HomeMy WebLinkAbout25 - CC-11 - Attachment 1 - 7/20/2021
CITY OF COSTA MESA
PUBLIC WORKS AGREEMENT FOR
CITY PROJECT NO. 21-01
THIS PUBLIC WORKS AGREEMENT (“Agreement”), dated July 20, 2021
(“Effective Date”), is made by the CITY OF COSTA MESA, a political subdivision of the
State of California (“CITY”), and P.T.M. GENERAL ENGINEERING SERVICES, INC., a
California corporation (“CONTRACTOR”).
WHEREAS, CITY desires to construct the public improvements described below
under Paragraph 1, Scope of Work (the “Project”); and
WHEREAS, CITY has determined that CONTRACTOR is the lowest responsible
bidder; and
WHEREAS, CITY now desires to contract with CONTRACTOR to furnish
construction and related services for the Project; and
WHEREAS, CITY and CONTRACTOR desire to set forth their rights, duties and
liabilities in connection with the services to be performed.
NOW, THEREFORE, for and in consideration of the covenants and conditions
contained herein, the parties hereby agree as follows:
1. SCOPE OF WORK.
The work consists of furnishing and installing a new traffic signal at the intersection
of Baker Street and Randolph Avenue, including the furnishing and installing of new signal
poles and foundations, controller, cabinet, signal heads, conduit, conductors and cable,
service, video detection system, emergency vehicle preemption system and all work
required by the Contract Documents (the “Work”).
The Work is further described in the “Contract Documents” referred to below.
The Project is known as New Traffic Signal for Baker Street at Randolph Avenue,
City Project No. 21-01.
2. CONTRACT DOCUMENTS.
The complete Agreement consists of the following documents relating to the
Project:
(a) This Agreement;
(b) CONTRACTOR’s bid (Exhibit A);
(c) Bid package, including notice inviting bids, complete plans, profiles, detailed
drawings and specifications, including general provisions and special
provisions (Exhibit B);
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(d) Any addenda to the bid package (Exhibit C);
(e) Faithful Performance Bond and Labor and Material Bond, including agent’s
Power of Attorney for each bond (Exhibit D);
(f) Summary of Public Contract Code section 9204 (Exhibit E);
(g) Drug-Free Workplace Policy (Exhibit F); and
(h) Provisions of the most current edition of The Greenbook: Standard
Specifications for Public Works Construction (“The Greenbook”).
The documents attached hereto are incorporated herein by this reference. The
Greenbook is incorporated by reference as if fully set forth herein. The documents
comprising the complete Agreement will be referred to as the “Contract Documents.”
All of the Contract Documents are intended to complement one another, so that
any Work called for in one and not mentioned in another is to be performed as if
mentioned in all documents.
In the event of an inconsistency in the Contract Documents, the terms of this
Agreement shall prevail over all other Contract Documents. The order of precedence
between the remaining Contract Documents shall be as set forth in The Greenbook.
The Contract Documents constitute the entire agreement between the parties and
supersede any and all other writings and oral negotiations.
3. CITY’S REPRESENTATIVE.
The CITY’s Representative is Seung Yang, referred to herein as the Project
Manager (“Project Manager”).
4. CONTRACTOR’S PROJECT MANAGER; PERSONNEL.
(a) Project Manager. CONTRACTOR’s Project Manager must be approved by
City. Such approval shall be at CITY’s sole discretion.
(b) Personnel. CITY has the right to review and approve any personnel who
are assigned to perform work under this Agreement. CONTRACTOR shall remove
personnel from performing work under this Agreement if requested to do so by CITY.
This Paragraph 4 is a material provision of the Agreement.
5. SCHEDULE.
All Work shall be performed in accordance with the schedule approved on behalf
of CITY by the Project Manager, and in accordance with the time of performance set forth
in Paragraph 11 (Time of Performance).
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6. EQUIPMENT - PERFORMANCE OF WORK.
CONTRACTOR shall furnish all tools, equipment, apparatus, facilities, labor and
materials necessary to perform and complete the Work in a good and workmanlike
manner in strict conformity with the Contract Documents.
The equipment, apparatus, facilities, labor and material shall be furnished and
such Work performed and completed as required in the plans and specifications to the
satisfaction of the Project Manager or his or her designee, and subject to his or her
approval.
7. COMPENSATION.
CITY shall pay CONTRACTOR in accordance with the fee schedule set forth in
CONTRACTOR’s bid. CONTRACTOR’s total compensation shall not exceed Three
Hundred Sixty-Three Thousand Thirty-Six Dollars ($363,036.00).
8. ADDITIONAL SERVICES.
CONTRACTOR shall not receive compensation for any services provided outside
the scope of the Contract Documents unless such additional services, including change
orders, are approved in writing by CITY prior to CONTRACTOR performing the additional
services.
It is specifically understood that oral requests or approvals of such additional
services, change orders or additional compensation and any approvals from CITY shall
be barred and are unenforceable.
9. PAYMENTS TO CONTRACTOR.
On or before the last Monday of each and every month during the performance of
the Work, CONTRACTOR shall meet with the Project Manager or his or her designee to
determine the quantity of pay items incorporated into the improvement during that month.
A “Progress Payment Order” will then be jointly prepared, approved, and signed by the
Project Manager and the CONTRACTOR setting forth the amount to be paid and
providing for a five percent (5%) retention. Upon approval of the progress payment order
by the Project Manager, or his or her designee, it shall be submitted to CITY’s Finance
Department and processed for payment by obtaining approval from the City Council to
issue a warrant.
Within three (3) days following City Council’s approval to issue a warrant, CITY
shall mail to CONTRACTOR a warrant for the amount specified in the progress payment
order as the amount to be paid. The retained five percent (5%) shall be paid to
CONTRACTOR thirty-five (35) days after the recording of the Notice of Completion of the
Work by the CITY with the Orange County Clerk-Recorder and after CONTRACTOR has
furnished releases of all claims against CITY by persons who furnished labor or materials
for the Work, if required by CITY.
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Upon the request of CONTRACTOR and at its expense, securities equivalent to
the amount withheld pursuant to the foregoing provisions may be presented to CITY for
substitution for the retained funds. If CITY approves the form and amount of the offered
securities it will release the retained funds and will hold the securities in lieu thereof.
CONTRACTOR shall be entitled to any interest earned on the securities.
In the event that claims for property damage or bodily injury are presented to CITY
arising out of CONTRACTOR’s or any subcontractor’s work under this Agreement, CITY
shall give notice thereof to CONTRACTOR, and CONTRACTOR shall have thirty-five (35)
days from the mailing of any such notice to evaluate the claim and to settle it by whole or
partial payment, or to reject it, and to give notice of settlement or rejection to CITY. If CITY
does not receive notice within the above-mentioned 35-day period that the claim has been
settled, and if the Project Manager, after consultation with the City Attorney, determines
that the claim is meritorious, CITY may pay the claim or a portion of it in exchange for an
appropriate release from the claimant, and may deduct the amount of the payment from
the retained funds that would otherwise be paid to CONTRACTOR upon completion of
the Work; provided, however, that the maximum amount paid for any one claim pursuant
to this provision shall be One Thousand Dollars ($1,000.00), and the maximum amount
for all such claims in the aggregate paid pursuant to this provision shall be Five Thousand
Dollars ($5,000.00).
10. PROMPT PAYMENT OF SUBCONTRACTORS.
CONTRACTOR agrees to pay each subcontractor under this Agreement for
satisfactory performance of its contract no later than seven (7) days from the receipt of
each payment the CONTRACTOR receives from CITY.
CONTRACTOR agrees further to release retainage payments to each
subcontractor within thirty (30) days after the subcontractor’s work is satisfactorily
completed.
Any delay or postponement of payment from the above referenced time frame may
occur only for good cause following written approval of the CITY.
11. TIME OF PERFORMANCE.
CONTRACTOR shall commence Work by the date specified in CITY’s Notice to
Proceed, unless a later date is agreed upon in writing by the parties. The Work shall be
completed within one hundred twenty (120) working days from the first day of
commencement of the Work.
12. TERMINATION.
(a) Termination for Convenience.
CITY may terminate this Agreement at any time, with or without cause, by
providing thirty (30) days’ written notice to CONTRACTOR.
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(b) Termination for Breach of Contract.
(i) If CONTRACTOR refuses or fails to prosecute the Work or any severable
part of it with such diligence as will ensure its timely completion, or if
CONTRACTOR fails to complete the Work on time, or if CONTRACTOR, or
any subcontractor, violates any of the provisions of the Contract
Documents, the Project Manager may give written notice to CONTRACTOR
and CONTRACTOR’s sureties of the CITY’s intention to terminate this
Agreement; and, unless within five (5) days after the serving of that notice,
such conduct shall cease and arrangements for the correction thereof be
made to the satisfaction of the CITY, this Agreement may be terminated at
the option of CITY effective upon CONTRACTOR’s receipt of a second
notice sent by the CITY indicating that the CITY has exercised its option to
terminate.
(ii) If CONTRACTOR is adjudged bankrupt or files for any relief under the
Federal Bankruptcy Code or State insolvency laws, this Agreement shall
automatically terminate without any further action or notice by CITY.
(iii) If CONTRACTOR is in breach of any material provision of this Agreement,
CITY may immediately terminate this Agreement by providing written notice
to CONTRACTOR of same.
13. LIQUIDATED DAMAGES.
In the event the Work is not completed, for any reason, within the time required
including any approved extensions of time, and to the satisfaction of the Project Manager,
CITY may, in addition to any other remedies, equitable and legal, including remedies
authorized by Paragraph 12 (Termination) of this Agreement, charge to CONTRACTOR
or its sureties, or deduct from payments or credits due CONTRACTOR, a sum equal to
Five Hundred Dollars ($500.00) as liquidated damages for each day beyond the date
provided for the completion of such Work.
The parties hereto agree that the amount set forth above, as liquidated damages
constitutes a fair and reasonable estimate of the costs the CITY would suffer for each day
that the CONTRACTOR fails to meet the performance schedule. The parties hereby
agree and acknowledge that the delays in the performance schedule will cause CITY to
incur costs and expenses not contemplated by this Agreement.
14. PERFORMANCE BY SURETIES.
In the event CONTRACTOR fails or refuses to perform the Work, CITY may
provide CONTRACTOR with a notice of intent to terminate as provided in Paragraph 12
(Termination), of this Agreement. CITY shall immediately give written notice of such intent
to terminate to CONTRACTOR and CONTRACTOR’s surety or sureties, and the sureties
shall have the right to take over and perform this Agreement; provided, however, that the
sureties must, within five (5) days after CITY’s giving notice of termination, (a) give the
CITY written notice of their intention to take over the performance of this Agreement; (b)
provide adequate assurances, to the satisfaction of the CITY, that the Work shall be
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performed diligently and in a timely manner; and (c) must commence performance thereof
within five (5) days after providing notice to the CITY of their intention to take over the
Work. Upon the failure of the sureties to comply with the provisions set forth above, CITY
may take over the Work and complete it, at the expense of CONTRACTOR, and the
CONTRACTOR and the sureties shall be liable to CITY for any excess costs or damages
including those referred to in Paragraph 13 (Liquidated Damages), incurred by CITY. In
such event, CITY may, without liability for so doing, take possession of such materials,
equipment, tools, appliances, Contract Documents and other property belonging to
CONTRACTOR as may be on the site of the Work and reasonably necessary therefor
and may use them to complete the Work.
15. DISPUTES PERTAINING TO PAYMENT FOR WORK.
Should any dispute arise respecting whether any delay is excusable, or its
duration, or the value of the Work done, or of any Work omitted, or of any extra Work
which CONTRACTOR may be required to do, or respecting any payment to
CONTRACTOR during the performance of this Agreement, such dispute shall be decided
by the Project Manager, and his or her decisions shall be final and binding upon
CONTRACTOR and its sureties.
16. SUPERINTENDENCE BY CONTRACTOR.
At all times during performance of the Work, CONTRACTOR shall give personal
superintendence or have a competent foreman or superintendent on the worksite, with
authority to act for CONTRACTOR.
17. INSPECTION BY CITY.
CONTRACTOR shall at all times maintain proper facilities and provide safe access
for inspection by CITY to all parts of the Work and to all shops on or off-site where the
Work or portions of the Work, are in preparation. CITY shall have the right of access to
the premises for inspection at all times. However, CITY shall, at all times, comply with
CONTRACTOR’s safety requirements on the job site.
18. CARE OF THE WORK AND OFF-SITE AUTHORIZATION.
CONTRACTOR warrants that it has examined the site of the Work and is familiar
with its topography and condition, location of property lines, easements, building lines
and other physical factors and limitations affecting the performance of this Agreement.
CONTRACTOR, at CONTRACTOR’s sole cost and expense, shall obtain any permission,
and all approvals, licenses, or easements necessary for any operations conducted off the
premises owned or controlled by CITY. CONTRACTOR shall be responsible for the
proper care and protection of all materials delivered to the site or stored off-site and for
the Work performed until completion and final inspection and acceptance by CITY. The
risk, damage or destruction of materials delivered to the site or to Work performed shall
be borne by CONTRACTOR.
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19. CONTRACT SECURITY AND GUARANTEE.
Unless previously provided by CONTRACTOR to CITY, CONTRACTOR shall
furnish, concurrently with the execution of this Agreement, the following: (1) a surety bond
in an amount equal to one hundred percent (100%) of the contract price as security for
the faithful performance of this Agreement, and (2) a separate surety bond in an amount
equal to at least one hundred percent (100%) of the contract price as security for the
payment of all persons furnishing labor or materials in connection with the Work under
this Agreement. Sureties for each of the bonds and the forms thereof shall be satisfactory
to CITY. In addition, such sureties must be authorized to issue bonds in California;
sureties must be listed on the latest revision to the U.S. Department of the Treasury
Circular 570; and must be shown to have sufficient bonding capacity to provide the bonds
required by the Contract Documents.
CONTRACTOR shall provide a certified copy of the certificate of authority of the
surety issued by the Insurance Commissioner; a certificate from the clerk of the county in
which the court or officer is located that the certificate of authority of the surety has not
been surrendered, revoked, canceled, annulled, or suspended or, in the event that it has,
that renewed authority has been granted; and copies of the surety’s most recent annual
statement and quarterly statement filed with the Department of Insurance pursuant to
Article 10 (commencing with Section 900) of Chapter 1 of Part 2 of Division 1 of the
Insurance Code.
CONTRACTOR guarantees that all materials used in the Work and all labor
performed shall be in conformity with the Contract Documents including, but not limited
to, the standards and specifications set forth in the most current edition of The Greenbook.
CONTRACTOR shall, at its own expense, make any and all repairs and replacements
that shall become necessary as the result of any failure of the Work to conform to the
aforementioned Contract Documents, and/or standard specifications; provided, however,
that CONTRACTOR shall be obligated under this provision only to the extent of those
failures or defects of which CONTRACTOR is given notice within a period of twelve (12)
months from the date that the Notice of Completion is recorded.
The rights and remedies available to CITY pursuant to this provision shall be
cumulative with all rights and remedies available to CITY pursuant to statutory and
common law, which rights and remedies are hereby expressly reserved, and neither the
foregoing guarantee by CONTRACTOR nor its furnishing of the bonds, nor acceptance
thereof by CITY, shall constitute a waiver of any rights or remedies available to CITY
against CONTRACTOR.
20. INDEMNIFICATION.
CONTRACTOR agrees to protect, defend, indemnify and hold harmless CITY and
its elected and appointed boards, officers, agents, and employees from any and all
claims, liabilities, expenses, or damages of any nature, including attorneys’ fees, for injury
to or death of any person, and for injury or damage to any property, including
consequential damages of any nature resulting therefrom, arising out of or in any way
connected with the performance of this Agreement. The defense obligation provided for
hereunder shall apply without any advance showing of negligence or wrongdoing by the
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CONTRACTOR, its employees, and/or authorized subcontractors, but shall be required
whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors,
omissions or misconduct of the CONTRACTOR, its employees, and/or authorized
subcontractors, and/or whenever any claim, action, complaint or suit asserts liability
against the CITY, its elected officials, officers, agents and employees based upon the
work performed by the CONTRACTOR, its employees, and/or authorized subcontractors
under this Agreement, whether or not the CONTRACTOR, its employees, and/or
authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the CONTRACTOR shall not be liable for the defense or
indemnification of the CITY for claims, actions, complaints or suits arising out of the sole
active negligence or willful misconduct of the CITY. This provision shall supersede and
replace all other indemnity provisions contained either in the CITY’s specifications or
CONTRACTOR’s proposal, which shall be of no force and effect.
CONTRACTOR shall comply with all of the provisions of the Workers’
Compensation insurance laws and Safety in Employment laws of the State of California,
including the applicable provisions of Divisions 4 and 5 of the California Labor Code and
all amendments thereto and regulations promulgated pursuant thereto, and all similar
State, Federal or local laws applicable; and CONTRACTOR shall indemnify and hold
harmless CITY from and against all claims, liabilities, expenses, damages, suits, actions,
proceedings and judgments, of every nature and description, including attorney fees, that
may be presented, brought or recovered against CITY for or on account of any liability
under or failure to comply with any of said laws which may be incurred by reason of any
Work performed under this Agreement by CONTRACTOR or any subcontractor or others
performing on behalf of CONTRACTOR.
CITY does not, and shall not, waive any rights against CONTRACTOR which it
may have by reason of the above hold harmless agreements, because of the acceptance
by CITY or the deposit with CITY by CONTRACTOR of any or all of the insurance policies
described in Paragraph 21 (Insurance) of this Agreement.
The hold harmless agreements by CONTRACTOR shall apply to all liabilities,
expenses, claims, and damages of every kind (including but not limited to attorneys’ fees)
incurred or alleged to have been incurred, by reason of the operations of CONTRACTOR
or any subcontractor or others performing on behalf of CONTRACTOR, whether or not
such insurance policies are applicable. CONTRACTOR shall require any and all tiers of
subcontractors to afford the same degree of indemnification to the CITY OF COSTA
MESA and its elected and appointed boards, officers, agents, and employees that is
required of CONTRACTOR and shall incorporate identical indemnity provisions in all
contracts between CONTRACTOR and all tiers of its subcontractors.
In the event that CONTRACTOR and CITY are sued by a third party for damages
caused or allegedly caused by negligent or other wrongful conduct of CONTRACTOR, or
by a dangerous condition of CITY’s property created by CONTRACTOR or existing while
the property was under the control of CONTRACTOR, CONTRACTOR shall not be
relieved of its indemnity obligation to CITY by any settlement with any such third party
unless that settlement includes a full release and dismissal of all claims by the third party
against the CITY.
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21. INSURANCE.
(a) Minimum Scope and Limits of Insurance. CONTRACTOR shall not
commence Work under this Agreement until it has obtained all insurance required under
this Paragraph 21 and CITY has approved the insurance as to form, amount, and carrier,
nor shall CONTRACTOR allow any subcontractor to commence any Work until all similar
insurance required of the subcontractor has been obtained and approved.
CONTRACTOR shall obtain, maintain, and keep in full force and effect during the
life of this Agreement all of the following minimum scope of insurance coverages with an
insurance company admitted to do business in California, rated “A,” Class X, or better in
the most recent Best’s Key Insurance Rating Guide, and approved by CITY:
(i) Commercial general liability, including premises-operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury or bodily injury
with a policy limit of not less than One Million Dollars ($1,000,000.00),
combined single limits, per occurrence. If such insurance contains a general
aggregate limit, it shall apply separately to this Agreement or shall be twice
the required occurrence limit.
(ii) Business automobile liability for owned vehicles, hired, and non-owned
vehicles, with a policy limit of not less than One Million Dollars
($1,000,000.00), combined single limits, per occurrence for bodily injury and
property damage.
(iii) Workers’ compensation insurance as required by the State of California,
with Statutory Limits, and Employer’s Liability insurance with a limit of no
less than One Million Dollars ($1,000,000.00) per accident for bodily injury
or disease. CONTRACTOR agrees to waive, and to obtain endorsements
from its workers’ compensation insurer waiving subrogation rights under its
workers’ compensation insurance policy against the CITY, its officers,
agents, employees, and volunteers arising from work performed by
CONTRACTOR for the CITY and to require each of its subcontractors, if
any, to do likewise under their workers’ compensation insurance policies.
(iv) Umbrella or excess liability insurance that will provide bodily injury, personal
injury and property damage liability coverage at least as broad as the
primary coverages set forth above, including commercial general liability,
automobile liability, and employer’s liability. Such policy or policies shall
include the following terms and conditions:
(1) A drop down feature requiring the policy to respond in the event that
any primary insurance that would otherwise have applied proves to
be uncollectable in whole or in part for any reason;
(2) Pay on behalf of wording as opposed to reimbursement;
(3) Concurrency of effective dates with primary policies;
(4) Policies shall “follow form” to underlying primary policies; and
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(5) Insureds under primary policies shall also be insureds under the
umbrella or excess policies.
(b) Endorsements. The commercial general liability insurance policy and
business automobile liability policy shall contain or be endorsed to contain the following
provisions:
(i) Additional insureds: The City of Costa Mesa and its elected and appointed
boards, officers, officials, agents, employees, and volunteers are additional
insureds with respect to: liability arising out of activities performed by or on
behalf of the CONTRACTOR pursuant to its contract with the City; products
and completed operations of the CONTRACTOR; premises owned,
occupied or used by the CONTRACTOR; automobiles owned, leased,
hired, or borrowed by the CONTRACTOR.”
(ii) Notice: “Said policy shall not terminate, nor shall it be canceled nor the
coverage reduced, until thirty (30) days after written notice is given to CITY.”
(iii) Other Insurance: “CONTRACTOR’s insurance coverage shall be primary
insurance as respects the City of Costa Mesa, its officers, officials, agents,
employees, and volunteers. Any other insurance maintained by the City of
Costa Mesa shall be excess and not contributing with the insurance
provided by this policy.”
(c) Reporting Provisions. Any failure of CONTRACTOR to comply with the
reporting provisions of the policies shall not affect coverage provided to the City of Costa
Mesa, its officers, officials, agents, employees, and volunteers.
(d) Insurance Applies Separately. CONTRACTOR’s insurance shall apply
separately to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer’s liability.
(e) Deductible or Self-Insured Retention. If any of such policies provide for a
deductible or self-insured retention to provide such coverage, the amount of such
deductible or self-insured retention shall be approved in advance by CITY. No policy of
insurance issued as to which the CITY is an additional insured shall contain a provision
which requires that no insured except the named insured can satisfy any such deductible
or self-insured retention.
(f) Proof of Insurance. Prior to commencement of the Work, CONTRACTOR
shall furnish CITY, through the Project Manager, proof of compliance with the above
insurance requirements in a form satisfactory to City’s Risk Management.
(g) Non-Limiting. Nothing in this Paragraph 21 shall be construed as limiting in
any way, the indemnification provision contained in this Agreement, or the extent to which
Consultant may be held responsible for payments of damages to persons or property.
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22. PREVAILING WAGE REQUIREMENTS.
(a) Prevailing Wage Laws. CONTRACTOR is aware of the requirements of
Chapter 1 (beginning at Section 1720 et seq.) of Part 7 of Division 2 of the California
Labor Code, as well as Title 8, Section 16000 et seq. of the California Code of Regulations
(“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the
performance of other requirements on “public works” and “maintenance” projects. This
Project is a “public works” project and requires compliance with the Prevailing Wage
Laws. CONTRACTOR shall defend, indemnify and hold the CITY, its elected officials,
officers, employees and agents free and harmless from any claim or liability arising out of
any failure or alleged failure to comply with the Prevailing Wage Laws.
(b) Payment of Prevailing Wages. CONTRACTOR shall pay the prevailing
wage rates for all work performed under this Agreement. When any craft or classification
is omitted from the general prevailing wage determinations, CONTRACTOR shall pay the
wage rate of the craft or classification most closely related to the omitted classification. A
copy of the general prevailing wage rate determination is on file in the Office of the City
Clerk and is incorporated into this Agreement as if fully set forth herein. CONTRACTOR
shall post a copy of such wage rates at all times at the project site(s).
(c) Legal Working Day. In accordance with the provisions of Labor Code
Section 1810 et seq., eight (8) hours is the legal working day. CONTRACTOR and any
subcontractor(s) of CONTRACTOR shall comply with the provisions of the Labor Code
regarding eight (8)-hour work day and 40-hour work week requirements, and overtime,
Saturday, Sunday, and holiday work. Work performed by CONTRACTOR’s or any
subcontractor’s employees in excess of eight (8) hours per day, and 40 hours during any
one week, must include compensation for all hours worked in excess of eight (8) hours
per day, or 40 hours during any one week, at not less than one and one-half times the
basic rate of pay. CONTRACTOR shall forfeit as a penalty to CITY Twenty-Five Dollars
($25.00), or any greater penalty set forth in the Labor Code, for each worker employed in
the execution of the Work by CONTRACTOR or by any subcontractor(s) of
CONTRACTOR, for each calendar day during which such worker is required or permitted
to the work more than eight (8) hours in one calendar day or more than 40 hours in any
one calendar week in violation of the Labor Code.
(d) Apprentices. CONTRACTOR shall comply with the provisions of Labor
Code Section 1777.5 concerning the employment of apprentices on public works projects.
CONTRACTOR shall be responsible for ensuring compliance by its subcontractors with
Labor Code Section 1777.5.
(e) Payroll Records. Pursuant to Labor Code Section 1776, CONTRACTOR
and any subcontractor(s) shall keep accurate payroll records, showing the name,
address, social security number, work classification, straight time and overtime hours
worked each day and week, and the actual per diem wages paid to each journeyman,
apprentice, worker, or other employee employed by CONTRACTOR or any subcontractor
in connection with this Agreement. Each payroll record shall contain or be verified by a
written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct; and (2) The
employer has complied with the requirements of Sections 1771, 1881, and 1815 of the
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Labor Code for any work performed by his or her employees on this Project. The payroll
records shall be certified and shall be available for inspection at all reasonable hours in
accordance with the requirements of Labor Code Section 1776. CONTRACTOR shall
also furnish each week to CITY’s Project Administration Division a statement with respect
to the wages of each of its employees during the preceding weekly payroll period.
(f) Registration with DIR. CONTRACTOR and any subcontractor(s) of
CONTRACTOR shall comply with the provisions of Labor Code Section 1771 and Labor
Code Section 1725.5 requiring registration with the DIR.
23. COMPLIANCE WITH ALL LAWS.
CONTRACTOR shall, at its own cost and expense, comply with all applicable local,
state, and federal laws, regulations, and requirements in the performance of this
Agreement, including but not limited to laws regarding health and safety, labor and
employment, and wage and hours.
24. DRUG-FREE WORKPLACE POLICY.
CONTRACTOR, upon notification of the award of this Agreement, shall establish
a Drug-Free Awareness Program to inform employees of the dangers of drug abuse in
the workplace, the penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace, and the employee assistance programs available
to employees. Each employee engaged in the performance of a CITY contract must be
notified of this Drug-Free Awareness Program, and must abide by its terms.
CONTRACTOR shall conform to all the requirements of CITY’s Policy No. 100-5,
attached hereto. Failure to establish a program, notify employees, or inform the CITY of
a drug-related workplace conviction will constitute a material breach of contract and cause
for immediate termination of the contract by the CITY.
25. NON–DISCRIMINATION.
In performing this Agreement, CONTRACTOR will not engage in, nor permit its
agents to engage in, discrimination in employment of persons because of their race,
religion, color, national origin, ancestry, physical handicap, medical condition, marital
status or sex, or sexual orientation, except as permitted pursuant to Section 12940 of the
Government Code. Violation of this provision may result in the imposition of penalties
referred to in Section 1735 of the California Labor Code.
26. PROVISIONS CUMULATIVE.
The provisions of this Agreement are cumulative and in addition to, and not in
limitation of, any other rights or remedies available to CITY.
27. NOTICES.
It shall be the duty and responsibility of CONTRACTOR to notify all tiers of
subcontractors and material men of the following special notice provision; namely, all
preliminary 20-day notices or stop notices shall be directed only to the City Clerk and to
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no other department, and shall be either personally delivered or sent by certified mail,
postage prepaid.
All other notices shall be in writing and delivered in person or sent by certified mail,
postage prepaid. Notices required to be given to CITY pursuant to this Agreement shall
be addressed as follows:
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
Attn: Seung Yang, P.E., City Engineer
Notices required to be given to CONTRACTOR shall be addressed as follows:
PTM General Engineering Services, Inc.
5942 Alcorn Street
Riverside, CA 92504
Attn: Elizabeth Mendoza de McRae, President/CFO
Notices required to be given to CONTRACTOR’s sureties shall be addressed as
follows:
Great American Insurance Company
818 W. Seventh Street, Suite 930
Los Angeles, CA 90017
Attn: Vivian Imperial
28. INDEPENDENT CONTRACTOR.
The parties hereto acknowledge and agree that the relationship between CITY and
CONTRACTOR is one of principal and independent contractor and no other. All personnel
to be utilized by CONTRACTOR in the performance of this Agreement shall be employees
of CONTRACTOR and not employees of the CITY. CONTRACTOR shall pay all salaries
and wages, employer’s social security taxes, unemployment insurance and similar taxes
relating to employees and shall be responsible for all applicable withholding taxes.
Nothing contained in this Agreement shall create or be construed as creating a
partnership, joint venture, employment relations, or any other relationship except as set
forth between the parties. The parties specifically acknowledge and agree that
CONTRACTOR is not a partner with CITY, whether general or limited, and no activities
of CITY or CONTRACTOR or statements made by CITY or CONTRACTOR shall be
interpreted by any of the parties hereto as establishing any type of business relationship
other than an independent contractor relationship.
29. PERS ELIGIBILITY INDEMNIFICATION.
In the event that CONTRACTOR or any employee, agent, or subcontractor of
CONTRACTOR providing services under this Agreement claims or is determined by a
court of competent jurisdiction or the California Public Employees’ Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of the CITY,
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CONTRACTOR shall indemnify, defend, and hold harmless CITY for the payment of any
employee and/or employer contributions for PERS benefits on behalf of CONTRACTOR
or its employees, agents, or subcontractors, as well as for the payment of any penalties
and interest on such contributions, which would otherwise be the responsibility of CITY.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or
ordinance to the contrary, CONTRACTOR and any of its employees, agents, and
subcontractors providing service under this Agreement shall not qualify for or become
entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any
incident of employment by CITY, including but not limited to eligibility to enroll in PERS
as an employee of CITY and entitlement to any contribution to be paid by CITY for
employer contribution and/or employee contributions for PERS benefits.
30. VALIDITY.
The invalidity in whole or in part of any provision of this Agreement shall not void
or affect the validity of any of the other provisions of this Agreement.
31. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws
of the State of California. Any legal action relating to or arising out of this Agreement shall
be subject to the jurisdiction of the County of Orange, California.
32. RESOLUTION OF CONTRACTOR CLAIMS.
CONTRACTOR claims, as defined in California Public Contract Code section
9204, shall be resolved in accordance with the provisions of Section 9204 and applicable
law. A summary of Section 9204 is attached hereto as Exhibit E.
33. NO THIRD PARTY BENEFICIARY RIGHTS.
This Agreement is entered into for the sole benefit of the CITY and CONTRACTOR
and no other parties are intended to be direct or incidental beneficiaries of this Agreement
and no third party shall have any right in, under or to this Agreement.
34. ASSIGNABILITY.
This Agreement may not be transferred or assigned by either party, or by operation
of law, to any other person or persons or business entity, without the other party’s written
permission. Any such transfer or assignment, or attempted transfer or assignment,
without written permission, may be deemed by the other party to constitute a voluntary
termination of this Agreement and this Agreement shall thereafter be deemed terminated
and void.
35. WAIVER.
No waiver of any provision of this Agreement shall be effective unless in writing
and signed by a duly authorized representative of the party against whom enforcement
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of a waiver is sought referring expressly to this Paragraph. The waiver of any right or
remedy in respect to any occurrence or event shall not be deemed a waiver of any right
or remedy in respect to any other occurrence or event, nor shall any waiver constitute a
continuing waiver.
36. HEADINGS.
Section and subsection headings are not to be considered part of this Agreement,
are included solely for convenience, and are not intended to modify or explain or to be a
full or accurate description of the content thereof.
37. COUNTERPARTS.
This Agreement may be executed in one or more counterparts by the parties
hereto. All counterparts shall be construed together and shall constitute one Agreement.
38. CORPORATE AUTHORITY.
The persons executing this Agreement on behalf of the parties hereto warrant that
they are duly authorized to execute this Agreement on behalf of said parties and that by
doing so, the parties hereto are formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their respective authorized officers, as of the date first above
written.
CITY OF COSTA MESA,
A municipal corporation
__________________________________ Date: __________________________
Lori Ann Farrell Harrison
City Manager
CONTRACTOR
__________________________________ Date: __________________________
Signature
__________________________________
Name and Title
__________________________________ Date: __________________________
Signature
__________________________________
Name and Title
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ATTEST:
__________________________________ Date: __________________________
Brenda Green
City Clerk
APPROVED AS TO FORM:
__________________________________ Date: __________________________
Kimberly Hall Barlow
City Attorney
APPROVED AS TO INSURANCE:
__________________________________ Date: __________________________
Ruth Wang
Risk Management
APPROVED AS TO PURCHASING:
__________________________________ Date: __________________________
Carol Molina
Finance Director
DEPARTMENTAL APPROVAL:
__________________________________ Date: __________________________
Raja Sethuraman
Public Services Director
__________________________________ Date: __________________________
Seung Yang
Project Manager
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EXHIBIT A
CONTRACTOR’S BID
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EXHIBIT C
ADDENDA
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1
CITY OF COSTA MESA
P.O. BOX 12000 77 FAIR DRIVE CALIFORNIA 92628·1200
FROM THE DEPARTMENT OF PUBLIC SERVICES/ENGINEERING DIVISION
DATE: MAY 14, 2020
TO:ALL PROSPECTIVE BIDDERS
SUBJECT: ADDENDUM NO. 1 – NEW TRAFFIC SIGNAL FOR BAKER STREET AT
RANDOLPH AVENUE, CITY PROJECT NO. 21-01
Please forward this addendum to the appropriate individual as soon as possible. To assist our office
in confirming the delivery of this addendum, please sign acknowledging receipt herein and e-mail a
copy of this sheet to seung.yang@costamesaca.gov. A COPY WILL NOT BE SENT BY MAIL.
Received by: ___________________________________________________________________
Company: _____________________________________________________________________
All bidders shall register with CIPList.com in order to retrieve addenda. It is the responsibility of each
prospective bidder to check CIPLIST.com on a DAILY basis through the close of bids for any
applicable addenda or updates.
This addendum, effective on this date, addresses and modifies the following items:
This project, entitled “NEW TRAFFIC SIGNAL FOR BAKER STREET AT RANDOLPH AVENUE”
shall be now City Project No. 21-01.
The contents of this addendum shall have precedence over all related provisions within the contract
documents. It is the intent of the City to clarify the above-mentioned items to all bidders. Should it be
necessary to request clarification on these matters, please contact me via email:
Seung.Yang@costamesaca.gov.
Sincerely,
Seung Yang, P.E.
City Engineer
1
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EXHIBIT D
BONDS
[TO BE ATTACHED FOLLOWING CITY COUNCIL APPROVAL.]
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EXHIBIT E
SUMMARY OF PUBLIC CONTRACT CODE 9204
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SUMMARY OF PUBLIC CONTRACT CODE § 9204
The following procedure will apply to any claims by the Contractor on the City:
A “claim” is a separate demand on the City by a contractor on a public works project and
sent by registered mail or certified mail with return receipt requested, for one or more of the
following:
• A time extension, including relief from penalties for delay
• Payment by the City of money damages under the terms of the contract
• Payment of an amount that is disputed by the City
Initial Review
The claim must be supported by appropriate documentation. The City has 45 days within
which to review the claim and provide the contractor with a written statement identifying the
disputed and undisputed portions of the claim. If the City does not issue a written statement, the
claim is deemed rejected in its entirety. The City will pay any undisputed portion of the claim
within 60 days of issuing the statement.
Meet & Confer
If the contractor disputes the City’s written response, or if the City does not issue one, the
contractor may request in writing an informal conference to meet and confer for possible settlement
of the claim. The City will schedule the meet and confer conference within 30 days of this request
and provide a written statement identifying the remaining disputed and undisputed portions of the
claim within 10 business days of the meet and confer. The City will pay the undisputed portion
within 60 days of issuing this statement.
Mediation
With respect to any disputed portion remaining after the meet and confer, the City and
contractor will submit the matter to nonbinding mediation, agree to a mediator within 10 business
days after issuing the written statement, and share mediation costs equally. If mediation is
unsuccessful, then the terms of the public works agreement and applicable law will govern
resolution of the dispute.
Miscellaneous Provisions
Amounts not paid by the City in a timely manner bear interest at 7% per annum.
Subcontractors may submit claims via this procedure through the general contractor. The City and
contractor may waive the requirement to mediate, but cannot otherwise waive these claim
procedures.
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EXHIBIT F
DRUG-FREE WORKPLACE POLICY
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CITY OF COSTA MESA, CALIFORNIA
COUNCIL POLICY
BACKGROUND
Under the Federal Drug -Free Workplace Act of 1988, passed as part of omnibus drug legislation
enacted November 18, 1988, contractors and grantees of Federal funds must certify that they will
provide drug-free workplaces. At the present time, the City of Costa Mesa, as a sub -grantee of
Federal funds under a variety of programs, is required to abide by this Act. The City Council has
expressed its support of the national effort to eradicate drug abuse through the creation of a
Substance Abuse Committee, institution of a City -wide D.A.R.E. program in all local schools and
other activities in support of a drug -free community. This policy is intended to extend that effort
to contractors and grantees of the City of Costa Mesa in the elimination of dangerous drugs in the
workplace.
PURPOSE
It is the purpose of this Policy to:
1. Clearly state the City of Costa Mesa’s commitment to a drug -free society.
2. Set forth guidelines to ensure that public, private, and nonprofit organizations receiving
funds from the City of Costa Mesa share the commitment to a drug -free workplace.
POLICY
The City Manager, under direction by the City Council, shall take the necessary steps to see that
the following provisions are included in all contracts and agreements entered into by the City of
Costa Mesa involving the disbursement of funds.
1. Contractor or Sub-grantee hereby certifies that it will provide a drug -free workplace by:
A. Publishing a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance is prohibited in
Contractor’s and/or sub-grantee’s workplace, specifically the job site or location
included in this contract, and sp ecifying the actions that will be taken against the
employees for violation of such prohibition;
B. Establishing a Drug-Free Awareness Program to inform employees about:
SUBJECT
DRUG-FREE WORKPLACE
POLICY
NUMBER
100-5
EFFECTIVE
DATE
8-8-89
PAGE
1 of 3
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SUBJECT
DRUG-FREE WORKPLACE
POLICY
NUMBER
100-5
EFFECTIVE
DATE
8-8-89
PAGE
2 of 3
1. The dangers of drug abuse in the workplace;
2. Contractor’s and/or sub-grantee’s policy of maintaining a drug -free workplace;
3. Any available drug counseling, rehabilitation and employee assistance programs;
and
4. The penalties that may be imposed upon employees for drug abuse violations
occurring in the workplace;
C. Making it a requirement that each employee to be engaged in the performance of the
contract be given a copy of the statement required by subparagraph A;
D. Notifying the employee in the statement required by subparagraph 1 A that, as a
condition of employment under the contract, the employee will:
1. Abide by the terms of the statement; and
2. Notify the employer of any criminal drug statute conviction for a viol ation occurring
in the workplace no later than five (5) days after such conviction;
E. Notifying the City of Costa Mesa within ten (10) days after receiving notice under
subparagraph 1 D 2 from an employee or otherwise receiving the actual notice of such
conviction;
F. Taking one of the following actions within thirty (30) days of receiving notice under
subparagraph 1 D 2 with respect to an employee who is so convicted:
1. Taking appropriate personnel action against such an employee, up to and
including termination; or
2. Requiring such employee to participate satisfactorily in a drug abuse assistance or
rehabilitation program approved for such purposes by a Federal, State, or local
health agency, law enforcement, or other appropriate agency;
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SUBJECT
DRUG-FREE WORKPLACE
POLICY
NUMBER
100-5
EFFECTIVE
DATE
8-8-89
PAGE
3 of 3
G. Making a good faith effort to maintain a drug -free workplace through implementation
of subparagraphs 1 A through 1 F, inclusive.
2. Contractor and/or sub-grantee shall be deemed to be in violation of this Policy if the City
of Costa Mesa determines that:
a. Contractor and/or sub-grantee has made a false certification under paragraph 1
above;
b. Contractor and/or sub-grantee has violated the certification by failing to carry out
the requirements of subparagraphs 1 A through 1 G above;
c. Such number of employees of Contractor and/or sub -grantee have been convicted
of violations of criminal drug statutes for violations occurring in the workpla ce as
to indicate that the contractor and/or sub -grantee has failed to make a good faith
effort to provide a drug-free workplace.
3. Should any contractor and/or sub -grantee be deemed to be in violation of this Policy
pursuant to the provisions of 2 A, B, and C, a suspension, termination or debarment
proceeding subject to applicable Federal, State, and local laws shall be conducted. Upon
issuance of any final decision under this section requiring debarment of a contractor and/or
sub-grantee, the contracto r and/or sub-grantee shall be ineligible for award of any
contract, agreement or grant from the City of Costa Mesa for a period specified in the
decision, not to exceed five (5) years. Upon issuance of any final decision recommending
against debarment of the contractor and/or sub-grantee, the contractor and/or sub-grantee
shall be eligible for compensation as provided by law.
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