HomeMy WebLinkAboutRequest for Approval to Advertise Phase II of Beach Blvd. Sm p
Request for City Council Action
Date: April4, 1994
Submitted to : Honorable Mayor and City Council APPPOVEA By CI 'COUNCIL
Submitted by: Michael T. Uberuaga, City Administrator 1cf1�
Prepared by: �ouis F. Sandoval, Director of Public Works . crryq�
Subject: Request For Approval To Advertise Phase II Of The Beach Boulevard
Smart Street Project Between Ellis Avenue and the Northern City
Limits. Cash Contract 784: Fed No. STPLN-5181(020)
Consistent with Council Policy? [X 1 Yes [ J New Policy or Exception
Statement or Issue,Recommended Action,Analysis,Environmental Status,runding Source,Ahcmative Actions,Attachments:
STATEMENT OF ISSUE:
Staff has completed plans and specifications for the Beach Boulevard Smart Street (formerly
called the Super Street) and pavement resurfacing project. As time is of the essence, staff is
requesting City Council approval to advertise the project pending State and Federal concurrence.
RE,.COMMENDEp ACTION
1. Approve the plans and specifications for the Beach Boulevard Smart Street and pavement
rehabilitation project between Ellis Avenue and the northern city limit (just north of I-
405)and authorize the Director of Public Forks to solicit bids for construction.
2. Approve the attached Sample Construction Contract for the Beach Boulevard Smart
Street and pavement rehabilitation project between Ellis Avenue and the Northern City
Limit.
ANALYSIS:
In August 1988 the City, acting under cooperative agreements with the Orange County
Transportation Authority (OCTA) and the California Department of Transportation (Caltrans),
hired Willdan Associates (an engineering consultant) to prepare plans and specifications for the
second phase of the Beach Boulevard Smart Street. Phase I of the project involved
improvements at the intersection of Beach Boulevard and Edinger Avenue and was completed in
April 1992. Design for phase II of the Beach Boulevard Smart Street is complete pending final
State and Federal approval. The design involves the permanent removal of on-street parking,
restriping the street to add a fourth travel lane in each direction, modification to medians to add
additional left turn capacity at several intersections, addition of a right turn lane on south bound
Beach at 'Varner in addition to signal modifications to allow for synchronization of signals
within the project. /
1/
percent(100%) of the contract price to guarantee payment of all daims for labor and
materials furnished.
9. WARRANTIE
The CONTRACTOR unconditionally guarantees all work done under this
Agreement including, but not limited to, any 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
expense.
10. CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT
CONTRACTOR agrees to comply with all requirements and utilize fair
employment practices in accordance with the California Government Code sections
12900 of seq.
11. CALIFORNIA PREVAILING WAGE LAW.
The CITY has ascertained from the Director of Industrial Relations of the
State of California 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, as required by
California Labor Code Sections 1771 and 1774. In accordance vrith the provisions of
Section 3700 of the California-Labor Code, CONTRACTOR agrees to secure payment
of compensation to every employee.
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12. CALIFORNIA PREVAILING WAGE LAW- PENALTY
Pursuant to this Agreement and in accordance with Section 1774 and 1775 of
the California Labor Code, CONTRACTOR shall, a penalty to CITY, forfeit twenty-five
dollars ($25) for each calendar day or portion thereof for each worker paid (either by
CONTRACTOR or any of its subcontractors) less than the prevailing wage rate
established for that particular craft or type of work.
13. CALIFORNIA EIGHT-HOUR LAW
California Labor Code, Sections 1810 et seq, shall apply to the
performance of this Agreement; thereunder, not more than eight (8) hours shall
constitute one days work and CONTRACTOR and each subcontractor employed by its
hereunder, shall not require more than eight(6) hours of labor per day or forty(40)
hours per week from any one person employed by it hereunder, except as stipulated in
California Labor Code Section 1815. CONTRACTOR and each subcontractor
employed by it hereunder shall, in accordance with Califomia Labor Code section 1812,
keep an accurate record, open to inspection at all reasonable hours, showing the name
and actual hours worked each calendar day and each calendar week by each worker
employed in connection with the PROJECT.
14. CALIFORNIA EIGHT HOUR LAW PENALTY
pursuant to this Agreement and in accordance with California Labor
Code Section 1813, CONTRACTOR shall, as a penalty to CITY, forfeit twenty-five
dollars ($25) for each worker employed hereunder by CONTRACTOR or any
subcontractor for each calendar day during which such worker is required or permitted
to work more than eight(8) hours in any one (1) calendar day or forty(40) hours in any
one (1) calendar week in violation of California Labor Code Section 1815.
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15. PAYMENT OF TRAVEL AND SUBSISTENCE ALLOWANCE
Section 1773.8 of the California Labor Code, regarding the employment
of apprentices, is applicable to this PROJECT.
16. EMPLOYMENT OF APPRENTICES
Section 1777.5 of the California Labor Code, regarding the employment
of apprentices, is applicable to this p.
17. PAYROLL RECORDS -
CONTRACTOR agrees to keep accurate payroll record showing the
name, address, social security number, work classification, straight time and overtime
hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice or worker employed by it in connection with the PROJECT and
agrees to require each of its subcontractors to do the same. CONTRACTOR further
agrees that its payroll records and those of its subcontractors, if any, shall be available
at all reasonable times to the CITY, and the employee or his representative, and the
Division of Labor Standards Enforcement and the Division of Apprenticeship
Standards, and to comply with all of the provisions of California Labor Code Section
1776, in general.
18. INDEPENDENT CONTRACTOR
It is understood and agreed that the CONTRACTOR is, and shall be, acting at
all times hereunder as an independent contractor and not as an employee of CITY.
CONTRACTOR shall secure, at its expense, and be responsible for any and all
payment of income tax, 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.
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19. LIQUIDATED DAMAGESMELAYS
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 working/calendar days as set forth herein, damage will be sustained by CITY; and
that it is, and would be, impractical and extremely difficult to ascertains 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 Two Thousand One Hundred Dollars
($2.100) per day for each and every working days delay in completing the work in
excess of the number of working/calendar days set forth in section 4 herein, which sum
represents a reasonable endeavor by the parties hereto to estimate a fair
compensation for the foreseeable losses c would sustain in the event of an by reasons
of such delay; and CONTRACTOR agrees to pay said 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 completion of the work due to
unforeseeable causes beyond the control and without the fault or negligence of
CONTRACTOR, including, but not restricted 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 the DPW shall grant a further period of time prior to the date of final
settlement of the Agreement), notify the 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
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fact thereon justify the delay; and the decision of the 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
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 nowise 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 the 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 claim for additional compensation or damages for delays, irrespective
of the cause thereof, and including without limitation the furnishing of material by CITY
or delays by other contractors or subcontractors,will be allowed and said extension of
time for completion shall be the sole remedy of CONTRACTOR.
20 DIFFERING SITE CONDITIONS
(1) notice: The CONTRACTOR shall promptly, and before such
conditions are disturbed, notify the DPW In writing of:
(a) subsurface or latent physical conditions at the job site differing
materially from those indicated in this Agreement or the contract documents; or
(b) 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. The
DPW shall promptly investigate the conditions and if it finds that such conditions
to 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
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changed as a result of such conditions, an equitable adjustment shall be made
and the Agreement modified in writing accordingly;
(2) Time extension: No claim of the CONTRACTOR under this
section shall be allowed unless the CONTRACTOR has given the notice required
hereunder, provided, however, the time prescribed therefor may be extended by CITY.
21. VARIATIONS IN ESTIMATED QUANTITIES
The quantities listed in the bid schedule will not govern final payment.
Payment to the CONTRACTOR will be made only for the actual quantities of contract
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. The DPW may, at its sole discretion,
when warranted by the fact and circumstances, order an equitable adjustment, upwards
or downwards, in payment to the 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,
the DPW shall ascertain the facts and circumstances and make such adjustment for
extending the completion date as in its judgment the findings warrant.
22. PROGRESS PAYMENTS
each month the 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, less the
amount of all previous payments since commencement of the work,will be paid to
CONTRACTOR.
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• RCA-Beach Blvd.Smart S e
April4, 1994
Page 2
Right of Way acquisition and certification is continuing and is anticipated to be completed by
April 1994.
In October 1992, City staff expanded the scope of the project to include a federally funded
pavement rehabilitation project on Beach Boulevard running from the northern city limit (n/o I-
405) to just south of Ellis Avenue. The expansion to include pavement rehabilitation gave the
.City an opportunity to capitalize on a federal funding source (ISTEA) that will pay 88% of the
rehabilitation expenditure. This pavement rehabilitation project involves grinding off two inches
of the existing pavement and then placing a two inch rubberized asphalt overlay (made from
recycled tires) over the entire street. The combined project construction cost estimate is
approximately $4.4 million. The City's share of this expenditure will be approximately
$300,000. With time being the priceless commodity it is, City staff is working diligently to bring
this project to construction by a deadline date of June 30, 1994.
ENVIRONMENTAL STATUS:
Approved Environmental Impact Report(EIR)on file.
T\ NSOURCE;
Funds for this project are available as follows:
Federal Funds(ISTEA)* $1,104,206
Measure M Funds (OCTA) $2,995,794
City Gas Tax (Huntington Beach) $3 0.000
Total Estimated Construction Cost $4,400,000
•[ntertnodal Surface' mnsportation]Efficiency Act
ALTERNATIVE 'S•
Deny approval of the plans, specifications and sample contract and forfeit pre-approved federal
funds. Payments to OCTA and Caltrans (in the hundreds of thousands) may be required as
reimbursement for projects design cost.
A ACIINtENTS:
Sample Contract
Project Location Map
File: DW 784RCAOI.DOC
FEDERALLY FUNDED PUBLIC WORKS CONTRACT BETWEEN THE
CITY OF HUNTINGTON BEACH AND
FOR STREET IMPROVEMENTS AND PAVEMENT
REHABILITATION ON BEACH BOULEVARD
TABLE OF CONTENTS
Pape No.
1. STATE OF WORK; ACCEPTANCE OF RISK 1
2. ACCEPTANCE OF CONDITIONS OF WORK; PLANS 2
3. COMPENSATION 3
4. COMMENCEMENT OF PROJECT 3
5. TIME OF THE ESSENCE 4
6. CHANGES 4
7. NOTICE TO PROCEED 5
8. BONDS 5
9. WARRANTIES 6
10. CALIFORNIA FAIR EMPLOYMENT 6
11. CALIFORNIA PREVAILING WAGE LAW 6
12 CALIFORNIA PREVAILING WAGE LAW- PENALTY 6
13. CALIFORNIA EIGHT HOUR LAW 7
14. CALIFORNIA EIGHT HOUR LAW- PENALTY 7
15. PAYMENT OF TRAVEL 7
16. EMPLOYMENT APPRENTICES 7
17. PAYROLL RECORDS 8
18. INDEPENDENT CONTRACTOR 8
19. LIQUIDATED DAMAGES/DELAYS 8
20. DIFFERING SITE CONDITIONS 10
21. VARIATIONS IN ESTIMATED QUANTITIES 10
22. PROGRESS PAYMENTS 11
23. WITHHELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES 12
24. AFFIDAVITS OF SATISFACTION OF CLAIMS 12
25. WAIVER OF CLAIMS 12
26. INDEMNIFICATION, DEFENSE, HOLD HARMLESS 12
27. WORKERS COMPENSATION INSURANCE 13
28. INSURANCE 13
29. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED 14
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30. DEFAULT&TERMINATION 15
31. DISPOSITION OF PLANS, ESTIMATES AND OTHER 15
32 NOWASSIGNABILITY 16
33. CITY EMPLOYEES AND OFFICIALS 16
34. STOP NOTICES 16
35. NOTICES 16
36. CAPTIONS 16
37. FEDERAL PARTICIPATION 17
38. DAVIS-BACON ACT 17
39. DISCRIMINATION 17
40. EQUAL EMPLOYMENT OPPORTUNITY 17
41. COPELAND ACT 18
42. CONTRACT WORK HOURS 18
43. CLEAN AIR ACT 19
44. ENERGY CONSERVATION 20
45. HOUSING AND URBAN DEVELOPMENT 20
46. LEGAL SERVICES SUBCONTRACTING PROHIBITED 20
47. ENTIRETY 21
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SAMPLE
FEDERALLY FUNDED PUBLIC WORKS CONTRACT BETWEEN THE
CITY OF HUNTINGTON BEACH AND
FOR STREET IMPROVEMENTS AND PAVEMENT
REHABILITATION ON BEACH BOULEVARD
THIS AGREEMENT is made and entered into on this day of
1994, by and between the CITY OF HUNTINGTON BEACH,
a Municipal Corporation of the State of California, hereinafter referred to as "CITY," and
a
hereinafter referred to as"CONTRACTOR."
WHEREAS, CITY solicited bids for a Public Works PROJECT, hereinafter
referred to as*PROJECT,"more fully described as street improvements and pavement
rehabilitation of Beach Boulevard Smart Street; Fed No. STPLN-5181(020); CC No.
784 between Ellis Avenue and the city limit line just north of 1-405, in the City of
Huntington Beach, California; 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 furnish, at its own expense, all labor, plant, 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 assume the risk of all loss or damage arising
out of the nature of the project, during its progress or prior to acceptance, 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
connected with the work, including, but not limited to, all expenses incurred by or in
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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 under them for the compensation set
forth in the accepted bid proposal.
However, the total compensation to be paid Is to be computed on the
basis of the units of work as it is actually performed, in accordance with the stipulated
prices named in the Bid Sheet(s).
2. ACCEPTANCE OF CONDITIONS OF WORK: PLANS AND
SPECIFICATIONS.
CONTRACTOR acknowledges that it is fully familiar with all of the terms,
conditions and obligations of this Agreement and the Contract Documents (as
hereinafter defined), 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
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 said 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 latest edition of Standard Specifications for Public Works
Construction, published by Builders News, Inc., 3055 Overland Avenue, Los Angeles,
California 90034, and all amendments thereto,written and promulgated by the
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Southern California Chapter of the American Public Works Association and the
Southern California District Associated General Contractors of the California Joint
Cooperative Committee;
D. Bid documents including the Notice Inviting Bids, the Special
Instructions to Bidders and the CONTRACTOR's proposal (attached hereto as Exhibit
"A").
E. 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 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"),without whose decision said discrepancy shall not
be adjusted by CONTRACTOR, 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 said bid or proposal which
is in conflict herewith.
F. Latest state Standard Specifications published by the State of
California, Department of Transportation.
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 for by the terms and
conditions of this Agreement.
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4. COMMENCEMENT OF PROJECT
CONTRACTOR agrees to commence the PROJECT within ten (10)
working days after notice to proceed is issued and shall diligently prosecute PROJECT
to completion within one hundred (120)working days from the execution of this
Agreement by CITY, excluding delays provided for herein.
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 conditions 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 on
CONTRACTOR on the premises.
6. QHANGES
CONTRACTOR shall adhere strictly to the plans and specifications set
forth in the contract documents unless a change therefrom is authorized in writing by
the DPW. CONTRACTOR agrees to make any and all changes, furnish materials and
perform all work necessary within the scope of the PROJECT as the DPW may require
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in writing. Under no condition shall CONTRACTOR make any changes without the
written order of the DPW, and CONTRACTOR shall not pay any extra charges made by
CONTRACTOR that have not been agreed upon in writing by the DPW.
When directed to change the work, CONTRACTOR shall submit
Immediately to the DPW a written cost proposal reflecting the effect of the change.
Should the DPW not agree to such cost proposal, the work shall be performed
according to the changes ordered in writing by the DPW and the proper cost thereof
shall be negotiated by the parties upon cost and pricing data submitted by the
CONTRACTOR;thereupon, CITY wiil promptly issue an adjusted change order to
CONTRACTOR and the contract 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 unW a Notice to proceed has been given to
the CONTRACTOR by CITY. CITY does not warrant that the work site 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 the
CONTRACTOR shall be limited to a time extension equal to the delay due to such
unavailability.
8. BONDS
CONTRACTOR shall, prior to entering upon the performance of this
Agreement, furnish the following three bonds approved by the City Attorney: One in
the amount of one hundred percent(100%) of the contract price to guarantee the
CONTRACTOR's faithful performance of the work; one in the amount of one hundred
percent(100%) of the contract price to warrant such performance for a period of one
(1) year after CITY's acceptance thereof; and one In the amount of one hundred
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When CONTRACTOR has, in the judgment of the DPW, faithfully executed fifty
percent (50%) or more of the value of the work as determined from the bid schedule,
and if the DPW finds that satisfactory progress has been and is being made, the
CONTRACTOR may be paid such sum as will bring the payment of each month up to
one hundred percent (100%)of the value of the work completed since the
commencement of the PROJECT, as determined by DPW, less all previous payments
and less all previous retained amounts. The final payment, 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 the 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 contract price shall not be considered as an acceptance of any part of
the work.
23. WITHHELD CONTRACT FUNDS, SUBSTITUTION OF SECURITIES
At the request 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.
24. AFFIDAVITS OF SATISFACTION OF CLAIMS
After the completion of the work contemplated by this Agreement,
CONTRACTOR shall file with the DPW its affidavit stating that all workers and persons
employed, all firms supplying materials and all subcontractors upon p have been paid in
full and that there are no claims outstanding against PROJECT for either labor or
material, except certain times, if any, to be set forth in an affidavit covering disputed
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claims, or items in connection with Notices to Withhold which have been filed under the
provisions of the statutes of the State of California.
25. WAIVER QF 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.
26. INDEMNIFICATION, DEFENSE, HOLD HARMLESS
CONTRACTOR hereby agrees to protect, defend, indemnify and hold
and save harmless CITY, its officers, and employees against any and all liability,
claims,judgments, costs and demands, 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, including those arising from the passive concurrent
negligence of CITY, but save and except those which arise out of the active concurrent
negligence, sole negligence, or the sole Wilful misconduct of CITY. CONTRACTOR will
conduct all defense at its sole cost and expense. CITY shall be reimbursed by
CONTRACTOR for all costs or attorney fees incurred by CITY in enforcing this
obligation.
27. WORKERS COMPENSATION INSURANCE
pursuant to California Labor Code section 1861, CONTRACTOR
acknowledges awareness of section 3700 et seq. of said 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 insurance in an
amount of not less than One Hundred Thousand Dollars ($100,000)bodily injury by
accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily Injury by
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disease, each employee,Two Hundred Fifty Thousand Dollars ($250,000) bodily injury
by disease, policy limit.
CONTRACTOR shall require all subcontractors to provide such workers
compensation 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 insurance and CONTRACTOR shall similarly require all subcontractors
to waive subrogation.
28. INSURANCE
CONTRACTOR shall carry at all times incident hereto, on all operations
to be performed hereunder, general liability insurance, including coverage for bodily
injury, property damage, products/completed operations, and blanket contractual
liability. Said insurance shall also Include automotive bodily injury and property
damage liability insurance. All insurance shall be underwritten by insurance companies
in forms satisfactory to CITY for a'I operations, subcontract work, contractual
obligations, product or completed operations and all owned vehicles and non-owned
vehicles. Said insurance policies shall name the CITY, and its officers. agents and
employees, and all public agencies as determined by the CITY as Additional Insureds.
CONTRACTOR shall subscribe for and maintain said insurance in full force and effect
during the life of this Agreement, in a amount of not less than One Million Dollars
($1,000,000) combined single limit coverage. If coverage is provided under a form
which includes a designated aggregate limit, such limit shall be no less than One Million
Dollars ($1,000,000). In the event of aggregate coverage, CONTRACTOR shall
Immediately notify CITY of any known depletion of aggregate limits. CONTRACTOR
shall require its insurer to waive its subrogation rights against CITY and agrees to
provide certificates evidencing the same.
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29. CERTIFICATESQF 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 coverage as required herein; said
certificates shall provide the name and policy number of each carrier and policy, and
shall state that the policy is currently in force and shall promise to provide that such
policies will not be canceled or modified without thirty(30) days prior written notice to
CITY. CONTRACTOR shall maintain the foregoing insurance coverage in force until
the work under this Agreement is fully completed and accepted by CITY.
The requirement for carrying the foregoing insurance coverage shall not
derogate from the provisions for indemnification of CITY by CONTRACTOR under the
terms of this Agreement. CITY or its representative shall at all times have the right to
demand the original or a copy of all said policies of insurance. CONTRACTOR shall
pay, in a prompt and timely manner, the premiums on all insurance policies hereunder
required.
A separate copy of the additional insured endorsement to each of
CONTRACTOR's insurance policies, naming the CITY, its officers and employees as
Additional Insureds shall be provided to the City Attorney for approval prior to any
payment hereunder.
30. DEFAULT AND TERMINATION
If CONTRACTOR fails or refused to prosecute the work hereunder with
diligence,or fails to complete the work within the time specified, or is adjudged a
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
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
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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 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.
31. DISPOSITION OF PLAN, ESTIMATES AND OTHER DOCUMENTS
CONTRACTOR agrees that upon completion of the work to be
performed hereunder, or upon 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.
32. NON-ASSIGNABILITY
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.
33. CITY EMPLOYEES AND QFFICIAL.S
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 California
Govemment Code sections 1090 of seq.
34. STOP NOTICES: RECOVERY OF ADMINISTRATIVE COSTS
CITY shall be entitled to reasonable administrative costs and attomey
fees, costs and necessary disbursements arising out of the processing of Stop Notices,
notices to Withhold, or any similar legal document. Said obligation shall be provided for
in the labor and material s 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, regardless of whether or not CITY is named in an action to enforce
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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.
35. NOTICES
All notices required or permitted hereunder shall be delivered In person
or by registered or certified mail to an authorized representative of the party to whom
delivery Is to be made, at the place of business of such party, or to any other place
designated in writing by such party.
36. CAPTIONS
Captions of the section of this Agreement are for convenience and
reference only, and the words contained therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction or meaning of the provisions of
this Agreement.
37. 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 contract
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, rules and regulations promulgated by the Federal
Government and applicable to the work will apply, and CONTRACTOR agrees to
comply therewith.
38. 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.
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39. DISQRIMINATION 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.
40. EQUAL EMPLOYMENT OPPORTUNITY
The CONTRACTOR will comply with a!I provisions of Executive Order
11246, entitled "Equal Employment Opportunity,"and amended by Executive Order
11375, and as supplemented in Department cf Labor regulations (41 CFR part 60).
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.
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 C 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.
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41. reOPELAND"ANTI-KICKBACK"ACT
CONTRACTOR and its subcontractors shall comply with the provisions
of the Copeland "Anti-Kickback"Act(18 USC Section 874), as supplemented in
Department of Labor regulations,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.
42. PONTRACT 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 of 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 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.
43. 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 list-ad, on the date of contract award, on the
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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, Indicating that
a facility to be utilized pursuant to this Agreement is under consideration to be listed on
the DPW 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.
44. 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.).
45. 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.
46. 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
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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 service expenses incurred by CONTRACTOR.
47. ENTIRETY
The foregoing represents the entire Agreement between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized officers, the day, month and year first above
written.
CONTRACTOR CITY OF HUNTINGTON BEACH, A
municipal corporation of the State of
California
ey:
print name
ITS: (circle one)Chairman/President/Vice President Mayor
By: APPROVED AS TO FORM:
print name f
ITS: (arde one)Secretary/Chief Financial
Officer/Asst. Secretary-Treasurer
City Attorney
ATTEST: INITIATED AND APPROVED:
City Clerk Director of Public Works
REV W D APPROVED:
City Administrator
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