Contract - Mike Kilbride Ltd. 2012-07-27PUBLIC WORKS AGREEMENT
CON -12 -001
Sewer Lateral Repair at 1322 Watson Street
Costa Mesa
This agreement (hereafter "AGREEMENT ") is made and entered into this 27th
day of July, 2012, by and between the Costa Mesa Sanitary District, a sanitary district
(hereafter "DISTRICT'), and Mike Kilbride, Ltd., a partnership (hereafter
"CONTRACTOR -).
1. Scope of the Work. CONTRACTOR agrees to furnish to DISTRICT all
labor, materials, tools, equipment, services, and incidental and customary work
necessary to fully and adequately perform the services described in Exhibit "A,"
attached hereto and incorporated by reference. The services described in Exhibit "A
shall be referred to as the "PROJECT." The PROJECT shall be subject to, and
performed in accordance with, this AGREEMENT, the attached exhibits, and all
applicable local, state, and federal laws, rules, and regulations.
2. The Contract Sum. DISTRICT agrees to pay and CONTRACTOR
agrees to accept in full payment for all work agreed to herein the sum of: Eight
Thousand Four Hundred Ninety -five and 00/100 Dollars ($8,495.00).
3. Time of Performance and Liquidated Damages. Time is of the essence
of this AGREEMENT. The work shall commence within five (5) days of DISTRICT
issuing a "Notice to Proceed" and shall be completed within Seventy -five (75) working
days thereafter. CONTRACTOR shall forfeit as liquidated damages the amount of Two
Hundred and Fifty and 00/100 Dollars ($250.00) per calendar day to compensate
DISTRICT for the loss of use of the public facility. The parties agree that liquidated
damages only measure the damage to the public caused by loss of use or untimely
completion of a public facility and that actual damages may also be recovered in
addition to liquidated damages. DISTRICT may deduct liquidated damages and actual
damages from payments owed to CONTRACTOR.
4. Extra Work and Change Orders. At any time during the term of this
AGREEMENT, DISTRICT may request that CONTRACTOR perform EXTRA WORK.
"EXTRA WORK" means any work that is necessary for the proper completion of the
PROJECT but which the parties did not reasonably anticipate would be necessary at
the time of execution of this AGREEMENT or work outside of this AGREEMENT that is
requested by DISTRICT. CONTRACTOR shall not perform, nor be compensated for,
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EXTRA WORK without a written change order that is authorized and signed by
DISTRICT. The written change order requirement cannot be waived.
If CONTRACTOR encounters conditions that require EXTRA WORK.
CONTRACTOR must notify DISTRICT in writing in a written change order request
within fifteen (15) days of encountering said conditions. The failure to submit a written
change order request shall constitute a waiver of CONTRACTOR's claim for additional
time or compensation for EXTRA WORK. The written change order requirement cannot
be waived.
The following formula shall be used to measure CONTRACTOR's damages or
EXTRA WORK. CONTRACTOR shall be limited to the following:
Direct costs
Labor
Materials
Equipment Rental
Other Items
Subcontracted work
Subcontracted work
Specialty Subcontracting
(required by EXTRA WORK)
Mark-LIP
20`'/t,
15%
15 %
15%
10% �
(first S5000)
5%
(work in excess of first
$5000)
5%
(Provided at least three
competitive bids are
obtained and contractor
selected the lowest bidder)
Excluded from recovery shall be °Eichleay damages" including, but not limited to,
home office overhead, insurance and bonding costs, lost bonding capacity, lost profits,
and lost interest.
CONTRACTOR acknowledges that CONTRACTOR's recovery for damages or
EXTRA WORK is limited as provided in this paragraph.
CONTRACTOR's
Initials C4U,t
5. Contractor's Performance and Qualifications. CONTRACTOR shall perform
all services required under this AGREEMENT in a skillful and competent manner,
consistent with the standards generally recognized as being employed by persons and
professionals in the same discipline in the State of California. CONTRACTOR
represents and maintains that it is skilled in the calling necessary to perform the
PROJECT. CONTRACTOR warrants that all employees and subcontractors have
sufficient skill and experience to perform the services assigned to them.
CONTRACTOR represents that it. its employees, and subcontractors have all of the
licenses, permits, qualifications, and approvals that are legally required to perform the
PROJECT. including a City 'Bbsiness License, and that such licenses and approvals
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shall be maintained throughout the term of this AGREEMENT. CONTRACTOR agrees
that CONTRACTOR has ,the contractor's license required to do this job, and any other
contractor's license requested by DISTRICT, and that CONTRACTOR's License No is:
A 738400.
6. Bidding. This paragraph only applies if this AGREEMENT was awarded
following a competitive. bid. If CONTRACTOR submitted a subcontractors list,
CONTRACTOR may only substitute a listed subcontractor by complying with the
Subletting and Subcontracting Fair Practices Act. See Public Contract Code §§ 4100
et seq.) CONTRACTOR cannot perform work using a subcontractor who is debarred.
CONTRACTOR hereby assigns unfair business practices claims (Clayton Act and
Cartwright Act) to the DISTRICT. CONTRACTOR declares by signing this
AGREEMENT that CONTRACTOR did not collude to obtain this job. (Public Contract
Code § 7106.)
7. Prevailing Wages. This is a Public Work. (Labor Code § 1781.) This job,
if over One Thousand Dollars ($1,000.00) in value and not exempt, requires compliance
with the prevailing wage law. (Labor Code §§ 1720 et seq.) As such, DISTRICT will
ascertain the prevailing wages to be paid on this job from the Director of Industrial
Relations. Said amounts are listed at http: / /www.dir.ca.gov /dlsr /pwd /index.htm.
CONTRACTOR understands that CONTRACTOR is required to pay prevailing wages,
unless exempt, and is required to maintain prevailing wage records and comply with
statutory requirements relating to certified copies of payroll records. (Labor Code §
1776.) CONTRACTOR shall defend, indemnify, and hold DISTRICT, its elected
officials, officers, employees, and agents free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the prevailing wage laws.
CONTRACTOR recognizes that state law makes eight (8) hours a legal day's
work, and any worker working in excess of that time must be paid overtime. Labor
Code § 1810.) Statutory provisions for penalties for failure to comply with wage and
hour laws will be enforced. (Labor Code §§ 1775, 1813.)
CONTRACTOR must comply with statutory requirements relating to the
employment of apprentices. (Labor Code § 1777.5.)
8. Workers' Compensation. CONTRACTOR must secure the payment of
workers' compensation to its employees. (Labor Code § 1860; Civil Code § 3400.) By
signing this AGREEMENT, CONTRACTOR acknowledges the following:
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
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provisions of that code, and I will comply with such provisions before
commencing the performance of the work of this contract.
9. Progress Payments. Progress payments may be authorized if this job
will take in excess of thirty (30) days. DISTRICT agrees to promptly make progress
payments on undisputed and properly submitted payment requests within thirty (30)
calendar days and to comply with the provisions of Public Contract Code Section
20104.50.
If this AGREEMENT is for at least Five Thousand Dollars ($5,000.00) and
progress payments are made, DISTRICT will retain five percent (5 %) of the total
contract amount until sixty (60) days after the notice of completion is filed. (Public
Contract Code §§ 7107, 9203.) CONTRACTOR may substitute securities in lieu of
retention pursuant to Public Contracts Code Section 22300.
10. Insurance.
A. Time for Compliance. CONTRACTOR shall not commence work
under this AGREEMENT until it has provided evidence satisfactory to DISTRICT that it
has secured all insurance required under this section. In addition, CONTRACTOR shall
not allow any subcontractor to commence work on any subcontract until it has provided
evidence satisfactory to DISTRICT that the subcontractor has secured all insurance
required under this section.
B. Minimum Requirements. CONTRACTOR shall, at its expense,
procure and maintain for the duration of the AGREEMENT insurance against claims for
injuries to persons or damage to property which may arise from or in connection with
the performance of the AGREEMENT by CONTRACTOR, its agents, representatives,
employees, or subcontractors. CONTRACTOR shall also require all of its
subcontractors to procure and maintain the same insurance for the duration of the
AGREEMENT. Such insurance shall meet at least the following minimum levels of
coverage:
i. Minimum Scope of Insurance. Coverage shall be at least
as broad as the latest version of the following: (1) General Liability: Insurance Services
Office Commercial General Liability coverage (occurrence form CG 0001); (2)
Automobile Liability. Insurance Services Office Business Auto Coverage form number
CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability:
Workers' Compensation insurance as required by the State of California and Employer's -
Liability Insurance.
ii. Minimum Limits of Insurance. CONTRACTOR shall
maintain limits no less than: (1) General Liability. One Million Dollars ($1,000,000.00)
per occurrence for bodily injury, personal injury, and property damage. If Commercial
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General Liability Insurance or other form with general aggregate limit is used, either the
general aggregate limit shall apply separately to this AGREEMENT /location or the
general aggregate limit shall be twice the required occurrence limit; (2) Automobile
Liability. One Million Dollars ($1,000,000.00) per accident for bodily injury and property
damage; and (3) Workers' Compensation and Employer's Liability. Workers'
Compensation limits as required by the Labor Code of the State of California.
Employer's Liability limits of One Million Dollars ($1,000,000.00) per accident for bodily
injury or disease.
C. Insurance Endorsements. The insurance policies shall contain
the following provisions, and a separate endorsement stating to add the following
provisions to the insurance policies shall be submitted and approved by DISTRICT:
L General Liability. The general liability policy shall be
endorsed to state that: (1) DISTRICT, its directors, officials, officers, employees,
agents, and volunteers shall be covered as additional insureds with respect to the work
or operations performed by or on behalf of CONTRACTOR, including materials, parts,
or equipment furnished in connection with such work; and (2) the insurance coverage
shall be primary insurance as respects DISTRICT, its directors, officials, officers,
employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of
coverage excess of CONTRACTOR's scheduled underlying coverage. Any insurance
or self- insurance maintained by DISTRICT, its directors, officials, officers, employees,
agents, and volunteers shall be excess of CONTRACTOR's insurance and shall not be
called upon to contribute with -it in any way.
ii. Automobile Liability. The automobile liability policy shall
be endorsed to state that: (1) DISTRICT, its directors, officials, officers, employees,
agents, and volunteers shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading, or unloading of any auto owned,
leased, hired, or borrowed by CONTRACTOR or for which CONTRACTOR is
responsible; and (2) the insurance coverage shall be primary insurance as respects
DISTRICT, its directors, officials, officers, employees, agents, and volunteers, or if
excess, shall stand in an unbroken chain of coverage excess of CONTRACTOR's
scheduled underlying coverage. Any insurance or self- insurance maintained by
DISTRICT, its directors, officials, officers, employees, agents, and volunteers shall be
excess of CONTRACTOR's insurance and shall not be called upon to contribute with it
in any way.
iii. Workers' Compensation and Employer's Liability
Coverage. The insurer shall agree to waive all rights of subrogation against DISTRICT,
its directors, officials, officers, employees, agents, and volunteers for losses paid under
the terms of the insurance policy which arise from work performed by CONTRACTOR.
iv. All Coverages. Each insurance policy required by this
AGREEMENT shall be endorsed to state that: (A) coverage shall not be suspended,
voided, reduced, or canceled except after thirty (30) days prior written notice by certified
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mail, return receipt requested, has been given to DISTRICT; and (B) any failure to
comply with reporting or other provisions of the policies, including breaches of
warranties, shall not affect coverage provided to DISTRICT, its directors, officials,
officers, employees, agents, and volunteers.
D. Separation of Insureds; No Special Limitations. All insurance
required by this Section shall contain standard separation of insureds provisions. In
addition, such insurance shall not contain any special limitations on the scope of
protection afforded to DISTRICT, its directors, officials, officers, employees, agents, and
volunteers.
E. Deductibles and Self- Insured Retentions. Any deductibles or
self- insured retentions must be declared to and approved by DISTRICT.
CONTRACTOR shall guarantee that, at the option of DISTRICT, either: (1) the insurer
shall reduce or eliminate such deductibles or self- insured retentions as respects
DISTRICT, its directors, officials, officers, employees, agents, and volunteers, or (2)
CONTRACTOR shall procure a bond guaranteeing payment of losses and related
investigation costs, claims, and administrative and defense expenses.
F. Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best's rating of no less than A:VIII, licensed to do business in
California, and satisfactory to DISTRICT.
G. Verification of Coverage. CONTRACTOR shall furnish DISTRICT
with original certificates of insurance and endorsements effecting coverage required by
this AGREEMENT on forms satisfactory to DISTRICT. The certificates and
endorsements for each insurance policy shall be signed by a person authorized by that -
insurer to bind coverage on its behalf and shall be on forms provided by DISTRICT if
requested. All certificates and endorsements must be received and approved by
DISTRICT before work commences. DISTRICT reserves the right to require complete,
certified copies of all required insurance policies, at any time.
11. Indemnification. CONTRACTOR shall defend, indemnify, and hold the
DISTRICT, its officials, officers, employees, and agents free and harmless from any and
all claims, demands, causes of action, expenses, liabilities, losses, damages, and
injuries to property or persons, including wrongful death, where the same arise out of,
pertain to, relate to, are a consequence of, or are in any way attributable to, in whole or
in part, the performance of this AGREEMENT by CONTRACTOR or by any individual or
entity for which CONTRACTOR is legally liable, including, but not limited to, officers,
agents, employees, or subcontractors of CONTRACTOR, save and except that caused
by DISTRICT's sole or active negligence or willful misconduct.
12. Bonds. If this PROJECT is over Twenty -Five Thousand Dollars
($25,000.00), CONTRACTOR must post a payment (labor and materials) bond on
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DISTRICT's form. (Civil Code § 9550.) No work shall be performed until all insurance
and bonds required by this AGREEMENT are on file and this AGREEMENT has been
properly executed.
13. Warranty. CONTRACTOR shall perform, at its own cost and expense
and without reimbursement from DISTRICT, any services necessary to correct errors or
omissions which are caused by CONTRACTOR's failure to comply with the standard of
care provided for herein. CONTRACTOR shall guarantee work done on the PROJECT
for a one -year (1) period commencing on the date of substantial completion.
14. Termination. DISTRICT reserves the right to terminate this
AGREEMENT at any time, with or without cause. CONTRACTOR will be entitled to
payment for work performed up until receipt of the notice of termination unless
CONTRACTOR was in default in CONTRACTOR's performance.
Any employee of CONTRACTOR or its subcontractors who is determined by
DISTRICT to be uncooperative, incompetent, a threat to the adequate or timely
completion of the PROJECT, or a threat to the safety of persons or property, or any
employee who fails or refuses to perform PROJECT in a manner acceptable to
DISTRICT, shall be promptly removed from the PROJECT by the CONTRACTOR and
shall not be re- employed to perform any of the PROJECT.
15. Miscellaneous. DISTRICT acknowledges that if it provides
CONTRACTOR with locations of underground pipelines, and DISTRICT is incorrect and
those utilities must be relocated, DISTRICT will pay for those relocation costs in
accordance with statutory requirements. (Government Code § 4215.)
CONTRACTOR agrees to provide DISTRICT with notice of any hazardous
materials or subsurface or latent physical site conditions if encountered if this work
involves excavations deeper than four feet (4'). If this work exceeds Twenty -Five
Thousand Dollars ($25,000.00) and the excavations exceed five feet (5'),
CONTRACTOR must provide a detailed trenching plan. (Public Contracts Code § 7104;
Labor Code § 6705.)
DISTRICT shall give CONTRACTOR timely notice of third -party claims.
For claims that are less than Three Hundred Seventy -Five Thousand Dollars
($375,000.00), the provisions of Public Contracts Code Sections 20104 et seq. (Article
1.5 — Resolution of Construction Claims) shall be followed.
CONTRACTOR is and shall at all times remain as to DISTRICT an independent
contractor. No employee benefits shall be available to CONTRACTOR in connection
with the performance of this AGREEMENT. Except for the fees paid to CONTRACTOR
as provided in this AGREEMENT, DISTRICT shall not pay salaries, wages, or other
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compensation to CONTRAC'T'OR for performing any services hereunder for DISTRICT.
DISTRICT shall not be liable for compensation or indemnification to CONTRACTOR for
injury or sickness arising out of performing any services hereunder.
This AGREEMENT shall be interpreted in accordance with the laws of the State
of California. Any action brought between the parties shall be commenced in the
superior or federal district court with jurisdiction over the DISTRICT.
This AGREEMENT and the attachments hereto shall contain the entire
agreement between the parties. This AGREEMENT cannot be modified except in a
writing signed by both parties. In the event of inconsistency between this AGREEMENT
and any attachment hereto, this AGREEMENT shall control in all respects.
CONTRACTOR shall provide DISTRICT with drawings of the Construction in its
as built" condition.
COSTA MESA SANITARY DISTRICT
Approved by:
�G-eneralMa�n�—ager
Approved as to Content:
Rob Hmers
District Engineer
Approved as to Form:
8/16/2012
Harper & Burns LLP
District Counsel
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CONSULTANT
Reviewed and Accepted by:
Signature:
Title: L_
EXHIBIT A
Mike Kilbride. LTD Invoice
PO Box 3341
Newport Beach, CA 92659
Bill To
C MSD
628 W. 19th St.
Costa Mesa. CA 92627 -2716
AUG 0 6 2012
WalA111WAJi HAKI msln161
Ship To
Date Invoice #
8/2/2012 1663
P.O. Number
Terms
Rep
Ship
Via
F.O.B.
Project
8/2/2012
1322 Watson. CM
Quantity
Item Code
Description
Price Each
Amount
Replace sewer lateral
Connect house lateral to new sewer main
4- 995.00
4.995.00
1
Extras
Pump water from old main 1.5hrs 614400.
600.00
600.00
1
Extras
'transport backflll to our yard Ibr storage & back to jobsite for
250.00
250.00
backtill 2hrs !i %; $125.
1
Extras
Order & place roadway plates
350.00
350.00
I
Extras
Asphalt crew - stand by time on 7/27/12 plus lost load of
1.500.00
1.500.00
asphalt
],iris
7/30/12 Move plates 1br camera crew 2hrs g' S 125.
250.00
250.00
1
Extras
Pick up & place 2 roadway signs'steel plates ahead'
150.00
150.00
1
Extras
Second trip charge to backtill
400.00
400.00
—AI pproved By .._ -
proved By
GL Acct __.- ---- -=
GL Acct
A
IV
Total $8.495.00
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