing and Urban Development and complete any and all reports and forms that may be required in accordance therewith. 59. SUBCONTRACTS. The CONTRACTOR or subcontractor will insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as HUD or its designee may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the Agreement clauses in 29 CFR Part 5.5. 05agree/nobest 37 60. CONTRACT TERMINATION; DEBARMENT. A breach of the Agreement clauses in 29 CFR 5.5 may be grounds for termination of the Agreement, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 61. COMPLAINTS, PROCEEDINGS, OR TESTIMONY BY EMPLOYEES. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of the Contract are applicable shall be discharged or in any other manner discriminated against by the CONTRACTOR or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer. 62. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT - OVERTIME REQUIREMENTS. A. No CONTRACTOR or subcontractor contracting for any part of the Agreement work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of eight hours in any calendar day or in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate no less than one and one-half times the basic rate of pay for all hours worked in excess of eight hours in any calendar day or in excess of forty hours in such workweek, whichever is greater. 05agree/nobest 38 • B. Violation; Liability for Unpaid Wages;Liquidated Damages. In the event of any violation of the clause set forth in subparagraph (A) of this paragraph, the CONTRACTOR and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such CONTRACTOR and subcontractor shall be liable to the United States (in the case of work done under contract for the Distract of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (A) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of eight hours or in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in subparagraph (1) of this paragraph. 63. ENTIRETY The foregoing, and Exhibit "A" attached hereto, set forth the entire Agreement between the parties. No waiver or modification of this Agreement shall be valid unless in writing duly executed by both parties. The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's 05agree/nobest 39 • E behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers on 20-0. NOBEST, INC. Robert Nodland, Secretary REVIEWED AND APPROVED: 0"�� Lo i Cit Administrator CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California APPROVED AS TO FORM: A 65- City Attorney � INITIATE ND APPR ED: Director of Public Works -?Qk �'I 05agree/nobest 40 ACKNOWLEDGMENT State of : California County of Orange On July 6, 2005 , befpre me Ray E. Anderson/Notary Public , Date 4 Name and Title of Officer (e.g., "Jane Doe, Notary Publid') personally appeared Larry Nodland and Robert Nodland 11 Name(s) of Signer (s) rrvw�uct 06e�r»car�a Place Notary Seal Above �Q personally known to me [ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s),k/are subscribed to the within instrument and acknowledged to me that k/she/ they executed the same in his/her/their authorized capacity(ies), and that by %, per/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal Sishature of 0 0 FEDERALLY FUNDED COMMUNITY DEVELOPMENT BLOCK GRANT CONSTRUCTION CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND NOBEST, INC. FOR CONSTRUCTION OF CURB RAMPS AT VARIOUS LOCATIONS AND RECONSTRUCTION OF SANTA ANITA LANE AND CLEVELAND AVENUE TABLE OF CONTENTS Page No. 1. STATE OF WORK; ACCEPTANCE OF RISK 2 2. ACCEPTANCE OF CONDITIONS OF WORK; PLANS AND SPECIFICATIONS 2 3. COMPENSATION 4 4. COMMENCEMENT OF PROJECT 5 5. TIME OF THE ESSENCE 5 6. CHANGES 5 7. NOTICE TO PROCEED 6 8. BONDS 6 9. WARRANTIES 7 10. INDEPENDENT CONTRACTOR 7 11. LIQUIDATED DAMAGES/DELAYS 7 12. DIFFERING SITE CONDITIONS 9 13. VARIATIONS IN ESTIMATED QUANTITIES 10 14. PROGRESS PAYMENTS 11 15. WITHHELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES 11 16. AFFIDAVITS OF SATISFACTION OF CLAIMS 12 17. WAIVER OF CLAIMS 12 18. INDEMNIFICATION, DEFENSE, HOLD HARMLESS 12 19. WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY INSURANCE 13 20. INSURANCE 13 21. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS 14 22. NOTICE OF THIRD PARTY CLAIM 15 23. DEFAULT & TERMINATION 15 24. TERMINATION FOR CONVENIENCE 16 25. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS 16 26. NON -ASSIGNABILITY 17 27. CITY EMPLOYEES AND OFFICIALS 17 28. STOP NOTICES; RECOVERY OF ADMINISTRATIVE COSTS 17 29. NOTICES 17 30. SECTION HEADINGS 18 31. IMMIGRATION 18 1 i FEDERALLY FUNDED COMMUNITY DEVELOPMENT BLOCK GRANT CONSTRUCTION CONTRACT TABLE OF CONTENTS, continued Page No. 32. LEGAL SERVICES SUBCONTRACTING PROHIBITED 18 33. ATTORNEY'S FEES 19 34. INTERPRETATION OF THIS AGREEMENT 19 35. GOVERNING LAW 20 36. DUPLICATE ORIGINAL 20 37. CONSENT 20 38. COMPLIANCE WITH APPLICABLE REGULATIONS 20 39. MINIMUM WAGES 22 40. PREVAILING WAGE LAW 25 41. WITHHOLDING 25 42. HEALTH AND SAFETY 26 43. PAYMENT OF TRAVEL AND SUBSISTENCE ALLOWANCE 27 44. APPRENTICES AND TRAINEES 27 45. PAYROLLS AND BASIC RECORDS 29 46. WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES 32 47. SUBCONTRACTS 32 48. FEDERAL PARTICIPATION 32 49. DAVIS-BACON ACT 33 50. DISPUTES CONCERNING LABOR STANDARDS 33 51. CERTIFICATION OF LIABILITY 33 52. DISCRIMINATION, MINORITIES, ALIENS 34 53. EQUAL EMPLOYMENT OPPORTUNITY ..34 54. COPELAND "ANTI -KICKBACK" ACT 35 55. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 35 56. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTRACT ACT ..36 57. ENERGY CONSERVATION ..37 58. HOUSING AND URBAN DEVELOPMENT 37 59. SUBCONTRACTS 37 60. CONTRACT TERMINATION; DEBARMENT 38 61. COMPLAINTS, PROCEEDINGS OR TESTIMONY BY EMPLOYEES 38 62. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT OVERTIME REQUIREMENTS 38 63. ENTIRETY 39 2 SECTION C `EXHj j81T PROPOSAL for the CONSTRUCTION OF CURB RAMPS @ VARIOUS LOCATIONS AND THE RECONSTRUCTION OF SANTA ANITA LANE AND CLEVELAND AVENUE MAINTENANCE SERVICE CONTRACT # 427 in the CITY OF HUNTINGTON BEACH TO THE HONORABLE MAYOR AND MEMBERS OF THE COUNCIL OF HUNTINGTON BEACH: In compliance with the Notice Inviting Sealed Bids, the undersigned hereby proposes and agrees to perform all the work therein described, and to furnish all labor, material, equipment and incident insurance necessary therefor, in accordance with the plans and specifications on file in the office of the City Engineer of the City of Huntington Beach. The undersigned agrees to perform the work therein to the satisfaction of and under the supervision of the City Engineer of the City of Huntington Beach, and to enter into a contract at the following prices. The undersigned agrees to complete the work within sixty (60) working days, starting from the date of the Notice to Proceed. BIDDER declares that this proposal is based upon careful examination of the work site, plans, specifications, Instructions to Bidders and all other contract documents. If this proposal is accepted for award, BIDDER agrees to enter into a contract with AGENCY at the unit and/or lump sum prices set forth in the following Bid Schedule. BIDDER understands that failure to enter into a contract in the manner and time prescribed will result in forfeiture to AGENCY of the guaranty accompanying this proposal. BIDDER understands that a bid is required for the entire work, that the estimated quantities set forth in the Bid Schedule are solely for the purpose of comparing bids and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. THE AGENCY RESERVES THE RIGHT TO DELETE ANY ITEM FROM THE CONTRACT. It is agreed that the unit and/or lump sum prices bid include all appurtenant expenses, taxes, royalties, fees, etc., and will be guaranteed for a period of sixty days from the bid opening date. If at such time the contract is not awarded, the AGENCY will reject all bids and will readvertise the project. In the case of discrepancies in the amounts bid, unit prices shall govern over extended amounts, and words shall govern over figures. C-1 AC-427 Project Bid Schec*e REMOVE/DISPOSE OF PARKWAY TREES 1 23 AT CvGtiPER EA. W,0D p /7,Zg0,- REMOVE/DISPOSE OF P.C.C. SIDEWALK (CURB RAMPS 2 15544 INCL.) AT �clv ��S a-J Ce-z, PER SF 3 11930 PARKWAY EXCAVATION AT C ctPER SF j l7, 8`fs• REMOVE/REPLACE IRRIGATION SYSTEM IN PARKWAY 4 14 AT r ggxg&eyz PER EA. / S l . as 2, REMOVE/REPLACE WATER METER BOXES 5 34 AT ELA-mq Daff&rs PER EA. SO.`= 1, REMOVE/DISP SE OF CURB AND GUTTER(CURB RAMPS 6 3576 INCL.) AT six badlAI rS PER LF °° CP • " 2 1, If REMOVE/DISPOSE OF ASPHALT CONCRETE (Gutter Slot) 7 2386 AT T�(JQ Da,(�itS PER LF Z , oa '/, 772 . `'� REMOVE/DISPOSE OF P.C.C. DRIVEWAY �. GO o0 it, Ova r 8 2500 AT f l cc r Coc� PER SF REMOVE/DISPOSE OF EXISTING CROSS GUTTER 9 2646 AT 7ujo! l r sff2i ontA PER SF REMOVE/DISPOSE OF SPANDR L 10 2214 AT %wo / PER SF 2, �—" S; T-3r. CONSTRUCT P.C.C. CURB AND GUTTER 11 2386 AT PER LF CONSTRUCT P.C.C. DRIVEWAY 12 2500 AT r-e-c Z>y/cc,- ecc?�r PER SF 3. CONSTRUCT P.C.C. SIDEWALK 13 9544 AT ! ,, q PER SF CONSTRUCT ASPHALT CONCRETE (GUTTER SLOT) 14 59 AT o-e 1464elcll % t t P 4., PER TON /3 S. m 7, CONSTRUCT WHEEL CHAIR RAMP AT 1-�-ilnolrcol L��&ws PER EA. 1700. - / 12, sr -0C a� 15 125 /V!n>C CONSTRUCT SPANDRAL 16 2234 AT PER SF— j CONSTRUCT CROSS GUTTER I 17 2646 AT r v-r— PER SF S /3, Z30- FURNISH/INSTALL ROOT BARRIER .. 18 34 AT Av�K �o�`lGv�'-r PER EA. 1 Cam. 3 `l00 — PLACE NEW PARKWAY TOP SOIL AND RESEED Ch -7W,<,C,6 - 19 34 AT #,,rJyra1 PER SE 300. IFURNI 20 34 H, EXCAVATE & PLANT TREE AT oK .t 2�yt PER EA. / 13O. a� �1ZO- 21 10120 COLD PLANE AT -' S PER SF �� O (p0 ' o� C-2s Nk-427 Project Bid Sched9 ONE & ONE-HALF INCH OVERLAY AT zw&--S PER TO $. % �, zoo, 22 280 ( v-C ADJUST WATER VALVES AT / l l��S PER EA. 7j�U. �/ DS7p,' 23 3 o2�d-c� ADJUST MANHOLES AT PER EA. a, 24 3 O 1K PREPARE PRE -CONSTRUCTION CORNER RECORD AND FILE MH APPROPRIATE AGENCIES Z� °� Z.ggQ. 25 24 AT ,iG ! PER EA. PREPARE POST -CONSTRUCTION ORNER RECORD AND 2i FILE WITH APPROPRIATE AGENCIES J zo. 26 24 AT uel.M / PER EA. Total Amount Bid in Figures: $ 3gZ, 002.. — Total Amount Bid in Words: C-2s If awarded the Contract, tedersigned agrees that in the event0the BIDDER'S default in executing the required contract and filing the necessary bonds and insurance certificates within 10 working days after the date of the AGENCY'S notice of award of contract to the BIDDER, the proceeds of the security accompanying this bid shall become the property of the AGENCY and this bid and the acceptance hereof may, at the AGENCY'S option, be considered null and void. Accompanying this proposal of bid, find /3i-0 A,VO in the amount of $ /e ° which said amount is not less than 10% of the aggregate of the total bid price, as required by the Notice Inviting Sealed Bids, payable to the AGENCY. (Please insert the words "Cash", "Certified Check", or "Bidder's Bond", as the case may be). Bic C-2 WST OF SUBCONTRACTOR In accordance with Government Code Section 4104, the Bidder shall set forth the name and business address of each subcontractor who will perform work or render service to the bidder on said contract in an amount in excess of one-half of one percent of the total bid and the portion of the work to be done by such subcontractor. Portion of Work Name and Address of Subcontractor State License Number Class. rcKrcxS ' t I�Ie rv-►cle # 6s ,rLrd cs m u K3tz73 Ja P• 1 G7 ` 5-f...c K By submission of this proposal, the Bidder certifies: 1. That he is able to and will perform the balance of all work which is not covered in the above subcontractors listing. 2. That the AGENCY will be furnished copies of all subcontracts entered into and bonds furnished by subcontractor for this project. C-3 *QNCOLLUSION AFFIDAVII TO BE EXECUTED BY BIDDER AND SUBMI ED WITH BID State of California ss. County of Orange LI�2�&/,� , being first duly sworn, deposes and says that he or she is of -A-de- the parry making the foregoing bid that the bid is not made in the interest of, or on the behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price, or that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Subscribed and sworn to before me this 12 NOTARY PUBLIC O.fG� Name of Bidder Sihnature of Address of Bidder day of , 20 -0 s '-w �e5v KAY E. ANDERSON COMM. #1304678 NOTAWFUB C-GUFORNIA `Yi . ORANGEOOUMY lulu Come. 6p. An 13, 2005 NOTARY SEAL C-:t • UTILITY AGREEMENT HONORABLE MAYOR AND CITY COUNCIL CITY OF HUNTINGTON BEACH, CALIFORNIA Gentlemen: The undersigned hereby promises and agrees that in the performance of the work specified in the contract, known as the CONSTRUCTION OF CURB RAMPS @ VARIOUS LOCATIONS AND THE RECONSTRUCTION OF SANTA ANITA LANE AND CLEVELAND AVENUE MAINTENANCE SERVICE CONTRACT # 427 (I)(we)(it) will employ and utilize only qualified persons, as hereinafter defined, to work in proximity to any electrical secondary or transmission facilities. The term "Qualified Person" is defined in Title 8, California Administrative Code, Section 2700, as follows: "Qualified Person: A person who, by reason of experience or instruction, is familiar with the operation to be performed and the hazards involved. " The undersigned also promised and agrees that all such work shall be performed in accordance with all applicable electrical utility company's requirements, Public Utility Commission orders, and State of California Cal -OSHA requirements. The undersigned further promises and agrees that the provisions herein shall be and are binding upon any subcontractor or subcontractors that may be retained or employed by the undersigned, and that the undersigned shall take steps as are necessary to assure compliance by any said subcontractor or subcontractors with the requirements contained herein. Date: Contractor Title C-5 DIS(&LIFICATION QUESTIONN*RE In accordance with Government Code Section 14310.5, the Bidder shall complete, under penalty of perjury, the following questionnaire. QUESTIONNAIRE Has the Bidder, any officer of the Bidder or any employee of the Bidder who has a proprietary interest in the Bidder ever been disqualified, removed or otherwise prevented from bidding on or completing a Federal, State or local government project because of a violation of law or a safety regulation? ❑ Yes @(No If the answer is yes, explain the circumstances in the space provided. Note: This questionnaire constitutes a part of the Proposal, and a signature portion of the Proposal shall constitute signature of this questionnaire. C-6 COMPENSATION INSURANCE CERTOICATE Pursuant to Section 1861 of the State Labor Code, each contractor to whom a public works contract has been awarded shall sign the following certificate. I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker's 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 of this contract. - Date: / 7— - D Title C-7 UOERGROUND SERVICE ALE ' IDENTIFICATION NUMBER (To be completed only by the awarded Contractor prior to excavation) No excavation will be permitted until this form is completed and returned to the AGENCY. Section 4216/4217 of the Government Code requires a Dig Alert Identification Number be issued before a Permit to Excavate will be valid. To obtain a Dig Alert Identification Number, call Underground Service Alert at 1-800422-4133 a minimum of two working days before scheduled excavation. Dig Alert Identification Number: zy /fSZ-S; —zz/ dF. Contractor Title Date: = ) -Z -n's- Note: This form is required for every Dig Alert Identification Number issued by U.S.A. during the course of the Work Additional forms may be obtained from the AGENCY upon request. C-8 *BIDDER'S INFORMATION 0 BIDDER certifies that the following information is true and correct: AI1t14 SZ5/ e Bidder Name ,-� &,,� gxl- Business Address /J City, State Zip (7iV ) 9Y2 Telephone Number State Contractor's License No. and Class Original Date Issued Expiration Date The work site was inspected by A14e za)I S of our office on S �� , 20 D,f The following are persons, firms, and corporations having a principal interest in this proposal: L>;urwj C-9 The undersigned is prepares• satisfy the Council of the City of Hu*gton Beach of its ability, financially or otherwise, to perform the contract for the proposed work and improvements in accordance with the plans and specifications set forth. Company Name Printed or Typed Signa e Subscribed and sworn to before me this Z day of �l� , +99 •:. KAY E. ANDERSON COMM. #1304678 Q N0UWPL%C-CAUF0WA M #i ORANWOOLN" V1Cwm 6t. Jns 13.2M NOTARY PUBLIC 104AZA A A' NOTARY SEAL Listed below are the names, address and telephone numbers for three public agencies for which the bidder has performed similar work within the past two years: 5720 1. 2. 3. Name and Address of Public Agency Name and Telephone No. of Project Manager: Contract Amount Type of Work Date Completed Name and Address of Public Agency Name and Telephone No. of Project Manager: Contract Amount Type of Work Date Completed Name and Address of Public Agency Name and Telephone No. of Project Manager: Contract Amount Type of Work Date Completed C-10 w NOBEST INCORPORATED REFERENCE LIST 1. CITY OF ANAHEIM (MAINTENANCE DEPT.) Project: Concrete Replacement Contact: Craig Allen Phone: (714) 765-6935 2. COUNTY OF LOS ANGELES DEPT. OF PUBLIC WORKS Project: Curb Ramp Replacement Contact: Ray Green Phone: (626) 458-3122 3. CITY OF HUNTINGTON PARK Project: Street Resurfacing Contact: Pat Fu Phone: (323) 582-6161 Ext. # 253 4. CITY OF MANHATTAN BEACH Project: Pavement Rehab. Contact: Mike Guerrero Phone: (310) 802-5355 5. CITY OF GARDEN GROVE Project: Concrete Replacement - Contact: Joe Gomez Phone: (714) 741-5385 $1,052,000.00 S 342,500.00 $ 400,000.00 S 647,700.00 $ 222,000.00 Bond No. The American Institute of Architects, AIA Document No. A310 (February, 1970 Edition) KNOW ALL MEN BY THESE PRESENTS, that we Nobest Incorporated Bid Bond as Principal hereinafter called the Principal, and Contractors Bonding and Insurance Company a corporation duly organized under the laws of the state of Washington as Surety, hereinafter called the Surety, are held and firmly bound unto City of Huntington Beach as Obligee, hereinafter called the Obligee, in the sum of Ten percent of the total amount of the bid Dollars ($10% ), for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for Construction of Curb Ramps @ Various Locations and Reconstruction of Santa Anita Lane and Cleveland Avenue Maintenance Service Contract #427 NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithfid performance of such Contract and for the prompt payment of labor and material famished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this Witness Witness ORSC 21328 (5/97) 4th day of May , 2005 Nobest L-15 Contractors Bolding and Surety (Seal) By: - Linda D. Coats Attorney -in -Fact . CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange On 7, - b-5- before me, Kay E. Anderson/Notary Public , Oate Name and Title o/ Officer (e.g.. 'Jane Doe, Notary PuNid) personally appeared Larry Nodland , Name(s) of Stgner(s) ❑ personally known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), -•----�'�"' or the entity upon behalf of which the person(s) acted, .. , KAY E. ANDERSON executed the instrument. cc COMM. #1304678 �WMy ORANt 00ul ry Comm. Exp. June 13, 4005 ........... WITNESS my hand aqSLAfficial seal. OPTIONAL Though the information below is not required by lax: it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: E*b B Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: I ins Individual Corporate Officer Title(s): President Partner — ❑ Limited I] General Attomey-in-Fact Trustee Guardian or Conservator Other. Signer Is Representing RIGHT THUMBPRINT OF SIGNER Li Signer's Name: IN Number of Pages: Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attomey-in-Fact Trustee Guardian or Conservator Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER 01995 Naoonal NotaryAssoaaoon • 8236 Aemmet Ave_ P.O. Box 7184 -Canoga Pan(. CA 91X9-71 a4 prod. NO. 5907 N60(dW Gtl TON -Free 1 800 97t, 6827 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of Orange On MAY 0 4 2005 personally appeared Christine M. Rapp, Notary Public NAME, TITLE OF OFFICER Linda D. Coats NAME OF SIGNERS) ® Personally known to me - or - ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), 'SE"`�F d CHRISTINE M. RA N COMM. # 1494518 � and that by his/her/their signature(s) on the instrument the �'� T -�► a NOiARYPUBUC•CAUFORNIA X person(s), or the entity upon behalf of which the person(s) ORANGE COUNTY CAacted, executed the instrument. °�ucoaM My Comm Eggm A&Y 1, 2M WITNESS my hand and official seal. (SIGNATURE O ,01ARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL/OWNER ❑ CORPORATE OFFICER TITLE(S) PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT 11RJ:- 14 FROM :HIS PW MAINTENANCE FAX NO. :714 May. 11 2005 09:47RM P1 City of Huntington Beach Public Works Department 2000 Main Street Tel. (714) 375-5042, Fax (714) 375-8430 ADDENDUM NUMBER ONE For CONSTRUCTION OF CURB RAMPS VARIOUS LOCATIONS AND THE RECONSTRUCTION OF SANTA ANITA LANE AND CLEVELAND AVENUE MAINTENANCE SERVICE CONTRACT # 427 May 11, 2005 Notice To All Bidders: Please note the following clarification to the laid Schedule: Incorporated into the Construction of Curb Ramps @ Various Locations and the Reconstruction of Santa Anita and Cleveland Avenue, MSC-427 plans and specifications is Addendum No. 1, dated May 11, 2005 and the following attached documents: 1) Bid item #19 "Place New Parkway Top Soil and Reseed" on Bid Schedule to be changed to read EACH not square feet. The Approximate quantity is 1134". The Contractor's submitted proposal shall be enclosed in a sealed envelope plainly marked on the outside: "SEALED BID" for 1. Curb Ramps @ Various Locations and the Reconstruction of Santa Anita and Cleveland Avenue, MSC- 427 Project Description: Local Street Improvement @ Santa Anita Lane and Cleveland Drive The work to be done consists of the removal, disposal and replacement of parkway trees (Santa Anita Lane trees stay at 16281, 16282, and 16331 plant — Purple Leaf Plum, Cleveland Drive tree stays at 309 plant — Crape Myrtle), sidewalks, curb and gutter, cross gutters, driveways, and onsite driveways as necessary to meet new grade. An asphalt overlay will be applied to Santa Anita after improvements havO been accomplished. Curb Ramp Installation Curb ramps shall be installed within the current ADA standards (See Appendix 1). On Santa Anita Lane (4 Ramps) and Cleveland (2 Ramps) remove and replace. For the various locations for curb ramps (119 Ramps) 50 need horizontal curb cuts with the access portion ground down to zero, and 69 need to be removed and replaced (no cross gutter at these 69 locations). FROM :HE PW MAINTENANCE FAX NO. :714 May. 11 2005 08:48AM P2 This is a Davis -Bacon project and the Federal Regulations will be enforced. Any contract entered into pursuant to this notice will incorporate the provisions of the Federal Labor Standards, which are on file at the office of the Director of Public Works, 2000 Main Street, Huntington Beach, CA 92648. Engineer's Estimate: $370,000 This modification does not change the Engineer's Estimate for this project. This is to acknowledge receipt and review of Addendum Number one, dated May 11, 2005. Company Name B Date All bidders must acknowledge the receipt of this Addendum with your bid proposal. Should you have any questions regarding this Addendum, please call Jason Churchill at (714) 375-5042_ ��6s. CERTIFICA OF LIABILITY INSU MICE oiioi%ioo ) PRODUCER (949) 852-0909 Milestone Insurance Brokers P.O. Box 19598 8 Corporate Park, Ste 130 Irvine, CA 92623-9598 FAX )852-1131 6co -///o 1/'T (2000Y THIS CERTIFICAT ... SSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Nobest, Inc. P.O. Box 874 Westminster, CA 92684 8I low / s4A76^r /13) INSURERA: Westchester Surplus Lines Ins. INSURERB: Hartford Fire Ins Co 19682 INSURERC: A.I.G. Insurance Company INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDIN ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES- AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR DD'I TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIA ITS GENERAL LIABILITY GLW782728 10/01/2004 10/01/2005 EACHOCCURRENCE $ 2,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ S0,000 CLAIMS MADE FX-1 OCCUR MED EXP (Any one person) $ 5 , 000 A PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 POLICY X PRO- JECT LOC AUTOMOBILE LIABILITY ANY AUTO 72UUNUS6289 10/01/2004 10/01/200S COMBINED SINGLE LIMIT (Ea accident) $ 11000,000 X B III. _ ALL OWNED AUTOS SCHEDULED AUTOS $500 COMP DEDUCTIBLE 1,000 COLL DEDUCTIBLE BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ j HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE (Per accident) $ i GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ i ANY AUTO $ I EXCESS/UMBRELLA LIABILITY OCCUR ❑ CLAIMS MADE BE0839306 A - 10/01/2004 10/01/2005 EACH OCCURRENCE $ 2,000,000 AGGREGATE $ 2,000,000 $ DEDUCTIBLE E I ' X RETENTION $ 10,00 $ WORKERS COMPENSATION AND A �% y�L'MffS A TO FO wC STATU- O FIR EM LOYFRS' !_14BILITV ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yesdescribe uncer SPECIAL PROVISIONS below J W RATH, C ity Att 1116)I E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT $ B OTHER tractors Equipment$ Eonipment sed/Rented 72MSUS7964 10/01/2004 10/01/200S Limit $100,000 Special Form 1,000 Deductible DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Project/Job: MSC-427 Construction of Curb Ramps @ Various Locations and Reconstruction of Santa Anita ane and Cleveland Drive ertficate Holder is added as Additional Insured per Additional Insured/Primary Wording CG20101185 giver of Subrogation Applies °'Except ten (10) days notice of cancellation for non payment of premium. City of Huntington Beach Attn: Risk Management 2000 Main Street Huntington Beach, CA 92648 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILLX MAIL *30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, �cxac�ra�cucaaxaca�x�sxac x AUTHORIZED REPRESENTATIVE ACCORD 25 (2001/08) t � • • IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. f +f { I i ACORD 25 (2001/08) • COMMERCIAL GENERAL LIABILITY Policy Number: GLW782728 Carrier: Westchester Surplus Lines Ins. Expires: 10/01/2005 THIS ENDORSEMENT CHANGES THE POLICY - PLEASE READ IT CAREFULLY ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART: SCHEDULE Name of Person or Organization: City of Huntington Beach, its agents, officers and employees MSC-427 construction of curb ramps @ various locations and reconstruction of Santa Anita Lane and Cleveland Drive (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respects to liability arising out of "your work" for that insured by or for you. The insurance afforded to the Additional Insured is primary. If the Additional Insured has other insurance Which is applicable to the loss on an excess of contingent basis, the amount of the Company's liability under this policy shall not be reduced by the existence of such other insurance. CG 20 10 11 85 Copyright Insurance Services Office, Inc. 1984 POLICY # GLW782728 Westchester Surplus Lines Ins. THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: Name of Person or Organization: SCHEDULE Name of Person or Organization: Blanket as required by written contract The County of Orange, its elected and appointed officials, officers, employees, agents and volunteers are added as Additional Insured as respects liability or claims actually or allegedly caused by, or arising out of, or resulting from the operations performed by or on behalf of the Named Insured. If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement. The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV - COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products -completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above. This waiver shall not apply for occurrences resulting from the sole negligence of the person or organization shown in the schedule. SG CERTHOLDER COPY STATE P.O. BOX 420807, SAN FRANCISCO,CA 94142-0807 COMPENSATION INSURANCE FUND CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 07-01-2005 GROUP: POLICY NUMBER: 6653043-2004 CERTIFICATE ID: 19 CERTIFICATE EXPIRES: 10-01-2005 10-01-2004/10-01-2005 JOB:MSC-427 CITY OF HUNTINGTON BEACH SG RISK MANAGEMENT 2000 MAIN STREET HUNTINGTON BEACH CA 92648 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon30 days advance written notice to the employer. We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions, of such policy. AUTHORIZED REPRESENTATIVE PRESIDENT EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #1600 - LARRY NODLAND PRESIDENT TREASURER - EXCLUDED. ENDORSEMENT #1600 - ROBERT NODLAND VICE PRESIDENT SECRETARY - EXCLUDED. ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 10-01-2002 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. V S TO FORM RGRATH EMPLOYER NOBEST, INC. SG PO BOX 874 WESTMINSTER CA 92684 [B10,SG1 IREv.2-05) PRINTED : 07-01-2005 Insurers Page 1 of 1 • -Search- Company Profile CONTRACTORS BONDING AND INSURANCE COMPANY P0BOX 9271 SEATTLE, WA 98109-0271 800-765-2242 Former Names for Company CONTRACTORS BONDING AND INSURANCE Old Name: COMPANY DBA CBIC BONDING AND Effective Date: 12-31-1992 INSURANCE COMPANY Agent for Service of Process JERE KEPRIOS, C/O CT CORPORATION SYSTEM 818 WEST SEVENTH STREET, 2ND FLOOR LOS ANGELES, CA 90017 Unable_to Locate the Agent for Service of Process? Reference Information NAIC #: 37206 NAIC Group #: 0000 California Company ID #: 3000-7 Date authorized in California: May 31, 1985 License Status: UNLIMITED -NORMAL Company Type: Property & Casualty State of Domicile: WASHINGTON Lines of Insurance Authorized to Transact http://www.insurance.ca.gov/docs/FS-Insurer.htm 7/14/2005 11 + Company Profile 0 9 Page 1 of 2 Company Profile WESTCHESTER FIRE INSURANCE COMPANY 1601 CHESTNUT STREET TWO LIBERTY PLACE PHILADELPHIA, PA 19103 800-982-9826 Agent for Service of Process JERE KEPRIOS, C/O CT CORPORATION SYSTEM 818 WEST SEVENTH STREET, 2ND FLOOR LOS ANGELES, CA 90017 Unable to Locate the Agent for Service of Process? Reference Information NAIC #: NAIC Group #: California Company ID #: Date authorized in California: License Status: Company Type: State of Domicile: 21121 0626 0235-2 December 14, 1874 UNLIMITED -NORMAL Property & Casualty NEW YORK Lines of Insurance Authorized to Transact The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the log ssaU. AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY CREDIT DISABILITY FIRE LIABILITY MARINE http://cdinswww.insurance.ca.gov/pls/wu_co_lines/idb_co_prof utl.get_co_prof?p_EID=2... 7/11/2005 Company Profile Page 2 of 2 MISCELLANEOUS PLATE GLASS SPRINKLER SURETY TEAM AND VEHICLE WORKERS' COMPENSATION Company Complaint Information R� Company Enforcement Action Documents Company Performance & Comparison Data Composite Complaint Studies Want More? Help Me Find a Company Representative in My Area Financial Rating Organizations Last Revised - November 04, 2004 11:18 AM Copyright © California Department of Insurance Disclaimer http://cdinswww.insurance.ca.gov/pls/wu_co_lines/idb_co_prof utl.get_co_prof?p_EID=2. 7/11/2005 Company Profile • 0 Page 1 of 2 Company Profile HARTFORD FIRE INSURANCE COMPANY 55 FARMINGTON AVENUE, SUITE 100 HARTFORD, CT 06105-3725 800-243-5860 Agent for Service of Process JERE KEPRIOS, C/O CT CORPORATION SYSTEM 818 WEST SEVENTH STREET, 2ND FLOOR LOS ANGELES, CA 90017 Unable to Locate the Agent for Service of Process? Reference Information NAIC #: 19682 NAIC Group #: 0091 California Company ID #: 0085-1 Date authorized in California: January 07, 1870 License Status: UNLIMITED -NORMAL Company Type: Property & Casualty State of Domicile: CONNECTICUT Lines of Insurance Authorized to Transact The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the log ssary. AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY CREDIT DISABILITY FIRE LEGAL INSURANCE LIABILITY http://cdinswww.insurance.ca.gov/pls/wu_co_prof/idb_co_prof utl.get_co_prof?p_EID=2... 7/11/2005 Company Profile Page 2 of 2 MARINE MISCELLANEOUS PLATE GLASS SPRINKLER SURETY TEAM AND VEHICLE WORKERS' COMPENSATION Company Complaint Information dft 1 A, Company Enforcement Action Documents Company Performance & Comparison Data Composite Complaint Studies Want More? Help Me Find a Company Representative in My Area Financial Rating Organizations Last Revised - November 04, 2004 11:18 AM Copyright © California Department of Insurance Disclaimer http://cdinswww.insurance.ca.gov/pls/wu_co_prof/idb_co_prof utl.get_co_prof?p_EID=2... 7/11/2005 i e Company Profile Page 1 of 2 Company Profile AIG PREFERRED INSURANCE COMPANY 508 VIRGINIA DRIVE FORT WASHINGTON, PA 19034 800-433-8880 Former Names for Company Old Name: GE AUTO & HOME ASSURANCE COMPANY Effective Date: 12-06-2004 Old Name: BAY COLONY INSURANCE COMPANY Effective Date: 09-02-1999 Old Name: COLONIAL PENN HERITAGE INSURANCE COMPANY Effective Date: 11-14-1994 Old Name: INSURANCE COMPANY OF THE PACIFIC COAST Effective Date: 10-20-1986 Agent for Service of Process JERE KEPRIOS, C/O CT CORPORATION SYSTEM 818 WEST SEVENTH STREET, 2ND FLOOR LOS ANGELES, CA 90017 Unable to Locate the Agent for Service of Process? Reference Information NAIC #: 22225 NAIC Group #: 0012 California Company ID #: 2061-0 Date authorized in California: December 27, 1971 License Status: UNLIMITED -NORMAL Company Type: Property & Casualty State of Domicile: PENNSYLVANIA Lines of Insurance Authorized to Transact The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the log sue. AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY http://cdinswww.insurance.ca.gov/pls/wu_co_prof/idb_co_prof utl.get_co_prof?p_EID=5... 7/11/2005 Company Profile • Page 2 of 2 CREDIT DISABILITY FIRE LIABILITY MARINE MISCELLANEOUS PLATE GLASS SPRINKLER SURETY TEAM AND VEHICLE Company Complaint Information 14. Company Enforcement Action Documents Company Performance & Comparison Data Composite Complaint Studies Want More? Help Me Find a Company Representative in My Area Financial Rating Organizations Last Revised - November 04, 2004 11:18 AM Copyright © California Department of Insurance Disclaimer http://cdinswww.insurance.ca.gov/pls/wu_co_prof/idb co_prof utl.get_co_prof?p_EID=5... 7/11/2005 i;�X@i=1V1 4L1-l'q (Name) (Date) 0 • CITY CLERK RECEIPT COPY Return DUPLICATE to City Clerk's Office after signing/dating CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: Sha ' reidenrich, City Treasurer FROM: DATE: SUBJECT: Bond Acceptance have received the bonds for IA-)(2,, (CompanyName) Faithful Performance Bond No. ��- Labor and Material Bond No. Monument Bond No. Maintenance Bond No. Re: Tract No. CC No. MSC No. Approved (Council Approval Date) C4f-7 3 //7 Agenda Item No. - City Clerk Vault No. #27 g:/followup/bondletterAoc BOND PREMIUM BASED • • Bond # CE 3417 Premium: $3.820.00 rJ FINAL CONTRACT PRICE PERFORMANCE BOND The American Institute of Architects, AIA Document No. A312 (December, 1984 Edition) Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Nobest Incorporated 7600 Acacia Lane Garden Grove, CA 92641 CONSTRUCTION CONTRACT Date Amount $382,002.00 OWNER (Name and Address): City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 SURETY (Name and Principal Place of Business): Contractors Bonding and Insurance Company 11 f Pacifica, Ste. 350, Irvine, CA 92618 Irvine, CA 92618 Description (Name and Location): Construction of Curb Ramps @ Various Locations and Reconstruction of Santa Anita Lane and Cleveland Drive BOND Date (Not earlier than Construction Contract Date): July 6, 2005 Amount: $382,002.00 Modifications to this Bond: O None ® See Page 2 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Nobest Incorporated Contractors So jxftand Insurance Company Signature: Signature: Name and Title: Name and Title: Linda D. Coats (Any additional signatures appear o Npage 2.) (FOR INFORMATION Only- Name; Address and Telephone) AGENT or BROKER: Coats/Rapp Surety Services 23461 South Pointe Dr. Ste 345 Laguna Hills, CA 92653 Ph:949457-1060 Fax:949-457-1070 f The Contractor and the Surety, jointly and severally, bind them- selves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to par- ticipate in conferences as provided in Subparagraph 3.1. 31f there is no Owner Default/ the Surety's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is con- sidering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Con- tract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and Surety have received notice as provided in Subparagraph 3.1; and )RSC 72119(10-M) in Fact OWNER'S REPRESENTATIVE (Architect, Engineer or other Party): 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Suretys expense take one of the following actions: 4.1 Arrange for the Contractor with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and com- pletion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or JAVVED S TOOPage 1 of 2 S ,City Attorney 7%{olo � 4.4 Waive its right to perform and completeonge for completion, Or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 6 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its Obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for. 6.1 The responsibilities of the Contractor for correction of defec- tive work and completion of the Construction Contract; 6.2 Additional legal design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are speci- fied in the Construction Contract. actual damages caused by delayed performance or non-performance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to *erson or entity other than the Owner or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 8 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work Is located and shall be instituted within two years after Contractor Default or within two years after the Con- tractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statu- tory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as is common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. MODIFICATIONS TQ _THl1S_BQND_ARE AS --FOLLOWS:- --- .The above obligations in the said amount shall hold good for a period of one (1) year after completion and acceptance of the said improvements in accordance with the Contract Documents. (Space is provided below for additional signatures of added parties other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) SURETY Company: Address: Address: ime and Title: Signature: Name and Title: Signature: (Corporate Seal) ORSC 22119 (10-93) Page 2 of 2 ACKNOWLEDGMENT State of : California County of Orange On July 6, 2005 , before me Kay E. Anderson/Notary Public Date Name and Title of Officer (e.g., "Jane Doe, Notary Publid') personally appeared Larry Nodland Name(s) of Signer (s) �] personally known to me [ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. � gpp WITNESS my hand and official seal V raY�ay.cu+�oaru► mm -rl owam COW" Place Notary Seal Above CALIFORNIA ALL - PUKPOSE ACKNOWLEDGMENT* State of California County of Orange On -JUL 0 6 2005 personally appeared before me, Christine M. Rapp, Notary Public NAME, TITLE OF OFFICER Linda D. Coats NAME OF SIGNER(S) ® Personally known to me - or - ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/shefthey oF, executed the same in his/her/their authorized capacity(ies), COMM. # 1494518APP �'! any �, sF CHRISTINE M. Rd that b his/her/their s�nature(s on the instrument the 18 o NOTARY PUBUC•CALiFORNIA person(s), or the entity upon behalf of which the person(s) ` . r ORANGE COUNTY Cn °�uFom+ My Comm 6c0res DULY 9, 2008 N acted, executed the instrument. WITNESS my hand and official seal. f OF OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAEWED BY SIGNER ❑ INDIVIDUAL/OWNER ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LmrrED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT it •• :. .11I1 Z 1ITED POWER :O "TOO EV l.r 1. q ... ' ZIWSurts►nce .. 1, ., Not Valid for Bands Power of Attorney Executed (Jn or After: anml� 3QTx, a©Qs Number :7Q3D2 ' be used E bondspecified herein t. Only ait unaltered original of this Power of attorney document is valid. Avalid original of €his document is printed on gray r security paper with black and ted ink and bears Ehe seat ofContractors $onding and Insurance Company {"the "Company"j The original document 'contains a watermark with the letters "obit" embedded in the paper rathe than upon it. The t " printed watermark appears in the blank space beneath the words "Limited Power of AtEorney'= at the tap of the document and is ;,l\ visible when the document is held to the light. This document is valid soletyin corfnection vi€h €he execution and de five of the band bearing the number indicated below, and provided alsothat the bond is of the type indicated below This document is ali vd only if the bond is executed on or before:the date: indicated above: 1 KNOW ALL MEIQ BY THSSE PRESHNTS that the Company does hereby make, ccanstit tte + =;# and aggoiiit the followatng: IioIIG..LAS . A. RAPP and LINDA. D. CnA1'S its true and \. lawful Attoraey(s)-in-Fact, with full pawez and sutlifority hereby conferred in its name, place and stead, to execute, acknowledge and deliver on behalf of Company: ('1) any and all bond s and undertakings of surety4hig gives :for any purpose, provided, however that no such person shall be authorized to execute ; and deliver any bond or undertaking that shall obligate the Comgany for ashy portion of the .penal sum :thereof in excess of $1Q,QQ(i,000, and provided, ` further, that no Attorney-in-L°`Sct shtt11 lave the authority to issue a bid'or gropasal bond for any project where a contract is awarded, any bend ojc :. undertaking would be repaired with penal sum in excess of $� Q,>?Q, 000; and {) consents, releases and other similar'documents.,,requred as obligee under a '! contract bonded by the Company.,,1'his appointment iq made under :the authority of the Board'of nirectors of the +Company. -- - - , ---- - - - - - - - - ---- -.._ _- -- -- ---- - - --- --_-__.._-- ---__--.---------------------- ---------------------- - 1 --- - -- -- -- - - - - - - - - - - -- - '!r r CERTIFICATE =r s �! 1, the: undersigned secretary of Contractors Bonding and Insurance Company, a Washington corporation, DO HEREBY CERTIFY that this Power. of Attorney remains itifull force ;and effect and has not been revoked, and; futhennore, that the of Board of Directors resolutions the set forth on the reverse are now in full force and effect. r, Bond Number CE 3417 9 Signed andsealedthis 6t:h day( epOp `® °0Os 6°otp°oa Fd4°a°o°°e°e�m: y. Cb°e°oe°e b°o°De°oen m� �'e9Q>°e ��° q°e L°4°d°o0°oao°'�e dp°aso?�96d4ik�60�a o4Zl eo° oa 004000 Fe°e ��0°° oo°ooeao°o°o°era o ° y� so `� °ou o eoa os► c g" 406 f �o oe a°0°0 tt tU � a upo 0°0 0 mo ee°°LE°d �0 e 1 0 'a oop° 4e°y lddbdbEl; a44dds�°�b81e°=e�p°�°°��a° d OOFdLde;�ve°48FLOOt ee°e°o aobe i°e°a°e eq A°eo°e°a°e°oo^� o°°o°oBBOe°OCO o eo o m�si o �o r� jo 6°a Vond # CE 3417 PAYMENT BOND Premium: included The American institute of Architects, AIA Document No. A312 (December, 1984 Edition). Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): Nobest Incorporated 7600 Acacia Lane Garden Grove, CA 92641 OWNER (Name and Address): City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 CONSTRUCTION CONTRACT Date: Amount: $382,002.00 Description (Name and Location): Construction of Curb Cleveland Drive Contractors Bonding and Insurance Company I I I Pacifica, Ste. 350, Irvine, CA 92618 Irvine, CA 92618 Various Locations and Reconstruction of Santa Anita Lane and BOND Date (Not earlier than Construction Contract Date): July 6, 2005 Amount: $382,002.00 Modifications to this Bond: ® None 0 See Page 2 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Nobest Incorporated Contractors Bonding and Insurance Company Signature: Name and Title: (FOR INFORMATION ONLY —Name, Address and Telephone) AGENT or BROKER: Coats/Rapp Surety Services 23461 South Pointe Dr. Ste 345 Laguna Hills, CA 92653 Ph:949-457-1060 Fax:949-457-1070 i The Contractor and the Surety, jointly and severally, bind them- selves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incor- porated herein by reference. 2 With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the Construc- tion Contract, provided the Owner has promptly notified the Con- tractor and the Surety (at the address described in Paragraph 12) of any claims; demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4 The Surety shall have no obligation to Claimants under this Bond until: Signature: Name and Title: Linda D. Coats Attorney in Fact OWNER'S REPRESENTATIVE (Architect, Engineer or other party): 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with sub- stantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were fur- nished or supplied or for whom the labor was done or performed; and .2 Have either received a rejection in whole or in part from the Con- tractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. MC22114(r-93) Page 1 of 2 AP ED A, TO F JE IFE McGRATH, Citi�Attor �7 Z(Oi/? 5 if a nbtice required by Paragraph 4 is given bsce. Owner to the Con- tractor or to the Surety, that is sufficient corn 6 When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed . 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor under the Construc- tion Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Perfor- mance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obli- gations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, pur- chase orders and other obligations. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Con- tract, whichever of (1) or (2) first occurs. If the provisions of this MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Paragraph are void or pred by law, the minimum period of limi- tation available to suretidW a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statu- tory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limi- tation in the terms "labor, materials or equipment' that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdic- tion where the labor, materials or equipment were furnished. 15.2 Construction Contract The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto_ 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Con- struction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: Signature: — Name and Title: Address: SURETY (Corporate Seal) Company: Signature: _ Name and Title: Address: Page 2 of 2 (Corporate Seal) ACKNOWLEDGMENT State of : California County of Orange On July 6, 2005 , before me Ray E. Anderson/Notary Public Date Name and Title of Officer (e.g., "Jane Doe, Notary Publid') personally appeared Larry Nodland Name(s) of Signer (s) 1,► Place Notary Seal Above personally known to me [ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal CALIFORNIA ALL - PAOSE ACKNOWLEDGMENT* State of California County of Orange On JUL 0 6 2005 personally appeared before me, Christine M. Rapp, Notary Public NAME, TrME OF OFFICER Linda D. Coats DAME OF SICMR(S) ® Personally known to me - or - [] Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they N .bEALO`rsp CHRISTINE R PP i executed the same in his/her/their authorized capacity(ies), u� COMM. # 1494518 and that by his/her/their signature(s) on the instrument the o NOTARY PUBLIC-CALIFORNIA !a person(s), or the entity upon behalf of which the person(s) ORANGE COUNTY , wed, executed the instrument. °4t�oa+ My Comm. Expires JULY 9, 200a WITNESS my hand and official 1. (SIGNATURE OF OTARI) OPTIONAL v Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUALIOWNER ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ Li IITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT z - Engineer's Estimate: $ o o d BID LIST .�i� D�Ea.r,v� PROOF OF PUBLICATION STATE OF CALIFORNIA) NoTiamosim ims may substitute ae for the crow hold equal value to CONSTRUCTION OF CURB . retention in accord, RAMPS @ with the. provision, COUNTY OF ORANGE ) LOCATIONSANDTHE the California ;Goy AND THE RECONSTRUCTION OF SANTA 4m5sot Thee Contr� am a Citizen of the United States and a ANITA LANE AND CLEVELAND ;shall be beneficial o of the surety and #i AVENUE int resident of the County aforesaid; I aril receive any' thereon: MAINTENANCE SERVICE I CONTRAST#427 NyYensl over the age of eighteen years, and not a ofThe f rmat ve ;,the that minority bust h^ partyparty to or interested m the below entitled ,CITY OF enterprises Will afforded full i r PUBLIC NOTICE IS ,µme matter. I am a principal clerk of the ids � to submit bids in HEREBY GIVEN that the spouse to this nc CITY OF NUNTINiiTON HUNTINGTON BEACH INDEPENDENT , and wdl not be against BEACH; al AGENCY, the basis invites .sealed bids fpr the basis of race, a a newspaper of general circulation, ,the. above stated, national origin,ance! projects and will receive sex, or religion in %ch Printed and published m the City of P bids in the office consideration leadin dot the City Clerk, Second ,the award of contrac "Floor, Street, ' 'shall Huntington Beach County of Orange 2000 Main No bid be „Huntington Beach, Cali- sidered unless it Jornia 92648, up to the State of California, and that attached prepared on the ,hour of 2:00 PM on proved Proposal fc +May 12, 2005. Bids in conformance with Notice is a true and complete copy as swill be publicly open in Instructions to -Bide Ithe Council Chamber The bid must be was printed and published in the ,unless otherwise posted: companied by a cert i, Copies of the Plans, check, cashier's ch " Huntington Beach issue of scud iS'pecifications,' and or bidder's bond n �contract documents are payable to the AGE le newspaper to wit the Issue(s) of. from t rthe Office for a n amount no avail ,of'the Dire of Public than10% of the amc Works, 2000 Main bid, The success Street, Huntington biddershall be licer +Beach, CA 92648, upon in accordancp v Ipayment of -a $?5.00 provisions of the B $onrefundable Fee if. ness " and Professi ,picked up, or payment Code and shall pas: :of a $45,00 nohrefund- a- State Contract :able fee if mailed, via License Class at. +U.S. Postal Service, time of the bid open 28 2005 APRIL 21 i IFedEx, UPS or any other The successful C delivery service.' - tractor and his s Any contract entered � contractors will MAY 5 , 2005 into ,pursuant to this required to poss notice will incorporate business licenses fi Ithe provisions of the- the AGENCY. NState Labor Code. Pur-,' The AGENCY-reser isuant to the provisions the ,right to reject 'of the Labor Code of the all bids, to waive. declare, under penalty of pequry, that for dminiStatof California, the irregularity and to t a minimum prevailing rate;' all bids under adv the foregoing is true and eorreet. 'of per diem wages for ment for a maxirr ! "each craft, classification period of 60 days. ,or , type of workman ! BY ORDER of -,needed to execute the PUBLIC WORKS ".CI contract shall be those MISSION of the CITY Executed on MAY 5, 2005 °determined CALIFORNIA,the GTON BEAT "Director, of ` Industrial CALIFOon the 1 at Costa Mesa, Califomia. ,Relations of the State of day of March 2005. California, which are het Published Hunting 'pfile the Office of theiBeach at Independent IndependentA ,Director of Public Works, 21; 28,'May 5, 2005 ` i2000 LMain'Street,'Hun- 043- ^tington Beach, CA 92648, This is a Davis -Bacon F _ Hproject and the Federal;, 4Regulations will bel Signature 4entereed. Any contract centered into pursuant to "this notice will incor-• ,porate the provisions ofl Ahe Federal Laborl vStandards; which are onj Ifile at the office of, the, Director of Public Works,l I2000 Main Street, Hun-1 itington Beach, CA' 2648.1 li The AGENCY will de- flduot a 10% retention from all progress pay. ,ments. The 'Contracto es - of the of I ebyl es: be — - nity — R = re- Lice dis- an lor; try, _ any to on is ap- •ms the .rs. ac- ied ck, 0. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) Ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the HUNTINGTON BEACH INDEPENDENT, a newspaper of general circulation, printed and published in the City of Huntington Beach, County of Orange, State of Califomia, and that attached Notice is a true and complete copy as was printed and published in the Huntington Beach issue of said newspaper to wit the Issue(s) of: APRIL 21,28,2005 MAY 5,2005 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on MAY 5, 2005 at Costa Mesa, California. i6m _WNG SM WS may substitute an' es crow holder surety ofl for the equal value to " the CONSTRUCTION OF CURB retention in accordance RAMPS VARIOUS with the provisions of the California Govern-. `LOCATIONSANDTHE ment Code, Section 4590.. The Contractor RECONSTRUCTION OF SANTA shall be beneficial owner ANITA LANE AND CLEVELAND of the surety and shall receive any, interest 'r AVENUE thereon. MAINTENANCE SERVICE The AGENCY hereby CONTRACT`#427 affirmatively ensures that minority business In the enterprises will be CITY OF HUNTINGTON BEACH' worded full opportunity PUBLIC NOTICE IS• to `submit bids in ice HEREBY GIVEN that the � spouse to this notice CITY OF HUNTINGTON; and will not n don � criminated against on BEACH, as AGENCY,I the basis of race, color,) invites sealed bids , fort I national origin, ancestry, I the above ,stated, 'sex, or religion in any iprojects and will receive' consideration leading to ,,such bids in the office, the award of contract. ,!Of the City Clerk, Second No bid shall be con- iFloor, 2000 Main Street;j � sitlered unless it i .Huntington, Beach, Cali prepared on the ap afornia 92648, up to the' proved Proposal form dhour of 2:00 PM on in, conformance with th nnay ` 12, 2005. Sids Instructions to Bidders "will be publicly open in, The, bid" must be ac 'the Council Chambers'; Me otherwise' Ousted. companies by a ce check i P check, cashier's check Copies of the Plans, or bidder's bond mad Sp ecifications, and, payable to the AGENC ,contract documents are for an amount no les ;available from the Office than 10% of the amoun Hof the Director of Public bid. The' successfu ,Works, 2000 Main bidder shall be license �Strbet, Huntington, in accordance wit Beach, CA 92648, upon provisions of the Busi ;payment of a $25.00 ness and Profession nonrefundable fee if Code and shall posses ;picked up, or payment a State Contractor' iof a $45.00 nonrefund-.'License Class at th Vable fee if mailed via time of the bid opening ;,U.S. Postal Service, The successful Con 'FedEx, UPS or any other tractor and his sub ,delivery service. contractors will b y Any contract entered required to posses "into pursuant to this, business licenses front notice will incorporate the AGENCY. ,the provisions of the The AGENCY reserves State Labor Code. Pur-) the right to reject any lsuant to the provisions or all bids, to waive any, of the Labor Code of the irregularity and to take, State of California, the all bids under_ advise minimum prevailing rate ment for ' a maximum l of per diem wages for 1 each craft, cBY lassification. period D days.` ` ORDER RDER of the l for type of workman PUBLIC WORKS COM--1 yneeded to execute the MISSION of the CITY OF i xontract shall be those HUNTINGTON BEACH, +de#ermined by the, CALIFORNIA, on the`16th 'Director of. Industrial day of March 2005. Relations of the State of Published .Huntington California, which are on Beach 'Independent April +file at the Office of the 121, 28, May 5, 2005 ;Director of Public Works, 043.729 42000 Main Street, Hun- °tington Beach,'CA 92648. This is a Davis -Bacon project and the Federal ;Regulations will be I ;enforced. Any contract - �entered into pursuant to `this notice will incor- Iporate the provisions of ;the Federal Labor +Standards, which are on, Jile.at the office of the "Director of Public Works, i 12000'Main Street, Hun- tington Beach, CA 92648. The AGENCY will de- iductroa 10% retention Jrom all progress pay- �ments. The Contractor SECTION.A NOTICE INVITING SEALED BIDS for the CONSTRUCTION OF CURB RAMPS @ VARIOUS LOCATIONS AND THE RECONSTRUCTION OF SANTA ANITA LANE AND CLEVELAND AVENUE MAINTENANCE SERVICE CONTRACT # 427 in the CITY OF HUNTINGTON BEACH PUBLIC NOTICE IS HEREBY GIVEN that the CITY OF HUNTINGTON BEACH, as AGENCY, invites sealed bids for the above stated projects and will receive such bids in the office of the City Clerk, Second Floor, 2000 Main Street, Huntington Beach, California 92648, up to the hour of 2:00 PM on May 12, 2005. Bids will be publicly open in the Council Chambers unless otherwise posted. Copies of the Plans, Specifications, and contract documents are available from the Office of the Director of Public Works, 2000 Main Street, Huntington Beach, CA 92648, upon payment of a $25.00 nonrefundable fee if picked up, or payment of a $45.00 nonrefundable fee if mailed via U.S. Postal Service, FedEx, UPS or any other delivery service. Any contract entered into pursuant to this notice will incorporate the provisions of the State Labor Code. Pursuant to the provisions of the Labor Code of the State of California, the minimum prevailing rate of per diem wages for each craft, classification or type of workman needed to execute the contract shall be those determined by the Director of Industrial Relations of the State of California, which are on file at the Office of the Director of Public Works, 2000 Main Street, Huntington Beach, CA 92648. This is a Davis -Bacon project and the Federal Regulations will be enforced. Any contract entered into pursuant to this notice will incorporate the provisions of the Federal Labor Standards, which are on file at the office of the Director of Public Works, 2000 Main Street, Huntington Beach, CA 92648. The AGENCY will deduct a 10% retention from all progress payments. The Contractor may substitute an escrow holder surety of equal value to the retention in accordance with the provisions of the California Government Code, Section 4590. The Contractor shall be beneficial owner of the surety and shall receive any interest thereon. The AGENCY hereby affirmatively ensures that minority business enterprises will be afforded full opportunity to submit bids in response to this notice and will not be discriminated against on A-1 Oil &9 CITY OF HUNTINGTON BEACH 2000 Main Street P.O. Box 190 Huntington Beach, CA 92648 LETTER OF TRANSMITTAL Attention: Joan Flynn To: City Clerk's Office 2000 Main Street Huntington Beach, CA 92648 Fax (714) 374-1573 Date: April 19, 2005 Project/C.C. No.: MSC 427 Regarding: Construction of Curb Ramps and Reconstruct of Santa Anita and Cleveland ❑ We are sending you: ❑ By Mail ❑ By Fax Mail(Number of pages including this sheet:) ® We are hand delivering: ❑ Attached ❑ Under a separate cover via the following items: ElShop drawings ElPrints ❑ Plans ElSamples ElSpecifications ❑ Copy of letter ❑ Change Order ® Other: Notice Inviting Sealed Bids Item # Copies Pages I Description 1 1 1 Notice Invffing Sealed Bids 2 3 4 5 These are transmitted as checked below: ❑ For approval ❑ Approved as submitted ❑ Resubmit copies for approval ® For your use ❑ Approved as noted ❑ Submit copies for distribution ® For your action ❑ Returned for corrections ❑ Return corrected prints ElFor review/comment ❑ Other: Remarks: On March 16, 2005, the Public Works Commission authorized the advertisement of the Construction of Curb Ramps @ Various Locations and the Reconstruction of Santa Anita Lane and Cleveland Avenue; MSC 427 Project. Please find attached the Notice Inviting Sealed Bids for advertisement on 4/21, 4/28, and 515. The bid opening is scheduled for 5/12. Please contact me at extension 5042 with any questions you may have. c: file By: urchill, Street/Facility Supervisor D:\DOCUMENTS AND SETTINGS\caURCHV\MY DOCUMENTS\GRANTS AND CONTRACTS\CDB GRANT\05\NISB TRANSMITAL To CLERK 427.Doc F�CITY OF HUNTINGTON BEACH 2000 Main Street P.O. Box 190 Huntington Beach, CA 92649 LETTER OF TRANSMITTAL Attention: Joan Flynn To: City Clerk's Office 2000 Main Street Huntington Beach, CA 92648 Fax (714) 374-1573 Date: 512012005 ProjectlC.C. No.: MSC 427 Regarding: Construction of Curb Ramps and Reconstruct of Santa Anita and Cleveland ® We are sending you: ❑ By Mail ❑ By Fax Mail(Number of pages including this sheet:) ❑ We are hand delivering: ❑ Attached ❑ Under a separate cover via the following items: ❑ Shop drawings ❑ Prints ❑ Plans ❑ Samples ❑ Specifications ❑ Copy of letter ❑ Change Order ® Other: Bids for MSC -427 Item # Copies P esI Description 1 1 14 Bid received from Portsmouth Construction 2 1 14 Bid received from Elite Bobcat Service, Inc. 3 1 24 Bid received from Damon Construction 4 5 These are transmitted as checked below: ❑ For approval ❑ Approved as submitted ❑ Resubmit copies for approval ® For your use ❑ Approved as noted ❑ Submit copies for distribution ® For your action ❑ Returned for corrections ❑ Return corrected prints ❑ For reviewicomment ❑ Other: Remarks: Attached are the Bids for Bid Opening on May 12, 2005, Construction of Curb Ramps @ Various Locations and the Reconstruction of Santa Anita and Cleveland. Please contact me at extension 5042 with any questions you may have. c: file By: Jason Churchill, Street/Facility Supervisor DADocumam AND SmmNGs\cHuRcHU\MY Documam\GRANis AND Coxrxncrs\CDB GRAM'\05\NLSB TitmamrrAL To Cu xx 427-2.Doc 2DOlJ ��''r° �T RECEIVED BY: f (Name) / (Date) CITY CLERK RECEIPT COPY Return DUPLICATE to City Clerk's Office after signing/dating CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: Shar' reidenrich, City Treasurer FROM: DATE: h)d SUBJECT: Bond Acceptance I have received the bonds for Faithful Performance Bond No. Labor and Material Bond No. Monument Bond No. Maintenance Bond No. Re: Tract No. CC No. MSC No. �X3 � � Approved (Council Approval Date) (Company Name) Agenda Item No.,�- City Clerk _Vault No. , #27 g:/followup/bondleiter doc Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied y Cle 's Sig ture Council Meeting Date: 6/20/2005 Departure ID Number: PW 05-040 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: PENELOPE C LBREIIH-G RAFT ITY ADMINISTRATOR PREPARED BY SUBJEC6 T: PAUL EMERY, ACTING CT R OF PUB IC WORKS OOBERT F. BEARDSLEY, AC IN1GDIR`ECTMR`FECO`N Mk DEVELOPMENT 1r Award Contract for the Construction of Curb Ramps at Various Locations and Construction of Curb and Gutter on Santa Anita Lane and Cleveland Avenue, MSC-427 Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: Bids have been received for the construction of curb ramps at various locations and construction of curb and gutter on Santa Anita Lane and of Cleveland Avenue, MSC-427. Nobest, Inc. submitted the lowest responsible bid. Staff is requesting authorization to award the construction contract to Nobest, Inc., and proceed with the project. Funding Source: Funds in the total amount of $409,467 have been designated for this purpose from Community Development Block Grant (CDBG) FY 2004/05 Citywide ADA Ramps, Account No. 86790002.82300 ($182,112) and FY 2004/05 Curb/Sidewalk Construction 86790001.82300 ($227,355). Funding of up to $10,000 from General Fund, Street Maintenance Account No. 10085410.64620 is available for contingency and supplemental expenses. Recommended Action: Motion to: 1. Approve the project specifications; 2. Accept the lowest responsible bid submitted by Nobest, Inc. in the amount of $382,002 for MSC 427; and 3. Authorize the Mayor and City Clerk to execute a construction contract in substantially the same form as the attached sample contract. Alternative Action(s): Do not authorize award of this contract and direct staff how to proceed. Failure to use these funds may result in the loss of CDBG funding for this project. C� REQUEST FOR ACTION 0 MEETING DATE: 6/20/2005 DEPARTMENT ID NUMBER:PW 05-040 Analysis: On August 2, 2004, the City Council authorized the expenditure of Community Development Block Grant funds for the construction of curb ramps at various locations and for the construction of improvements on Santa Anita Lane and Cleveland Avenue. The first project will consist of curb ramp installation at 119 locations as requested by residents. The second part of the project will include the construction of street improvements on Santa Anita Lane (#28) and Cleveland Avenue (#46) in accordance with the Tree Petition List. These streets are located within the Bolsa Chica-Heil and Yorktown Enhancement Areas, respectively, and are eligible for CDBG funding. Construction will include removal and replacement of the trees, and new construction of the sidewalk, curb, and gutter. The engineer's estimate for this project was $370,000. Bids were opened publicly on May 12, 2005, and are listed in ascending order: 1. Bidding Nobest, Inc. $382,002.00 2. Elite Bobcat Service, Inc. $442,346.30 3.. Damon Construction Co. $531,166.60 4. Portsmouth Construction, Inc. $585,557.00 Staff has performed a reference check on Nobest, Inc. and received acceptable responses from past clients. The City has also had positive experience with this contractor's past performance. Public Works Commission Action: The Public Works Commission reviewed and unanimously approved this project on March 16, 2005. Environmental Status: This project has been determined to be Categorically Exempt. Attachment(s): Sample CDBG Funded Construction Contract G:\R C A\2005\05-040 June 20 Jones (Award MSC-427).doc -2- 6/3/2005 3:00 PM • 0 ATTACHMENT #1 0 0 FEDERALLY FUNDED COMMUNITY DEVELOPMENT BLOCK GRANT CONSTRUCTION CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND FOR TABLE OF CONTENTS Page No. 1. STATE OF WORK; ACCEPTANCE OF RISK 2 2. ACCEPTANCE OF CONDITIONS OF WORK, PLANS AND SPECIFICATIONS 2 3. COMPENSATION 4 4. COMMENCEMENT OF PROJECT 5 5. TIME OF THE ESSENCE 5 6. CHANGES 5 7. NOTICE TO PROCEED 6 8. BONDS 6 9. WARRANTIES 7 10. INDEPENDENT CONTRACTOR 7 11. LIQUIDATED DAMAGES/DELAYS 7 12. DIFFERING SITE CONDITIONS 9 13. VARIATIONS IN ESTIMATED QUANTITIES 10 14. PROGRESS PAYMENTS 11 15. WITHHELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES 11 16. AFFIDAVITS OF SATISFACTION OF CLAIMS 12 17. WAIVER OF CLAIMS 12 18. INDEMNIFICATION, DEFENSE, HOLD HARMLESS 12 19. WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY INSURANCE 13 20. INSURANCE 13 21. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS 14 22. NOTICE OF THIRD PARTY CLAIM 15 23. DEFAULT & TERMINATION 15 24. TERMINATION FOR CONVENIENCE 16 25. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS 16 26. NON -ASSIGNABILITY 17 27. CITY EMPLOYEES AND OFFICIALS 17 28. STOP NOTICES; RECOVERY OF ADMINISTRATIVE COSTS 17 29. NOTICES 17 30. SECTION HEADINGS 18 31. IMMIGRATION 18 1 FEDERALLY FUNDED COMMUNITY DEVELOPMENT BLOCK GRANT CONSTRUCTION CONTRACT TABLE OF CONTENTS, continued Pale No. 32. LEGAL SERVICES SUBCONTRACTING PROHIBITED 33. ATTORNEY'S FEES 34. INTERPRETATION OF THIS AGREEMENT 35. GOVERNING LAW 36. DUPLICATE ORIGINAL 37. CONSENT 38. COMPLIANCE WITH APPLICABLE REGULATIONS 39. MINIMUM WAGES 40. PREVAILING WAGE LAW 41. WITHHOLDING 42. HEALTH AND SAFETY 43. PAYMENT OF TRAVEL AND SUBSISTENCE ALLOWANCE 44. APPRENTICES AND TRAINEES 45. PAYROLLS AND BASIC RECORDS 46. WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES 47. SUBCONTRACTS 48. FEDERAL PARTICIPATION 49. DAVIS-BACON ACT 50. DISPUTES CONCERNING LABOR STANDARDS 51. CERTIFICATION OF LIABILITY 52. DISCRIMINATION, MINORITIES, ALIENS 53. EQUAL EMPLOYMENT OPPORTUNITY 54. COPELAND "ANTI -KICKBACK" ACT 55. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 56. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION POLLUTION CONTRACT ACT 57. ENERGY CONSERVATION 58. HOUSING AND URBAN DEVELOPMENT 59. SUBCONTRACTS 60. CONTRACT TERMINATION; DEBARMENT 61. COMPLAINTS, PROCEEDINGS OR TESTIMONY BY EMPLOYEES 62. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT OVERTIME REQUIREMENTS 63. ENTIRETY 2 18 19 19 20 20 20 20 22 25 25 26 27 27 29 32 32 32 33 33 33 34 34 35 35 36 37 37 37 38 38 38 39 LL sl ' P FEDERALLY FUNDED COMMUNITY DEVELOPMENT BLOCK GRANT CONSTRUCTION CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND FOR THIS AGREEMENT ("Agreement") made and entered into this day of 20 by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and a California hereinafter referred to as "CONTRACTOR." WHEREAS, CITY has solicited bids for a public works project, hereinafter referred to as "PROJECT," more fully described as in the City of Huntington Beach; and The PROJECT to which the construction work covered by this Agreement pertains is being assisted by the United States of America and Federal Labor Standards Provisions are included in this Agreement pursuant to the provisions applicable to such Federal assistance. Housing and Urban Development Act of 1968, as amended in 1992, Section 3, Title 24, Code of the Federal Regulations, Part 135, Economic Opportunities for Low- and Very Low - Income Persons, Section 3 contract clauses, the work to be performed under this Agreement is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low- aggee/fomw/federal CDGB 4-03 1 income persons, particularly persons who are recipients of HUD assistance for housing; and CONTRACTOR has been selected and is to perform said work; NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows: 1. STATEMENT OF WORK: ACCEPTANCE OF RISK CONTRACTOR shall complete and construct the PROJECT pursuant to this Agreement and the Contract Documents (as hereinafter defined) and fumish, at its own cost and expense, all labor, plans, tools, equipment, supplies, transportation, utilities and all other items, services and facilities necessary to complete and construct the PROJECT in a good and workmanlike manner. CONTRACTOR agrees to fully assume the risk of all loss or damage arising out of the nature of the PROJECT, during its progress or prior to acceptance by CITY, from the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description in connection with the work, including, but not limited to, all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in this Agreement, and in accordance with the requirements of CITY for the compensation set forth in the accepted bid proposal. 2. ACCEPTANCE OF CONDITIONS OF WORK: PLANS AND SPECIFICATIONS CONTRACTOR acknowledges that it is fully familiar with all the terms, conditions and obligations of this Agreement and the Contract Documents (as defined below in agrwAor=/federal CDGB 4-03 2 LJ L� this Section), the location of the job site, and the conditions under which the work is to be performed, and that it enters into this Agreement based upon its thorough investigation of all such matters and is relying in no way upon any opinions or representations of C=. It is agreed that the Contract Documents are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by the Contract Documents insofar as they relate in part or in any way, directly or indirectly, to the work covered by this Agreement. "Contract Documents" as defined herein mean and include: A. This Agreement; B. Bonds covering the work herein agreed upon; C. The CITY's standard Plans and Specifications and special contractual provisions, including those on file in the office of the Director of Public Works of CITY and adopted by the City Council, and any revisions, amendments or addenda thereto; D. The current edition of Standard Specifications for Public Works Construction, published by Builders' News, Inc., 10801 National Boulevard, Los Angeles, CA 90064, and all amendments thereto, written and promulgated by the Southern California chapter of the American Public Works Association and the Southern California District Associated General Contractors of the California Joint Cooperative Committee; agreeJforma/federal CDGB "3 3 E. Bid documents including the Notice Inviting Bids, the Special Instructions to Bidders and the CONTRACTOR's proposal, (which is attached hereto as Exhibit "A" and incorporated herein by this reference),- F. The particular Plans, Specifications, Special Provisions and Addenda applicable to the PROJECT. Anything mentioned in the Specifications and not indicated in the Plans or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of a discrepancy between any Plans, Specifications, Special provisions, or Addenda, the matter shall be immediately submitted by CONTRACTOR to the Department of Public Works of CITY (hereinafter referred to as "DPW"), and CONTRACTOR shall not attempt to resolve or adjust the discrepancy without the decision of DPW, save only at its own risk and expense. Should there be any conflict between the terms of this Agreement and the bid or proposal of CONTRACTOR, then this Agreement shall control and nothing herein shall be considered as an acceptance of the terms of the bid or proposal which is in conflict herewith. 3. COMPENSATION CITY agrees to pay and CONTRACTOR agrees to accept as full compensation for the faithful performance of this Agreement, subject to any additions or deductions made under the provisions of this Agreement or the Contract Documents, a sum not to exceed Dollars ($ ), as set forth in the Contract Documents, to be paid as provided in this Agreement. agree/forma/federal CDGB "3 4 4. COMMENCEMENT OF PROJECT CONTRACTOR agrees to commence the PROJECT within ten (10) working days after the Notice To Proceed is issued and diligently prosecute the PROJECT to completion within (_) consecutive from the day the Notice to Proceed is issued by DPW, excluding delays provided for in this Agreement. 5. TIME OF THE ESSENCE The parries hereto recognize and agree that time is of the essence in the performance of this Agreement and each and every provision of the Contract Documents. CONTRACTOR shall prepare and obtain approval as required by the Contract Documents for all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of its work in conformance with the progress schedule set forth in the Contract Documents. CONTRACTOR shall coordinate its work with the work of all other contractors, subcontractors, and CITY forces working on the PROJECT in a manner that will facilitate the efficient completion of the PROJECT and in accordance with the terms and provisions of this Agreement. CITY shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time and order in which the various portions of the work shall be performed and the priority of the work of other contractors, subcontractors and CITY forces and, in general, all matters concerning the timely and orderly conduct of the work of CONTRACTOR on the premises. 6. CHANGES CONTRACTOR shall adhere strictly to the plans and specifications set forth in the Contract Documents unless a change therefrom is authorized in writing by DPW. CONTRACTOR agrees to make any and all changes, furnish materials and perform all work agree/fama/federal CDGB "3 5 necessary within the scope of the PROJECT as DPW may require in writing. Under no condition shall CONTRACTOR make any changes without the prior written order or acceptance of DPW, and CITY shall not pay any extra charges made by CONTRACTOR that have not been agreed upon in writing by DPW. When directed to change the work, CONTRACTOR shall submit immediately to DPW a written cost proposal reflecting the effect of the change. Should DPW not agree to such cost proposal, the work shall be performed according to the changes ordered in writing by DPW and the proper cost thereof shall be negotiated by the parties upon cost and pricing data submitted by CONTRACTOR; thereupon, CITY will promptly issue an adjusted change order to CONTRACTOR and the Agreement price will be adjusted upward or downward accordingly. 7. NOTICE TO PROCEED No work, services, material, or equipment shall be performed or furnished under this Agreement unless and until a Notice to Proceed has been given to CONTRACTOR by CITY. CITY does not warrant that the work will be available on the date the Notice to Proceed is issued. In the event of a delay in commencement of the work due to unavailability of the job site, for any reason, relief to CONTRACTOR shall be limited to a time extension equal to the delay due to such unavailability. 8. BONDS Only bonds issued by California admitted sureties will be accepted. CONTRACTOR shall, prior to its performance of this Agreement, furnish the following two (2) bonds approved by the City Attorney: One in the amount of one hundred percent (100%) of the Agreement price to guarantee the CONTRACTOM faithful performance of the work, and one in agree/forras/federal CDGB 4-03 6 the amount of one hundred percent of the Agreement price to guarantee payment of all claims for labor and materials furnished. In addition, CONTRACTOR shall submit to CITY a bond in the amount of one hundred percent (100%) of the final Agreement price, including all change orders, to warrant such performance for a period of one (1) year after CITY's acceptance thereof within ten (10) days of filing of the Notice of Completion. 9. WARRANTIES CONTRACTOR unconditionally guarantees all work done under this Agreement including, but not limited to, any workmanship, installation, fabrication, material or structural facilities constructed. CONTRACTOR, within ten (10) days after notice by CITY of any defect in the work, shall have the option to make appropriate repairs or replace the defective item or items. Upon expiration of such ten (10) day period, CITY may then make appropriate repair or replacement at CONTRACTOR's risk and own cost and expense. 10. INDEPENDENT CONTRACTOR It is understood and agreed that CONTRACTOR is, and shall be, acting at all times hereunder as an independent contractor and not an employee of CITY. CONTRACTOR shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONTRACTOR and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services performed hereunder. 11. LIQUIDATED DAMAGES/DELAYS It is agreed by the parties hereto that in case the total work called for hereunder is not in all parts and requirements finished or completed within the number of calendar days as set agrwJforme/federal CDGB 4-03 7 forth herein, damage will be sustained by CITY; and that it is, and would be, impractical and extremely difficult to ascertain and determine the actual damage which CITY would sustain in the event of and by reason of such delay. It is, therefore, agreed that CONTRACTOR will pay to CITY, as liquidated damages and not as a penalty, the sum of Dollars ($ ) per day for each and every working day's delay in completing the work in excess of the number of working/calendar days set forth herein, which represents a reasonable endeavor by the parties hereto to estimate a fair compensation for the foreseeable damages CITY would sustain in the event of and by reason of such delay; and CONTRACTOR agrees to pay these damages herein provided, and further agrees that CITY may deduct the amount thereof from any monies due or that may become due to CONTRACTOR hereunder. CONTRACTOR will be granted an extension of time and will not be assessed damages for any portion of the delay in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of CONTRACTOR, including, but not limited to, acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions, strikes, unsuitable weather, or delays of subcontractors due to such causes. CONTRACTOR shall, within fifteen (15) days from the beginning of any such delay (unless DPW shall grant a further period of time), notify DPW in writing of the cause of the delay and CITY shall extend the time for completing the work if, in its judgment, the findings of fact thereon justify the delay; and the decision of DPW shall be conclusive on the parties hereto. Should CONTRACTOR be delayed in the prosecution or completion of the work by the act, neglect or default of CITY, or should CONTRACTOR be delayed by waiting for materials required by this Agreement to be furnished by CITY, or by damage caused by fire or agree/forms/federal CDGB 4-03 8 • • other casualty at the job site for which CONTRACTOR is not responsible, or by the combined action of the workers, in no way caused by or resulting from default or collusion on the part of CONTRACTOR, or in the event of a lockout by CITY, then the time herein fixed for the completion of the work shall be extended by the number of days CONTRACTOR has thus been delayed, but no allowance or extension shall be made unless a claim therefor is presented in writing to CITY within fifteen (15) days of the commencement of such delay. No claims for additional compensation or damages for delays, irrespective of the cause thereof, and including without limitation the furnishing of materials by CITY or delays by other contractors or subcontractors, will be allowed and an extension of time for completion shall be the sole remedy of CONTRACTOR. 12. DIFFERING SITE CONDITIONS A. Notice: CONTRACTOR shall promptly, and before such conditions are disturbed, notify DPW in writing of: (1) Subsurface or latent physical conditions at the job site differing materially from those indicated in this Agreement or the Contract Documents; or (2) Unknown physical conditions at the job site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent to work of the character to be performed under this Agreement. DPW shall promptly investigate the conditions and if it finds that such conditions do materially so differ and cause an increase or decrease in the time required for performance of any part of the work under this Agreement, agree/for=/federal CDGB 4-03 9 .7 • whether or not changed as a result of such conditions, an equitable adjustment shall be made and the agreement modified in writing accordingly. B. Time Extension: No claim of CONTRACTOR under this Section shall be allowed unless CONTRACTOR has given the notice required hereunder provided, however, the time prescribed therefor may be extended by CITY. 13. VARIATIONS IN ESTIMATED QUANTITIES The quantities listed in the bid schedule will not govern final payment. Payment to CONTRACTOR will be made only for the actual quantities of Agreement items used in construction of the PROJECT, in accordance with the plans and specifications. Upon completion of the PROJECT, if the actual quantities used are either more than or less than the quantities listed in the bid schedule, the bid price shall prevail subject to the provisions of this Section. DPW may, at its sole discretion, when warranted by the facts and circumstances, order an equitable adjustment, upwards or downwards, in payment to CONTRACTOR where the actual quantities used in construction of the PROJECT are in variation to the quantities listed in the bid schedule. No claim by CONTRACTOR for an equitable adjustment in price or time for completion shall be allowed if asserted after final payment under this Agreement. If the quantity variation is such as to cause an increase in the time necessary for completion, DPW shall ascertain the facts and circumstances and make such adjustment for extending the completion date as in its sole judgment the findings warrant. agredfor=/federal CDGB 4-03 10 14. PROGRESS PAYMENTS Each month DPW will make an estimate in writing of the work performed by CONTRACTOR and the value thereof. From each progress estimate, ten percent (10%) will be deducted and retained by CITY and the remainder of the progress estimate, less the amount of all previous payments since commencement of the work, will be paid to CONTRACTOR. When CONTRACTOR has, in the judgment of DPW, faithfully executed fifty percent (50%) or more of the value of the work as determined from the bid schedule, and if DPW finds that satisfactory progress has been and is being made, CONTRACTOR may be paid such sum as will bring the payments of each month up to one hundred percent (100%) of the value of the work completed since the commencement of the PROJECT, as determined in its sole discretion by DPW, less all previous payments and less all previous retained amounts. CITY's final payment to CONTRACTOR, if unencumbered, or any part thereof unencumbered, shall be made thirty-five (35) days after the acceptance of the work and the filing of a Notice of Completion by CITY. Payments shall be made on demands drawn in the manner required by law, each payment to be accompanied by a certificate signed by DPW, affimung that the work for which payment is demanded has been performed in accordance with the terms of the Agreement and that the amount stated in the certificate is due under the terms of the Agreement. Partial payments on the Agreement price shall not be considered as a acceptance of any part of the work. 15. WIT 1HELD CONTRACT FUNDS_ SUBSTTTUTION OF SECURITIES At the request and at the sole cost and expense of CONTRACTOR, who shall retain beneficial ownership and receive interest, if any thereon, CITY shall permit the agree/fomm/federal CDGB "3 11 substitution and deposit therewith of securities equivalent to the amount of any monies withheld by CITY to ensure performance under the terms of this Agreement. 16. AFFIDAVITS OF SATISFACTION OF CLAIMS After the completion of the work contemplated by this Agreement, CONTRACTOR shall file with DPW its affidavit stating that all workers and persons employed, all firms supplying materials and all subcontractors working upon the PROJECT have been paid in full and that there are no claims outstanding against the PROJECT for either labor or material, except certain items, if any, to be set forth in CONTRACTOR's affidavit covering disputed claims, or items in connection with Notices to Withhold, which have been filed under the provisions of the statutes of the State of Califomia 17. WAIVER OF CLAIMS The acceptance by CONTRACTOR of the payment of the final certificate shall constitute a waiver of all claims against CITY under or arising out of this Agreement. 18. INDEMNIFICATION, DEFENSE, HOLD HARMLESS CONTRACTOR hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all, claims, damages, losses, expenses, judgments, demands defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injury to CONTRACTOR's employees and damage to CONTRACTOR's property, arising directly or indirectly out of the obligations or operations herein undertaken by CONTRACTOR, caused in whole or in part by any negligent act or omission of the CONTRACTOR, any subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active ag[ee/fm=/federal CDGB "3 12 or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY. CONTRACTOR will conduct all defense at its sole cost and expense and CITY shall approve selection of CONTRACTOR'S counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR. 19. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE Pursuant to California Labor Code Section 1861, CONTRACTOR acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers' compensation; CONTRACTOR covenants that it will comply with such provisions prior to commencing performance of the work hereunder. CONTRACTOR shall maintain workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. CONTRACTOR shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. CONTRACTOR shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation and employer's liability insurance and CONTRACTOR shall similarly require all subcontractors to waive subrogation. 20. INSURANCE In addition to the workers' compensation and employer's liability insurance and CONTRACTOR's covenant to indemnify CITY, CONTRACTOR shall obtain and furnish to CITY, a policy of general public liability insurance, including motor vehicle coverage covering 8grceformifedlaai cnca "3 13 U r -I LJ the PROJECT. This policy shall indemnify CONTRACTOR, its officers, employees and agents while acting within the scope of their duties, against any and all claims arising out or in connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000) for this PROJECT. This policy shall name CITY, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the PROJECT shall be deemed excess coverage and that CONTRACTOWs insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. 21. CERTIFICATES OF INSURANCE, ADDITIONAL INSURED ENDORSEMENTS Prior to commencing performance of the work hereunder, CONTRACTOR shall famish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; the certificates shall: 1. provide the name and policy number of each carrier and policy; 2. state that the policy is currently in force; and 3. promise to provide that such policies will not be canceled or modified without thirty (30) days' prior written notice of CITY. ag[ee/fmms/federal CDGB "3 14 • • CONTRACTOR shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of CITY by CONTRACTOR under the Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all the policies of insurance. CONTRACTOR shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. CONTRACTOR shall provide a separate copy of the additional insured endorsement to each of CONTRACTOR's insurance policies, naming CITY, its officers, elected and appointed officials, employees, agents and volunteers as Additional Insureds, to the City Attorney for approval prior to any payment hereunder. 22. NOTICE OF THIRD PARTY CLAIM Pursuant to Public Contracts Code §9202, CITY shall provide notice to CONTRACTOR of receipt of any claim filed with CITY or a court of competent jurisdiction which arises out of performance of this agreement within ten (10) days of receipt of such claim or claims. 23. DEFAULT AND TERMINATION If CONTRACTOR fails or refuses to prosecute the work hereunder with diligence, or fails to complete the work within the time specified, or is adjudged bankrupt or makes an assignment for the benefit of creditors or becomes insolvent, or violates any provision of this Agreement or the Contract Documents, CITY may give CONTRACTOR notice in writing of its intention to terminate this Agreement. Unless the violation is cured within ten (10) days after such Notice of Intention has been served on CONTRACTOR, CITY may, without prejudice agreeffams/federal CDM "3 15 • • to any other remedy it may have, terminate this Agreement upon the expiration of that time. Upon such default by CONTRACTOR, CITY may elect not to terminate this Agreement, in such event CITY may make good the deficiency in which the default consists and deduct the resulting costs from the progress payments then or to become due to CONTRACTOR - If it is subsequently determined by a court of competent jurisdiction that CITY's termination of this Agreement under this Section was wrongful, such termination shall be converted to a termination for convenience under Section 23 and any damages shall be assessed as set forth in Section 23. 24. TERMINATION FOR CONVENIENCE CITY may terminate this Agreement for convenience at any time with or without cause, and whether or not PROJECT is fully complete upon seven (7) calendar days written notice to CONTRACTOR. In the event of termination, under this Section CITY shall pay CONTRACTOR for value of work in place on the PROJECT through the termination period plus seven and one-half percent (7 '/z %) for overhead and profit less all such payments already made. Such payment by CITY shall be CONTRACTOR's sole and exclusive remedy for termination by CITY for its convenience and CITY shall have no further obligation to CONTRACTOR. 25. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONTRACTOR agrees that upon completion of the work to be performed hereunder, or upon expiration or earlier termination of this Agreement, all original plans, specifications, drawings, reports, calculations, maps and other documents pertaining to this Agreement shall be delivered to CITY and become its sole property at no further cost. agrerAorm/fed"al CDGB "3 16 0 26. NONASSIGNABILITY CONTRACTOR shall not sell, assign, transfer, convey or encumber this Agreement, or any part hereof, or any right or duty created herein, without the prior written consent of CITY and the surety. 27. CITY EMPLOYEES AND OFFICIALS CONTRACTOR shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the California Government Code. 28. STOP NOTICES. RECOVERY OF ADMINISTRATIVE COSTS CITY shall be entitled to all reasonable administrative costs and necessary disbursements arising out of the processing of Stop Notices, Notices to Withhold, or any similar legal document. This obligation shall be provided for in the labor and materials payment bond required of CONTRACTOR CITY may charge an administrative fee of One Hundred Dollars ($100) for every Stop Notice filed in excess of two (2), regardless of whether or not CITY is named in an action to enforce such stop notices. CITY may set off any unreimbursed cost or expense so incurred against any sum or sums owed by CITY to CONTRACTOR under this Agreement. 29. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONTRACTOM agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below; provided that CITY and CONTRACTOR, by notice given hereunder, may designate agree/faum /federal CDGB 4-03 17 • • different addresses to which subsequent notices, certificates or other communications will be sent: TO CITY: City of Huntington Beach ATTN: 2000 Main Street Huntington Beach, CA 92648 30. SECTION HEADINGS TO CONTRACTOR: The titles, captions, section, paragraph, and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of maters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 31. IMMIGRATION CONTRACTOR shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of United States Code Section 1324a regarding employment verification. 32. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONTRACTOR and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONTRACTOR understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for agreeJformSederal CDGB 4-03 18 CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONTRACTOR. 33. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees and the prevailing party shall not be entitled to recover its attorney's fees from the non -prevailing party. 34. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. agreeJform/fed=1 CDGB "3 19 35. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 36. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 37. CONSENT Where CITY's consent/approval is required under this Agreement, its consentlapproval for one transaction or event shall not be deemed to be consent/approval to any subsequent occurrence of the same or any other transaction or event. 38. COMPLIANCE WITH APPLICABLE REGULATIONS. The parties to this Agreement agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this Agreement, the parties to this Agreement certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. CONTRACTOR agrees to sand to each labor organization or representative of workers with which the CONTRACTOR has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or worker's representative of the CONTRACTOR's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, agmAoms/federal CDGB 4-03 20 shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the persons taking applications for each of the positions; and the anticipated date the work shall begin. CONTRACTOR agrees to include the Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. CONTRACTOR will not subcontract with any subcontractor where CONTRACTOR has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. CONTRACTOR will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the Agreement is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed were not filled to circumvent the CONTRACTOR's obligations under 24 CFR part 135. CONTRACTOR agrees and understands that noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this Agreement for default, and debarment or suspension from future HUD assisted contracts, and With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this Agreement. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment subcontracts shall be given to Indians, and (ii) preference in the award of contracts agree/forms/fedcral CDGB "3 21 and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to this Agreement that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but in derogation of compliance with Section 7(b). 39. MINIMUM WAGES All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the CONTRACTOR and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without agrerAo ms/federal CDGB "3 22 regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein; provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under 29 CFR Part 5.5(a)(1)(ii) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the CONTRACTOR and its subcontractors at the site of the work in a prominent and accessible place where it con be easily seen by the workers. Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the Agreement shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. If the CONTRACTOR and the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized agme/forms/federal CWI3 "3 23 representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215-0140.) In the event the CONTRACTOR, the laborers or mechanics to be employed in the classification or their representatives, and HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommendation of HUD or its designee, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (l)(b) or (c) of this paragraph, shall be paid to all workers performing work in the classification under this Agreement from the first day on which work is performed in the classification. Whenever the minimum wage rate prescribed in the Agreement for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the CONTRACTOR shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. If the CONTRACTOR does not make payments to a trustee or other third person, the CONTRACTOR may consider as part of the wages of any laborer or mechanic the amount of agree/fww/federal CDGB "3 24 any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided that the Secretary of Labor has found, upon the written request of the CONTRACTOR, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the CONTRACTOR to set aside in a separate account assets for the meeting of obligations under the plan or program (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) 40. PREVAILING WAGE LAW. The CITY has ascertained from the U. S. Department of Housing and Urban Development ("HUD") the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Agreement, and the same has been set forth by resolution on file in the office of the City Clerk of CITY. CONTRACTOR and any subcontractor under it shall pay not less than said prevailing wage rates to all workers employed on this Public Works Agreement. CONTRACTOR agrees to secure payment of compensation to every employee. 41. WITHHOLDING. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the CONTRACTOR under this Agreement or any other Federal contract with the same prime contractor, or any other Federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees and helpers, employed by the CONTRACTOR or any subcontractor the full amount of agre&form/fedmal CDM "3 25 wages required by the Agreement~ In the event of failure to pay any laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the Agreement, HUD or its designee may, after written notice to the CONTRACTOR, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment; advance, or guarantee of funds until such violations have ceased, HUD or its designee may, after written notice to the CONTRACTOR, disburse such amounts withheld for and on account of the CONTRACTOR or subcontractor to the respective employees to whom the are due. The Comptroller General shall make such disbursements in the case of direct Davis -Bacon Act contracts. 42. HEALTH AND SAFETY. No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health standards promulgated by the Secretary of Labor by regulation. The CONTRACTOR shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 (formerly part 1518) and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act (Public Law 91-54, 83 Stat. 96). The CONTRACTOR shall include the provisions of this Article in every subcontract so that such provisions will be binding on each subcontractor. The CONTRACTOR shall take such action with respect to any subcontract as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions. aVe&fmmsdederal CDGB "3 26 • • 43. PAYMENT OF TRAVEL AND SUBSISTENCE ALLOWANCE. Section 1773.8 of the California Labor Code, regarding the payment of travel and subsistence payments, is applicable to this PROJECT. 44. APPRENTICES AND TRAINEES. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the CONTRACTOR as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. agr=Aon=/fc&nI CDM "3 27 Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship[ program, the CONTRACTOR will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless agree/formNederal CDGB "3 28 the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the CONTRACTOR will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. 45. PAYROLLS AND BASIC RECORDS. Payrolls and basic records relating thereto shall be maintained by the CONTRACTOR during the course of the work preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in Section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(l)(iv) that the wages of any laborer or mechanic include the amount agrcdfm=/fcd=I CDM "3 29 of any costs reasonably anticipated in providing benefits under a plan or program described in Section 1(b)(2)(B) of the Davis Bacon Act, the CONTRACTOR shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers 1215-0140 and 1215-0017.) The CONTRACTOR shall submit weekly for each week in which any Agreement work is performed a copy of all payrolls to HUD or its designee if the agency is a party to the Agreement, but if the agency is not such a party, the CONTRACTOR will submit the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR Part 5.5(aX3)(i). This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, DC 20402. The prime CONTRACTOR is responsible for the submission of copies of payrolls by all subcontractors. (Approved by the Office of Management and Budget under OMB Control Number 1215-0149.) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the CONTRACTOR or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Agreement and shall certify the following: agreelformsffedaal CDGB "3 30 0 That the payroll for the payroll period contains the information required to be maintained under 29 CFR Part 5.5(a)(3)(I) and that such information is correct and complete; That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the Agreement during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR Part 3; That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Agreement. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph A.3.(ii)(b) of this section. The falsification of any of the above certifications may subject the CONTRACTOR or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code. The CONTRACTOR or subcontractor shall make the records required under this section available for inspection, copying, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the CONTRACTOR or subcontractor fails to submit the required records or to make them available, HUD or its designee may, after written notice to CONTRACTOR, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, agrcdfor=lfedffal CDGB "3 31 failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR Part 5.12. 46. WM--HOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the CONTRACTOR or subcontractor under any such contract or any other Federal contract with the same prime contract, or any other Federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime CONTRACTOR such sums as may be determined to be necessary to satisfy any liabilities of such CONTRACTOR or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph. 47. SUBCONTRACTS. The CONTRACTOR or subcontractor shall insert in any subcontracts the clauses set forth in Section 44 of this Agreement and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in Section 44. 48. FEDERAL PARTICIPATION. The PROJECT pursuant to which the work covered by this Agreement is being executed is being assisted by the United States of America. Several Agreement provisions embodied herein are included in this Agreement in accordance with the provisions applicable to such federal assistance. As federal funds are financing all or part of this work, all of the statutes, agree/fonw/federal CDM "3 32 rules and regulations promulgated by the Federal Government and applicable to the work will apply, and CONTRACTOR agrees to comply therewith. 49. DAVIS-BACON ACT. CONTRACTOR agrees to pay and require all subcontractors to pay all employees on said PROJECT a salary or wage at least equal to the prevailing rate of per diem wage as determined by the Secretary of Labor in accordance with the Davis -Bacon Act (40 USC section 176a, et seq.) for each craft or type of worker needed to perform this Agreement. CONTRACTOR agrees to comply with all applicable federal labor standards provisions; said provisions are incorporated herein by this reference. 50. DISPUTES CONCERNING LABOR STANDARDS. Disputes arising out of the labor standards provisions of this Agreement. Such disputes shall be resolved in accordance with the with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the CONTRACTOR (or any of its subcontractors) and HUD or its designee, the U.S. Department of Labor, or the employees or their representatives. 51. CERTIFICATION OF ELIGIBILITY. By entering into this Agreement, the CONTRACTOR certifies that neither it (nor he or she) nor any person or firm who has an interest in the CONTRACTOR's firm is a person or firm ineligible to be awarded Government contracts by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. No part of this Agreement shall be subcontracted to any person or fine ineligible for award of a Government contract by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR sVvcAbr=/fedm1 CDGB "3 33 • 0 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal Code, Section 1010, Title 18, U.S.C. "Federal Housing Administration transactions", provides in part "Whoever, for the purpose of -influencing in any way the action of such Administration ... makes, utters or publishes any statement, knowing the same to be false ... shall be fined not more than $5,000 or imprisoned not more than two years, or both." 52. DISCRIMINATION. MINORITIES. ALIENS. CONTRACTOR shall not discriminate nor allow its employees, agents, principals, or subcontractors to discriminate against any employee or applicant for employment on the basis of race, religious creed, national origin or sex CONTRACTOR shall take affirmative steps to hire local qualified minority individuals when job opportunities occur and utilize local business firms when possible. 53. EQUAL EMPLOYMENT OPPORTUNITY. The CONTRACTOR will comply with all provisions of Executive Order 11246, as amended, and 29 CFR Part 30. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements. CONTRACTOR is required to have an affirmative action plan which declares that it does not discriminate on the basis of race, color, religion, creed, national origin, sex or age to ensure equality of opportunity in all aspects of employment. agredfamsffederal CDGB "3 34 Section 503 of the Rehabilitation Act of 1973 (29 USC Section 701, et seq.) prohibits job discrimination because of handicap and requires affirmative action to employ and advance in employment qualified handicapped workers. Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC Section 219 et seq.)prohibits job discrimination and requires affirmative action to comply and advance in employment (1) qualified Vietnam veterans during the first four (4) years after their discharge and (2) qualified disabled veterans throughout their working life if they have a thirty percent (301/6) or more disability. To ensure compliance with these requirements, the CONTRACTOR shall provide the City with its written affirmative action plan prior to commencement of work The CONTRACTOR is required to provide the CITY with a listing of its subcontractors together with a completed affirmative action program from each subcontractor when applicable. 54. COPELAND "ANTI -KICKBACK" ACT. CONTRACTOR and its subcontractors shall comply with the requirements of 29 CFR Part 3, which Act provides that each shall be prohibited from including, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. 55. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT. The CONTRACTOR shall comply with the provisions of Section 103 and 107 of the contract Work Hours and Safety Standards Act (40 USC 327 et seq.) as supplemented by Department of Labor regulations (29 CFR, part 5). Under Section 103 of the Act each CONTRACTOR shall be required to compute the wages of every mechanic and laborer on the basis of a standard workday of eight (8) hours and standard workweek of forty (40) hours. Work agree/forms/federal CDGB "3 35 • in excess of the standard workday or workweek is permissible provided that the worker is compensated at a rate of not less than 1-1/2 times the basic rate of pay for all hours worked in excess of eight (8) hours in any calendar day or forty (40) hours in the workweek. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety as determined under construction, safety and health standards promulgated by the secretary of Labor. These requirements do not apply to the purchase of supplies or materials or articles ordinarily available on the open market or contracts for transportation. guards. As used in this section, the terms "laborers" and "mechanics" include watchmen and 56. IWLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT. A. CONTRACTOR stipulates that all facilities to be utilized in the performance of this Agreement were not listed, on the date of contract award, on the United States Environmental protection Agency (EPA) -List of Violating Facilities, pursuant to 40 CFR 15.20. B. The CONTRACTOR agrees to comply with all of the requirements of Section 114 of the clean Air Act and section 308 of the Federal Water Pollution control Act and all regulations and guidelines listed thereunder. C. The CONTRACTOR shall promptly notify the CITY of the receipt of any communication from the Director, office of Federal Activities, EPA, agreefonw/fe&M CDGB "3 36 indicating that a facility to be utilized pursuant to this Agreement is under consideration to be listed on the EPA List of Violating facilities. D. The CONTRACTOR agrees to include or cause to be included the requirements of paragraph (a) thorough (d) of this section in every nonexempt subcontract, and further agrees to take such action as the Government may direct as a means of enforcing such requirements. 57. ENERGY CONSERVATION. Agreements with federal participation shall recognize mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and conservation Act (42 USC Section 6201, et 58. HOUSING AND URBAN DEVELOPMENT. CONTRACTOR agrees to comply with any and all rules, regulations, guidelines, procedures and standards of the United States Department of Housing and Urban Development and complete any and all reports and forms that may be required in accordance therewith. 59. SUBCONTRACTS. The CONTRACTOR or subcontractor will insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as HUD or its designee may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the Agreement clauses in 29 CFR Part 5.5. agree/fonw/foul CDGB "3 37 60. CONTRACT TERMINATION: DEBARMENT. A breach of the Agreement clauses in 29 CFR 5.5 may be grounds for termination of the Agreement, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 61. COMPLAINTS. PROCEEDINGS, OR TESTIMONY BY EMPLOYEES. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of the Contract are applicable shall be discharged or in any other manner discriminated against by the CONTRACTOR or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer. 62. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT - OVERTIME REQUIREMENTS. A. No CONTRACTOR or subcontractor contracting for any part of the Agreement work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of eight hours in any calendar day or in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate no less than one and one-half times the basic rate of pay for all hours worked in excess of eight hours in any calendar day or in excess of forty hours in such workweek, whichever is greater. agrWfor=/fedcW CDGB "3 38 B. Violation,• Liability for Unpaid Wages• Liquidated Damages. In the event of any violation of the clause set forth in subparagraph (A) of this paragraph, the CONTRACTOR and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such CONTRACTOR and subcontractor shall be liable to the United States (in the case of work done under contract for the Distract of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (A) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of eight hours or in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in subparagraph (1) of this paragraph. 63. ENTIRETY The foregoing, and Exhibit "A" attached hereto, set forth the entire Agreement between the parties. No waiver or modification of this Agreement shall be valid unless in writing duly executed by both parties. The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or agree/formslfederal CDGB "3 39 warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONTRACTOR La Ont name ITS: (circle one) ChairmanlPresidentNice President 0-ml am lnn name ITS: (circle one) Secretary/Chief Financial Officer/Asst Secretary - Treasurer REVIEWED AND APPROVED: City Administrator agree/fmms/federal CDGB 4-03 40 CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney INITIATED AND APPROVED: Director of Public Works RtA ROUTING SHEET INITIATING DEPARTMENT: Public works SUBJECT: Award Construction Contract for Curb Ramps and Street Construction, MSC-427 COUNCIL MEETING DATE: June 20, 2005 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (w/exhibits if applicable) Attached Not Applicable El(Signed in full by the City Attorne) Subleases, Third Party Agreements, etc. AttachedNot Applicable ❑ (Approved as to form by City Attome ) Certificates of Insurance (Approved b the Ci Attorne pproved y � Y� Attached Not A licable Fiscal Impact Statement (Unbudget, over $5,000) Attached Not Applicable ❑ Bonds (If applicable) AttachedNot Applicable ❑ Staff Report (If applicable) AttachedNot Applicable Commission, Board or Committee Re ort If applicable p ( pp ) Attached Not A plicable ❑ Find in s/Conditions for Approval and/or Denial g pp Attached Not Applicable ❑ EXPLANATION FOR MISSING ATTACHMENTS 0 EXPLANATION FOR RETURN OF ITEM: RCA Author: Jones