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Contract - California Building Evaluation and Construction Inc - 2015-01-01PROJECT #203 CORPORATE YARD GENERATOR (California Building Evaluation and Construction, Inc.) �' THIS AGREEMENT is made and entered into this i day of `D by and between the COSTA MESA SANITARY DISTRICT hereinafter ref red to as "DISTRICT" and, California Building Evaluation and Construction, Inc. hereinafter referred to as "CONTRACTOR." That for and in consideration of the promises and agreements hereinafter made and exchanged, CITY and CONTRACTOR mutually agree as follows: 1. Scope of the Work. That CONTRACTOR shall perform all the work and shall provide and furnish all the labor, materials, necessary tools, expendable equipment, and all utility and transportation services required for procuring and installing an emergency diesel generator at District Yard as described in electrical engineered drawings and specifications entitled "Diesel Generator for Costa Mesa Sanitary District Corporate Yard ". 2. Labor and Materials. All of said work to be performed and materials to be furnished shall be in strict accordance with ALL REQUIREMENTS AS DESCRIBED IN Attachment A entitled "Project #203 Corporate Yard Generator' attached hereto and incorporated herein by this reference, and CONTRACTOR agrees to do everything required by this Contract, the plans and specifications, and any general conditions, if applicable All labor, materials, tools, equipment and services shall be furnished on work performed, and under the direction, administration and subject to the approval of DISTRICT or its authorized representatives. 3. Term. The term of this Contract/Agreement shall commence on an agreed start date between DISTRICT and CONTRACTOR and shall be completed per the terms of Attachment A entitled `Project #203 Corporate Yard Generator ". 4. Time of the Essence. This provision does not apply to this contract. 5. Delay Damages. This provision does not apply to this contract. 6. The Contract Sum. DISTRICT agrees to pay and CONTRACTOR agrees to accept in full payment for the work above agreed to be done the sum of: Ninety Seven Thousand Dollars ($97.000.00), 7. Progress Payments. This provision does not apply to this Contract. 8. Prompt Payments. DISTRICT agrees to promptly make progress payments on undisputed and properly submitted payment requests within thirty (30) days and to comply with the provisions of Public Contract Code Section 20104.50. 9. Retention Securities. This provision does not apply to this Contract. Should progress payments be desired, DISTRICT may retain 5% of the progress payment unless CONTRACTOR establishes an escrow account. Contract - Public Works Page 2 10. Federal Participation. This provision does not apply to this contract 11. Compliance with the Davis -Bacon Act. This provision does not apply to this contract. 12. Prevailing Wage Rates. DISTRICT has ascertained the general prevailing rate of per diem wages and the general prevailing rate for legal holidays and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Contract, and the same has been placed on file with the City Clerk. Said per diem wages are deemed to include employer payments for health and welfare, pension, vacation, and travel time and subsistence pay, all in accordance with sections 1773.1 and 1773.8 of the Labor Code of the State of California. 13. Discrimination, Minorities, Aliens. The CONTRACTOR shall not discriminate nor allow its employees, agents, principals, or subcontractors to discriminate against any employee or applicant for employment on the basis of race, religious creed, national origin or sex. CONTRACTOR shall take affirmative steps to hire qualified minority individuals when job opportunities occur and utilize local business firms when possible and when consistent with California Constitution Article 1, Section 31 (a) [Proposition 2091. 14. Equal Employment Opportunity. CONTRACTOR shall comply with all provisions of Executive Order 11246, entitled "Equal Employment Opportunity ", and amended by Executive Order 11375, and as supplemented in Department of Labor Regulations (41 CFR part 60). 15. Payroll Records. The provisions of section 1776 of the Labor Code of the State of California regarding the preparation, maintenance and filing of payroll records are applicable to this Contract. Specifically, each CONTRACTOR and 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 or worker employed by him in connection with the public work. THE CONTRACTOR'S AND SUBCONTRACTOR'S PAYROLL RECORDS SHALL BE SUBMITTED ON A WEEKLY BASIS. THE CONTRACTOR SHALL BE RESPONSIBLE FOR SUBMITTAL OF SUB - CONTRACTOR'S PAYROLL RECORDS. 16. Penalty. CONTRACTOR shall, as a penalty to the DISTRICT, forfeit up to $50.00 for each calendar day or portion thereof for each workman paid (either by him or any subcontractor under him) less than the prevailing rate set forth herein on the work provided for in this contract, all in accordance with section 1775 of the Labor Code of the State of California. 17. Apprentices. If applicable, the provisions of Labor Code Section 1777.5 requiring the use of apprentices in certain ratios to journeymen on the project are hereby imposed upon CONTRACTOR. 18. Legal Day's Work. In the performance of this Contract, not more than eight (8) hours shall constitute a day's work, and the CONTRACTOR shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in Contract - Public Works Page 3 Section 11 above. CONTRACTOR shall conform to Article 3, Chapter 1, Part 7 (section 1810, et seq.) of the Labor Code of the State of California, and it is agreed that the CONTRACTOR shall forfeit to the DISTRICT as a penalty the sum of $25.00 for each workman employed in the execution of this Contract by the CONTRACTOR or any subcontractor for each calendar day during which any workman is required or permitted to labor more than eight (8) hours in any one calendar day and forty (40) hours in any one week in violation of said article. 19. Subcontracting. CONTRACTOR acknowledges that he is aware of the provisions of the "Subletting and Subcontracting Fair Practices Act" (Public Contract Code Section 4100 et. seq.) and that he agrees to comply with all applicable provisions thereof. If any part of the work to be done under this contract is subcontracted, the subcontract shall be in writing and shall provide that all work to be performed thereunder shall be performed in accordance with Contract. Upon request, certified copies of any or all subcontracts shall be furnished the DISTRICT. The subcontracting of any or all of the work to be done will in no way relieve the CONTRACTOR of any part of his responsibility under the Contract. Breach of any of the above provisions will be considered a violation of the Contract, and the DISTRICT may: cancel the Contract, assess the CONTRACTOR a penalty of not more than 10 percent of the subcontract involved, or cancel the contract and assess the penalty. All persons engaged in the work, including subcontractors, will be considered as employees of the CONTRACTOR. He will be held responsible for their work. The DISTRICT will deal directly with and make all payments to the CONTRACTOR. 20. Workers' Compensation. CONTRACTOR shall carry Workers' Compensation Insurance and require all subcontractors to carry Workers' Compensation Insurance as required by the Labor Code of the State of California. CONTRACTOR, by executing this Contract, hereby certifies: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this Contract." 21. Drug -Free Work. CONTRACTOR agrees to provide a drug -free workplace in accordance with 24 CFR part 24, sub -part F. Under 24 CFR part 24 sub -part F., the CONTRACTOR will provide certification in writing that it will provide a drug -free workplace by: (a). Publicizing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the workplace and specifying the action it will take against employees for violation of such prohibition; (b). Establish an ongoing drug -free awareness program to inform employees about- 1. Degrees of drug abuse in the workplace; 2. The policy of maintaining a drug -free workplace; 3. Any available drug counseling, rehabilitation and employee assistance programs; Contract - Public Works Page 4 4. The penalties which may be imposed on employees for drug abuse violations occurring in the workplace. (c). Making it a requirement that every employee to be engaged in the performance of the Contract be given a copy of the statement required by paragraph (a); (d). Notifying employees in the statement required by paragraph (a) that as a condition of employment under the Contract the employee will - 1. Abide by the term of the statement; and 2. Notify the employer in writing of any conviction for a violation of a criminal drug statute occurring in the workplace no later than five (5) calendar days after such conviction. (e). Notify the DISTRICT in writing, within ten (10) calendar days after receiving notice under subparagraph (d) (2) from an employee or otherwise receiving actual notice of such conviction. Employer of said convicted employee must provide notice, including conviction title, to the DISTRICT; (f). Taking one of the following actions, within thirty (30) calendar days of receiving notice under subparagraph (d) (2), with respect to any employee who is so convicted - 1. Taking appropriate action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; 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, law enforcement, or other appropriate agency. (g). Making a good faith effort to continue to maintain a drug -free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f). 22. Bonds. CONTRACTOR shall be required to post a labor and materials bond in the amount of 100% of the contract price. 23. CONTRACTOR'S Affidavit. This provision does not apply to this Contract. 24. CONTRACTOR'S Waiver. This provision does not apply to this Contract. 25. Notice to Proceed. No work shall begin until all bonds and insurance is on file and the Contract executed, at which time a Notice to Proceed will be given. 26. Termination. A. If CONTRACTOR should fail to comply with any of the provisions hereof, or in the event CONTRACTOR should become the subject of a proceeding under state or federal law for relief of debtors, or if CONTRACTOR makes an assignment for the benefit of creditors, DISTRICT shall have the right to hold CONTRACTOR in default and cancel this Contract in whole or in part. B. Should CONTRACTOR, at any time during the progress of the work, refuse or neglect to supply sufficient material or labor, or fail in compliance with any provision of this Contract, DISTRICT shall have the right, without prejudice to any other right or remedy it may have, to provide such materials and labor, or make good such deficiencies as DISTRICT may deem expedient after three (3) days notice in writing, delivered or mailed to CONTRACTOR at Contract - Public Works Page 5 his last address on file with DISTRICT, and CONTRACTOR shall be liable for the cost and expense thereof which may be deducted by DISTRICT from any money that may be due CONTRACTOR. C. Without limiting any rights which DISTRICT may have by reason of any default by CONTRACTOR hereunder, DISTRICT reserves the right to terminate this Contract in whole or in part at its convenience. In such event DISTRICT shall compensate CONTRACTOR, subject to deduction for previous payments (i) by reimbursing CONTRACTOR for all actual expenditures and costs incurred in performing under this Contract (ii) by reimbursing CONTRACTOR for all expenditures made and costs incurred with DISTRICT'S prior written approval in settling or discharging outstanding commitments entered into by CONTRACTOR in performing under this Contract and (iii) by paying CONTRACTOR as a profit, insofar as a profit is realized hereunder, an amount equal to the profit on the entire Contract estimated at the time of termination, multiplied by the percentage of completion of the work. In no event, however, will the compensation to CONTRACTOR exceed the total Contract price less payments previously made and less the Contract price of work not terminated. Upon receipt of any notice of termination, CONTRACTOR shall, unless the notice otherwise directs, (i) immediately discontinue the work and the placing of all orders and subcontracts in connection with this Contract, (ii) immediately cancel all existing orders and subcontracts made hereunder and (iii) immediately transfer to DISTRICT all materials, supplies, work -in- process, appliances, facilities, equipment, machinery and tools acquired by CONTRACTOR in connection with the performance of this Contract. 27. CONTRACTOR'S Independent Investigation. No plea of ignorance of conditions that exist or that may hereafter exist, or of conditions or difficulties that may be encountered in the execution of the work under this Contract, as a result of failure to make the necessary independent examinations and investigations, and no plea of reliance on initial investigations or reports prepared by DISTRICT for purposes of letting this Contract out to bid, will be accepted as an excuse for any failure or omission on the part of the CONTRACTOR to fulfill in every detail all requirements of said Contract, specifications, and plans. Nor will such reasons be accepted as a basis for any claims whatsoever for extra compensation or for an extension of time except as provided in Paragraph 28 of this Contract. 28. Damages /Extra Work Compensation. No claim for extra work or expense shall be payable unless brought to the DISTRICT's attention as soon as possible so the situation can be observed or documented. 29. Other Documents Included. This provision does not apply to this Contract. 30. Interpretation. In the event of any conflict, inconsistency or incongruity between the provisions of this contract and the provisions of any other document or amendments thereto, the provisions of this Contract shall control in all respects. 31. Additional Costs. CONTRACTOR shall be responsible to reimburse the DISTRICT a sum equal to the expenses of administration and legal services required to be expended by the DISTRICT in processing Notices to Withhold, Stop Notices, or similar legal documents arising out of a failure of the CONTRACTOR to pay for labor or materials. Said obligation shall be provided for in the payment bond required by the CONTRACTOR. The DISTRICT shall further have the right to offset any such costs and expenses incurred by DISTRICT against any sums owing to CONTRACTOR under the agreement. 32. Insurance. CONTRACTOR shall provide proof of commercial general liability and workers' compensation insurance before starting the job as described in Attachment B. 33. Indemnification. CONTRACTOR and DISTRICT agree that DISTRICT should, to the extent permitted by law, be fully protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys fees, litigation costs, defense costs, court costs or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the parties to be interpreted and construed to provide the fullest protection possible under the law to the DISTRICT, except for liability attributable to the DISTRICT's active negligence. CONTRACTOR acknowledges that DISTRICT would not enter into this Agreement in the absence of this commitment from CONTRACTOR to indemnify and protect DISTRICT as set forth here. To the full extent permitted by law and excepting only the active negligence of DISTRICT, established by a court of competent jurisdiction or written agreement between the parties, CONTRACTOR shall defend, indemnify and hold harmless DISTRICT, its employees, agents and officials, from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, actual attorney fees incurred by DISTRICT, court costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation incurred in relation to, as a consequence of or arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part to the performance of the Agreement. All obligations under this provision are to be paid by CONTRACTOR as incurred by DISTRICT. Without affecting the rights of DISTRICT under any provision of this Agreement or this Section, CONTRACTOR shall not be required to indemnify and hold harmless DISTRICT as set forth above for liability attributable to the active negligence of DISTRICT, provided such active negligence is determined by agreement between the parties or the findings of a court of competent jurisdiction. This exception will apply only in instances where the DISTRICT is shown to have been actively negligent and not in instances where CONTRACTOR is solely or partially at fault or in instances where DISTRICT's active negligence accounts for only a percentage of the liability involved. In those instances, the obligation of CONTRACTOR will be for that portion or percentage of liability not attributable to the active negligence of DISTRICT as determined by written agreement between the parties or the findings of a court of competent jurisdiction. The obligations of CONTRACTOR under this or any other provision of this Agreement will not be limited by the provisions of any workers' compensation act or similar act. CONTRACTOR expressly waives its statutory immunity under such statutes or laws as to DISTRICT, its employees and officials. CONTRACTOR agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub -tier contractor or any other person or entity involved by, for, with or on behalf of CONTRACTOR in the performance of subject matter of this Agreement. In the event CONTRACTOR fails to obtain such indemnity obligations from others as required here, CONTRACTOR agrees to be fully responsible according to the terms of this section. Failure of DISTRICT to monitor compliance with these requirements imposes no additional obligations on DISTRICT and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend DISTRICT as set forth herein is binding on the successors, assigns, or heirs of CONTRACTOR and shall survive the termination of this Agreement or this section. 34. Permits. The CONTRACTOR shall obtain from DISTRICT, County, State, or other responsible public agencies all licenses and permits, and pay all fees related thereto, necessary to complete the job. 35. Assignment. No assignment by the CONTRACTOR of this Contract or any part hereof, or of funds to be received hereunder, will be recognized by the DISTRICT unless such assignment has had prior written approval and consent of the DISTRICT and the Surety. 36. Safety and Site Condition. CONTRACTOR shall perform all operations with due regard for safety and in strict compliance with all applicable laws relating thereto. It shall be CONTRACTOR'S responsibility to keep the site in a clean, neat and orderly condition. It shall also be CONTRACTOR'S duty to dust - palliate all working areas and access routes, if applicable. All operations shall be conducted by CONTRACTOR so that no fire hazards are created. 37. Utility Location. DISTRICT acknowledges its responsibilities with respect to locating facilities pursuant to California Government Code Section 4215. 38. Notices. The parties hereto agree that all formal notices required by this Agreement may be provided to the following persons at the following addresses by sending the same by certified or registered mail as follows: DISTRICT: Costa Mesa Sanitary District 628 W. 19`" Street Costa Mesa, CA 92627 Attention: General Manager (949) 645 -8400 CONTRACTOR: California Building Evaluation and Construction, Inc. 6281 Beach Blvd, Suite 306 Buena Park, CA 90621 (714) 609 -7625 LOCAL CONTACT: Eddie Qader 39. Effect of Invalidity. The invalidity in whole or in part of any provisions hereof shall not affect the validity of any other provision. 40. Gratuities. CONTRACTOR warrants that neither it nor any of its employees, agents or representatives has offered or given any gratuities to DISTRICT'S employees, agents or representatives with a view toward securing this Contract or securing favorable treatment with respect thereto. 41. Conflict of Interest. Contractor warrants that he has no blood or marriage relationship, and that he is not in any way associated with any architect, engineer or other preparer of the plans and specifications for this project. 42. Copeland "Anti- Kickback" Act. If applicable to this contract, CONTRACTOR and its subcontractors shall comply with the provisions of the Copeland "Anti- Kickback" Act (18 USC Section 874), as supplemented in Department of Labor regulations, which Act provides that each Contractor shall be prohibited from including, by any means, any person employed in the construction, completion or repair of any public work, to give up any part of the compensation to which he is otherwise entitled. 43. Final Closeout Agreement and Release of All Claims. Prior to filing the Notice of Completion the CONTRACTOR and DISTRICT shall execute and record a Final Closeout Agreement and Release of All Claims. 44. Guarantees. A. Work; CONTRACTOR shall and hereby does guarantee all Work for a period of one (1) year after the date of acceptance of the Work by the DISTRICT and shall repair and replace any and all such Work, together with any other work which may be displaced in so doing that may prove defective in workmanship and /or materials within the one (1) year period from date of acceptance, without expense whatsoever to the DISTRICT, ordinary wear and tear and usual abuse or neglect excepted. B. Materials; CONTRACTOR shall and hereby does guarantee all Materials for a lifetime after the date of acceptance of the Materials by the DISTRICT and shall repair and replace any and all such Materials, together with any other materials which may be displaced in so doing that may prove defective during the lifetime of the Materials, without expense whatsoever to the DISTRICT, ordinary wear and tear and usual abuse or neglect excepted. In the event of failure to comply with the aforementioned conditions within five (5) days after being notified in writing, the DISTRICT is hereby authorized to proceed to have the defects repaired and made good at the expense of the CONTRACTOR, who shall pay the cost and charges therefore immediately on demand. 45. Job Proaress. CONTRACTOR shall provide DISTRICT with a critical path progress report at least monthly. 46. Resolution of Claims. For all claims that are less than Three Hundred and Seventy Five Thousand Dollars ($375,000.00), the provisions of Public Contracts Code Section 20104 et seq. (Article 1.5 — Resolution of Construction Claims) shall be followed. 47. Notice to Contractor of Claims. DISTRICT shall provide notice to Contractor upon receipt of any third -party claim related to the contract. IN WITNESS WHEREOF, the parties hereto have entered into this agreement the date and year first above written. COSTA MESA SANITARY DISTRICT %�Scott Carroll, General Manager ATT S oe ni idd nway, istr' t Clerk APPROVED AS TO FORM: s District Counsel CONTRACTOR Name: California Building Evaluation and Construction, Inc. Address: 6281 Beach Blvd, Suite 306 Buena Park, CA 90621 / By: Fddie Qader VP /Secretary Title ATTACHMENT A Project #203 Corporate Yard Generator • Provide all labor services, materials, tools, equipment, supplies, transportation, utilities and all other items and facilities necessary for the completion to procure and install an emergency diesel generator at the District Corporate Yard located at 174 W. Wilson Street. • Emergency diesel generator shall comply with the electrical engineering drawings and specifications along with Addendum 1 and 2 of the Request for Proposal, dated August 19, 2014. • Provide electrical scope as specified in the electrical engineering drawings and required for fully functioning generator. • Obtain approval from electrical engineer on Contractor's generator submittals. • Provide structural concrete pad for generator by pouring on top of the existing slab and dowel in for attachment. • Relocate existing air compressor to inside the Yard's garage. Provide fully functioning air compressor with existing and new pipes in new location. • Work shall be completed within 120 calendar days after receiving the Notice to Proceed. ATTACHMENT B INSURANCE REQUIREMENT Contractor shall provide proof of insurance of at least One Million Dollars ($1,000,000.00) for commercial general liability, with underground coverage, and any automotive coverage. The commercial general liability coverage shall name the District and its officers, agents and employees as additional insureds and District reserve the right to require an endorsement naming District as an additional insured. Such coverage must provide that it is not to be cancelled except upon thirty (30) days notice to District. District also reserves the right to require that the insurance company providing the commercial general liability policy has a Best Key Guide rating of at least A- :VII and is an admitted carrier in the State of California.