City of Brentwood
Home PageContact Us!Back

City Administration

2010 Council Goals and Strategic Plan | City Council Members | Calendar of Events | Elections
eNotification | Sub-Committees| Pledge of Allegiance Sign Ups | Invocation Sign Up
Live Streaming Council Meeting | Streaming PC Help |
Streaming Mac Help |

Current Council Agenda and Past Meeting Information

CITY COUNCIL AGENDA ITEM NO. 7

Meeting Date: June 10, 2008

Subject/Title: Adopt a Resolution awarding the bid, approving the contract documents, and authorizing the City Manager or designee to execute necessary documents for Bid Package #18 – Kitchen to Martinez Sheet Metal Inc. in the amount of $122,753 plus a 10% contingency of $12,275.30 for a total contract amount of $135,028.30 for Brentwood Senior Activity Center CIP No. 522-52280 and Aquatic Complex/Concession Stand CIP No. 522-52300 (Group C)

Prepared by: Poldina Scherff, Recreation Manager

Submitted by: Craig D. Bronzan, Director of Parks and Recreation

RECOMMENDATION
Adopt a Resolution awarding the bid, approving the contract documents, and authorizing the City Manager or designee to execute necessary documents for Bid Package #18 – Kitchen to Martinez Sheet Metal Inc. in the amount of $122,753 plus a 10% contingency of $12,275.30 for a total contract amount of $135,028.30 for Brentwood Senior Activity Center CIP No. 522-52280 and Aquatic Complex/Concession Stand CIP No. 522-52300 (Group C)

PREVIOUS ACTION
On May 27, 2003, City Council adopted the 2003/04-2007/08 CIP budgeting program of which this project is included and named Aquatic Center Community Services Facility.

On January 27, 2004, by Resolution No. 2004-26, City Council approved the start of design effort for the Community Center Replacement project located at the Aquatic Complex and
authorized staff to expend $55,000 to begin the process.

On May 25, 2004, City Council adopted the 2004/05-2008/09 CIP budgeting program of which these projects are included.

On June 8, 2004, by Resolution No. 2004-135, City Council approved the contract with RGM and Associates for construction management services of the project known as the Recreation Facility, CIP Project No. 522-52280 and the Aquatic Complex/Concession Stand, CIP Project No. 522-52300.

On May 23, 2006, by Resolution No. 2006-126, City Council adopted the 2006/07 – 2010/11 Capital Improvement Program (CIP), which included the Recreation Facility, CIP Project No. 522-52280 and the Aquatic Complex /Concession Stand, CIP Project No. 522-52300.

On June 27, 2006, by Resolution 2006-149, City Council approved and authorized the City Manager to execute Amendment No. 1 to the Agreement with RGM and Associates for construction management services reducing the current contract value from $355,300 to $125,680, including a 10% contingency of $12,568, for a new total amount of $138,248, which reflects construction management services for the project known as the Recreation Facility (Civil), CIP Project No. 522-52280 and the Aquatic Complex/Concession Stand, CIP Project No. 522-52300.

On April 17, 2007, Planning Commission Resolution No. 07-034 of the City of Brentwood approved a two-year time extension for a concession building, parking area, and landscaping associated with the Brentwood Family Aquatic Complex.

On April 17, 2007, Planning Commission Resolution No. 07-037 of the City of Brentwood approved a design review for the development of an 8,375 square foot Senior Adult Education Center and associated landscape improvements.

On June 12, 2007, by Resolution 2007-126, City Council adopted the 2007/08 – 2011/12 CIP, which included the Aquatic Complex/Concession Stand and Senior Adult Education Center projects.

On July 24, 2007, by Resolution 2007-168, City Council approved and authorized the City Manager to execute Amendment No. 3 to the Agreement with Quattrocchi Kwok Architects for Phase I construction documents, bidding serves construction administration of $40,000 and Phase II design development drawings and specifications for awarding a design-build contract, and construction documents through close-out of $180,000 including a 10% contingency of $22,000 for a total amount of $242,000 for the Senior Adult Education Center CIP Project No. 522-52280 and the Aquatic Complex/Concession Stand, CIP Project No. 522-52300.

On July 24, 2007, by Resolution 2007-169, City Council approved and authorized the City Manager to execute Amendment No. 2 to the Agreement with RGM and Associates changing the name of the Recreation Facility CIP Project No. 522-52280 to the Senior Adult Education Center CIP Project No. 522-52280, and to increase for two projects the current contract value for construction management services from $138,248 to $425,499 including a 10% contingency of $42,549.90, for a total amended amount of $468,048.90 for the Senior Adult Education Center CIP Project No. 522-52280 and the Aquatic Complex/Concession Stand, CIP Project No. 522-52300.

On August 28, 2007, by Resolution 2007-196, City Council accepted the withdrawal of N.E. Carlson’s bid and returned the bid security; awarded the bid and approved and authorized the City Manager or designee to execute a Pre-Engineered building design and construction contract and necessary documents with Kimmel Construction, Inc. in the amount of $774,722.00 including a 10% contingency of $77,472.20 for a total amended amount of $852,194.20 for the Senior Adult Education Center, CIP Project No. 522-52280.

On November 13, 2007, by Resolution 2007-262, City Council approved the contract documents, awarding the bid and authorized the City Manager or her designee to execute necessary documents with Bay Cities Paving & Grading, Inc. in the amount of $657,000 including a 10% contingency of $65,700 for Sitework for the Senior Adult Education Center CIP No. 522-52280 and in the amount of $17,000 including a 10% contingency of $1,700 for Sitework for the Aquatic Complex/Concession Stand CIP No. 522-52300 for a total amount of $741,400.

On February 12, 2008, by Resolution 2008-20, City Council approved the contract documents, and awarded the Construction Contracts (Exhibit “A”) and authorized the City Manager or designee to execute necessary documents for Senior Adult Education Center CIP 522-52280 and Aquatic Complex/Concession Stand CIP No. 522-52300 (Group C) plus 10% contingencies. City Council also rejected all bids submitted for Bid Packages #11 – Fire Sprinkler and #12 – Storefront and Glazing and directed staff to re-bid these bid packages.

On March 11, 2008, by Resolution 2008-55, City Council approved changing the name of the Senior Adult Education Center, CIP Project No. 522-52280 to the Brentwood Senior Activity Center as recommended by the Park and Recreation Commission.

On March 11, 2008, by Resolution 2008-58, City Council authorized City Staff and RGM and Associates to negotiate contracts for Bid Package #5 – Structural Steel and Bid Package #18 – Kitchen for Brentwood Senior Activity Center CIP No. 522-52280 and Aquatic Complex/Concession Stand CIP No. 522-52300 (Group C).

On April 22, 2008, by Resolution 2008-94 City Council awarded the bids, approving the contract documents, and authorizing the City Manager or designee to execute necessary documents for Bid Package # 11 – Fire Sprinklers to Thorpe Design, Inc. in the amount of $66,500 plus a 10% contingency of $6,650, for a total contract amount of $73,150 and for Bid Package #12 – Storefront and Glazing to Arrow Glass Company, Inc. in the amount of $300,000 plus a 10% contingency of $30,000, for a total contract amount of $330,000 for Brentwood Senior Activity Center CIP No. 522-52280 and Aquatic Complex/Concession Stand CIP No. 522-52300.

On May 13, 2008, by Resolution 2008-103 City Council awarded the bid, approving the contract documents, and authorizing the City Manager or designee to execute necessary documents for Bid Package #5 – Structural Steel to Martinez Sheet Metal Inc. in the amount of $183,972 plus a 10% contingency of $18,397.20 for a total contract amount of $202,369.20 for Brentwood Senior Activity Center CIP No. 522-52280 and Aquatic Complex/Concession Stand CIP No. 522-52300.

On May 13, 2008, by Resolution 2008-110 City Council declared official intent to reimburse certain expenditures for the Brentwood Senior Activity Center, Downtown Streetscape Plan, Downtown Infrastructure, Downtown Parking Structure, New City Hall, Civic Center Parking Facility, New Community Center, Library Relocation, Civic Center Plaza and City Park projects in an amount not-to-exceed $72,000,000, from proceeds of indebtedness.

On May 27, 2008, by Resolution 2008-137 City Council 1) Adopted the Negative Declaration and 2) Adopted the 2008/09-2012/13 Capital Improvement Program.

BACKGROUND
This project is a multi-prime project with the first major element of construction being the pre-engineered construction design and construction contract (Group A) has been completed. The second element is the “Sitework” project (Group B) which includes furnishing all labor, materials, equipment, and performing all work necessary and incidental to the Brentwood Senior Activity Center and Aquatic Complex/Concession Stand which is under construction now. The third element is (Group C) jobs 3-18 and the following bid packages were awarded; Bid Packages #3 – Concrete, #4 – Masonry, #6 – Carpentry, #7 – Metal Stud & Gypsum, #8 – Mechanical/HVAC, #9 – Plumbing, #10 – Electrical, #13 – Painting, #14 – Specialty Ceiling, #15 – Casework, #16 Flooring, #17 – Tile. As part of the bid review process, staff determined that two of the bid packages #11 – Fire Sprinklers and #12 – Storefront & Glazing, should be re-bid due to the amount being significantly higher than the engineer’s estimate. The lowest bid was submitted by Thorpe Design, Inc. for Bid Package #11 Fire Sprinklers and Arrow Glass Company, Inc. for Bid Package #12 Storefront & Glazing.

On March 11, 2008 City Council authorized City Staff and RGM and Associates to negotiate contracts for Bid Package #5 – Structural Steel and Bid Package #18 – Kitchen. It is staff’s recommendation to award the contract to Martinez Sheet Metal Inc. for Bid Package #18 – Kitchen and move forward with the project.

FISCAL IMPACT
If approved, awarding the bid to Martinez Sheet Metal Inc. in the amount of $122,753 plus a 10% contingency of $12,275.30, for a total contract amount of $135,028.30, will be broken down by CIP projects as follows:

• Aquatic Complex/Concession Stand, CIP No. 522-52300, is $25,988, plus a 10% contingency of $2,598.80 for a total amount of $28,586.80.

• Brentwood Senior Activity Center, CIP No. 522-52280, is for $96,765, plus a 10% contingency of $9,676.50, for a total amount of $106,441.50.

The funds associated with this work are included in the 2008/09-2012/13 Capital Improvement Program which includes the Aquatic Complex/Concession project and the Brentwood Senior Activity Center project. The funding of the Brentwood Senior Activity Center Project is contingent upon the issuance of bonds. Staff anticipates that the issuance of bonds will occur in the 2008/09 Fiscal Year. In the interim, we will initiate the requisite internal loans to allow commencement of the Brentwood Senior Activity Center project.

Attachments:
Resolution
Agreement

RESOLUTION NO.

ADOPT A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AWARDING THE BID, APPROVING THE CONTRACT DOCUMENTS, AND AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE NECESSARY DOCUMENTS FOR BID PACKAGE #18 – KITCHEN TO MARTINEZ SHEET METAL, INC., IN THE AMOUNT OF $122,753 PLUS A 10% CONTINGENCY OF $12,275.30, FOR A TOTAL CONTRACT AMOUNT OF $135,028.30, FOR THE BRENTWOOD SENIOR ACTIVITY CENTER, CIP PROJECT NO. 522-52280 AND AQUATIC COMPLEX/CONCESSION STAND CIP NO 522-52300

WHEREAS, on May 27, 2003, City Council approved the 2003/2008 CIP Program which this project was included and named Aquatic Center Community Service Facility; and

WHEREAS, on January 27, 2004, City Council approved the start of design for the Recreation Facility project and authorized staff to expend $55,000 to begin the process; and

WHEREAS, on May 25, 2004 City Council adopted the 2004/2009 CIP budgeting program of which these projects were included; and

WHEREAS, on April 17, 2007 City Council approved a two-year time extension for a concession building, parking area, and landscaping associated with the Brentwood Family Aquatic Complex; and

WHEREAS, on April 17, 2007 the design review for the Senior Adult Education Center was approved by the Planning Commission; and

WHEREAS, on July 24, 2007 City Council approved Amendment No. 2 to the Agreement with RGM and Associates and Quattrocchi Kwok Architects Amendment No. 3 for the Senior Adult Education Center, CIP Project No. 522-52280 and for the Aquatic Complex/Concession, CIP Project No. 522-52300, and change the name of the Recreation Facility CIP Project No. 522-52280 to Senior Adult Education Center CIP Project No. 522-52280; and

WHEREAS, on August 28, 2007, by Resolution 2007-196, City Council accepted the withdrawal of N.E. Carlson’s bid and returned the bid security; awarded the bid and approved and authorized the City Manager or designee to execute a Pre-Engineered building design and construction contract and necessary documents with Kimmel Construction, Inc.; and

WHEREAS, on November 13, 2007, by Resolution 2007-262, City Council approved the contract documents, awarding the bid and authorized the City Manager or designee to execute necessary documents with Bay Cities Paving & Grading, Inc. for “Sitework” (Group B); and

WHEREAS, on February 12, 2008, by Resolution 2008-20, City Council approved the contract documents, awarding the bids and authorizing the City Manager or designee to execute necessary documents for (Group C) Packages 3, 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17; rejected Packages #11 – Fire Sprinklers and #12 – Storefront & Glazing due to the amount being significantly higher than the engineer’s estimate and re-bid these packages; and

WHEREAS, on March 11, 2008, by Resolution 2008-55, City Council approved changing the name of the Senior Adult Education Center, CIP Project No. 522-52280 to the Brentwood Senior Activity Center as recommended by the Park and Recreation Commission; and

WHEREAS, on March 11, 2008, by Resolution 2008-58, City Council authorized City Staff and RGM and Associates to negotiate contracts for Bid Package #5 – Structural Steel and Bid Package #18 – Kitchen (Group C); and

WHEREAS, on April 22, 2008 by Resolution 2008-94, City Council approved the contract documents and authorizing the City Manager or designee to execute necessary documents for Bid Package # 11 – Fire Sprinklers to Thorpe Design, Inc. and for Bid Package #12 – Storefront and Glazing to Arrow Glass Company, Inc. for (Group C); and

WHEREAS, on May 13, 2008, by Resolution 2008-103 City Council awarded the bid, approving the contract documents, and authorizing the City Manager or designee to execute necessary documents for Bid Package #5 – Structural Steel to Martinez Sheet Metal; and

WHEREAS, on May 13, 2008, by Resolution 2008-110 City Council declared official intent to reimburse certain expenditures for the Brentwood Senior Activity Center, Downtown Streetscape Plan, Downtown Infrastructure, Downtown Parking Structure, New City Hall, Civic Center Parking Facility, New Community Center, Library Relocation, Civic Center Plaza and City Park projects in an amount not-to-exceed $72,000,000, from proceeds of indebtedness; and
WHEREAS, City Council approved the 2008/2013 CIP budgeting program of which these projects are included; and

NOW THEREFORE BE IT RESOLVED by the City Council of the City of Brentwood that the bid is awarded, contract documents approved, and the City Manager or her designee authorized to execute those documents necessary for construction contracts be awarded to Martinez Sheet Metal Inc. in the amount of $122,753 plus a 10% contingency of $12,275.30, for a total contract amount of $135,028.30, for the Brentwood Senior Activity Center CIP Project No. 522-52280 and Aquatic Complex/Concession Stand CIP Project No. 522-52230 (Group C).

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on June 10, 2008 by the following vote:

AGREEMENT

This Agreement is made and entered into this ___ day of ________ 2008, between the City of Brentwood, Contra Costa County, California herein called "City" and___________, a California corporation, located at __________, __________________, CA _________, herein called "Contractor".

Contractor and City agree as follows:

ARTICLE 1 - THE PROJECT. The City of Brentwood is constructing a new Senior Adult Education Center and Aquatic Complex Concession Stand located at 195 Griffith Lane, Brentwood, Contra Costa County, California (the "Project"). The City will award multiple prime contracts for construction of the Project. Each prime contractor, including Contractor, shall be required to cooperate with the other contractors and coordinate its work to complete the Project in accordance with the City's schedule.

ARTICLE 2 - THE WORK. Contractor shall furnish all necessary management, supervision, labor, materials, tools, supplies, equipment, plant, services, engineering, testing and/or any other act or thing required to diligently and fully perform and complete the Work described in the Contract Documents identified as follows:

Senior Adult Education Center
and
Aquatic Complex Concession Stand
Group C
Bid Package # _____________
CIP PROJECT NO. 522-52280 and CIP PROJECT NO. 522-52300
City of Brentwood, California

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 Work. 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 Work any unfit person or anyone not skilled in the task assigned.

ARTICLE 3 - THE AGREEMENT. The Contract Documents are composed of all those documents described in paragraph 2.1 of the General Conditions, which documents are incorporated into this Agreement by this reference. The specifications and drawings are intended to cooperate, so that any work shown in the drawings and not mentioned in the specifica¬tions, 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 specifica¬tions, when taken together. In the event of a conflict between the various Contract Documents, the more stringent requirement will prevail.

ARTICLE 4 - CONTRACTOR'S LICENSE. Contractor shall have, and maintain in good standing, the contractor’s license specified in the Notice Inviting Informal Bids during the entire term of this Work.

ARTICLE 5 - COMPLETION DATE / NOTICE TO PROCEED. Contractor agrees that all work required to be performed by the Contract Documents shall be completed within the Contract Times as set forth on the Supplemental Provisions Pages. The Contract Times 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 Work is not completed within the Contract Times.


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 Contract Time 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 weather days.
Jan
10 Feb
8 March
8 April
5 May
2 June
1 July
0 Aug
0 Sep
1 Oct
3 Nov
7 Dec
8

The adverse weather days shall be shown on the schedule and, if not used, will become float for the Work’s use.

ARTICLE 6 - CONTRACT SUM. The base bid 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 as follows: (unless modified in accordance with the Contract Documents).

TOTAL BASE BID AMOUNT (Items 1 and 2)

One Hundred Twenty Two Thousand Seven Hundred Fifty Three Dollars $122,753.00

BASE BID BREAKDOWN:
1. Senior Adult Education Center $96,765.00
2. Aquatic Complex Concession Stand $25,988.00

ARTICLE 7 - LIQUIDATED DAMAGES. Time is of the essence to the performance of this Agreement. The Contractor shall complete the Work within the Contract Times unless the City agrees in writing to an extension of time.

Failure to complete the Work within the time and in the manner provided for by the Contract Documents shall subject the Contractor to liqui¬dated damages. The actual occurrence of damages and the actual amount of the damages which the City would suffer if the Work were not completed within the Contract Times would be impracticable and extremely difficult to determine. Damages the City would suffer in the event of delay include, but are not limited to, loss of the use of the Work, costs of administration, inspection, super¬vision and the loss suffered by the public within the City.

Accord¬ingly, the parties agree that the amount herein set forth is a reasonable estimate of the damages which the City shall incur upon failure of the Contractor to complete the Work within the Contract Times listed on the Supplemental Provisions Page: Five Hundred Dollars per day ($500.00/Day), plus the extra inspection costs incurred by the City, during or as a result of each calendar day by which completion of the Work is delayed beyond the Contract Time.
In addition, liquidated damages for Contractor’s failure to achieve the following milestones within the Contract Times are established in the amounts of:
Description of Milestone
Date of Milestone Liquidated Damages
Per Calendar Day
For Late Completion
(Calendar Days)
Submit original “As Planned” construction schedule 15 days after Notice of Award $150.00
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 25 Calendar Days after Notice of Award $500.00

Contractor will be assessed liquidated damages for each day each milestone is not complete, and the liquidated damages for the milestones shall be cumulative. For example, Contractor will be assessed $500 per day starting the fifteenth day after the Notice of Award if it does not submit its shop drawings and submittals. If Contractor still has not delivered its shop drawings twenty-six days after the Notice of Award and has not delivered an "as planned" schedule by that date, it will be assessed $500 per day for the submittals, plus $150 per day for the schedule, until the requirements are met.

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 the liquidated damages in addition to any and all retained percentages of payments, 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 be liable to the City for such damages.

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 8 - EARLY COMPLETION. Regardless of the cause therefore, the Contractor may not maintain any claim or cause of action against the City as a result of its failure or inability to complete its work in a period shorter than the Contract Time, the parties stipulating that such period is a reasonable time within which to perform the work.

ARTICLE 9 - 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:

Contractor shall submit a monthly payment application on or before the last day of the month. The payment application will be based on the schedule of values approved by Owner. City will pay ninety percent (90%) of the value of labor and materials incorporated into the Work in accordance with the Contract Documents up to the first day of that month as estimated by the City or the Architect, less the aggregate of previous payments.

When the City determines that the Work is substantially complete, Contractor may request payment of a sum sufficient to increase the total payments to ninety percent (90%) of the contract price.

Thirty-five (35) days after the Notice of Completion has been recorded, provided the Work is fully complet¬ed and the Agreement fully performed, Contractor may request payment of the balance due under the Agreement, including retention. 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. The entire Work is subject to in¬spec¬tion and approval by the City or Architect when Contractor claims that the Work is complete.

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. Such securities, if deposited by the Contractor, shall be valued by the City’s Finance Director, whose decision on valuation of the securities shall be final. 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.

The City shall be entitled, at any time, to request the deposit of additional securities of a value designated by city, in City’s sole discretion, to satisfy this requirement. If the City does not receive satisfactory securities within twelve (12) consecutive days of the date of the written request, City shall be entitled to withhold amounts due Contractor until securities of satisfactory value to City have been received.

ARTICLE 10 - TERMINATION.

Should Contractor fail within three (3) working days from receipt of City's written notice to correct any contractual deficiencies, including but not limited to failure to supply enough properly skilled workers or proper materials, failure perform the Work in accordance with the Contract Documents, failure to comply with the directions of City, or failure pay subcontractors, suppliers or its creditors, City may terminate this Agreement. Following a termination for default, City shall have the right to take whatever steps it deems necessary to correct and complete the work and charge the cost thereof to Contractor, who shall be liable for the full cost of City's corrective action, including reasonable overhead, profit and attorneys' fees.

City may at any time terminate the Contract at City's convenience upon five days written notice to Contractor; in the event of termination for convenience, Contractor shall recover only the actual cost of work completed to the date of termination, which costs are documented to City’s satisfaction, plus a reasonable amount not to exceed fifteen percent (15%) of the actual cost of the Work performed for overhead and profit. Contractor shall not be entitled to any claim or lien against City for any additional compensation or damages in the event of such termination.

If City terminates Contractor for cause, and if it is later determined that the termination was wrongful, such default termination shall automatically be converted to and treated as a termination for convenience. In such event, Contractor shall be entitled to receive only the amounts payable under this section, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.

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 difference.

ARTICLE 12 - 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 section 1773.8.

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 reason¬able hours to inspection by the City, its officers and agents and to the representatives of the Division of Labor Law Enforce¬ment 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 13 - 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. 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 14 - EMPLOYMENT OF APPRENTICES. Contractor agrees to comply with all provisions of the law regarding the employment of apprentices. 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 15 - 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:

Commercial general liability insurance, with limits not less than $1,000,000 per 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 (completed operations is required for Mechanical/HVAC, Plumbing and Building Electrical). 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 Work (with the ISO CG 2501 or insurer's equivalent endorsement provided to the City) or shall be a minimum of $1,000,000. 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.

Automobile liability insurance, with limits not less than $1,000,000 per accident, combined single limit, for bodily injury and property damage, including coverage for owned, non-owned, and hired automobiles.

Workers' Compensation, including Employers' Liability Insurance, with limits not less than those required by law. Limit on employer’s liability shall be $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."

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 be endorsed to name the City, its elected and appointed officials, the Architect, the City's Consultants, and the members, directors, officers, trustees, agent and all employees of any of them as additional insureds.

Waiver of Subrogation: The Owner 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 or obligated to indemnify and defend the City.

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 liability.

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 16 - INDEMNIFICATION AGAINST LIABILITY.
The City of Brentwood and all officers and employees thereof connected with the Work, including but not limited to the City Council, shall not be answerable or accountable in any manner: for any loss or damage that may happen to the Work or any part thereof; for any loss or damage to any of the materials or other things used or employed in performing the Work; for injury to or death of any person; or for damage to property from any cause except losses due to sole or active negligence of the City of Brentwood's officers or employees.

To the fullest extent allowed by law, Contractor shall defend, indemnify and hold harmless the City of Brentwood, its elected and appointed officials, contractors, and employees and agents, from all liability, penalties, costs, losses, damages, expenses, causes of action, claims or judgments, including attorney's fees and other defense costs, resulting from injury to or death sustained by any person (including Contractor's employees), or damage to property of any kind, or any other injury or damage whatsoever, which injury, death or damage arises out of or is in any way connected with the performance of the Work, regardless of the Contractor’s fault or negligence, including any of the same resulting from City’s alleged or actual negligent act or omission, or its agents, contractors or employees; except that said indemnity shall not be applicable to injury, death or damage to property arising from the sole or active negligence or willful misconduct of City, its officers, agents, or servants who are directly responsible to City. This indemnification shall extend to claims asserted after termination of this Contract for whatever reason.

In addition to any remedy authorized by law, so much of the money due the Contractor under and by virtue of the contract as shall be considered necessary by the City, may be retained by the City of Brentwood until disposition has been made of such suits or claims for damage.

ARTICLE 17 - MISCELLANEOUS PROVISIONS.
Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes any prior agreement between the parties, oral or written. The City makes no representations or warranties, express or implied, not specified in this Agreement.

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 executed agreement.

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 obliga¬tions without the prior writ¬ten 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 deli¬vered at or sent by registered or certified mail to the last business address known to it who gives the notice.

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 Work 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 Work 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.

By: _________________________
Signature

Type or Print Name: _________________________

Official Capacity: _________________________ (Affix Corporate Seal)

By: __________________________
Signature

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

By:
Donna Landeros, City Manager

APPROVED AS TO FORM BY CITY LEGAL COUNSEL


By:
Damien B. Brower, City Attorney


 
City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov