ResolutionNo1329_HVAC_Project2023-01_BudgetAmendment_ECONTRACT AGREEMENT
This Construction Agreement (“Agreement”) is made and entered into as of the
date executed by the City Manager and attested to by the City Clerk, by and between AC
Pros Inc., a California corporation (hereinafter referred to as "CONTRACTOR") and the
City of Rolling Hills, California, a municipal corporation (hereinafter referred to as "CITY").
R E C I T A L S
A. Pursuant to the Notice Inviting Sealed Bids for the City Hall HVAC Replacement
Project, Job No. 2023-01 (Project”), bids were received, publicly opened, and declared
on the date specified in the notice; and
B. On March 13, 2023, City’s City Council declared CONTRACTOR to be the lowest
responsible bidder and accepted the bid of CONTRACTOR; and
C. The City Council has authorized the City Manager to execute a written contract with
CONTRACTOR for furnishing labor, equipment and material for the City Hall HVAC
Replacement Project, Job No. 2023-01 in the City of Rolling Hills.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained, it is agreed:
1. GENERAL SCOPE OF WORK: CITY agrees to engage CONTRACTOR and
CONTRACTOR agrees to furnish all necessary labor, tools, materials, for the
Project in the City of Rolling Hills. The work shall be performed in accordance with
the Plans and Specifications dated 12/28/2022 (the “Specifications”) on file in the
office of the City Clerk and in accordance with bid prices set forth in
CONTRACTOR’S Bid Proposal and in accordance with the instructions of the City.
2. INCORPORATED DOCUMENTS TO BE CONSIDERED COMPLEMENTARY:
The contract documents for the aforesaid project shall consist of all the documents
and exhibits in the Request for Bid and all referenced specifications, details,
standard drawings, and appendices; together with this Agreement and all required
bonds, insurance certificates, permits, notices and affidavits; and also, including
any and all addenda or supplemental agreements clarifying, amending, or
extending the work contemplated as may be required to insure its completion in an
acceptable manner. All of the provisions of said contract documents are made a
part hereof as though fully set forth herein. This contract is intended to require a
complete and finished piece of work and anything necessary to complete the work
properly and in accordance with the law and lawful governmental regulations shall
be performed by CONTRACTOR whether set out specifically in the contract or not.
Should it be ascertained that any inconsistency exists between the aforesaid
documents and this written agreement, the provisions of this Agreement shall
govern. Collectively, these contract documents constitute the complete agreement
between CITY and CONTRACTOR and supersede any previous agreements or
understandings.
3. COMPENSATION: CONTRACTOR agrees to receive and accept the prices set
forth in its Bid Proposal of one hundred and eighty eight thousand, five hundred
and seventy dollars ($188,570.00) as full compensation for furnishing all materials,
performing all work, and fulfilling all obligations hereunder. Said compensation
shall cover all expenses, losses, damages, and consequences arising out of the
nature of the work during its progress or prior to its acceptance including those for
well and faithfully completing the work and the whole thereof in the manner and
time specified in the aforesaid contract documents; and also including those arising
from actions of the elements, unforeseen difficulties or obstructions encountered
in the prosecution of the work, suspension or discontinuance of the work, and all
other unknowns or risks of any description connected with the work.
4. TIME OF PERFORMANCE: CONTRACTOR agrees to complete the work within
45 working days from the date of the notice to proceed. By signing this Agreement,
CONTRACTOR represents to CITY that the contract time is reasonable for
completion of the work and that CONTRACTOR will complete such work within the
contract time.
5. LIQUIDATED DAMAGES: In accordance with Government Code section
53069.85, it is agreed that CONTRACTOR will pay to CITY the sum of be
$1000/day for each and every calendar day of delay beyond the time prescribed
in the Contract Documents for finishing the Work, as Liquidated Damages and not
as a penalty or forfeiture. In the event this is not paid, CONTRACTOR agrees CITY
may deduct that amount from any money due or that may become due
CONTRACTOR under the Contract. This Article does not exclude recovery of other
damages specified in the Contract Documents.
6. SUBSTITUTION OF SECURITIES: Pursuant to section 22300 of the Public
Contract Code of the State of California, CONTRACTOR may request CITY to
make retention payments directly to an escrow agent or may substitute securities
for any money withheld by CITY to ensure performance under the contract. At the
request and expense of CONTRACTOR, securities equivalent to the amount
withheld shall be deposited with CITY or with a state or federally chartered bank
as the escrow agent who shall return such securities to CONTRACTOR upon
satisfactory completion of the contract. Deposit of securities with an escrow agent
shall be subject to a written agreement substantially in the form provided in section
22300 of the Public Contract Code.
7. PREVAILING WAGES AND CALIFORNIA LABOR LAWS.
Pursuant to Labor Code §§ 1720 et seq., and as specified in 8 California Code of
Regulations § 16000 (“Prevailing Wage Laws”), CONTRACTOR must pay its
workers prevailing wages. It is CONTRACTOR’s responsibility to interpret and
implement any prevailing wage requirements, and CONTRACTOR agrees to pay
any penalty or civil damages resulting from a violation of the prevailing wage laws.
CONTRACTOR shall defend, indemnify and hold the CITY, its 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.
CONTRACTOR and any subcontractor shall forfeit a penalty of up to $200 per
calendar day or portion thereof for each worker paid less than the prevailing wage
rates.
In accordance with Labor Code § 1773.2, copies of the prevailing rate of per diem
wages are available upon request from CITY’s Engineering Division or the website
for State of California Prevailing wage determination at
http://www.dir.ca.gov/DLSR/PWD. CONTRACTOR must post a copy of the
prevailing rate of per diem wages at the job site.
CITY directs CONTRACTOR’s attention to Labor Code §§ 1777.5, 1777.6 and
3098 concerning the employment of apprentices by CONTRACTOR or any
subcontractor.
Labor Code § 1777.5 requires CONTRACTOR or subcontractor employing
tradesmen in any apprenticeship occupation to apply to the joint apprenticeship
committee nearest the site of the public works project and which administers the
apprenticeship program in that trade for a certificate of approval. The certificate
must also fix the ratio of apprentices to journeymen that will be used in the
performance of the contract. The ratio of apprentices to journeymen in such cases
will not be less than one to five except:
When employment in the area of coverage by the joint apprenticeship committee
has exceeded an average of 15 percent in the 90 days before the request for
certificate, or
When the number of apprentices in training in the area exceeds a ratio of one to
five, or
When the trade can show that it is replacing at least 1/30 of its membership through
apprenticeship training on an annual basis state-wide or locally, or
Assignment of an apprentice to any work performed under a public works contract
would create a condition that would jeopardize his or her life or the life, safety, or
property of fellow employees or the public at large, or the specific task to which the
apprentice is to be assigned is of a nature that training cannot be provided by a
journeyman.
When CONTRACTOR provides evidence that CONTRACTOR employs registered
apprentices on all of his contracts on an annual average of not less than one
apprentice to eight journeymen.
CONTRACTOR is required to make contributions to funds established for the
administration of apprenticeship programs if CONTRACTOR employs registered
apprentices or journeymen in any apprenticeable trade on such contracts and if
other contractors on the public works site are making such contributions.
CONTRACTOR and any subcontractor must comply with Labor Code §§ 1777.5
and 1777.6 in the employment of apprentices.
Information relative to apprenticeship standards, wage schedules and other
requirements may be obtained from the Director of Industrial Relations, ex-officio
the Administrator of Apprenticeship, San Francisco, California, or from the Division
of Apprenticeship Standards and its branch offices.
The CONTRACTOR or any subcontractor that is determined by the Labor
Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil
penalty an amount not exceeding $100 for each full calendar day of
noncompliance, or such greater amount as provided by law.
CONTRACTOR and each subcontractor shall keep an accurate payroll record,
showing the name, address, social security number, work classification, straight
time and overtime hours worked each day and week, and the actual per diem
wages paid to each journeyman, apprentice, worker, or other employee employed
by him or her in connection with the public work. The payroll records shall be
certified and shall be available for inspection at all reasonable hours at the principal
office of CONTRACTOR in the manner provided in Labor Code section 1776. In
the event of noncompliance with the requirements of this section, CONTRACTOR
shall have 10 days in which to comply subsequent to receipt of written notice
specifying in what respects such CONTRACTOR must comply with this section.
Should noncompliance still be evident after such 10-day period, CONTRACTOR
shall, as a penalty to CITY, forfeit not more than $100.00 for each calendar day or
portion thereof, for each worker, until strict compliance is effectuated. The amount
of the forfeiture is to be determined by the Labor Commissioner. A contractor who
is found to have violated the provisions of law regarding wages on Public Works
with the intent to defraud shall be ineligible to bid on Public Works contracts for a
period of one to three years as determined by the Labor Commissioner. Upon the
request of the Division of Apprenticeship Standards or the Division of Labor
Standards Enforcement, such penalties shall be withheld from progress payments
then due. The responsibility for compliance with this section is on CONTRACTOR.
The requirement to submit certified payroll records directly to the Labor
Commissioner under Labor Code section 1771.4 shall not apply to work performed
on a public works project that is exempt pursuant to the small project exemption
specified in Labor Code Section 1771.4.
Any ineligible contractor or subcontractor pursuant to Labor Code Sections
1777.1 and 1777.7 may not perform work on this Project.
By executing this Contract, CONTRACTOR verifies that it fully complies with all
requirements and restrictions of state and federal law respecting the employment
of undocumented aliens, including, but not limited to, the Immigration Reform and
Control Act of 1986, as may be amended from time to time, and shall require all
subcontractors and sub-subcontractors to comply with the same.
8. LEGAL HOURS OF WORK: Eight (8) hours of labor shall constitute a legal day's
work for all workmen employed in the execution of this contract, and
CONTRACTOR and any subcontractor under it shall comply with and be governed
by the laws of the State of California having to do with working hours set forth in
Division 2, Part 7, Chapter 1, Article 3 of the Labor Code of the State of California
as amended.
CONTRACTOR shall forfeit, as a penalty to City, twenty-five dollars ($25.00) for
each laborer, workman or mechanic employed in the execution of the contract, by
him or any subcontractor under it, upon any of the work hereinbefore mentioned,
for each calendar day during which the laborer, worker or mechanic is required or
permitted to labor more than eight (8) hours in any one calendar day or 40 hours
in any one calendar week in violation of the Labor Code.
9. PUBLIC WORKS CONTRACTOR REGISTRATION: Pursuant to Labor Code
sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on,
be listed in a bid proposal, or enter into a contract to perform public work must be
registered with the Department of Industrial Relations (DIR). No bid will be
accepted nor any contract entered into without proof of the contractor’s and
subcontractors’ current registration with the DIR to perform public work.
Notwithstanding the foregoing, the contractor registration requirements mandated
by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on
a public works project that is exempt pursuant to the small project exemption
specified in Labor Code Sections 1725.5 and 1771.1.
10. LABOR COMPLIANCE AND STOP ORDERS: This Project is subject to
compliance monitoring and enforcement by the DIR. It shall be CONTRACTOR’s
sole responsibility to evaluate and pay the cost of complying with all labor
compliance requirements under this Contract and applicable law. Any stop orders
issued by the DIR against CONTRACTOR or any subcontractor that affect
CONTRACTOR’s performance of Work, including any delay, shall be
CONTRACTOR’s sole responsibility. Any delay arising out of or resulting from
such stop orders shall be considered CONTRACTOR caused delay subject to any
applicable liquidated damages and shall not be compensable by the CITY.
CONTRACTOR shall defend, indemnify and hold CITY, its officials, officers,
employees and agents free and harmless from any claim or liability arising out of
stop orders issued by the DIR against CONTRACTOR or any subcontractor.
11. DEBARMENT OF CONTRACTORS AND SUBCONTRACTORS: Contractors or
subcontractors may not perform work on a public works project with a
subcontractor who is ineligible to perform work on a public project pursuant to
Labor Code section 1777.1 or 1777.7. Any contract on a public works project
entered into between a contractor and a debarred subcontractor is void as a matter
of law. A debarred subcontractor may not receive any public money for performing
work as a subcontractor on a public works contract. Any public money that is paid,
or may have been paid to a debarred subcontractor by a contractor on the Project
shall be returned to the CITY. CONTRACTOR shall be responsible for the
payment of wages to workers of a debarred subcontractor who has been allowed
to work on the project.
12. LABOR/EMPLOYMENT SAFETY: CONTRACTOR shall comply with all applicable
laws and regulations of the federal, state, and local government, including
Cal/OSHA requirements and requirements for verification of employees’ legal right
to work in the United States
CONTRACTOR shall maintain emergency first aid treatment for its employees
which complies with the Federal Occupational Safety and Health Act of 1970 (29
U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial
Relations Division 1, Department of Industrial Relations, Chapter 4.
CONTRACTOR shall ensure the availability of emergency medical services for its
employees in accordance with California Code of Regulations, Title 8, Section
1512.
CONTRACTOR shall submit the Illness and Injury Prevention Program and a
Project site specific safety program to CITY prior to beginning Work at the Project
site. CONTRACTOR shall maintain a confined space program that meets or
exceeds the CITY Standards. CONTRACTOR shall adhere to CITY’s lock out tag
out program
13. TRAVEL AND SUBSISTENCE PAY: CONTRACTOR agrees to pay travel and
subsistence pay to each worker needed to execute the work required by this
Agreement as such travel and subsistence payments are defined in the applicable
collective bargaining agreements filed in accordance with Labor Code Section
1773.8.
14. CONTRACTOR'S LIABILITY: The City of Rolling Hills and its respective elected
officials, officers, attorneys, agents, employees, volunteers, successors, and
assigns (collectively “Indemnitees”) shall not be answerable or accountable in any
manner for any loss or damage that may happen to the work or any part thereof,
or for any of the materials or other things used or employed in performing the work;
or for injury or damage to any person or persons, either workers or employees of
CONTRACTOR, of its subcontractors or the public, or for damage to adjoining or
other property from any cause whatsoever arising out of or in connection with the
performance of the work. CONTRACTOR shall be responsible for any damage or
injury to any person or property resulting from defects or obstructions or from any
cause whatsoever.
To the fullest extent permitted by law, CONTRACTOR will indemnify
Indemnities against and will hold and save Indemnitees harmless from any and all
actions, claims, damages to persons or property, penalties, obligations or liabilities
that may be asserted or claimed by any person, firm, entity, corporation, political
subdivision, or other organization arising out of or in connection with the work,
operation, or activities of CONTRACTOR, its agents, employees, subcontractors
or invitees provided for herein, whether or not there is concurrent passive
negligence on the part of City. In connection therewith:
a. CONTRACTOR will defend any action or actions filed in connection
with any such claims, damages, penalties, obligations or liabilities
and will pay all costs and expenses, including attorneys' fees,
expert fees and costs incurred in connection therewith.
b. CONTRACTOR will promptly pay any judgment rendered against
CONTRACTOR or Indemnitees covering such claims, damages,
penalties, obligations and liabilities arising out of or in connection
with such work, operations or activities of CONTRACTOR
hereunder, and CONTRACTOR agrees to save and hold the
Indemnitees harmless therefrom.
c. In the event Indemnitees are made a party to any action or
proceeding filed or prosecuted against CONTRACTOR for damages
or other claims arising out of or in connection with the work, operation
or activities hereunder, CONTRACTOR agrees to pay to
Indemnitees and any all costs and expenses incurred by
Indemnitees in such action or proceeding together with reasonable
attorneys' fees.
Contractor's obligations under this section apply regardless of whether or
not such claim, charge, damage, demand, action, proceeding, loss, stop notice,
cost, expense, judgment, civil fine or penalty, or liability was caused in part or
contributed to by an Indemnitee. However, without affecting the rights of City
under any provision of this agreement, to the extent required by Civil Code section
2782, Contractor shall not be required to indemnify and hold harmless City for
liability attributable to the active negligence of City, provided such active
negligence is determined by agreement between the parties or by the findings of
a court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City active negligence accounts for only a percentage
of the liability involved, the obligation of Contractor will be for that entire portion or
percentage of liability not attributable to the active negligence of City.
So much of the money due to CONTRACTOR under and by virtue of the
contract as shall be considered necessary by City may be retained by City until
disposition has been made of such actions or claims for damages as aforesaid.
It is expressly understood and agreed that the foregoing provisions are
intended to be as broad and inclusive as is permitted by the law of the State of
California. This indemnity provision shall survive the termination of the Agreement
and is in addition to any other rights or remedies which Indemnitees may have
under the law.
This indemnity is effective without reference to the existence or applicability
of any insurance coverage which may have been required under this Agreement
or any additional insured endorsements which may extend to Indemnitees.
CONTRACTOR, on behalf of itself and all parties claiming under or through
it, hereby waives all rights of subrogation and contribution against the Indemnitees,
while acting within the scope of their duties, from all claims, losses and liabilities
arising out of or incident to activities or operations performed by or on behalf of the
CONTRACTOR regardless of any prior, concurrent, or subsequent passive
negligence by the Indemnitees.
15. THIRD PARTY CLAIMS. In accordance with Public Contract Code § 9201, CITY
will promptly inform CONTRACTOR regarding third-party claims against
CONTRACTOR, but in no event later than ten (10) business days after CITY
receives such claims. Such notification will be in writing and forwarded in
accordance with the “Notice” section of this Agreement. As more specifically
detailed in the contract documents, CONTRACTOR agrees to indemnify and
defend the City against any third-party claim.
16. WORKERS COMPENSATION: In accordance with California Labor Code
Sections 1860 and 3700, CONTRACTOR and each of its subcontractors will be
required to secure the payment of compensation to its employees. In accordance
with the provisions of California Labor Code Section 1861, CONTRACTOR, by
signing this contract, certifies as follows: "I am aware of the provisions of Section
3700 of the Labor Code which require every employer to be insured against liability
for worker's compensation or to undertake self-insurance in accordance with the
provisions of that code, and I will comply with such provisions before commencing
the performance of the work of this contract.
17. INSURANCE: CONTRACTOR shall procure and maintain for the duration of the
Agreement, and for 1 year thereafter, insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the
performance of the work hereunder by the CONTRACTOR, its agents,
representatives, employees, or subcontractors.
a. Minimum Scope and Limit of Insurance. Coverage shall be at least as broad
as:
i. Commercial General Liability (CGL): Insurance Services Office (ISO)
Form CG 00 01 covering CGL on an “occurrence” basis, including
products and completed operations, property damage, bodily injury and
personal & advertising injury with limits no less than $5,000,000 per
occurrence. If a general aggregate limit applies, either the general
aggregate limit shall apply separately to this project/location (ISO CG 25
03 or 25 04) or the general aggregate limit shall be twice the required
occurrence limit.
ii. Automobile Liability: Insurance Services Office Form CA 0001 covering
Code 1 (any auto), with limits no less than $5,000,000 per accident for
bodily injury and property damage.
iii. Workers’ Compensation insurance as required by the State of California,
with Statutory Limits, and Employers’ Liability insurance with a limit of no
less than $1,000,000 per accident for bodily injury or disease.
iv. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk”
(Special Perils) coverage form, with limits equal to the completed value of
the project and no coinsurance penalty provisions.
v. Professional Liability (if Design/Build), with limits no less than $2,000,000
per occurrence or claim, and $2,000,000 policy aggregate.
vi. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or
Errors and Omissions (if project involves environmental hazards) with
limits no less than $1,000,000 per occurrence or claim, and $2,000,000
policy aggregate.
vii. If the contractor maintains broader coverage and/or higher limits than the
minimums shown above, the CITY requires and shall be entitled to the
broader coverage and/or the higher limits maintained by CONTRACTOR.
Any available insurance proceeds in excess of the specified minimum
limits of insurance and coverage shall be available to the CITY.
b. Self-Insured Retentions. Self-insured retentions must be declared to and
approved by the CITY. At the option of the CITY, either: the CONTRACTOR
shall obtain coverage to reduce or eliminate such self-insured retentions as
respects the CITY, its officers, officials, employees, and volunteers; or the
CONTRACTOR shall provide a financial guarantee satisfactory to the CITY
guaranteeing payment of losses and related investigations, claim
administration, and defense expenses. The policy language shall provide, or
be endorsed to provide, that the self-insured retention may be satisfied by
either the named insured or CITY.
c. Other Insurance Provisions. The insurance policies are to contain, or be
endorsed to contain, the following provisions:
i. The CITY, its officers, officials, employees, and volunteers are to be
covered as additional insureds on the CGL policy with respect to liability
arising out of work or operations performed by or on behalf of the
CONTRACTOR including materials, parts, or equipment furnished in
connection with such work or operations and automobiles owned, leased,
hired, or borrowed by or on behalf of the CONTRACTOR. General liability
coverage can be provided in the form of an endorsement to the
CONTRACTOR’s insurance (at least as broad as ISO Form CG 20 10, CG
11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37
forms if later revisions used).
ii. For any claims related to this project, the CONTRACTOR’s insurance
coverage shall be primary insurance coverage at least as broad as ISO CG
20 01 04 13 as respects the CITY, its officers, officials, employees, and
volunteers. Any insurance or self-insurance maintained by the CITY, its
officers, officials, employees, or volunteers shall be excess of the
CONTRACTOR’s insurance and shall not contribute with it.
iii. Each insurance policy required by this clause shall provide that coverage
shall not be canceled, except with notice to the CITY.
d. Builder’s Risk (Course of Construction) Insurance.
i. CONTRACTOR may submit evidence of Builder’s Risk insurance in the
form of Course of Construction coverage. Such coverage shall name the
CITY as a loss payee as their interest may appear.
ii. If the Project does not involve new or major reconstruction, at the option of
the CITY, an Installation Floater may be acceptable. For such projects, a
Property Installation Floater shall be obtained that provides for the
improvement, remodel, modification, alteration, conversion or adjustment to
existing buildings, structures, processes, machinery, and equipment. The
Property Installation Floater shall provide property damage coverage for
any building, structure, machinery or equipment damaged, impaired,
broken, or destroyed during the performance of the Work, including during
transit, installation, and testing at the CITY’s site.
e. Claims Made Policies. If any coverage required is written on a claims-made
coverage form:
i. The retroactive date must be shown, and this date must be before the
execution date of the contract or the beginning of contract work.
ii. Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of contract work.
iii. If coverage is cancelled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the contract
effective, or start of work date, the CONTRACTOR must purchase extended
reporting period coverage for a minimum of five (5) years after completion
of contract work.
iv. A copy of the claims reporting requirements must be submitted to the CITY
for review.
v. If the services involve lead-based paint or asbestos
identification/remediation, the Contractors Pollution Liability policy shall not
contain lead-based paint or asbestos exclusions. If the services involve
mold identification/remediation, the Contractors Pollution Liability policy
shall not contain a mold exclusion, and the definition of Pollution shall
include microbial matter, including mold.
f. Acceptability of Insurers. Insurance is to be placed with insurers authorized
to conduct business in the state with a current A.M. Best rating of no less than
A: VII, unless otherwise acceptable to the CITY.
g. Waiver of Subrogation. CONTRACTOR hereby agrees to waive rights of
subrogation which any insurer of CONTRACTOR may acquire from
CONTRACTOR by virtue of the payment of any loss. CONTRACTOR agrees
to obtain any endorsement that may be necessary to affect this waiver of
subrogation. The Workers’ Compensation policy shall be endorsed with a
waiver of subrogation in favor of the CITY for all work performed by the
CONTRACTOR, its employees, agents and subcontractors.
h. Verification of Coverage. CONTRACTOR shall furnish the CITY with original
Certificates of Insurance including all required amendatory endorsements (or
copies of the applicable policy language effecting coverage required by this
clause) and a copy of the Declarations and Endorsement Page of the CGL
policy listing all policy endorsements to CITY before work begins. However,
failure to obtain the required documents prior to the work beginning shall not
waive the CONTRACTOR’s obligation to provide them. The CITY reserves the
right to require complete, certified copies of all required insurance policies,
including endorsements, required by these specifications, at any time.
i. Subcontractors. CONTRACTOR shall require and verify that all
subcontractors maintain insurance meeting all requirements stated herein,
and CONTRACTOR shall ensure that CITY is an additional insured on
insurance required from subcontractors. For CGL coverage, subcontractors
shall provide coverage with a form at least as broad as CG 20 38 04 13.
j. Special Risks or Circumstances. CITY reserves the right to modify these
requirements, including limits, based on the nature of the risk, prior
experience, insurer, coverage, or other circumstances.
18. ASSIGNMENT: This contract is not assignable nor the performance of either
party's duties delegable without the prior written consent of the other party. Any
attempted or purported assignment or delegation of any of the rights of obligations
of either party without the prior written consent of the other shall be void and of no
force and effect.
19. INDEPENDENT CONTRACTOR: CONTRACTOR is and shall at all times remain
as to the CITY, a wholly independent contractor. Neither the CITY nor any of its
agents shall have control of the conduct of CONTRACTOR or any of
CONTRACTOR'S employees, except as herein set forth. CONTRACTOR shall not
at any time or in any manner represent that it or any of its agents or employees
are in any manner agents or employees of CITY.
20. TAXES: CONTRACTOR is responsible for paying all retail sales and use,
transportation, export, import, special or other taxes and duties applicable to, and
assessable against any work, materials, equipment, services, processes and
operations incidental to or involved in this contract. CONTRACTOR is responsible
for ascertaining and arranging to pay them. The prices established in the contract
shall include compensation for any taxes CONTRACTOR is required to pay by
laws and regulations in effect at the bid opening date.
21. LICENSES: CONTRACTOR represents and warrants to CITY that it has all
licenses, permits, qualifications, insurance, and approvals of whatsoever nature
which are legally required of CONTRACTOR to practice its profession.
CONTRACTOR represents and warrants to CITY that CONTRACTOR shall, at its
sole cost and expense, keep in effect or obtain at all times during the term of this
Agreement any licenses, permits, insurance, and approvals which are legally
required of CONTRACTOR to practice its profession.
Contractors are required by law to be licensed and regulated by the Contractors’
State License Board which has jurisdiction to investigate complaints against
contractors if a complaint regarding a patent act or omission is filed within five (5)
years of the date of the alleged violation. A complaint regarding a latent act or
omission pertaining to structural defects must be filed within ten (10) years of the
date of the alleged violation. Any questions concerning a contractor may be
referred to the Registrar, Contractors’ State License Board, P.O. Box 26000,
Sacramento, California 95826.
22. RECORDS: CONTRACTOR shall maintain accounts and records, including
personnel, property, and financial records, adequate to identify and account for all
costs pertaining to this Agreement and such other records as may be deemed
necessary by CITY or any authorized representative, and will be retained for four
years after the expiration of this Agreement. All such records shall be made
available for inspection or audit by CITY at any time during regular business hours.
23. SEVERABILITY: If any portion of these contract documents are declared by a
court of competent jurisdiction to be invalid or unenforceable, then such portion will
be deemed modified to the extent necessary in the opinion of the court to render
such portion enforceable and, as so modified, such portion and the balance of this
Agreement will continue in full force and effect.
24. WHOLE AGREEMENT: This Agreement supersedes any and all other
agreements either oral or written, between the parties and contains all of the
covenants and agreements between the parties pertaining to the work of
improvements described herein. Each party to this contract acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that any other agreement, statements or promise not
contained in this contract shall not be valid or binding. Any modifications of this
contract will be effective only if signed by the party to be charged.
25. AUTHORITY: CONTRACTOR affirms that the signatures, titles, and seals set
forth hereinafter in execution of this Agreement represent all individuals, firm
members, partners, joint ventures, and/or corporate officers having a principal
interest herein. Each party warrants that the individuals who have signed this
Agreement have the legal power, right, and authority to make this Agreement and
to bind each respective party. This Agreement may be modified by written
amendment. CITY’s city manager may execute any such amendment on CITY’s
behalf.
26. NOTICES: All notices permitted or required under this Agreement shall be in
writing, and shall be deemed made when delivered to the applicable party’s
representative as provided in this Agreement. Additionally, such notices may be
given to the respective parties at the following addresses, or at such other
addresses as the parties may provide in writing for this purpose. Such notices shall
be deemed made when personally delivered or when mailed forty-eight (48) hours
after deposit in the U.S. mail, first-class postage prepaid, and addressed to the
party at its applicable address.
CITY OF ROLLING HILLS
2 Portuguese Bend Rd.
Rolling Hills, CA 90274
Attention: Alan Palermo, Project Manager
CONTRACTOR:
AC Pros Inc.
18653 Ventura Blvd. # 251
Tarzana CA 91356
Attention: Noam Ziv
27. DISPUTES: Effective January 1, 1991, Section 20104 et seq., of the California
Public Contract Code prescribes a process utilizing informal conferences, non-
binding judicial supervised mediation, and judicial arbitration to resolve disputes
on construction claims of $375,000 or less. Effective January 1, 2017, Section
9204 of the Public Contract Code prescribes a process for negotiation and
mediation to resolve disputes on construction claims. The intent of this Section is
to implement Sections 20104 et seq. and Section 9204 of the California Public
Contract Code. This Section shall be construed to be consistent with said statutes.
Claims: For purposes of this Section, “Claim” means a separate demand by
CONTRACTOR, after a change order duly requested in accordance with the terms
of this Contract has been denied by the CITY, for (A) a time extension, (B) payment
of money or damages arising from Work done by or on behalf of CONTRACTOR
pursuant to the Contract, or (C) an amount the payment of which is disputed by
the CITY. A “Claim” does not include any demand for payment for which
CONTRACTOR has failed to provide notice, request a change order, or otherwise
failed to follow any procedures contained in the Contract Documents. Claims
governed by this Section may not be filed unless and until CONTRACTOR
completes all procedures for giving notice of delay or change and for the
requesting of a time extension or change order, including but not necessarily
limited to the change order procedures contained herein, and CONTRACTOR’s
request for a change has been denied in whole or in part. Claims governed by this
Section must be filed no later than fourteen (14) days after a request for change
has been denied in whole or in part or after any other event giving rise to the Claim.
The Claim shall be submitted in writing to the CITY and shall include on its first
page the following in 16 point capital font: “THIS IS A CLAIM.” Furthermore, the
claim shall include the documents necessary to substantiate the claim. Nothing in
this Section is intended to extend the time limit or supersede notice requirements
otherwise provided by contract for the filing of claims, including all requirements
pertaining to compensation or payment for extra Work, disputed Work, and/or
changed conditions. Failure to follow such contractual requirements shall bar any
claims or subsequent lawsuits for compensation or payment thereon.
Supporting Documentation: The CONTRACTOR shall submit all claims in the
following format:
Summary of claim merit and price, reference Contract Document provisions
pursuant to which the claim is made
List of documents relating to claim:
Specifications
Drawings
Clarifications (Requests for Information)
Schedules
Other
Chronology of events and correspondence
Analysis of claim merit
Analysis of claim cost
Time impact analysis in CPM format
If CONTRACTOR’s claim is based in whole or in part on an allegation of
errors or omissions in the Drawings or Specifications for the Project,
CONTRACTOR shall provide a summary of the percentage of the claim
subject to design errors or omissions and shall obtain a certificate of merit
in support of the claim of design errors and omissions.
Cover letter and certification of validity of the claim, including any claims
from subcontractors of any tier, in accordance with Government Code
section 12650 et seq.
City’s Response. Upon receipt of a claim pursuant to this Section, CITY shall conduct a
reasonable review of the claim and, within a period not to exceed 45 days, shall provide
CONTRACTOR a written statement identifying what portion of the claim is disputed and
what portion is undisputed. Any payment due on an undisputed portion of the claim will
be processed and made within 60 days after the public entity issues its written statement.
If CITY needs approval from its governing body to provide the CONTRACTOR a
written statement identifying the disputed portion and the undisputed portion of the
claim, and the governing body does not meet within the 45 days or within the
mutually agreed to extension of time following receipt of a claim sent by registered
mail or certified mail, return receipt requested, CITY shall have up to three days
following the next duly publicly noticed meeting of the governing body after the 45-
day period, or extension, expires to provide CONTRACTOR a written statement
identifying the disputed portion and the undisputed portion.
Within 30 days of receipt of a claim, CITY may request in writing additional
documentation supporting the claim or relating to defenses or claims CITY may
have against the CONTRACTOR. If additional information is thereafter required, it
shall be requested and provided pursuant to this subdivision, upon mutual
agreement of CITY and the CONTRACTOR.
CITY’s written response to the claim, as further documented, shall be submitted to
CONTRACTOR within 30 days (if the claim is less than $50,000, within 15 days)
after receipt of the further documentation, or within a period of time no greater than
that taken by CONTRACTOR in producing the additional information or requested
documentation, whichever is greater.
Meet and Confer. If the CONTRACTOR disputes CITY’s written response, or CITY fails
to respond within the time prescribed, the CONTRACTOR may so notify CITY, in writing,
either within 15 days of receipt of CITY’s response or within 15 days of CITY’s failure to
respond within the time prescribed, respectively, and demand an informal conference to
meet and confer for settlement of the issues in dispute. Upon receipt of a demand, CITY
shall schedule a meet and confer conference within 30 days for settlement of the dispute.
Mediation. Within 10 business days following the conclusion of the meet and confer
conference, if the claim or any portion of the claim remains in dispute, CITY shall provide
the CONTRACTOR a written statement identifying the portion of the claim that remains
in dispute and the portion that is undisputed. Any payment due on an undisputed portion
of the claim shall be processed and made within 60 days after CITY issues its written
statement. Any disputed portion of the claim, as identified by CONTRACTOR in writing,
shall be submitted to nonbinding mediation, with CITY and CONTRACTOR sharing the
associated costs equally. CITY and CONTRACTOR shall mutually agree to a mediator
within 10 business days after the disputed portion of the claim has been identified in
writing unless the parties agree to select a mediator at a later time.
If the Parties cannot agree upon a mediator, each Party shall select a mediator
and those mediators shall select a qualified neutral third party to mediate with
regard to the disputed portion of the claim. Each Party shall bear the fees and costs
charged by its respective mediator in connection with the selection of the neutral
mediator.
For purposes of this section, mediation includes any nonbinding process,
including, but not limited to, neutral evaluation or a dispute review board, in which
an independent third party or board assists the Parties in dispute resolution
through negotiation or by issuance of an evaluation. Any mediation utilized shall
conform to the timeframes in this section.
Unless otherwise agreed to by CITY and CONTRACTOR in writing, the mediation
conducted pursuant to this section shall excuse any further obligation under
Section 20104.4 to mediate after litigation has been commenced.
The mediation shall be held no earlier than the date CONTRACTOR completes
the Work or the date that CONTRACTOR last performs Work, whichever is earlier.
All unresolved claims shall be considered jointly in a single mediation unless a new
unrelated claim arises after mediation is completed.
Procedures After Mediation. If following the mediation, the claim or any portion remains
in dispute, CONTRACTOR must file a claim pursuant to Chapter 1 (commencing with
Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of
Title 1 of the Government Code. For purposes of those provisions, the running of the
period of time within which a claim must be filed shall be tolled from the time
CONTRACTOR submits his or her written claim pursuant to subdivision (a) until the time
the claim is denied, including any period of time utilized by the meet and confer
conference or mediation.
Civil Actions. The following procedures are established for all civil actions filed to resolve
claims subject to this Section:
Within 60 days, but no earlier than 30 days, following the filing or responsive
pleadings, the court shall submit the matter to non-binding mediation unless
waived by mutual stipulation of both parties or unless mediation was held prior to
commencement of the action in accordance with Public Contract Code section
9204 and the terms of these procedures.. The mediation process shall provide for
the selection within 15 days by both parties of a disinterested third person as
mediator, shall be commenced within 30 days of the submittal, and shall be
concluded within 15 days from the commencement of the mediation unless a time
requirement is extended upon a good cause showing to the court.
If the matter remains in dispute, the case shall be submitted to judicial arbitration
pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of
the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The
Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter
3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding
brought under this subdivision consistent with the rules pertaining to judicial
arbitration.
In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3
of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced
in construction law, and (B) any party appealing an arbitration award who does not
obtain a more favorable judgment shall, in addition to payment of costs and fees
under that chapter, also pay the attorney’s fees on appeal of the other party.
Government Code Claims. In addition to any and all contract requirements
pertaining to notices of and requests for compensation or payment for extra work,
disputed work, claims and/or changed conditions, CONTRACTOR must comply
with the claim procedures set forth in Government Code sections 900 et seq. prior
to filing any lawsuit against the CITY. Such Government Code claims and any
subsequent lawsuit based upon the Government Code claims shall be limited to
those matters that remain unresolved after all procedures pertaining to extra work,
disputed work, claims, and/or changed conditions have been followed by
CONTRACTOR. If no such Government Code claim is submitted, or if any
prerequisite contractual requirements are not otherwise satisfied as specified
herein, CONTRACTOR shall be barred from bringing and maintaining a valid
lawsuit against the CITY. A Government Code claim must be filed no earlier than
the date the work is completed or the date CONTRACTOR last performs work on
the Project, whichever occurs first. A Government Code claim shall be inclusive of
all unresolved claims unless a new unrelated claim arises after the Government
Code claim is submitted.
Non-Waiver. CITY’s failure to respond to a claim from CONTRACTOR within the
time periods described in this Section or to otherwise meet the time requirements
of this Section shall result in the claim being deemed rejected in its entirety. CITY’s
failure to respond shall not waive CITY’s rights to any subsequent procedures for
the resolution of disputed claims.
24. NON-DISCRIMINATION: Contractor represents that it is an equal opportunity
employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age or
other interests protected by the State or Federal Constitutions. Such non-
discrimination shall include, but not be limited to, all activities related to initial
employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff or termination. A violation of this section exposes CONTRACTOR to the
penalties provided for in Labor Code Section 1735.
25. TERMINATION: This Contract may be terminated by CITY at any time, either with
our without cause, by giving CONTRACTOR three (3) days advance written notice.
In the event of termination by CITY for any reason other than the fault of
CONTRACTOR, CITY shall pay CONTRACTOR for all Work performed up to that
time as provided herein. In the event of breach of the Contract by Contractor, CITY
may terminate the Contract immediately without notice, may reduce payment to
CONTRACTOR in the amount necessary to offset CITY’s resulting damages, and
may pursue any other available recourse against CONTRACTOR.
CONTRACTOR may not terminate this Contract except for cause. In the event
this Contract is terminated in whole or in part as provided, CITY may procure, upon
such terms and in such manner as it may determine appropriate, services similar
to those terminated. Further, if this Contract is terminated as provided, CITY may
require CONTRACTOR to provide all finished or unfinished documents, data,
diagrams, drawings, materials or other matter prepared or built by CONTRACTOR
in connection with its performance of this Contract.
26. ANTI-TRUST CLAIMS: This provision shall be operative if this Contract
Agreement is applicable to California Public Contract Code Section 7103.5. In
entering into this Contract Agreement to supply goods, services or materials,
Contractor hereby offers and agrees to assign to the Agency all rights, title, and
interest in and to all causes of action it may have under Section 4 of the Clayton
Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing
with Section 16700, of Part 2 of Division 7 of the Business and Professions Code)
arising from purchases of goods, services, or materials pursuant to the Contract
Agreement. This assignment shall be made and become effective at the time the
Agency tender final payment to Contractor, without further acknowledgment by the
Parties.
27. NO THIRD PARTY BENEFICIARY: This Contract and every provision herein is
for the exclusive benefit of the Contractor and the City and not for the benefit of
any other party. There will be no incidental or other beneficiaries of any of the
Contractor’s or the City’s obligations under this Contract.
28. TIME IS OF ESSENCE: Time is of the essence for each and every provision of
the Contract Documents.
29. FORCE MAJEURE: If CONTRACTOR is delayed in the performance or progress
of the work by a Force Majeure Event, then the CONTRACTOR shall be entitled
to a time extension, as provided in the contract documents, when the work stopped
is on the critical path and shall not be charged liquidated damages. Such a non-
compensable adjustment shall be CONTRACTOR’s sole and exclusive remedy for
such delays and the CONTRACTOR will not receive an adjustment to the contract
price or any other compensation. Contractor must submit a timely request in
accordance with the requirements of the contract documents. A Force Majeure
Event shall mean an event that materially affects a party’s performance and is one
or more of the following: (1) Acts of God or other natural disasters occurring at the
project site; (2) terrorism or other acts of a public enemy; (3) orders of
governmental authorities (including, without limitation, unreasonable and
unforeseeable delay in the issuance of permits or approvals by governmental
authorities that are required for the work); (4) pandemics, epidemics or quarantine
restrictions; and (5) strikes and other organized labor action occurring at the project
site and the effects thereof on the work, only to the extent such strikes and other
organized labor action are beyond the control of CONTRACTOR and its
subcontractors, of every tier, and to the extent the effects thereof cannot be
avoided by use of replacement workers. For purposes of this section, “orders of
governmental authorities,” includes ordinances, emergency proclamations and
orders, rules to protect the public health, welfare and safety, and other actions of
the City in its capacity as a municipal authority.
30. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE: Each
and every provision of law required to be included in these Contract Documents
shall be deemed to be included in these Contract Documents. The Contractor
shall comply with all requirements of applicable federal, state and local laws, rules
and regulations, including, but not limited to, the provisions of the California Labor
Code and California Public Contract Code which are applicable to this Work.
31. ACCEPTANCE OF FACSIMILE SIGNATURES: The Parties agree that this
Contract, agreements ancillary to this Contract, and related documents to be
entered into in connection with this Contract will be considered signed when the
signature of a party is delivered by facsimile transmission. Such facsimile
signature will be treated in all respects as having the same effect as an original
signature.
32. GOVERNING LAW: This Agreement shall be governed by the laws of the State
of California, and exclusive venue for any action involving this Contract will be in
Los Angeles County.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement with
all the formalities required by law on the respective dates set forth opposite their
signatures.
AGREEMENT OF INDEMNIFICATION
AND HOLD HARMLESS AND WAIVER OF SUBROGATION AND CONTRIBUTION
City Hall HVAC Replacement Project, Job No. 2023-01
AC Pros Inc., a California Corporation, Contractor License # 871821 (“Indemnitor”):
To the fullest extent permitted by law, Indemnitor hereby agrees, at its sole cost and
expense, to defend, protect, indemnify, and hold harmless the City of Rolling Hills and its
respective elected officials, officers, attorneys, agents, employees, volunteers,
successors, and assigns (collectively “Indemnitees”) from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
expenses, judgments, penalties, liens, and losses of any nature whatsoever, including
fees of accountants, attorneys, or other professionals and all costs associated therewith
(collectively “Liabilities”), arising or claimed to arise, directly or indirectly, out of, in
connection with, resulting from, or related to any act, failure to act, error, or omission of
Indemnitor or any of its officers, agents, servants, employees, subcontractors,
materialmen, suppliers or their officers, agents, servants or employees, arising or claimed
to arise, directly or indirectly, out of, in connection with, resulting from, or related to the
above-referenced contract, agreement, license, or permit (the “Agreement”) or the
performance or failure to perform any term, provision, covenant, or condition of the
Agreement, including this indemnity provision. This indemnity provision is effective
regardless of any prior, concurrent, or subsequent active or passive negligence by
Indemnitees and shall operate to fully indemnify Indemnitees against any such
negligence. This indemnity provision shall survive the termination of the Agreement and
is in addition to any other rights or remedies which Indemnitees may have under the law.
Payment is not required as a condition precedent to an Indemnitee’s right to recover under
this indemnity provision, and an entry of judgment against an Indemnitee shall be
conclusive in favor of the Indemnitee’s right to recover under this indemnity provision.
Indemnitor shall pay Indemnitees for any attorney fees and costs incurred in enforcing
this indemnification provision. Notwithstanding the foregoing, nothing in this instrument
shall be construed to encompass (a) Indemnitees’ sole negligence or willful misconduct
to the limited extent that the underlying Agreement is subject to Civil Code 2782(a), or (b)
the contracting public agency’s active negligence to the limited extent that the underlying
Agreement is subject to Civil Code 2782(b). This indemnity is effective without reference
to the existence or applicability of any insurance coverages which may have been
required under the Agreement or any additional insured endorsements which may extend
to Indemnitees.
Indemnitor, on behalf of itself and all parties claiming under or through it, hereby waives
all rights of subrogation and contribution against the Indemnitees, while acting within the
scope of their duties, from all claims, losses and liabilities arising out of or incident to
activities or operations performed by or on behalf of the Indemnitor regardless of any
prior, concurrent, or subsequent active or passive negligence by the Indemnitees.
Accountants, attorneys, or other professionals employed by Indemnitor to defend
Indemnitees shall be selected by Indemnitees.
In the event there is more than one person or entity named in the Agreement as an
Indemnitor, then all obligations, liabilities, covenants and conditions under this instrument
shall be joint and several.
“Indemnitor”
Name: Noam Ziv, President