Contract - Project 311 - Sewer Manhole Surface Repair Program - 2015-11-23 try\\ D
CONTRACT
PROJECT#311 SEWER MANHOLE SURFACE REPAIR PROGRAM—PHASE II
THIS AGREEMENT is made and entered into this 33 day of November, 2015 by
and between the COSTA MESA SANITARY DISTRICT hereinafter referred to as "DISTRICT"
and, EBS GENERAL ENGINEERING, INC., a California corporation, hereinafter referred to as
"CONTRACTOR"
WITNESSETH
That for and in consideration of the promises and agreements hereinafter made and
exchanged, DISTRICT and CONTRACTOR mutually agree as follows:
1. Scope of 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 work as described in the plans and specifications
for Project#311 Manhole Surface Repair Program- Phase II.
2. Labor and Materials. All of said work to be performed and materials to be
furnished shall be in strict accordance with the plans and specifications for Project #311
Manhole Surface Repair Program- Phase II, 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 ContracVAgreement shall commence on an agreed start date
between DISTRICT and CONTRACTOR and shall be completed in 30 working days unless an
extension is granted by the District.
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: FORTY-SEVEN
THOUSAND, FOUR HUNDRED TWENTY AND 00/100 Dollars ($47,420.00).
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 five percent (5%) of the progress payment
unless CONTRACTOR establishes an escrow account.
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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 209].
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. No contractor or subcontractor shall be awarded a contract for a public work
unless registered with the Department of Industrial Relations in accordance with Labor Code
Section 1725.5. Specifically, each CONTRACTOR and subcontractor shall keep an accurate
electronic 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 CONTRACTORS 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)
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hours of labor in a day from any person employed by him hereunder except as provided in
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 twenty-five dollars ($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 ten (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;
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3. Any available drug counseling, rehabilitation and employee assistance
programs;
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 faithful performance bond
and labor and material bond both in the amount of 100% of the contract value.
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
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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 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.
(b) 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. Attorney's Fees. In any action or proceeding brought by either party against the
other party arising out of or in any way connected to this Contract, or where any provision
hereof is validly asserted as a defense, the parties shall bear their own attorney's fees, costs,
and expenses. Nothing in this provision shall excuse CONTRACTOR's duty to provide
DISTRICT with a defense at CONTRACTOR's cost when DISTRICT receives a complaint,
petition or other pleading from a third party requiring DISTRICT to defend itself.
Notwithstanding the foregoing, costs and attorney's fees shall be available pursuant to Code of
Civil Procedure Section 386.6 in connection with an interpleader.
32. 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.
33. Insurance. CONTRACTOR shall provide proof of commercial general liability,
automobile insurance and workers' compensation insurance before starting the job as described
in Exhibit"A".
34. 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.
35. 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.
36. 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.
37. 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.
38. Utility Location. DISTRICT acknowledges its responsibilities with respect to
locating facilities pursuant to California Government Code section 4215.
39. 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 E. 19th Street
Costa Mesa, CA 92627
CONTRACTOR: EBS General Engineering, Inc.
1320 E. Sixth Street, Ste. 100
Corona, CA 92879
LOCAL CONTACT: Joseph A. Nanci, President
40. Effect of Invalidity. The invalidity in whole or in part of any provisions hereof
shall not affect the validity of any other provision.
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
47. Job Progress. CONTRACTOR shall provide DISTRICT with a critical path
progress report at least monthly.
48. 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.
49. 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.
ATTEST: COSTA MESA SANITARY DISTRICT
/Dis ict I> k Scott Carroll, General Manager
APPROVED_� AS TO FORM: CONTRACTOR
ir
A""` "' Name: EBS General Engineering, Inc.
District Counsel
Address: 1320 E. Sixth Street, Ste. 100
Corona,
CA 92879
By: / / /7
Joseph A. Nanci, President