CITY COUNCIL AGENDA ITEM
Meeting Date: December 14, 2004
Subject/Title: Approve a Resolution approving the Contract Documents and
Award the Construction Contracts for the New Police Station (Group C), CIP
Project No. 337-3142, and the New City Hall Data Center, CIP Project No.
337-3139, plus 10% contingencies for Bid Packages #11 – Metal
Buildings/Overhead Doors and #22 – Sitework.
Prepared by: Engineering: M. Huber
Submitted by: Administration: K. Chew
Approve a Resolution approving the contract documents and award the
construction contracts for the New Police Station (Group C), CIP Project No.
337-3142, and the New City Hall Data Center, CIP Project No. 337-3139, to
the following contractors: Metal Building Company, for Bid Package #11 –
Metal Buildings/Overhead Doors in the amount of $245,010 plus a 10%
contingency and Bay Cities Paving & Grading, Inc. for Bid Package #22 –
Sitework in the amount of $1,011,000, plus a 10% contingency.
On July 8, 2003, City Council directed staff to begin due diligence for a
possible site relocation to 9100 Brentwood Boulevard.
On September 9, 2003, City Council authorized the City Manager to transfer
funds from the current project to the New Police Station project in order to
separate costs associated with the due diligence process.
On September 17, 2003, City Council authorized the City Manager to execute a
purchase agreement for a note and deed of trust secured by property located
at 9100 Brentwood Boulevard.
On September 23, 2003, City Council authorized staff to negotiate a contract
with The Design Partnership for design services and to execute a
construction management contract with RGM and Associates.
On February 10, 2004, City Council authorized staff to execute an agreement
for design services for the New Police Station with Kaplan McLaughlin Diaz (KMD)
and amended the 2003/2004 CIP project budget sheet.
On July 13, 2004, City Council approved the contract documents and awarded
the construction contract for the New Police Station (Group A - Seismic
On September 14, 2004, City Council approved the contract documents and
awarded the construction contracts for the New Police Station (Group B) and
the New City Hall Data Center for Bid Packages #4 and #6.
On September 28, 2004, City Council approved the contract documents and
awarded the construction contract for the New Police Station (Group B) for
Bid Package #5.
On November 9, 2004, City Council approved the contract documents and
awarded the construction contracts for the New Police Station (Group C) and
the New City Hall Data Center for Bid Package #’s 7, 8, 9, 10, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21 and rejected bids for bid packages #15 and #16.
As directed by the City Council on February 10, 2004, staff began the design
work for the New Police Station Project. This project has been bid as a
multi-prime project. The first major element of construction (Group A), the
seismic retrofit to the building, has been completed. The second major
element of construction (Group B) - mechanical HVAC, fire sprinklers and
plumbing is under construction now. The next major element of construction
(Group C), which was advertised starting Friday, October 1, 2004 and the
following construction contracts were awarded at the Council Meeting of
November 9, 2004, for the building concrete, metal stud and gypsum,
carpentry, insulation, lath and plaster, specialty ceiling, flooring,
ceramic tile, painting, casework, electrical, security systems and detention
equipment. The project bids for Bid Packages #11 – Metal Buildings/Overhead
Doors and #22 – Sitework were opened on November 12, 2004. A total of 2 bids
were received for Bid Package #11 – Metal Buildings/Overhead Doors, the bids
were reviewed and the lowest responsive, responsible bid was received from
Metal Building Company.
The 2 bids were:
1. Flagg Building Improvements $ 339,130
2. Metal Building Company $ 245,010
Staff recommends the award of the construction contract for the New Police
Station (Group C) Bid Package #11 – Metal Buildings/Overhead Door, CIP
Project No. 337-3142 and the New City Hall Data Center, CIP Project No.
337-3139 to Metal Building Company, for the amount of $245,010, plus a 10%
contingency for a total contract amount of $269,511.
A total of 2 bids were received for Bid Package #22 – Sitework, the bids
were reviewed and the lowest responsive, responsible bid was received from
Bay Cities Paving & Grading, Inc.
The 2 bids were:
1. Bay Cities Paving & Grading, Inc. $ 1,011,000
2. Grade Tech $ 1,068,000
Staff recommends the award of the construction contract for the New Police
Station (Group C) Bid Package #22 – Sitework, CIP Project No. 337-3142 and
New City Hall Data Center, CIP Project No. 337-3139 to Bay Cities Paving &
Grading, Inc., for the amount of $1,011,000, plus a 10% contingency for a
total contract amount of $1,112,100.
Staff will be bidding three more Bid Packages; #12 - Storefront & Glazing,
#15 – Flooring and #16 – Ceramic Tile and anticipates project completion to
occur in early summer of 2005.
The fiscal impact associated with the New Police Station project is
$1,348,611, and is included within the project budget, which was submitted
and approved in February of this year. The fiscal impact associated with the
New City Hall (Data Center) project, all to be housed in the secured 9100
Brentwood Boulevard site is $33,000 and is included within the approved New
City Hall budget. Staff anticipates no additional funding requirements at
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE
CONTRACT DOCUMENTS AND AWARD THE CONSTRUCTION CONTRACTS FOR THE NEW POLICE
STATION (GROUP C), CIP PROJECT NO. 337-3142, AND THE NEW CITY HALL DATA
CENTER, CIP PROJECT NO. 337-3139, TO THE FOLLOWING CONTRACTORS: METAL
BUILDING COMPANY, FOR BID PACKAGE #11 - METAL BUILDINGS/OVERHEAD DOORS IN
THE AMOUNT OF $245,010, PLUS A 10% CONTINGENCY AND BAY CITIES PAVING &
GRADING, INC., FOR BID PACKAGE #22 – SITEWORK IN THE AMOUNT OF $1,011,000,
PLUS A 10% CONTINGENCY.
WHEREAS, on July 8, 2003, City Council directed staff to begin due diligence
for a possible site relocation to 9100 Brentwood Boulevard; and
WHEREAS, on September 9, 2003, City Council authorized the City Manager to
transfer funds from the current project to the New Police Station project in
order to separate costs associated with the due diligence process; and
WHEREAS, on September 17, 2003, City Council authorized the City Manager to
execute a purchase agreement for a note and deed of trust secured by
property located at 9100 Brentwood Boulevard; and
WHEREAS, on September 23, 2003, City Council authorized staff to negotiate a
contract with The Design Partnership for design services and to execute a
construction management contract with RGM and Associates; and
WHEREAS, on February 10, 2004, City Council authorized staff to execute an
agreement for design services for the New Police Station with Kaplan
McLaughlin Diaz (KMD) and amended the 2003/2004 CIP project budget sheet;
WHEREAS, on July 13, 2004, City Council approved the contract documents and
awarded the construction contract for the New Police Station (Group A -
Seismic Retrofit); and
WHEREAS, on September 14, 2004, City Council approved the contract documents
and awarded the construction contracts for the New Police Station (Group B)
and the New City Hall Data Center for Bid Packages #4 and #6; and
WHEREAS, on September 28, 2004, City Council approved the contract documents
and awarded the construction contract for the New Police Station (Group B)
for Bid Package #5; and
WHEREAS, on November 9, 2004, City Council approved the contract documents
and awarded the construction contracts for the New Police Station (Group C)
and the New City Hall Data Center for Bid Package #’s 7, 8, 9, 10, 13, 14,
17, 18, 19, 20, 21; and
WHEREAS, the project was advertised starting Friday, October 1, 2004 and the
project bids were opened on November 9, 2004. A total of 2 bids were
received for Bid Package #11 and a total of 2 bids were received for Bid
Package #22; and
WHEREAS, the bids were reviewed and the lowest responsive, responsible bid
for Bid Package #11 – Metal Buildings/Overhead Doors was received from Metal
Building Company, for the amount of $245,010, and for Bid Package #22 –
Sitework the lowest responsive, responsible bid was received from Bay Cities
Paving & Grading, Inc., for the amount of $1,011,000.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood,
that the contract documents are approved and the award of the construction
contracts for the New Police Station (Group C) Bid Package #11 – Metal
Buildings/Overhead Doors is awarded to Metal Building Company, plus a 10%
contingency for a total authorized contract amount of $269,511, and Bid
Package #22 – Sitework is awarded to Bay Cities Paving & Grading, Inc., plus
a 10% contingency for a total authorized contract amount of $1,112,100.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at
a regular meeting on the 14th day of December 2004 by the following vote:
This Agreement made and entered into this 14th day of December 2004, between
the City of Brentwood, Contra Costa County, California herein called "City"
and _______________, a California corporation, a partnership or an
individual [circle one] located at ____________________, herein called
Contractor and City agree as follows:
ARTICLE 1 - THE PROJECT. Contractor agrees to obtain all necessary permits
and licenses as are required by law, furnish all labor and materials,
including required tools, implements, and appliances and to perform all the
work in a good and workmanlike manner, free from any and all liens and
claims of mechanics, materialmen, subcontractors, artisans, machinists,
teamsters, and laborers required in the bid proposal, all in strict
compliance with the plans, drawings, and other Contract Documents, required
for the Project:
New Police Station (Group C) and New City Hall (Data Center)
Bid Package #_____ – ____________________
CIP Project No.’s 337-3142 and 337-3139
City of Brentwood, California
Unless otherwise specifically noted, the Contractor shall provide and pay
for all labor, materials, equipment, transportation, and other facilities
and services necessary for the proper execution and completion of the
Project. The Contractor shall at all times enforce strict discipline and
good order among Contractor's employees and it’s subcontractors and shall
not employ on the Project any unfit person or anyone not skilled in the task
ARTICLE 2 - THE AGREEMENT. The Contractor and the City agree that the
Contract Documents are composed of all those documents described in
paragraph 2.1 of the General Conditions. The specifications and drawings are
intended to cooperate, so that any work exhibited in the drawings and not
mentioned in the specifications, or vice versa, is to be executed the same
as if both mentioned in the specifications and set forth in the drawings to
the true intent and meaning of the said drawings and specifications, when
taken together. But no part of said specifications that is in conflict with
any portion of this Agreement shall be considered as part of this Agreement.
ARTICLE 3 - CONTRACTOR'S LICENSE. Contractor shall have, and maintain in
good standing, the appropriate Class contractors’ license during the entire
term of this Project.
ARTICLE 4 - COMPLETION DATE / NOTICE TO PROCEED. Contractor agrees that all
work required to be performed by the Contract Documents shall be completed
within the Supplemental Provisions Page. The Contract duration includes
seven (7) calendar days of Owner float to be included in the construction
schedule for coordination purposes. Contractor acknowledges that it shall be
liable for liquidated damages if the Project is not timely completed.
If the Notice to Proceed is issued more than ten (10) but less than ninety
(90) days after the Notice of Award, Contractor's sole remedy shall be an
extension to the Completion Date, measured by the number of days beyond ten
(10) it took to issue the Notice to Proceed. In such instances, Contractor
shall not be entitled to any monetary damages or other compensation for lost
profit or overhead or for increased cost of performance.
The term "day" as used in the Contract Documents shall mean calendar day.
Extensions of the Performance Period shall be determined by reference to the
General Conditions. Rain in excess of one-tenth of an inch (1/10”) in one
(1) day, or temperature which does not exceed 32° F shall be considered
adverse weather. The following chart shows the normal number of adverse
The adverse weather days shall be shown on the schedule and, if not used,
will become float for the Project’s use.
ARTICLE 5 - CONTRACT SUM. The contract sum is the total amount payable by
the City to Contractor for the performance of work under the Contract
Documents. The contract sum is ___________________________ Dollars
($____________), unless modified in accordance with the Contract Documents.
New Police Station, CIP Project No. 337-3142: $_________
New City Hall (Data Center), CIP Project No. 337-3139: $_________
ARTICLE 6 - LIQUIDATED DAMAGES. The time limit specified in Article 4 is of
the essence of the Agreement. The Contractor shall complete the Project by
the date specified in Article 4 unless the City agrees in writing to an
extension of time.
Failure to complete the Project within the time and in the manner provided
for by the Contract Documents shall subject the Contractor to liquidated
damages. The actual occurrence of damages and the actual amount of the
damages which the City would suffer if the Project were not completed within
the specified times set forth are dependent upon many circumstances and
conditions which could prevail in various combinations and, from the nature
of the case, it is impracticable and extremely difficult to fix the actual
damages. Damages which the City would suffer in the event of delay include,
but are not limited to, loss of the use of the Project, costs of
administration, inspection, supervision and the loss suffered by the public
within the City.
Accordingly, the parties agree that the amount herein set forth shall be
presumed to be the amount of damages which the City shall directly incur
upon failure of the Contractor to complete the Project within the time
specified: One Thousand ($ 1,000.00/Day), plus the extra inspection costs
incurred by the City, during or as a result of each calendar day by which
completion of the Project is delayed beyond the completion date.
In addition, liquidated damages for Contractor’s failure to complete the
following milestones within the times fixed are established in the amounts
Description of Milestone
Date of Milestone Liquidated Damages
Per Calendar Day
For Late Completion
Submit original “As Planned” construction schedule 15 days after Notice of
Submit Schedule of Values 15 days after Notice of Award $150.00
Submit Construction Schedule 25 days after Notice of Award $150.00
Submit shop drawings and submittals 18 Calendar Days after Notice of Award
Submit coordination drawings 18 days after Notice of Award $150.00
If the Contractor becomes liable for liquidated damages under this section,
the City, in addition to all other remedies provided by law, shall have the
right to withhold any and all retained percentages of payments, and to
collect the interest thereon, which would otherwise be or become due the
Contractor until the liability of the Contractor under this section has been
finally determined. If the retained percentage is not sufficient to
discharge all liabilities of the Contractor incurred under this Article, the
Contractor and its sureties shall continue to remain liable to the City
until all such liabilities are satisfied in full.
If the City accepts any work or makes any payment under this Agreement after
a default by reason of delays, the payment or payments shall in no respect
constitute a waiver or modification of any Agreement provisions regarding
time of completion and liquidated damages.
ARTICLE 7 - EARLY COMPLETION. Regardless of the cause therefore, the
Contractor may not maintain any claim or cause of action against the City
for damages incurred as a result of its failure or inability to complete its
work on the Project in a shorter period than established in Article 5 of
this Agreement, the parties stipulating that such period is a reasonable
time within which to perform the work on the Project.
ARTICLE 8 - PAYMENT. The City agrees to pay the Contractor in current funds
for the performance of the Agreement the amount proposed in this bid,
including approved change orders, and to make payments on account thereof as
follows: Ninety percent (90%) of the value, proportionate to the amount of
the Agreement, or labor and materials incorporated in the Project up to the
first day of that month as estimated by the City or the Architect, less the
aggregate of previous payments. On substantial completion of the entire
Project, a sum sufficient to increase the total payments to ninety percent
(90%) of the contract price, and thirty-five (35) days after the Notice of
Completion has been recorded, provided the Project to be fully completed and
the Agreement fully performed, the balance due under the Agreement. The
payment of progress payments by the City shall not be construed as an
acceptance of the work done up to the time of such payments, except as to
such matters as are open and obvious. The entire Project is to be subjected
to inspection and approval of the City or Architect to defects not obvious
upon inspection during the progress of the work at the time when it shall be
claimed by the Contractor that the Agreement is completed. The City or
Architect shall exercise all reasonable diligence in the discovery, and
report to the Contractor as the Project progresses, materials and labor
which are not satisfactory to the City, so as to avoid unnecessary trouble
and cost to the Contractor in making good defective parts or work.
Pursuant to Public Contract Code Section 22300, at the request and expense
of the Contractor, securities equivalent to the amount withheld shall be
deposited with the public agency, or with a state or federally chartered
bank in this state as the escrow agent, who shall then pay those moneys to
the Contractor. Upon satisfactory completion of the contract, the securities
shall be returned to the Contractor.
Alternatively, the Contractor may request and the owner shall make payment
of retentions earned directly to the escrow agent at the expense of the
Contractor. At the expense of the Contractor, the Contractor may direct the
investment of the payments into securities and the Contractor shall receive
the interest earned on the investments upon the same terms provided for in
this section for securities deposited by the Contractor. Upon satisfactory
completion of the contract, the Contractor shall receive from the escrow
agent all securities, interest, and payments received by the escrow agent
from the owner, pursuant to the terms of this section.
Securities eligible for investment under this section shall include those
listed in Section 16430 of the Government Code, bank or savings and loan
certificates of deposit, interest-bearing demand deposit accounts, standby
letters of credit, or any other security mutually agreed to by the
Contractor and the public agency.
The Contractor shall be the beneficial owner of any securities substituted
for moneys withheld and shall receive any interest thereon.
For purposes of this section, the term “public agency” shall include, but
shall not be limited to, chartered cities.
Any Contractor who elects to receive interest on moneys withheld in
retention by a public agency shall, at the request of any subcontractor,
make that option available to the subcontractor regarding any moneys
withheld in retention by the Contractor from the subcontractor. If the
Contractor elects to receive interest on any moneys withheld in retention by
a public agency, then the subcontractor shall receive the identical rate of
interest received by the Contractor on any retention moneys withheld from
the subcontractor by the Contractor, less any actual pro rata costs
associated with administering and calculating that interest. In the event
that the interest rate is a fluctuating rate, the rate for the subcontractor
shall be determined by calculating the interest rate paid during the time
that retentions were withheld from the subcontractor. If the Contractor
elects to substitute securities in lieu of retention, then, by mutual
consent of the Contractor and subcontractor, the subcontractor may
substitute securities in exchange for the release of moneys held in
retention by the Contractor.
This subdivision shall apply only to those subcontractors performing more
than five percent of the Contractor’s total bid.
No Contractor shall require any subcontractor to waive any provision of this
The Legislature hereby declares that the provisions of this section are of
statewide concern and are necessary to encourage full participation by
Contractors and subcontractors in public contract procedures.
The escrow agreement used hereunder shall be null, void, and unenforceable
unless it is substantially similar to the following form:
ESCROW AGREEMENT FOR
SECURITY DEPOSITS IN LIEU OF RETENTION
This Escrow Agreement is made and entered into by and
_______________________ whose address is ___________________
_______________________ hereinafter called “Owner,”
_______________________ whose address is __________________
_______________________ hereinafter called “Contractor” and
_______________________ whose address is __________________
_______________________ hereinafter called “Escrow Agent.”
For the consideration hereinafter set forth, the Owner, Contractor, and
Escrow Agent agree as follows:
1) Pursuant to Section 22300 of the Public Contract Code of the State of
California, Contractor has the option to deposit securities with Escrow
Agent as a substitute for retention earnings required to be withheld by
Owner pursuant to the Construction Contract entered into between the Owner
and Contractor for ___________________ in the amount of ______________ dated
__________________ (hereinafter referred to as the “Contract”).
Alternatively, on written request of the Contractor, the Owner shall make
payments of the retention earnings directly to the Escrow Agent.
When the Contractor deposits the securities as a substitute for Contract
earnings, the Escrow Agent shall notify the Owner within 10 days of the
deposit. The market value of the securities at the time of the substitution
shall be at least equal to the cash amount then required to be withheld as
retention under the terms of the Contract between the Owner and Contractor.
Securities shall be held in the name of _______________, and shall designate
the Contractor as the beneficial owner.
2) The Owner shall make progress payments to the Contractor for those funds
which otherwise would be withheld from progress payments pursuant to the
Contract provisions, provided that the Escrow Agent holds securities in the
form and amount specified above.
3) When the owner makes payment of retentions earned directly to the Escrow
Agent, the Escrow Agent shall hold them for the benefit of the Contractor
until the time that the escrow created under this contract is terminated.
The Contractor may direct the investment of the payments into securities.
All terms and conditions of this agreement and the rights and
responsibilities of the parties shall be equally applicable and binding when
the Owner pays the Escrow Agent directly.
4) Contractor shall be responsible for paying all fees for the expenses
incurred by Escrow Agent in administering the Escrow Account and all
expenses of the Owner. These expenses and payment terms shall be determined
by the Owner, Contractor, and Escrow Agent.
5) The interest earned on the securities or the money market accounts held
in escrow and all interest earned on that interest shall be for the sole
account of Contractor and shall be subject to withdrawal by Contractor at
any time and from time to time without notice to the Owner.
6) Contractor shall have the right to withdraw all or any part of the
principal in the Escrow Account only by written notice to Escrow Agent
accompanied by written authorization from the Owner to the Escrow Agent that
Owner consents to the withdrawal of the amount sought to be withdrawn by
7) The Owner shall have a right to draw upon the securities in the event of
default by the Contractor. Upon seven days’ written notice to the Escrow
Agent from the owner of the default, the Escrow Agent shall immediately
convert the securities to cash and shall distribute the cash as instructed
by the Owner.
8) Upon receipt of written notification from the Owner certifying that the
Contract is final and complete, and that the Contractor has complied with
all requirements and procedures applicable to the Contract, Escrow Agent
shall release to Contractor all securities and interest on deposit less
escrow fees and charges of the Escrow Account. The escrow shall be closed
immediately upon disbursement of all moneys and securities on deposit and
payments of fees and charges.
9) Escrow Agent shall rely on the written notifications from the Owner and
the Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement
and the Owner and Contractor shall hold Escrow Agent harmless from Escrow
Agent’s release and disbursement of the securities and interest as set forth
10) The names of the persons who are authorized to give written notice or to
receive written notice on behalf of the Owner and on behalf of Contractor in
connection with the foregoing, and exemplars of their respective signatures
are as follows:
On behalf of Owner: On behalf of Contractor:
On behalf of Escrow Agent:
At the time the Escrow Account is opened, the Owner and Contractor shall
deliver to the Escrow Agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper
officers on the date first set forth above.
ARTICLE 9 - EARLY TERMINATION. Notwithstanding any provision herein to the
contrary, if for any fiscal year of this agreement the governing body of the
City fails to appropriate or allocate funds for future periodic payments
under the Agreement after exercising reasonable efforts to do so, the City
may, upon thirty (30) days notice, order work on the project to cease. The
City will remain obligated to pay for the work already performed but shall
not be obligated to pay the balance remaining unpaid beyond the fiscal
period for which funds have been appropriated or allocated and for which the
work has not been done.
ARTICLE 10 - TERMINATION FOR CAUSE. If Contractor (1) should be adjudged
bankrupt; (2) should make a general assignment for the benefit of its
creditors; (3) should persistently or repeatedly refuse or fail, except in
cases for which an extension of time is provided, to supply enough properly
skilled workers or proper materials; (4) should fail to make prompt payment
to subcontractors or for material or labor; (5) persistently disregards
laws, ordinances or the instructions of the City; or if any of its
subcontractors should persistently violate any of the provisions of the
Agreement or a receiver should be appointed on account of its insolvency,
then the City may serve written notice upon the Contractor and its surety of
its intention to terminate the Agreement. Unless, within five (5) days after
the serving of such notice, such violations shall cease and satisfactory
arrangements for corrections thereof be made, the Agreement shall, upon the
expiration of said five (5) days, at the City's option, terminate.
In the event of any such termination, the City shall immediately serve
written notice thereof upon the surety and the Contractor, and the surety
shall have the right to take over and perform the Agreement; provided,
however, that if the surety, within ten (10) days after the serving upon it
of Notice of Termination, does not give the City written notice of its
intention to take over and perform the Agreement or does not commence
performance within ten (10) days from the date of the serving of such
notice, the City may take over the Project and prosecute the same to
completion by Agreement or by any other method it may deem advisable, for
the account and at the expense of the Contractor, and the Contractor and the
surety shall be liable to the City for any excess cost occasioned the City
thereby. In such event, the City may without liability for so doing, take
possession of and utilize in completing the Project, such materials,
appliances and other property belonging to the Contractor as may be on the
site of the Project and necessary therefore. In such case the Contractor
shall not be entitled to receive any further payment until the Project is
finished. If the unpaid balance of the contract sum shall exceed the expense
of finishing the Project, including compensation for additional managerial
and administrative services, such excess shall be paid to the Contractor. If
such expense shall exceed such unpaid balance, the Contractor shall pay the
difference to the City.
ARTICLE 11 - PERFORMING A PORTION OF THE WORK. If the Contractor fails to
correct defective work or persistently fails to carry out the work in
accordance with the Contract Documents, the City, by written order, may
order the Contractor to stop the work, or any portion thereof, until the
cause of such order has been eliminated. The City shall not have any duty to
stop the work for the benefit of the Contractor or any other person or
entity. If the City chooses to correct or carry out the work itself, it
shall normally give the Contractor seven (7) days to commence and continue
correction of such default or neglect with diligence and promptness. If,
however, the condition constitutes an emergency which may subject the City
to penalties or termination of the Project by outside jurisdictional
agencies, the City may do so without notice to the Contractor. In either
case, an appropriate change order shall be issued, deducting, from the
payments then or thereafter due the Contractor the cost of correcting such
deficiencies, including compensation for the Architect's and consultants'
additional services made necessary by such default, neglect, or failure. If
payments then or thereafter due the Contractor are not sufficient to cover
such amount, the Contractor and its surety shall pay the City the
ARTICLE 12 - USE OF SUBCONTRACTORS. Contractor agrees that, as required by
State law and the Instruction to Bidders, all subcontractors which will
perform work on this project shall be listed on the Designation of
Subcontractors form, provided with the Contract Documents.
ARTICLE 13 - PREVAILING WAGE RATES. In accordance with the provisions of
section 1720 et seq. of the Labor Code, the Director of the Department of
Industrial Relations of the State of California has determined the general
prevailing rates or wages and employer payments for health and welfare,
pension, vacation, travel time, and subsistence pay as provided for in
Contractor may be responsible for paying subcontractor’s employees
prevailing wages if it does not comply with the provisions of Labor Code
sections 1770 et seq.
The Contractor and each subcontractor shall keep or cause to be kept an
accurate record showing the names and occupants of all laborers, workers and
mechanics employed by it in connection with the execution of this Agreement
or any subcontract thereunder, and showing also the actual per diem wage
paid to each of such workers, which records shall be open at all reasonable
hours to inspection by the City, its officers and agents and to the
representatives of the Division of Labor Law Enforcement of the State
Department of Industrial Relations. Attention is directed to the provisions
in section 1777.5 and section 1777.6 of the Labor Code concerning the
employment of apprentices by the Contractor or any subcontractor under it.
ARTICLE 14 - WORKING HOURS. In accordance with the provisions of sections
1810 to 1815 of the Labor Code of the State of California, eight (8) hours
labor shall constitute a day's work, and no laborer, workman or mechanic in
the employ of the Contractor, or any subcontractor, doing or contracting to
do any part of the work contemplated by this Agreement, shall be required to
or permitted to work more than eight (8) hours in one calendar day or forty
(40) hours during any one calendar week unless such work is compensated at
the lawful overtime rate set forth in section 1815. The Contractor and each
subcontractor shall also keep an accurate record showing the names and
actual hours worked of all workers employed by it in connection with the
work contemplated by this Agreement, which record shall be open at all
reasonable hours to the inspection of the City, or its officers or agents
and to the Chief of the Division of Labor Statistics and Law Enforcement of
the Department of Industrial Relations, its deputies or agents; and it is
hereby further agreed that Contractor shall forfeit as a penalty to the City
the sum of twenty-five dollars ($25.00) for each laborer, workman or
mechanic who is required or permitted to labor more than eight (8) hours a
day or forty (40) hours a week in violation of this stipulation.
ARTICLE 15 - EMPLOYMENT OF APPRENTICES. Contractor agrees to comply with all
provisions of the law regarding the employment of apprentices. (Labor Code
§§ 1773.3, 1777.5, 1777.6 and 3077 et seq.) These sections require that
contractors and subcontractors employ apprentices in apprenticeable
occupations in a ratio of not less than one (1) apprentice for each five (5)
journeyman hours, unless an exemption is granted, and that contractors and
subcontractors shall not discriminate among otherwise qualified employees as
indentured apprentices on any public work solely on the grounds of race,
religious creed, color, national origin, ancestry, sex, or age. Only
apprentices who are in training under written apprenticeship agreements will
be employed on public works in apprenticeable occupations. The
responsibility for compliance with these provisions for all apprenticeable
occupations rests with the Contractor.
ARTICLE 16 - INSURANCE. The Contractor shall maintain in full force and
effect and cause its subcontractors to maintain, for the period covered by
the Contract, the following insurance:
Comprehensive or commercial general liability insurance, with limits not
less than $2,000,000 per each occurrence, combined single limit, for bodily
injury and property damage, including coverage for contractual liability,
personal injury, independent contractors, explosion, collapse and
underground (XCU), broad form property damage, products liability, and
completed operations. Should any of the required insurance be provided under
a form of coverage that includes an annual general aggregate limit or
provides that claims investigation or legal defense costs be included in
such annual general aggregate limit, such annual general aggregate limit
shall apply separately to the Project (with the ISO CG 2501 or insurer's
equivalent endorsement provided to the City) or shall be a minimum of
$2,000,000. Such policy(ies) shall include within its scope coverage for
claims including, but not limited to: for damages because of bodily injury
(including emotional distress), sickness, disease, or death of any person
other than the Contractor's employees. This coverage shall be provided in a
form at least as broad as Insurance Services Office (ISO) Form CG 0001
11188; for damages arising from personal or advertising injury in a form at
least as broad as ISO Form CG 0001 11188 and involving blanket contractual
liability applicable to the Contractor's obligations under the Contract
Documents, including liability assumed by and the indemnity and defense
obligations of the Contractor and subcontractors.
Comprehensive or business automobile liability insurance, with limits not
less than $1,000,000 per each occurrence, combined single limit, for bodily
injury and property damage, including coverage for owned, non-owned, and
Workers' Compensation, including Employers' Liability Insurance, with limits
not less than $1,000,000 each accident, occurrence or disease. The Workers'
Compensation Insurance shall cover any compensation payable under the
provisions of the act of Legislature of the State of California, known as
the "Workman's Compensation Insurance and Safety Act" approved May 26, 1913,
and all Acts amendatory and supplemental thereto. The Contractor shall
require subcontractors to provide workers' compensation insurance for all
subcontractors' employees engaged in Work under the subcontract. Any class
of employee or employees not covered by a subcontractor's insurance shall be
covered by the Contractor's insurance. If the Contractor fails to maintain
such insurance, the City, at its sole option and without incurring any
further obligation to provide insurance, may take out Workers' Compensation
insurance to cover any compensation payable under the provisions of the Act
by reason of any employee of the Contractor or a subcontractor being injured
or killed, and to deduct the amount of the premium for such insurance from
any sums due the Contractor. If injury occurs to any employee of the
Contractor for which the employee, or its dependents in the event of its
death, is entitled to compensation from the City under the provisions of
said Act, or from the sums due the Contractor under these Contract Documents
the City may deduct and retain an amount sufficient to cover such
compensation or payment of such compensation.
The Contractor shall sign and file with the City the following certification
prior to performing the Work of the Contract: "I am aware of the provisions
of Section 3700 of the Labor Code which require every employer to be insured
against liability for Workers' Compensation or to undertake self-insurance
in accordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the Work of the Contract."
Builder's Risk/All Risk: The Contractor, during the progress of the Work and
until the City’s final acceptance of the Work upon completion of the entire
Contract, shall maintain Builder's Risk/"All Risk," course-of-construction
insurance, issued on a completed value basis on all insurable Work included
under the Contract Documents, including completed Work and Work in progress
to the full insurable value of the entire Work which is the subject of this
Agreement. Coverage is to provide extended coverage and insurance against
vandalism, malicious mischief, perils of fire, sprinkler leakage, civil
authority, sonic boom, earthquake, collapse, flood, wind, lightning, smoke,
riot, debris removal including demolition, and reasonable compensation for
the Architect's services and expenses required as a result of insured loss.
Fire insurance on all Work subject to loss or damage by fire. The amount of
fire insurance shall be sufficient to protect the Project and all
appurtenant structures against loss of damage in full until the Work is
accepted by the Owner.
Coverage for debris removal limits not less than $1,000,000. In the event
that the Contractor is performing abatement of hazardous or contaminated
materials work or employs a subcontractor or entity for abatement of
hazardous or contaminated materials, environmental liability and pollution
insurance, with limits not less than $1,000,000. The policy shall be written
on an occurrence form and any deductible shall not exceed $25,000.
Insurance companies shall be legally licensed and admitted through the
California Department of Insurance to engage in the business of furnishing
insurance in the State of California. All insurance companies shall have an
"A-VIII" in Bests Rating Guide and shall be satisfactory to the City.
Each policy shall name the City, the Architect, the City's Consultants, and
all authorized agents and representatives, and members, directors, officers,
trustees, agent and all employees of any of them as additional insureds and
shall be issued by carrier(s) satisfactory to the City and licensed through
the Department of Insurance to conduct insurance business in California.
Waiver of Subrogation: The Owner, the Architect, and the contractor each
waive (to the extent permitted by law) any right to recover against the
other for damages to the Work, and part thereof or any and all claims
arising by reason of any forgoing, but only to the extent that such damages
and/or claims are covered by property insurance and only to the extent of
such coverage (which shall exclude deductible amounts) by insurance actually
carried by either the Owner, or any Contractor. The requirements of this
provision, Article 16 of the Agreement, are intended to restrict each party
to recovery against insurance carriers only, to the extent of such coverage,
and waive fully and for the benefit of each, and any rights and/or claims
which might give rise to a right of subrogation in any insurance carrier.
The Owner and the Contractor shall each obtain in all policies of insurance
carried by either of them, a waiver by the insurance companies thereunder of
all rights of recovery by way of subrogation for any damages or claims
covered by the insurance.
In the event of any damage except earthquake and flood, it shall be the
Contractor's responsibility to perform at its expense all required repair
and replacement including damage to adjacent areas.
Before commencement of the Work of this Contract, certificates of insurance
shall be furnished to the City, with complete copies of policies to be
furnished to the City promptly upon request. All policies of insurance,
exclusions, deductibles, self-insured retentions, and certificates shall be
satisfactory to the City. Approval of the insurance by the City shall not
relieve or decrease the extent to which the Contractor or subcontractor of
any tier may be held responsible for payment of any and all damages
resulting from its action, inaction or operations.
Liability insurance shall be on an occurrence basis. The coverage afforded
thereby shall be primary and non-contributory to any other existing valid
and collectable insurance to the full limit of liability stated in the
declaration, and such insurance shall apply separately to each insured
against whom claim is made or suit is brought, but the inclusion of more
than one (1) insured shall not operate to increase the insurer's limits of
Certificates of insurance shall state in particular those insured, the
extent of insurance, location and operation to which the insurance applies,
the expiration date, and cancellation and reduction notices. Certificates
and insurance policies shall include the following clause: "This policy
shall not be non-renewed, canceled, or reduced in required limits of
liability or amounts of insurance until notice has been mailed to the Owner.
Date of cancellation or reduction may not be less than thirty (30) days
after the date of mailing notice." If, at any time during the life of this
Contract, the Contractor fails to maintain any item of the required
insurance in full force and effect, all Work of this Contract may, at City's
sole option, be discontinued immediately, and all Contract payments due or
that become due will be withheld, until notice is received by the City as
provided hereinabove that such insurance has been restored to full force and
effect and that the premiums therefrom have been paid for a period
satisfactory to the City.
Any failure to maintain any item of the required insurance may, at City's
sole option, be sufficient cause for termination of this Contract.
ARTICLE 17 - INDEMNIFICATION AGAINST LIABILITY. Notwithstanding any other
provision of the Contract Documents, Contractor agrees to indemnify, defend
and save harmless the City, its Governing Board, related entities and
divisions, officers, agents, consultants and employees from and against any
and all claims, demands, losses, defense costs, or liabilities of any kind
or nature which they may sustain or incur or which may be imposed upon them
for injury to or death of persons, damage to property, or delay or damage to
another contractor, or for attorneys fees incurred in defending or
prosecuting suits to enforce laws relating to public works contracts,
resulting or arising out of, or in any manner connected with Contractor or
Contractor's agents, employees or subcontractors' performance or failure to
perform under the terms of the Contract Documents, excepting only liability
arising out of the sole negligence or willful misconduct of the City. The
parties stipulate that any such claims, demands, losses, defense costs, or
liabilities would be above, beyond, and entirely separate from, those
damages which would be liquidated pursuant to Article 6.
ARTICLE 18 - MISCELLANEOUS PROVISIONS.
Entire Agreement. This Agreement constitutes the entire agreement between
the parties, and supersedes any prior agreement between the parties, oral or
written, including the City's award of the Project to Contractor, unless
such agreement is expressly incorporated herein. The City makes no
representations or warranties, express or implied, not specified in this
Execution of Other Documents. The parties to this Agreement shall cooperate
fully in the execution of any and all other documents and in the completion
of any additional actions that may be necessary or appropriate to give full
force and effect to the terms and intent of this Agreement.
Execution in Counterparts. This Agreement may be executed in counterparts
such that the signatures may appear on separate signature pages. A copy, or
an original, with all signatures appended together, shall be deemed a fully
Binding Effect. Contractor, by execution of this Agreement, acknowledges
that Contractor has read this Agreement, understands it, and agrees to be
bound by its terms and conditions. This Agreement shall inure to the benefit
of and shall be binding upon the Contractor and the City and their
respective successors and assigns.
Severability. If any provision of this Agreement shall be held invalid or
unenforceable by a court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Amendments. The terms of this Agreement shall not be waived, altered,
modified, supplemented or amended in any manner whatsoever except by written
agreement signed by the parties.
Assignment of Agreement. The Contractor shall not assign or transfer by
operation of law or otherwise any or all of its rights, burdens, duties or
obligations without the prior written consent of the surety on the payment
bond, the surety on the performance bond and the City.
Written Notice. Written notice shall be deemed to have been duly served if
delivered in person to the individual or member of the firm or to an officer
of the corporation for whom it was intended, or if delivered at or sent by
registered or certified mail to the last business address known to it who
gives the notice.
Attorneys' and Design/Management Team Fees. In any legal action or
proceeding arising out of this Agreement, or to enforce the terms of this
Agreement, the prevailing party shall be entitled to recover all reasonable
attorneys' and design/management team's fees, costs and expenses incurred
therein. If the City retains legal counsel to assist in resolution of any
dispute which arises during the performance or closeout of this Project and
notice is given as specified herein, the parties' reasonable attorneys' and
design/management team’s fees shall be paid by the parties in the same
proportion as the disputed compensation is resolved. "Disputed compensation"
shall include disputed payment of contract funds, payment which is requested
pursuant to change order requests, liquidated damages, and payment demanded
pursuant to indemnification rights. Notice that a party demands payment for
its attorneys' and design team’s fees pursuant to this provision shall be
given by sending a notice by certified mail to other party which cites this
provision and informs the other party that all attorneys' and design team’s
fees which are incurred more than five (5) days after the date of mailing
will be subject to division and allocation pursuant to this Article.
Anti-discrimination. It is the policy of the City that in connection with
all work performed under purchasing contracts there shall be no
discrimination against any prospective or active employee engaged in the
Project because of race, color, ancestry, national origin, sex or religious
creed. Therefore, the Contractor agrees to comply with applicable federal
and California laws including, but not limited to, the California Fair
Employment and Housing Act. In addition, the Contractor agrees to require
like compliance by all subcontractors employed on the Project by it.
IN WITNESS WHEREOF the parties have executed this Agreement on the date
first hereinabove written.
Contractor, hereby also certifying awareness of and compliance with Labor
Code Sections 1861 and 3700 concerning Worker's Compensation Law.
Type or Print Name: _________________________
Official Capacity: _________________________ (Affix Corporate Seal)
Type or Print Name: __________________________
Official Capacity: __________________________
Note to Contractor:
a. For corporations, the contract must be signed by two officers. The first
signature must be that of the chairman of the board, president or vice
president; the second signature must be that of the secretary or chief
financial officer. The signatures must be acknowledged by a Notary Public
and seal attached.
b. If Partnership, all partners should sign under the partnership name. The
signatures must be acknowledged by a Notary Public and seal attached.
City of Brentwood
John E. Stevenson, City Manager
APPROVED AS TO FORM BY CITY LEGAL COUNSEL
Dennis Beougher, City Attorney