HomeMy WebLinkAboutC38330A Carpet Replacement Department of Rehabilitation at Parkview Office Complex 774-18CCONTRACT NO.:C38330A
STAFF REPORT
CITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
MEETING DATE: February 13, 2020
PREPARED BY: Emily Roethler, Project Manager
REQUEST: Award Contract No. r. ignoA to Shaw Industries, Inc. of Dalton, Georgia, in
the amount of $43,206.06 for the carpet replacement of the State of
California Department of Rehabilitation (DOR) at the Parkview Office
Complex (Project No. 774-18C).
Recommendation
By Minute Motion:
1. Award Contract No. U8330A to Shaw Industries, Inc. of Dalton, Georgia, in the
amount of $43,206.06 for the carpet replacement of the State of California
Department of Rehabilitation at the Parkview Office Complex;
2. Appropriate $43,206.06 from the Parkview Office Complex Capital Fund to
Account No. 5104195-4337020;
3. Authorize the Director of Finance to set aside a 10 percent contingency in the
amount of $4,320.60;
4. Authorize the City Manager or designee to review and approve written requests
for the use of contingency change orders for unanticipated conditions, per Section
3.30.170 of the Palm Desert Municipal Code; and,
5. Authorize the City Manager to execute the Agreement.
Upon approval, funds will be available in Account No. 5104195-4337020, Parkview Office
Complex Capital Account.
Strategic Plan
The Tenant Improvement Project for the DOR at the Parkview Office Complex is a maintenance
activity and, as such, does not contribute directly to the objectives of the City's Strategic Plan.
Background Analvsis
As part of the existing lease agreement between the DOR and the City of Palm Desert for Suite
102 at the State Building, as negotiated by Staff, the City is responsible for certain tenant
improvements. One of these improvements is the carpet replacement. Additionally, it was agreed
in the lease that the flooring to be installed would be specified by the tenant. Funding for this
improvement was not previously identified. The cost of this improvement is the sole responsibility
of the City.
February 13, 2020 - Staff Report
Award Contract for Department of Rehabilitation Carpet Replacement (Project No. 774-18C)
Page 2 of 2
The State of California establishes multiple award agreements in accordance with Public Contract
Code, also known as a California Multiple Awards Schedule (CMAS). Agreements are established
with multiple vendors based on previously bid and awarded projects by the Federal General
Services Administration (GSA). California does not use the prices set by the GSA, it negotiates
for equal or lower costs for the same/similar products and services. Once an agreement has been
entered into between the State of California and an approved vendor, the contract becomes
available to any public entity to use with confidence. The City frequently utilizes this method of
contracting for routine facility maintenance projects.
The flooring specified by the DOR, and the labor required to remove existing and install new, is
covered under the existing CMAS contract with Shaw Industries.
Fiscal Analvsis
The account for tenant improvements at the Parkview Office Complex contains sufficient funds
for this improvement. Staff is requesting the contract and contingency amounts ($47,526.66) to
be allocated to Account No. 5104195-4337020. Beyond the cost of the contract, there is no
additional fiscal impact.
LEGAL REVIEW FINANCIAL ASSISTANT
Approved as to Form DEPT. REVIEW, REVIEW CITY MANAGER
NIA
Robert W. Hargreaves Tom Garcia, P.E. eet M. Moore Andy Fir tine
City Attorney Director of Public Works Director of Finance Assista t ity Manager
City Manager, LaafrAllaian:
CONTRACTOR: Shaw Industries, Inc.
616 Duvall Road
Dalton, Georgia 30722
ATTACHMENTS: 1) Cost Proposal
2) Agreement
616 Duvall Road Mail Drop OWE
Dalton, GA 30722
• •
Shaw Industries, Inc.
A Berkshire Hathaway Company
Proposal Submitted To Attention Phone
City of Palm Desert Accounts Payable (760) 346-0611
Proposal Name Job Name
Dept. of Rehab Flooring Dept. of Rehab Flooring
(Street Job Street
73510 Fred Waring Dr. 73510 Fred Waring Dr.
(City, State and Zip (Architect I Date of Plans l Add # Job City, State and Zip
Palm Desert, CA 92260 CMAS PALM DESERT, CA 92260
We hereby submit specifications and estimates for:
Item Description Color
Shine Tile -Full Repeat-24" x 24"-17 oz 27505/Moonlight
Solitude Resilient 6x48/0648V 48540/Urban Ash
5100 Pressure Sensitive Adhesive (Tile)
4100 Adhesive - 4 Gallon
Carpet Tile Installation
Carpet Demo (Standard)
Carpet Disposal
LVT Installation (No Pattern; Excludes Materials)
General Labor Services- Furnish & Install Flexco
Rubber Wall Base
General Labor Services - Floor Prep (Material &
Labor)
Furniture Removal & Replacement
Project Management Fee
General Labor Services - Night & Weekend
Labor
General Labor Services - Transportation of
Materials to Job Site
Reimbursement of taxes imposed on the
contractor pursuant to F.A.R. Section
52.229-4(c). The contract price does not include
any contingency for such tax.
Freight
California Carpet Assessment as required by AB
2398
Phone: (770) 276-7508
Fax: (706)428-3293
Fax Date
( ) - 11/01/19
Job #
114493
Proposal ID
128417
Customer Job # Customer PO
None None
Qtv
UOM
Unit Price
Extended Price
432.00
SY
$21.73
$9,387.36
780.00
SF
$3.05
$2,379.00
4.00
4 Gal
$79.54
$318.16
2.00
Each
$136.88
$273 76
431.00
SY
$6.33
$2,728.23
431.00
SY
$3.58
$1, 542.98
431.00
SY
$1.21
$521.51
780.00
SF
$2.90
$2,262.00
1,200.00
LF
$2.84
$3,408.00
4,659.00
SF
$2.06
$9,597.54
46.00
Hour
$71.50
$3,289.00
1.00
Each
$2,282.63
$2,282.63
517.00
SY
$3.99
$2,062.83
517.00
SY
$1.98
$1,023.66
1.00
Each
$998.71
$998.71
1.00
Each
$979.49
$979.49
$151.20
Base Bid Total: $43,206.06
Proposal Inclusions and Exclusions:
1. Contract#4-19-00-0125A
Contract Period 7/19/13 to 2/16/20
2. Local Contact: Marcos Alday Installation Partner: Floor Tech America
3. Material title and risk of loss passes to the purchaser at the time of material delivery to owner provided address.
4. Please fax your Purchase Order to Shaw Integrated Solutions at fax # 706-428-3293 to initiate the order process. A purchase order
is required before materials can be shipped.
5. Proposal does not include removal of any materials containing asbestos.
6. Price is based on a consecutive installation period without delays and is based on the customer allowing installation crews access to
work a minimum of 8 consecutive hours a day until completion. Delays other than "acts of God" will result in charges for down -time.
Page 1 of 2
616 Duvall Road Mail Drop OWE
Dalton, GA 30722
Proposal ID: 128417
Proposal Inclusions and Exclusions:
!t� Mtt,
ShawIndustries.Industries. Inc.
A Berkshire Hathaway Company
Phone: (770) 276-7508
Fax: (706) 428-3293
7. Exclusions: attic stock, major floor prep, furniture moving unless specified in proposal, disconnecting and moving of computers and
electronic equipment, vacuuming and protection of finished products, and any plumbing work (removal of commodes, etc)..
8. Extensive floor prep is not included in the price but may be necessary due to unforeseen conditions of the sub -floor. This work may
include, but is not limited to, leveling or grinding, encapsulation or sealing, or extensive scraping of the sub -floor. Should extensive
floor prep be required, you will be notified and a price estimate for the completion of the additional work will be prepared.
9. Price includes work as specifically stated in the above description for the quantities stated. Any circumstances that require additional
labor will be handled through the change order process.
10. Remit to Address: SHAW INTEGRATED SOLUTIONS, MAIL DROP 999, PO BOX 630862, CINCINNATI, OHIO 45263-0862
11. SII License Numbers: AL 50787, AK 40319, AZ ROC300955/ROC300956, CA 1007317, ID RCE-39577/022829-AA-4, MT 216017,
NV 0080544/0080545/0080546/0080547, NC 75663, NM 385848, ND 53106, NY 58-2240471C, OR 205839, RI 38919, TN 69109,
UT 9531877-5501, VA 2705157974, WA SHAW111853DO, WV WV054222
12. This proposal includes Overtime rates.
We PROPOSE to perform the work complete in accordance with the specifications and as described above for the SUM of:
Signature: Rahscatt Carta Rahsean Carter $43,206.06
Email: rahsean.cartera@shawinc.com
Conditions of Proposal:
1. This proposal may be withdrawn if not accepted within 30 days of its issuance Shaw will consider reasonable requests to engage in negotiations for revisions to this Proposal,
including signing a subcontract that incorporates the terms of this Proposal.
2 This proposal is subject to credit review and approval. Payment terms are net 30 days. A convenience fee of 2% will be added if paying via credit card. Past due invoices are subject
to service charges of 1 5% per month (18% per annum). In the case of any default, Customer shall pay Shaw's reasonable attorney fees and costs, including those on any appeal,
even if no suit or action is filed.
3 All work shall be performed in a workmanlike manner according to industry standards. Areas to receive flooring shall be free and clear of debris Any changes to the work shall be
performed only after execution of a written change order.
4 Prior to commencement of Shaw's work: (a) Customer shall test all concrete sub floors receiving flooring for vapor emission levels and alkalinity per manufacturers' recommendations
utilizing ASTM F2170 and/or F1869 and provide written results to Shaw, including a list of any sealers applied to the concrete sub floor, (b) If Customer does not provide such reports
at least 10 days prior to commencement of Shaw's work, then Customer shall provide Shaw with access to all concrete sub floors for appropriate testing and Customer shall be
responsible for the costs of such testing: and (c) Any concrete sub floors not meeting manufacturers' requirements for installation will require correction or the execution of a separate
waiver agreement
5 All work is contingent upon strikes, accidents or delays beyond Shaw's control Customer shall carry insurance for all hazards, including fire. Shaw's workers are fully covered by
Worker's Compensation and Liability Insurance.
6 Customer represents and warrants that: (a) the project site contains no hazardous or other dangerous substances, either exposed or concealed: or (b) Customer has given written
notice to Shaw of all such substances and their Iocation(s). To the fullest extent permitted by law, Customer shall indemnify, defend and hold Shaw harmless from any damage, claim.
loss. expense and attorney fees related to Shaw's liability, if any, including any federal or state statute related to hazardous or other dangerous substances
ACCEPTANCE OF PROPOSAL: The above prices, specifications, and conditions are satisfactory and are hereby ACCEPTED.
You are authorized to do the work as specified.
Customer: City of Palm Desert
Signed:
Page 2 of 2
Date:
CONTRACT NO. C38330A
(IT Y Of PRIM D IS I R T
73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760 346-0611
INFO PALM-DESERT.ORG
SHORT FORM CONSTRUCTION CONTRACT
CARPET INSTALLATION - STATE OF CALIFORNIA DEPARTMENT OF REHABILITATION
CARPET AND LUXURY VINYL TILE (LVT) INSTALLATION AT SUITE 102 AT THE STATE
BUILDING
1. PARTIES AND DATE.
This Contract is made and entered into this 13"1 day of February 2020, by and between the City
of Palm Desert, a municipal corporation organized under the laws of the State of California with
its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260-2578,
County of Riverside, State of California ("City") and Shaw Industries, Inc., a Corporation with
its principal place of business at 770 Joe Frank Harris Pkwy, Mail Drop 011-01, Cartersville,
GA 30120 ("Contractor"). City and Contractor are sometimes individually referred to as "Party"
and collectively as "Parties" in this Contract.
2. RECITALS.
2.1 Cam. City is a public agency organized under the laws of the State of California,
with power to contract for services necessary to achieve its purpose.
2.2 Contractor. Contractor desires to perform and assume responsibility for the
provision of certain construction services required by the City on the terms and conditions set
forth in this Contract. Contractor represents that it is duly licensed and experienced in providing
carpet installation related construction services to public clients, that it and its employees or
subcontractors have all necessary licenses and permits to perform the services in the State of
California, and that it is familiar with the plans of City. The following license classifications are
required for this Project: Type B — General Building Contractor License.
2.3 Proiect. City desires to engage Contractor to render such services for the
CARPET INSTALLATION — STATE OF CALIFORNIA DEPARTMENT OF REHABILITATION
CARPET AND LUXURY VINYL TILE (LVT) INSTALLATION AT SUITE 102 AT THE STATE
BUILDING ("Project') as set forth in this Contract.
2.4 Proiect Documents & Certifications. Contractor has obtained, and delivers
concurrently herewith, Performance Bonds, Payment Bonds, Insurance Documents, City
Business License and Contractor's License as required by the Contract.
3. TERMS
72500.00001\31605522.1 Refi11-9-18
3.1 Incorporation of Documents. This Contract includes and hereby incorporates in
full by reference the following documents, including all exhibits, drawings, specifications and
documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit "A")
• Plans and Specifications (Exhibit "B")
• Special Conditions (Exhibit "C")
• Contractor's Certificate Regarding Workers' Compensation (Exhibit "D")
• Public Works Contractor Registration Certification (Exhibit "E")
• Payment and Performance Bonds (Exhibit "F")
• Addenda
• Change Orders executed by the City
• Current Edition of the Standard Specifications for Public Works Construction
• (The Greenbook), Excluding Sections 1-9
• Notice Inviting Bids, if any
• Instructions to Bidders, if any
• Contractor's Bid
3.1.1 Precedence. To the extent there is a conflict between any portions of
this Contract, the order of precedence shall be as follows: change orders, special
conditions, technical specifications, plans/construction drawings, general contract terms,
scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other
documents submitted by Contractor.
3.2 Contractor's Basic Obligation; Scope of Work. Contractor promises and agrees,
at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services,
and incidental and customary work necessary to fully and adequately complete the Project,
including all structures and facilities necessary for the Project or described in the Contract
(hereinafter sometimes referred to as the "Work"), for a Total Contract Price as specified pursuant
to this Contract. All Work shall be subject to, and performed in accordance with the above
referenced documents, as well as the exhibits attached hereto and incorporated herein by
reference. The plans and specifications for the Work are further described in Exhibit "B" attached
hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work
are described in Exhibit "C" attached hereto and incorporated herein by this reference.
3.2.1 Change in Scope of Work. Any change in the scope of the Work,
method of performance, nature of materials or price thereof, or any other matter materially
affecting the performance or nature of the Work shall not be paid for or accepted unless
such change, addition or deletion is approved in advance and in writing by a valid change
order executed by the City.
3.2.1.1 Chanqe Orders. Changes to the Contract Time (as defined
in Section 3.3) or Total Contract Price shall be in the form of a written Change
Order, either signed by both parties or issued unilaterally by the City. No
adjustment shall be made to the Contract Time unless the delay impacts the critical
path to completion and the delay was not caused in whole or in part by the
Contractor. Failure to timely request a Change Order shall constitute a waiver of
any right to adjust the Contract Time or the Total Contract Price. All requests for
Change Orders shall be accompanied by detailed supporting documentation,
2
including but not limited to payroll records, invoices, schedules, and any other
documentation requested by the City for the purpose of determining the additional
costs or the impact of any delay. If the change involves Work bid at a unit price,
then the Total Contract Price shall be increased at the unit price. If there is no unit
price, then the Total Contract Price shall be adjusted to account for costs actually
incurred plus an allowed mark-up of fifteen percent (15%), which shall constitute
the entire amount of profit, mark-ups, field or home office overhead costs, including
personnel, equipment or office space, any materials, or any costs of equipment
idle time for such work. Nothing herein shall prevent the Parties from agreeing to
a lump sum cost.
(A) Changes Ordered By City. City may at any time issue a written directive
ordering additions, deletions, or changes to the Work. Contractor shall
proceed with the work in accordance with the directive. To the extent the
directive results in extra work or requires additional Contract Time,
Contractor shall request a Change Order within seven (7) days of receiving
the Work Directive. If any costs are not capable of being determined within
seven (7) days, then Contractor shall request a Change Order within seven
(7) days of when the costs are capable of being determined.
(B) Changes Requested By Contractor. With respect to any matter that may
involve or require an adjustment to the Contract Time or the Contract Price,
Contractor shall provide written notice of the underlying facts and
circumstances that gave rise to the potential change within seven (7) days
or prior to the alteration of conditions, whichever is earlier. Failure to give
notice shall constitute a waiver of Contractor's right to a change order. If
any costs are not capable of being determined within seven (7) days, then
Contractor shall request a Change Order within seven (7) days of when the
costs are capable of being determined.
3.2.2 Substitutionsf'Or Equal". Pursuant to Public Contract Code Section
3400(b), the City may make a finding that designates certain products, things, or services
by specific brand or trade name. Unless specifically designated in this Contract, whenever
any material, process, or article is indicated or specified by grade, patent, or proprietary
name or by name of manufacturer, such Specifications shall be deemed to be used for
the purpose of facilitating the description of the material, process or article desired and
shall be deemed to be followed by the words `or equal."
Contractor may, unless otherwise stated, offer for substitution any material, process or
article which shall be substantially equal or better in every respect to that so indicated or
specified in this Contract. However, the City may have adopted certain uniform standards
for certain materials, processes and articles. Contractor shall submit requests, together
with substantiating data, for substitution of any "or equal" material, process or article no
later than thirty-five (35) days after award of the Contract. To facilitate the construction
schedule and sequencing, some requests may need to be submitted before thirty-five (35)
days after award of Contract. Provisions regarding submission of `or equal" requests shall
not in any way authorize an extension of time for performance of this Contract. If a
proposed `or equal" substitution request is rejected, Contractor shall be responsible for
�3
providing the specified material, process or article. The burden of proof as to the equality
of any material, process or article shall rest with Contractor.
The City has the complete and sole discretion to determine if a material, process or article
is an `or equal" material, process or article that may be substituted. Data required to
substantiate requests for substitutions of an "or equal" material, process or article data
shall include a signed affidavit from Contractor stating that, and describing how, the
substituted `or equal" material, process or article is equivalent to that specified in every
way except as listed on the affidavit. Substantiating data shall include any and all
illustrations, specifications, and other relevant data including catalog information which
describes the requested substituted `or equal" material, process or article, and
substantiates that it is an `or equal" to the material, process or article. The substantiating
data must also include information regarding the durability and lifecycle cost of the
requested substituted "or equal" material, process or article. Failure to submit all the
required substantiating data, including the signed affidavit, to the City in a timely fashion
will result in the rejection of the proposed substitution.
Contractor shall bear all of the City's costs associated with the review of substitution
requests. Contractor shall be responsible for all costs related to a substituted "or equal"
material, process or article. Contractor is directed to the Special Conditions (if any) to
review any findings made pursuant to Public Contract Code section 3400.
3.3 Period of Performance and Liquidated Damages. Contractor shall perform and
complete all Work under this Contract within Thirty (30) Calendar days, beginning the effective
date of the Notice to Proceed ("Contract Time"). Contractor shall perform its Work in strict
accordance with any completion schedule, construction schedule or project milestones developed
by the City. Such schedules or milestones may be included as part of Exhibits "A" or "B" attached
hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such
Work is not completed within the aforementioned Contract Time and/or pursuant to any such
completion schedule, construction schedule or project milestones developed pursuant to
provisions of the Contract, it is understood, acknowledged and agreed that the City will suffer
damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as
fixed and liquidated damages the sum of ($500.00) per day for each and every calendar day of
delay beyond the Contract Time or beyond any completion schedule, construction schedule or
Project milestones established pursuant to the Contract.
3.4 Standard of Performance, Performance of Emolovees. Contractor shall perform
all Work under this Contract in a skillful and workmanlike manner, and consistent with the
standards generally recognized as being employed by professionals in the same discipline in the
State of California. Contractor represents and maintains that it is skilled in the professional calling
necessary to perform the Work. Contractor warrants that all employees and subcontractors shall
have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor
represents that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Work, including a City
Business License, and that such licenses and approvals shall be maintained throughout the term
of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall
perform, at its own cost and expense and without reimbursement from the City, any work
necessary to correct errors or omissions which are caused by Contractor's failure to comply with
the standard of care provided for herein. Any employee who is determined by the City to be
rd
uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who
fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed
from the Project by Contractor and shall not be re-employed on the Work.
3.5 Control and Pavment of Subordinates: Contractual Relationship. City retains
Contractor on an independent contractor basis and Contractor is not an employee of City. Any
additional personnel performing the work governed by this Contract on behalf of Contractor shall
at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages,
salaries, and other amounts due such personnel in connection with their performance under this
Contract and as required by law. Contractor shall be responsible for all reports and obligations
respecting such additional personnel, including, but not limited to: social security taxes, income
tax withholding, unemployment insurance, and workers' compensation insurance.
3.6 Citv's Basic Obligation. City agrees to engage and does hereby engage
Contractor as an independent contractor to furnish all materials and to perform all Work according
to the terms and conditions herein contained for the sum set forth above. Except as otherwise
provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory
performance by Contractor of the services and obligations required by this Contract, the below
referenced compensation in accordance with compensation provisions set forth in the Contract.
3.7 Compensation and Pavment.
3.7.1 Amount of Compensation. As consideration for performance of the Work
required herein, City agrees to pay Contractor the Total Contract Price of Forty Three
Thousand Two Hundred Six and 06/100 DOLLARS, ($43,206.06) ("Total Contract
Price") provided that such amount shall be subject to adjustment pursuant to the
applicable terms of this Contract or written change orders approved and signed in advance
by the City.
3.7.2 Pavment of Compensation. If the Work is scheduled for completion in thirty
(30) or less calendar days, City will arrange for payment of the Total Contract Price upon
completion and approval by City of the Work. If the Work is scheduled for completion in
more than thirty (30) calendar days, City will pay Contractor on a monthly basis as
provided for herein. On or before the fifth (5th) day of each month, Contractor shall submit
to the City an itemized application for payment in the format supplied by the City indicating
the amount of Work completed since commencement of the Work or since the last
progress payment. These applications shall be supported by evidence which is required
by this Contract and such other documentation as the City may require. The Contractor
shall certify that the Work for which payment is requested has been done and that the
materials listed are stored where indicated. Contractor may be required to furnish a
detailed schedule of values upon request of the City and in such detail and form as the
City shall request, showing the quantities, unit prices, overhead, profit, and all other
expenses involved in order to provide a basis for determining the amount of progress
payments. Contractor shall submit its final invoice to City within thirty (30) days from the
last date of the Work or termination in accordance with section 3.18.3 and failure by the
Contractor to submit a timely invoice shall constitute a waiver of its right to final payment.
3.7.3 Prompt Pavment. City shall review and pay all progress payment requests
in accordance with the provisions set forth in Section 20104.50 of the California Public
Contract Code. However, no progress payments will be made for Work not completed in
accordance with this Contract. Contractor shall comply with all applicable laws, rules and
regulations relating to the proper payment of its employees, subcontractors, suppliers or
others.
3.7.4 Contract Retentions. From each approved progress estimate, five percent
(5%) will be deducted and retained by the City, and the remainder will be paid to
Contractor. All Contract retention shall be released and paid to Contractor and
subcontractors pursuant to California Public Contract Code Section 7107.
3.7.5 Other Retentions. In addition to Contract retentions, the City may deduct
from each progress payment an amount necessary to protect City from loss because of:
(1) liquidated damages which have accrued as of the date of the application for payment;
(2) any sums expended by the City in performing any of Contractor's obligations under the
Contract which Contractor has failed to perform or has performed inadequately; (3)
defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable
doubt that the Work can be completed for the unpaid balance of the Total Contract Price
or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by
Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to
maintain or submit on a timely basis proper and sufficient documentation as required by
the Contract or by City during the prosecution of the Work; (9) erroneous or false estimates
by Contractor of the value of the Work performed; (10) any sums representing expenses,
losses, or damages as determined by the City, incurred by the City for which Contractor
is liable under the Contract; and (11) any other sums which the City is entitled to recover
from Contractor under the terms of the Contract or pursuant to state law, including Section
1727 of the California Labor Code. The failure by the City to deduct any of these sums
from a progress payment shall not constitute a waiver of the City's right to such sums.
3.7.6 Substitutions for Contract Retentions. In accordance with California Public
Contract Code Section 22300, the City will permit the substitution of securities for any
monies withheld by the City to ensure performance under the Contract. At the request
and expense of Contractor, securities equivalent to the amount withheld shall be deposited
with the City, or with a state or federally chartered bank in California as the escrow agent,
and thereafter the City shall then pay such monies to Contractor as they come due. Upon
satisfactory completion of the Contract, the securities shall be returned to Contractor. For
purposes of this Section and Section 22300 of the Public Contract Code, the term
"satisfactory completion of the contract" shall mean the time the City has issued written
final acceptance of the Work and filed a Notice of Completion as required by law and
provisions of this Contract. Contractor shall be the beneficial owner of any securities
substituted for monies withheld and shall receive any interest thereon. The escrow
agreement used for the purposes of this Section shall be in the form provided by the City.
3.7.7 Pavment to Subcontractors. Contractor shall pay all subcontractors for and
on account of work performed by such subcontractors in accordance with the terms of
their respective subcontracts and as provided for in Section 7108.5 of the California
Business and Professions Code. Such payments to subcontractors shall be based on the
0
measurements and estimates made and progress payments provided to Contractor
pursuant to this Contract.
3.7.8 Title to Work. As security for partial, progress, or other payments, title to
Work for which such payments are made shall pass to the City at the time of payment. To
the extent that title has not previously been vested in the City by reason of payments, full
title shall pass to the City at delivery of the Work at the destination and time specified in
this Contract. Such transferred title shall in each case be good, free and clear from any
and all security interests, liens, or other encumbrances. Contractor promises and agrees
that it will not pledge, hypothecate, or otherwise encumber the items in any manner that
would result in any lien, security interest, charge, or claim upon or against said items.
Such transfer of title shall not imply acceptance by the City, nor relieve Contractor from
the responsibility to strictly comply with the Contract, and shall not relieve Contractor of
responsibility for any loss of or damage to items.
3.7.9 Labor and Material Releases. Contractor shall furnish City with labor and
material releases from all subcontractors performing work on, or furnishing materials for,
the Work governed by this Contract prior to final payment by City.
3.8 Labor
3.8.1 Prevailinq Waqes. Contractor is aware of the requirements of California
Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of
Regulations, Title 8, Section 16000 et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on "public
works" and "maintenance" projects. Since the Work is being performed as part of an
applicable "public works" or "maintenance" project, as defined by the Prevailing Wage
Laws, and if the total compensation is $25,000 or more for a public works project or
$15,000 or more for a maintenance project, Contractor agrees to fully comply with such
Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of
per diem wages in effect at the commencement of this Contract. Contractor shall make
copies of the prevailing rates of per diem wages for each craft, classification or type of
worker needed to execute the Services available to interested parties upon request, and
shall post copies at Contractor's principal place of business and at the project site.
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.
3.8.2 ADorenticeable Crafts. When Contractor employs workmen in an
apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5
of the California Labor Code with respect to the employment of properly registered
apprentices upon public works. The primary responsibility for compliance with said section
for all apprenticeable occupations shall be with Contractor. 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.
III
3.8.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes
a legal day's work. Pursuant to Section 1813 of the California Labor Code, Contractor
shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to
work more than eight (8) hours in any one calendar day and forty (40) hours in any one
calendar week, except when payment for overtime is made at not less than one and one-
half (1-1/2) times the basic rate for that worker.
3.8.4 Pavroll Records. 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. In accordance with Labor
Code section 1771.4, the Contractor and each subcontractor shall furnish the certified
payroll records directly to the DIR on a weekly basis and in the format prescribed by the
DIR, which may include electronic submission. 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.
3.8.5 Contractor and Subcontractor 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. No bid will be accepted nor any contract
entered into without proof of the contractor's and subcontractors' current registration with
the Department of Industrial Relations to perform public work. Contractor is directed to
review, fill out and execute the Public Works Contractor Registration Certification attached
hereto as Exhibit "E" prior to contract execution. 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.
3.8.6 Labor Compliance; Stop Orders. This Project is subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be the
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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 Department of Industrial Relations 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 the
City, its officials, officers, employees and agents free and harmless from any claim or
liability arising out of stop orders issued by the Department of Industrial Relations against
Contractor or any subcontractor.
3.9 Performance of Work; Jobsite Obligations.
3.9.1 Water Qualitv Management and Compliance.
3.9.1.1 Water Qualitv Management and Compliance. Contractor shall keep
itself and all subcontractors, staff, and employees fully informed of and in
compliance with all local, state and federal laws, rules and regulations that may
impact, or be implicated by the performance of the Work including, without
limitation, all applicable provisions of the Federal Water Pollution Control Act (33
U.S.C. §§ 1300); the California Porter -Cologne Water Quality Control Act (Cal
Water Code §§ 13000-14950); local ordinances regulating discharges of storm
water; and any and all regulations, policies, or permits issued pursuant to any such
authority regulating the discharge of pollutants, as that term is used in the Porter -
Cologne Water Quality Control Act, to any ground or surface water in the State.
3.9.1.2 Compliance with the Statewide Construction General Permit.
Contractor shall comply with all conditions of the most recent iteration of the
National Pollutant Discharge Elimination System General Permit for Storm Water
Discharges Associated with Construction Activity, issued by the California State
Water Resources Control Board ("Permit"). It shall be Contractor's sole
responsibility to file a Notice of Intent and procure coverage under the Permit for
all construction activity which results in the disturbance of more than one acre of
total land area or which is part of a larger common area of development or sale.
Prior to initiating work, Contractor shall be solely responsible for preparing and
implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by
the Permit. Contractor shall be responsible for procuring, implementing and
complying with the provisions of the Permit and the SWPPP, including the standard
provisions, and monitoring and reporting requirements as required by the Permit.
The Permit requires the SWPPP to be a "living document' that changes as
necessary to meet the conditions and requirements of the job site as it progresses
through difference phases of construction and is subject to different weather
conditions. It shall be Contractor's sole responsibility to update the SWPPP as
necessary to address conditions at the project site.
3.9.1.3 Other Water Qualitv Rules Requlations and Policies. Contractor
shall comply with the lawful requirements of any applicable municipality, drainage
City, or local agency regarding discharges of storm water to separate storm drain
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systems or other watercourses under their jurisdiction, including applicable
requirements in municipal storm water management programs.
3.9.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may
be encountered at various times during construction of the Work. Therefore, the
Contractor, hereby acknowledges that it has investigated the risk arising from such
waters and assumes any and all risks and liabilities arising therefrom.
3.9.1.5 Liabilitv for Non -Compliance. Failure to comply with the Permit is a
violation of federal and state law. Pursuant to the indemnification provisions of this
Contract, Contractor hereby agrees to defend, indemnify and hold harmless the
City and its directors, officials, officers, employees, volunteers and agents for any
alleged violations of such applicable law by Contractor. In addition, City may seek
damages from Contractor for any delay in completing the Work in accordance with
the Contract, if such delay is caused by or related to Contractor's failure to comply
with the Permit.
3.9.1.6 Reservation of Right to Defend. City reserves the right to defend
any enforcement action brought against the City for Contractor's failure to comply
with the Permit or any other relevant water quality law, regulation, or policy.
Pursuant to the indemnification provisions of this Contract, Contractor hereby
agrees to be bound by, and to reimburse the City for the costs (including the City's
attorney's fees) associated with, any settlement reached between the City and the
relevant enforcement entity.
3.9.1.7 Training. In addition to the standard of performance requirements
set forth in paragraph 3.4, Contractor warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the work
assigned to them without impacting water quality in violation of the laws,
regulations and policies described in paragraph 3.9.1. Contractor further warrants
that it, its employees and subcontractors will receive adequate training, as
determined by City, regarding the requirements of the laws, regulations and
policies described in paragraph 3.9.1 as they may relate to the Work provided
under this Contract. Upon request, City will provide the Contractor with a list of
training programs that meet the requirements of this paragraph.
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3.9.2 Safe . Contractor shall execute and maintain its work so as to avoid injury
or damage to any person or property. Contractor shall comply with the requirements of
the specifications relating to safety measures applicable in particular operations or kinds
of work. In carrying out its Work, Contractor shall at all times be in compliance with all
applicable local, state and federal laws, rules and regulations, and shall exercise all
necessary precautions for the safety of employees appropriate to the nature of the Work
and the conditions under which the Work is to be performed. Safety precautions as
applicable shall include, but shall not be limited to, adequate life protection and lifesaving
equipment; adequate illumination for underground and night operations; instructions in
accident prevention for all employees, such as machinery guards, safe walkways,
scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and
shoring, fall protection and other safety devices, equipment and wearing apparel as are
necessary or lawfully required to prevent accidents or injuries; and adequate facilities for
the proper inspection and maintenance of all safety measures. Furthermore, Contractor
shall prominently display the names and telephone numbers of at least two medical
doctors practicing in the vicinity of the Project, as well as the telephone number of the local
ambulance service, adjacent to all telephones at the Project site.
3.9.3 Laws and Reaulations. Contractor shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Contract or the Work, including all Cal/OSHA
requirements, and shall give all notices required by law. Contractor shall be liable for all
violations of such laws and regulations in connection with the Work. If Contractor observes
that the drawings or specifications are at variance with any law, rule or regulation, it shall
promptly notify the City in writing. Any necessary changes shall be made by written
change order. If Contractor performs any work knowing it to be contrary to such laws,
rules and regulations and without giving written notice to the City, Contractor shall be
solely responsible for all costs arising therefrom. City is a public entity of the State of
California subject to certain provisions of the Health & Safety Code, Government Code,
Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all
provisions of the law applicable to the public contracts of a municipality are a part of this
Contract to the same extent as though set forth herein and will be complied with.
Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees
and agents free and harmless, pursuant to the indemnification provisions of this Contract,
from any claim or liability arising out of any failure or alleged failure to comply with such
laws, rules or regulations.
3.9.4 Permits and Licenses. Contractor shall be responsible for securing City
permits and licenses necessary to perform the Work described herein, including, but not
limited to, any required business license. While Contractor will not be charged a fee for
any City permits, Contractor shall pay the City's business license fee, if any. Any ineligible
contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not
perform work on this Project.
3.9.5 Trenchinq Work. If the Total Contract Price exceeds $25,000 and if the
Work governed by this Contract entails excavation of any trench or trenches five (5) feet
or more in depth, Contractor shall comply with all applicable provisions of the California
Labor Code, including Section 6705. To this end, Contractor shall submit for City's review
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and approval a detailed plan showing the design of shoring, bracing, sloping, or other
provisions to be made for worker protection from the hazard of caving ground during the
excavation of such trench or trenches. If such plan varies from the shoring system
standards, the plan shall be prepared by a registered civil or structural engineer.
3.9.6 Hazardous Materials and Differing Conditions. As required by California
Public Contract Code Section 7104, if this Contract involves digging trenches or other
excavations that extend deeper than four (4) feet below the surface, Contractor shall
promptly, and prior to disturbance of any conditions, notify City of: (1) any material
discovered in excavation that Contractor believes to be a hazardous waste that is required
to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or latent
physical conditions at the site differing from those indicated by City; and (3) unknown
physical conditions of an unusual nature at the site, significantly different from those
ordinarily encountered in such contract work. Upon notification, City shall promptly
investigate the conditions to determine whether a change order is appropriate. In the
event of a dispute, Contractor shall not be excused from any scheduled completion date
and shall proceed with all Work to be performed under the Contract, but shall retain all
rights provided by the Contract or by law for making protests and resolving the dispute.
3.9.7 Underground Utilitv Facilities. To the extent required by Section 4215 of
the California Government Code, City shall compensate Contractor for the costs of: (1)
locating and repairing damage to underground utility facilities not caused by the failure of
Contractor to exercise reasonable care; (2) removing or relocating underground utility
facilities not indicated in the construction drawings; and (3) equipment necessarily idled
during such work. Contractor shall not be assessed liquidated damages for delay caused
by failure of City to provide for removal or relocation of such utility facilities.
3.9.8 Air Qualitv. Contractor must fully comply with all applicable laws, rules and
regulations in furnishing or using equipment and/or providing services, including, but not
limited to, emissions limits and permitting requirements imposed by the California Air
Resources Board (CARE). Although CARB limits and requirements are more broad,
Contractor shall specifically be aware of their application to "portable equipment", which
definition is considered by CARB to include any item of equipment with a fuel -powered
engine. Contractor shall indemnify City against any fines or penalties imposed by CARB,
or any other governmental or regulatory agency for violations of applicable laws, rules
and/or regulations by Contractor, its subcontractors, or others for whom Contractor is
responsible under its indemnity obligations provided for in this Contract.
3.9.9 State Recvcling Mandates. Contractor shall comply with State Recycling
Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly
diverted via reuse or recycling must be hauled by the appropriate handler for reuse or
recycling.
3.9.10 Inspection of Site. Contractor has visited sites where Work is to be
performed and has become acquainted with all conditions affecting the Work. Contractor
warrants that it has made such examinations as it deems necessary to determine the
condition of the Work sites, its accessibility to materials, workmen and equipment, and to
determine the Contractor's ability to protect existing surface and subsurface
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improvements. No claim for allowances —time or money —will be allowed as to such
matters.
3.9.11 Field Measurements. Contractor shall make field measurements, verify
field conditions and shall carefully compare such field measurements and conditions and
other information known to Contractor with the Contract Documents before commencing
activities. Errors, inconsistencies or omissions discovered shall be reported to the City
immediately and prior to performing any work or altering the condition.
3.10 Completion of Work. When Contractor determines that it has completed the Work
required herein, Contractor shall so notify City in writing and shall furnish all labor and material
releases required by this Contract. City shall thereupon inspect the Work. If the Work is not
acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items
of Work which are unsatisfactory or incomplete. Once Contractor determines that it has
completed the incomplete or unsatisfactory Work, Contractor may request a re -inspection by the
City. Once the Work is acceptable to City, City shall pay to Contractor the Total Contract Price
remaining to be paid, less any amount which City may be authorized or directed by law to retain.
Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107
of the California Public Contract Code.
3.11 Claims; Government Code Claim Compliance.
3.11.1 Intent. 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.
3.11.2 The following requirements apply to all contracts entered into after January
1, 1991, and all claims to which this section applies:
3.11.2.1 Prerequisites. If any dispute shall arise between the City
and Contractor regarding performance of the work, or any alleged change in the
work, Contractor shall timely perform the disputed work and shall give written
notice of a claim for additional compensation for the work to the City within three
(3) days after commencement of the disputed work. Contractor's failure to give
written notice within the three (3)-day period constitutes an agreement by
Contractor that it will receive no extra compensation for the disputed work and shall
constitute a waiver of the right to these procedures.
3.11.2.2 Claim Submittal. For purposes of this section, "Claim"
means a separate demand by the 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 the Contractor pursuant to the Contract, or (C) an amount the payment
of which is disputed by the City. Claims governed by this section may not be filed
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unless and until the 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. 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." Claims governed by this
procedure must be filed on or before the date of final payment. 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.
3.11.2.3 Supportinq Documentation: The Contractor shall submit all
claims in the following format:
(1) Summary of claim merit and price, reference Contract Document
provisions pursuant to which the claim is made
(2) List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
(3) Chronology of events and correspondence
(4) Analysis of claim merit
(5) Analysis of claim cost
(6) Time impact analysis in CPM format
3.11.2.4 Citv'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 the 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.
(1) If the City needs approval from the City Council to provide the
Contractor a written statement identifying the disputed portion and
the undisputed portion of the claim, and the City Council does not
meet within the 45 days or within the mutually agreed to extension
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of time following receipt of a claim sent by registered mail or
certified mail, return receipt requested, the City shall have up to
three days following the next duly publicly noticed meeting of the
City Council after the 45-day period, or extension, expires to provide
the Contractor a written statement identifying the disputed portion
and the undisputed portion.
(2) Within 30 days of receipt of a claim, the City may request in writing
additional documentation supporting the claim or relating to
defenses or claims the 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.
(3) The City's written response to the claim, as further documented,
shall be submitted to the 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 the Contractor in producing the additional information or
requested documentation, whichever is greater.
3.11.2.5 Meet and Confer. If the Contractor disputes the City's
written response, or the City fails to respond within the time prescribed, the
Contractor may so notify the City, in writing, either within 15 days of receipt of the
City's response or within 15 days of the 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, the City shall
schedule a meet and confer conference within 30 days for settlement of the
dispute.
3.11.2.6 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, the 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 the City issues its written statement. Any
disputed portion of the claim, as identified by the contractor in writing, shall be
submitted to nonbinding mediation, with the City and the Contractor sharing the
associated costs equally. The 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.
(1) 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.
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(2) 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.
(3) Unless otherwise agreed to by the City and the 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.
(4) The mediation shall be held no earlier than the date the Contractor
completes the Work or the date that the 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.
(5) If following the mediation, the claim or any portion remains in
dispute, the 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 the 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.
3.11.2.7 Civil Actions. The following procedures are established for
all civil actions filed to resolve claims subject to this section:
(1) Within 60 days, but no earlier than 30 days, following the filing or
responsive pleadings, the court shall submit the matter to
nonbinding 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.
(2) 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
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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.
(A) 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.
3.11.2.8 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, construction claims and/or changed
conditions, the Contractor must comply with the claim procedures set forth in
Government Code Section 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, construction claims,
and/or changed conditions have been followed by Contractor. If no such
Government Code claim is submitted, or if the prerequisite contractual
requirements are not satisfied, no action against the City may be filed. A
Government Code claim must be filed no earlier than the date the work is
completed or the date the 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.
3.11.2.9 Citv's Responses. The City's failure to respond to a claim
from the 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.
3.12 Loss and Damaqe. Except as may otherwise be limited by law, Contractor shall
be responsible for all loss and damage which may arise out of Contractor's performance of the
Work agreed to herein or from any unforeseen difficulties which may arise or be encountered in
the prosecution of the Work until the same is fully completed and accepted by City, unless the
loss and damage is caused by the acts of third parties. In the event of damage proximately
caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may
terminate this Contract pursuant to Section 3.18.3; provided, however, that the City needs to
provide Contractor with only one (1) day advanced written notice.
3.13 Indemnification.
3.13.1 Scope of Indemnitv. To the fullest extent permitted by law, Contractor
shall defend, indemnify and hold the City, its officials, employees, agents and authorized
volunteers free and harmless from any and all claims, demands, causes of action, suits,
17
actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements,
loss, damage or injury of any kind, in law or equity, regardless of whether the allegations
are false, fraudulent, or groundless, to property or persons, including wrongful death,
arising from third party claims against the City (collectively, "Claims") in any manner arising
out of, pertaining to, or incident to any negligent acts, errors or omissions, or willful
misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or
agents in connection with the performance of the Contractor's services, the Project or this
Contract, including without limitation the payment of all damages, expert witness fees and
attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to
the extent required by Civil Code section 2782, Contractor's indemnity obligation shall not
apply to liability for damages for death or bodily injury to persons, injury to property, or any
other loss, damage or expense arising from the sole or active negligence or willful
misconduct of the City or the City's agents, servants, or independent contractors who are
directly responsible to the City, or for defects in design furnished by those persons.
3.13.2 Additional Indemnitv Obligations. Contractor shall defend, with counsel
approved by the Cityat Contractor's own cost, expense and risk, any and all Claims
covered by this section that may be brought or instituted against City or its officials,
employees, agents and authorized volunteers. In addition, Contractor shall pay and
satisfy any judgment, award or decree that may be rendered against City or its officials,
employees, agents and authorized volunteers as part of any such Claim as required by
Section 3.13.1. Contractor shall also reimburse City for the cost of any settlement paid by
City or its officials, employees, agents and authorized volunteers as part of any such Claim
as required by Section 3.13.1. Such reimbursement shall include payment for City's
attorney's fees and costs, including expert witness fees. Contractor shall reimburse City
and its officials, employees, agents and authorized volunteers, for any and all legal
expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Contractor's obligation to indemnify shall survive expiration or
termination of this Contract, and shall not be restricted to insurance proceeds, if any,
received by the City, its officials, employees, agents and authorized volunteers.
3.14 Insurance.
3.14.1 Minimum Requirements. Without limiting Contractor's indemnification of
the City of Palm Desert, and prior to commencement of Work, Contractor shall obtain,
provide and maintain at its own expense during the term of this Contract, policies of
insurance of the type and amounts described below and in a form that is satisfactory to
the City.
3.14.1.1 General Liability Insurance. Contractor shall maintain
commercial general liability insurance with coverage at least as broad as Insurance
Services Office form CG 00 01, in an amount not less than $1,000,000 per
occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and
property damage, and a $2,000,000 completed operations aggregate. The policy
must include contractual liability that has not been amended. Any endorsement
restricting standard ISO "insured contract" language will not be accepted.
3.14.1.2 Automobile Liabilitv Insurance. Contractor shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00
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01 covering bodily injury and property damage for all activities of the Contractor
arising out of or in connection with Work to be performed under this Contract,
including coverage for any owned, hired, nonowned or rented vehicles, in an
amount not less than $1,000,000 combined single limit for each accident.
3.14.1.3 Umbrella or Excess Liabilitv Insurance. Contractor may opt
to utilize umbrella or excess liability insurance in meeting insurance requirements.
In such circumstances, Contractor may obtain and maintain an umbrella or excess
liability insurance policy with limits that will provide bodily injury, personal injury
and property damage liability coverage at least as broad as the primary coverages
set forth above, including commercial general liability, automobile liability and
employer's liability. Such policy or policies shall include the following terms and
conditions:
(A) A drop down feature requiring the policy to respond if the event that
any primary insurance that would otherwise have applied proves to
be uncollectible in whole or in part for any reason; Pay on behalf of
wording as opposed to reimbursement;
(B) Pay on behalf of wording as opposed to reimbursement;
(C) Concurrency of effective dates with primary policies;
(D) Policies shall "follow form" to the underlying primary policies; and
(E) Insureds under primary policies shall also be insureds under the
umbrella or excess policies.
3.14.1.4 Workers' Compensation Insurance. Contractor may
maintain Workers' Compensation Insurance (Statutory Limits) and Employer's
Liability Insurance (with limits of at least $1,000,000) for Contractor's employees
in accordance with the laws of the State of California, Section 3700 of the Labor
Code. In addition, Contractor shall require each subcontractor to similarly maintain
Workers' Compensation Insurance and Employer's Liability Insurance in
accordance with the laws of the State of California, Section 3700 for all of the
subcontractor's employees. Contractor shall submit to City, along with the
certificate of insurance, a Waiver of Subrogation endorsement in favor of the City
of Palm Desert, its officers, agents, employees and volunteers.
3.14.2 Other Provisions or Requirements
3.14.2.1 Proof of Insurance. Contractor shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along
with a waiver of subrogation endorsement for workers' compensation. Insurance
certificates and endorsements must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be kept on
file with City at all times during the term of this contract. City reserves the right to
require complete, certified copies of all required insurance policies, at any time.
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3.14.2.2 Duration of Coverage. Contractor shall procure and
maintain for the duration of the contract 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 Contractor, its agents, representatives,
employees or subcontractors. Contractor must maintain general liability and
umbrella or excess liability insurance for as long as there is a statutory exposure
to completed operations claims. The City of Palm Desert and its officers, officials,
employees, and agents shall continue as additional insureds under such policies.
3.14.2.3 Primarv/Non-Contributing,. Coverage provided by
Contractor shall be primary and any insurance or self-insurance procured or
maintained by City shall not be required to contribute with it. The limits of insurance
required herein may be satisfied by a combination of primary and umbrella or
excess insurance. Any umbrella or excess insurance shall contain or be endorsed
to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of City before the City's own insurance or self-
insurance shall be called upon to protect it as a named insured.
3.14.2.4 Products/Completed Operations Coverage.
Products/completed operations coverage shall extend a minimum of three (3)
years after project completion. Coverage shall be included on behalf of the insured
for covered claims arising out of the actions of independent contractors. If the
insured is using subcontractors, the Policy must include work performed "by or on
behalf" of the insured. Policy shall contain no language that would invalidate or
remove the insurer's duty to defend or indemnify for claims or suits expressly
excluded from coverage. Policy shall specifically provide for a duty to defend on
the part of the insurer. The City, its officials, officers, agents, and employees, shall
be included as additional insureds under the Products and Completed Operations
coverage.
3.14.2.5 Citv's Rights of Enforcement. In the event any policy of
insurance required under this Contract does not comply with these requirements,
or is canceled and not replaced, City has the right, but not the duty, to obtain the
insurance it deems necessary and any premium paid by City will be promptly
reimbursed by Contractor, or City will withhold amounts sufficient to pay premium
from Contractor payments. In the alternative, City may cancel this Contract.
3.14.2.6 Acceptable Insurers. All insurance policies shall be issued
by an insurance company currently authorized by the Insurance Commissioner to
transact business of insurance or is on the List of Approved Surplus Line Insurers
in the State of California, with an assigned policyholders' Rating of A- (or higher)
and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
3.14.2.7 Waiver of Subroqation. All insurance coverage maintained
or procured pursuant to this agreement shall be endorsed to waive subrogation
against the City of Palm Desert, its elected or appointed officers, agents, officials,
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employees and volunteers, or shall specifically allow Contractor or others providing
insurance evidence in compliance with these specifications to waive their right of
recovery prior to a loss. Contractor hereby waives its own right of recovery against
the City of Palm Desert, its elected or appointed officers, agents, officials,
employees and volunteers and shall require similar written express waivers and
insurance clauses from each of its subcontractors.
3.14.2.8 Enforcement of Contract Provisions (non -estoppel).
Contractor acknowledges and agrees that any actual or alleged failure on the part
of the City to inform Contractor of non-compliance with any requirement imposes
no additional obligations on the City nor does it waive any rights hereunder.
3.14.2.9 Requirements Not Limitina'. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation
on coverage, limits or other requirements, or a waiver of any coverage normally
provided by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not intended by
any party or insured to be all inclusive, or to the exclusion of other coverage, or a
waiver of any type. If the Contractor maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for the higher
limits maintained by the Contractor. Any available insurance proceeds in excess
of the specified minimum limits of insurance and coverage shall be available to the
City.
3.14.2.10 Notice of Cancellation. Contractor agrees to oblige its
insurance agent or broker and insurers to provide to City with a thirty (30) day
notice of cancellation (except for nonpayment for which a ten (10) day notice is
required) or nonrenewal of coverage for each required coverage.
3.14.2.11 Additional Insured Status. General liability, automobile
liability, and if applicable, pollution liability policies shall provide or be endorsed to
provide that the City of Palm Desert and its officers, officials, employees, agents,
and volunteers shall be additional insureds under such policies. This provision
shall also apply to any excess/umbrella liability policies. Coverage shall be at least
as broad as coverage provided by ISO's Owners, Lessees, or Contractors
Additional Insured Endorsement for the ongoing (i.e. ISO Form CG 20 10 07 04)
and completed operations (i.e. ISO Form CG 20 37 07 04) of Contractor.
3.14.2.12 Prohibition of Undisclosed Coveraqe Limitations. None of
the coverages required herein will be in compliance with these requirements if they
include any limiting endorsement of any kind that has not been first submitted to
City and approved of in writing.
3.14.2.13 Separation of Insureds. A severability of interests provision
must apply for all additional insureds ensuring that Contractor's insurance shall
apply separately to each insured against whom claim is made or suit is brought,
except with respect to the insurer's limits of liability. The policy(ies) shall not
contain any cross -liability exclusions.
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3.14.2.14 Pass Throuqh Clause. Contractor agrees to ensure that its
sub -consultants, sub -contractors, and any other party involved with the project who
is brought onto or involved in the project by Contractor, provide the same minimum
insurance coverage and endorsements required of Contractor. Contractor agrees
to monitor and review all such coverage and assumes all responsibility for ensuring
that such coverage is provided in conformity with the requirements of this section.
Contractor agrees that upon request, all agreements with consultants,
subcontractors, and others engaged in the project will be submitted to City for
review.
3.14.2.15 Citv's Riqht to Revise Requirements. The City or its Risk
Manager reserves the right at any time during the term of the contract to change
the amounts and types of insurance required by giving the Contractor ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Contractor, the City and Contractor may renegotiate
Contractor's compensation. If the City reduces the insurance requirements, the
change shall go into effect immediately and require no advanced written notice.
3.14.2.16 Self -Insured Retentions. Any self -insured retentions must
be declared to and approved by City. City reserves the right to require that self -
insured retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these specifications unless
approved by City.
3.14.2.17 Timelv Notice of Claims. Contractor shall give City prompt
and timely notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may involve
coverage under any of the required liability policies.
3.14.2.18 Additional Insurance. Contractor shall also procure and
maintain, at its own cost and expense, any additional kinds of insurance, which in
its own judgment may be necessary for its proper protection and prosecution of
the Work.
3.15 Bond Requirements.
3.15.1 Pavment Bond. If required by law or otherwise specifically requested by City in
Exhibit "C" attached hereto and incorporated herein by reference, Contractor shall execute and
provide to City concurrently with this Contract a Payment Bond in an amount required by the
City and in a form provided or approved by the City. If such bond is required, no payment will
be made to Contractor until the bond has been received and approved by the City.
3.15.2 Performance Bond. If specifically requested by City in Exhibit "C" attached hereto
and incorporated herein by reference, Contractor shall execute and provide to City concurrently
with this Contract a Performance Bond in an amount required by the City and in a form provided
or approved by the City. If such bond is required, no payment will be made to Contractor until the
bond has been received and approved by the City.
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3.15.3 Bond Provisions. Should, in City's sole opinion, any bond become insufficient or
any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond
within (ten) 10 days of receiving notice from City. In the event the surety or Contractor intends to
reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to
the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to
expiration of the original bonds. No further payments shall be deemed due or will be made under
this Contract until any replacement bonds required by this Section are accepted by the City. To
the extent, if any, that the Total Contract Price is increased in accordance with the Contract,
Contractor shall, upon request of the City, cause the amount of the bond to be increased
accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If
Contractor fails to furnish any required bond, the City may terminate the Contract for cause.
3.15.4 Suretv Qualifications. Only bonds executed by an admitted surety insurer, as
defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California -
admitted surety insurer issuing bonds does not meet these requirements, the insurer will be
considered qualified if it is in conformance with Section 995.660 of the California Code of Civil
Procedure, and proof of such is provided to the City.
3.16 Warrantv. Contractor warrants all Work under the Contract (which for purposes of this
Section shall be deemed to include unauthorized work which has not been removed and any non-
conforming materials incorporated into the Work) to be of good quality and free from any defective
or faulty material and workmanship. Contractor agrees that for a period of one year (or the period
of time specified elsewhere in the Contract or in any guarantee or warranty provided by any
manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later)
after the date of final acceptance, Contractor shall within ten (10) days after being notified in
writing by the City of any defect in the Work or non-conformance of the Work to the Contract,
commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty
at its sole cost and expense. Contractor shall act sooner as requested by the City in response to
an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any
portions of the Work (or work of other contractors) damaged by its defective Work or which
becomes damaged in the course of repairing or replacing defective Work. For any Work so
corrected, Contractor's obligation hereunder to correct defective Work shall be reinstated for an
additional one-year period, commencing with the date of acceptance of such corrected Work.
Contractor shall perform such tests as the City may require to verify that any corrective actions,
including, without limitation, redesign, repairs, and replacements comply with the requirements of
the Contract. All costs associated with such corrective actions and testing, including the removal,
replacement, and reinstitution of equipment and materials necessary to gain access, shall be the
sole responsibility of Contractor, subject to the applicable generally -published manufacturer's
product warranty. All warranties and guarantees of subcontractors, suppliers and manufacturers
with respect to any portion of the Work, whether express or implied, are deemed to be obtained
by Contractor for the benefit of the City, regardless of whether or not such warranties and
guarantees have been transferred or assigned to the City by separate agreement and Contractor
agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the
event that Contractor fails to perform its obligations under this Section, or under any other
warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall
have the right to correct and replace any defective or non -conforming Work and any work
damaged by such work or the replacement or correction thereof at Contractor's sole expense.
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Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon
demand.
3.17 Emplovee/Labor Certifications.
3.17.1 Contractor's Labor Certification. By its signature hereunder, Contractor certifies
that he is aware of the provisions of Section 3700 of the California 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 agrees to comply with such
provisions before commencing the performance of the Work. A certification form for this purpose,
which is attached to this Contract as Exhibit "D" and incorporated herein by reference, shall be
executed simultaneously with this Contract.
3.17.2 Eaual Opoortunity Emplovment. 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.
3.17.3 Verification of Emplovment Eligibility. 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.
3.18 General Provisions.
3.18.1 Citv's Representative. The City hereby designates the Director of Public Works
or his or her designee, to act as its representative for the performance of this Contract ("City's
Representative"). City's Representative shall have the power to act on behalf of the City for all
purposes under this Contract. Contractor shall not accept direction or orders from any person
other than the City's Representative or his or her designee.
3.18.2 Contractor's Representative. Before starting the Work, Contractor shall submit in
writing the name, qualifications and experience of its proposed representative who shall be
subject to the review and approval of the City ("'Contractor's Representative"). Following approval
by the City, Contractor's Representative shall have full authority to represent and act on behalf of
Contractor for all purposes under this Contract. Contractor's Representative shall supervise and
direct the Work, using his best skill and attention, and shall be responsible for all construction
means, methods, techniques, sequences and procedures and for the satisfactory coordination of
all portions of the Work under this Contract. Contractor's Representative shall devote full time to
the Project and either he or his designee, who shall be acceptable to the City, shall be present at
the Work site at all times that any Work is in progress and at any time that any employee or
subcontractor of Contractor is present at the Work site. Arrangements for responsible
supervision, acceptable to the City, shall be made for emergency Work which may be required.
Should Contractor desire to change its Contractor's Representative, Contractor shall provide the
information specified above and obtain the City's written approval.
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3.18.3 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. Contractor
shall be required to provide such document and other information within fifteen (15) days of the
request.
3.18.4 Contract Interpretation. Should any question arise regarding the meaning or
import of any of the provisions of this Contract or written or oral instructions from City, the matter
shall be referred to City's Representative, whose decision shall be binding upon Contractor.
3.18.5 Anti -Trust Claims. This provision shall be operative if this Contract is applicable to
California Public Contract Code Section 7103.5. In entering into this Contract to supply goods,
services or materials, Contractor hereby offers and agrees to assign to the City 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. This assignment shall be made and become effective at the
time the City tender final payment to Contractor, without further acknowledgment by the Parties.
3.18.6 Notices. All notices hereunder and communications regarding interpretation of the
terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or
certified mail, return receipt requested, postage prepaid and addressed as follows:
CONTRACTOR:
CITY:
SHAW INTEGRATED SOLUTIONS
SHAW INDUSTRIES, INC.
770.10E FRANK HARRIS PKWY, MAIL DROP 011-01
CARTERSVILLE, GA 30120
ATTN: SEAN CARTER, ACCOUNT MANAGER
CITY OF PALM DESERT
73-510 FRED WARING DRIVE
PALM DESERT, CA 92260-2578
ATTN: TOM GARCIA, P.E., DIRECTOR OF PUBLIC WORKS
Any notice so given shall be considered received by the other Party three (3) days after deposit
in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice
25
shall be deemed adequate notice on the date actual notice occurred, regardless of the method of
service.
3.18.7 Time of Essence. Time is of the essence in the performance of this Contract.
3.18.8 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law,
assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor
herein without the prior written consent of City. If Contractor attempts an assignment or transfer
of this Contract or any obligation, right, title or interest herein, City may, at its option, terminate
and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor
or its assignee or transferee.
3.18.9 No Third Partv Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
3.18.10 Laws: Venue. This Contract shall be interpreted in accordance with the
laws of the State of California. If any action is brought to interpret or enforce any term of this
Contract, the action shall be brought in a state or federal court situated in the County of Riverside,
State of California.
3.18.11 Counterparts. This Contract may be executed in counterparts, each of
which shall constitute an original.
3.18.12 Successors. The Parties do for themselves, their heirs, executors,
administrators, successors, and assigns agree to the full performance of all of the provisions
contained in this Contract.
3.18.13 Solicitation. Contractor maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for
Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor
has it agreed to pay any company or person, other than a bona fide employee working solely for
Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Contract. For breach or violation of
this warranty, City shall have the right to terminate this Contract without liability.
3.18.14 Conflict of Interest. Contractor maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid
nor has it agreed to pay any company or person, other than a bona fide employee working solely
for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Contract. For breach or violation of
this warranty, City shall have the right to rescind this Contract without liability. For the term of this
Contract, no director, official, officer or employee of City, during the term of his or her service with
City, shall have any direct interest in this Contract, or obtain any present or anticipated material
benefit arising therefrom. In addition, Contractor agrees to file, or to cause its employees or
subcontractors to file, a Statement of Economic Interest with the City's Filing Officer as required
under state law in the performance of the Work.
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3.18.15 Certification of License.
3.13.2.1 Contractor certifies that as of the date of execution of this
Contract, Contractor has a current contractor's license of the classification
indicated below under Contractor's signature.
3.13.2.2 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 four (4) 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.
3.18.16 Authority to Enter Contract. Each Party warrants that the individuals who
have signed this Contract have the legal power, right and authority to make this Contract and bind
each respective Party.
3.18.17 Entire Contract; Modification. This Contract contains the entire agreement
of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Contract may only be modified by a writing signed by both
Parties.
3.18.18 Non -Waiver. None of the provisions of this Contract shall be considered
waived by either party, unless such waiver is specifically specified in writing.
3.18.19 Citv's Riqht to Emplov Other Contractors. City reserves right to employ
other contractors in connection with this Project or other projects.
SIGNATURE PAGE FOR CONSTRUCTION
CONTRACT BETWEEN THE CITY OF PALM DESERT
AND SHAW INDUSTRIES, INC.
27
CITY OF PALM DESERT SHAW INTEGRATED SOLUTIONS
SHAW INDUSTRIES, INC.
LM
LAURI AYLAIAN By:
City Manager
Its:
ATTEST:
City Clerk
APPROVED AS TO FORM:
By:
Best Best & Krieger LLP
City Attorney
Printed Name:
Contractor's License Number and
Classification
DIR Registration Number
28
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 20 , before me, Notary Public,
personally
appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the
document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
Title(s)
, Partner(s)
Limited
General
Attorney -In -Fact
Trustee(s)
Guardian/Conservator
- Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.
29
EXHIBIT "A"
SERVICES / SCHEDULE
TO BE COORDINATED WITH CITY OF PALM DESERT PUBLIC WORKS
DEPARTMENT
Exhibit A-1
EXHIBIT "B"
PLANS AND SPECIFICATIONS
Exhibit B-1
EXHIBIT "C"
SPECIAL CONDITIONS
ARTICLE 1. BONDS
Concurrently with this Contract, the Contractor shall deliver to the City four identical counterparts
of the Performance Bond and Payment Bond on the forms supplied by the City and included as
Exhibit "Fto the Contract. The surety supplying the bond must be an admitted surety insurer, as
defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the
State of California and satisfactory to the City. The Performance Bond and the Payment Bond
shall be for one hundred percent (100%) of the Total Contract Price.
Exhibit C-1
EXHIBIT "D"
CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seg., of the
California 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 the Code, and
I, the undersigned Contractor, agree to and will comply with such provisions before commencing
the performance of the Work on this Contract.
SHAW INTEGRATED INDUSTRIES
SHAW INDUSTRIES, INC.
By:
Signature
Name (Print)
Title (Print)
Exhibit D-1
EXHIBIT "E"
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
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. See http://www.dir.ca.gov/Public-
Works/PublicWorks.html for additional information.
No bid will be accepted nor any contract entered into without proof of the contractor's and
subcontractors' current registration with the Department of Industrial Relations to perform public
work.
Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code
sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of
Industrial Relations.'
Name of Contractor:
DIR Registration Number:
DIR Registration Expiration:
Small Project Exemption: Yes or No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further
acknowledges:
1. Contractor shall maintain a current DIR registration for the duration of the project.
2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in
its contract with subcontractors and ensure that all subcontractors are registered at the
time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a
finding that the bid is non -responsive.
Name of Contractor:
Signature:
Name and Title:
Dated:
If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under
Labor Code Sections 1725.5 and 1771.1, please mark "Yes" in response to "Small Project Exemption."
Exhibit E-1
EXHIBIT "F"
PAYMENT AND PERFORMANCE BONDS
Exhibit F-2
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Desert (hereinafter referred to as "City") has awarded
to Shaw Industries, Inc., (hereinafter referred to as the "Contractor") an agreement for Carpet
and LVT Installation — State of California Department of Rehabilitation at Suite 102 in the
State Building (hereinafter referred to as the "Project").
WHEREAS, the work to be performed by the Contractor is more particularly set forth in
the Contract Documents for the Project dated November 1, 2019, (hereinafter referred to as
"Contract Documents"), the terms and conditions of which are expressly incorporated herein by
reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms
thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, Shaw Industries, Inc., the undersigned Contractor and
as Surety, a corporation organized and
duly authorized to transact business under the laws of the State of California, are held and firmly
bound unto the City in the sum of Forty Three Thousand Two Hundred Six and 06/100
DOLLARS, ($43,206.06), said sum being not less than one hundred percent (100%) of the total
amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs,
executors and administrators, successors and assigns, jointly and severally, firmly by these
presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs,
executors, administrators, successors or assigns, shall in all things stand to and abide by, and
well and truly keep and perform the covenants, conditions and agreements in the Contract
Documents and any alteration thereof made as therein provided, on its part, to be kept and
performed at the time and in the manner therein specified, and in all respects according to their
intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all
materials and workmanship; and shall indemnify and save harmless the City, its officers and
agents, as stipulated in said Contract Documents, then this obligation shall become null and void;
otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless
otherwise provided for in the Contract Documents, the above obligation shall hold good for a
period of one (1) year after the acceptance of the work by City, during which time if Contractor
shall fail to make full, complete, and satisfactory repair and replacements and totally protect the
City from loss or damage resulting from or caused by defective materials or faulty workmanship,
Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety
hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall
limit the City's rights or the Contractor or Surety's obligations under the Contract, law or equity,
including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the
Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or
shall promptly, at the City's option:
Exhibit F-3
(1) Take over and complete the Project in accordance with all terms and conditions in
the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and
conditions in the Contract Documents and upon determination by Surety of the
lowest responsive and responsible bidder, arrange for a Contract between such
bidder, the Surety and the City, and make available as work progresses sufficient
funds to pay the cost of completion of the Project, less the balance of the contract
price, including other costs and damages for which Surety may be liable. The term
"balance of the contract price" as used in this paragraph shall mean the total
amount payable to Contractor by the City under the Contract and any modification
thereto, less any amount previously paid by the City to the Contractor and any
other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local,
California and federal law and make available as work progresses sufficient funds
to pay the cost of completion of the Project, less the balance of the contract price,
including other costs and damages for which Surety may be liable. The term
"balance of the contract price" as used in this paragraph shall mean the total
amount payable to Contractor by the City under the Contract and any modification
thereto, less any amount previously paid by the City to the Contractor and any
other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which
may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid
from Contractor for completion of the Project if the City, when declaring the Contractor in default,
notifies Surety of the City's objection to Contractor's further participation in the completion of the
Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of
time, alteration or addition to the terms of the Contract Documents or to the Project to be
performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive
notice of any such change, extension of time, alteration or addition to the terms of the Contract
Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845
of the California Civil Code.
Exhibit F-4
IN WITNESS WHEREOF, we have hereunto set our hands and seals this
, 20—)
(Corporate Seal)
(Corporate Seal)
Contractor/ Principal
O
Title
Surety
LIM
Attorney -in -Fact
day of
Signatures of those signing for the Contractor and Surety must be notarized and evidence of
corporate authority attached.
(Attach Attorney -in -Fact Certificate)
The rate of premium on this bond is
charges, $
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
Title
per thousand. The total amount of premium
NOTE: A copy of the Power -of -Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
Exhibit F-5
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 20 , before me,
personally
appeared
, Notary Public,
. who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the
document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
L Individual
C. Corporate Officer
L Partner(s)
Title(s)
Limited
General
Attorney -In -Fact
Trustee(s)
Guardian/Conservator
, Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.
Exhibit F-6
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual
who siggned the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 20 , before me, Notary Public,
personally
appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the
document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
Titles)
Partner(s) r Limited
General
, Attorney -In -Fact
i Trustee(s)
L Guardian/Conservator
- Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney -in -Fact. The Power -of -
Attorney to local representatives of the bonding company must also be attached.
Exhibit F-7
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Palm Desert (hereinafter designated as the "City"), by action taken
February 13, 2020 has awarded to Shaw Industries, Inc. hereinafter designated as the
"Principal," a contract for the work described as follows:
Forty Three Thousand Two Hundred Six and 06/100 DOLLARS, ($43,206.06) (the
"Project'); and
WHEREAS, the work to be performed by the Principal is more particularly set forth in the
Contract Documents for the Project dated November 1, 2019 ("Contract Documents"), the terms
and conditions of which are expressly incorporated by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said contract;
providing that if said Principal or any of its Subcontractors shall fail to pay for any materials,
provisions, provender, equipment, or other supplies used in, upon, for or about the performance
of the work contracted to be done, or for any work or labor done thereon of any kind, or for
amounts due under the Unemployment Insurance Code or for any amounts required to be
deducted, withheld, and paid over to the Employment Development Department from the wages
of employees of said Principal and its Subcontractors with respect to such work or labor the Surety
on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and as Surety,
are held and firmly bound unto the City in the penal sum of Forty Three Thousand
Two Hundred Six and 06/100 DOLLARS, ($43,206.06) lawful money of the United
States of America, for the payment of which sum well and truly to be made, we bind
ourselves, our heirs, executors, administrators, successors and assigns, jointly and
severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its
subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of
the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or
other supplies, used in, upon, for or about the performance of the work contracted to be done, or
for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance
Code with respect to work or labor performed under the contract, or for any amounts required to
be deducted, withheld, and paid over to the Employment Development Department or Franchise
Tax Board from the wages of employees of the contractor and his subcontractors pursuant to
Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety
or Sureties will pay for the same, in an amount not exceeding the sum herein above specified,
and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such
suit, including reasonable attorneys' fees, court costs, expert witness fees and investigation
expenses.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the
Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon
this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or
released from the obligation of this bond by any change, extension of time for performance,
Exhibit F-8
addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement
pertaining or relating to any scheme or work of improvement herein above described, or pertaining
or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or
modification of any terms of payment or extension of the time for any payment pertaining or
relating to any scheme or work of improvement herein above described, nor by any rescission or
attempted rescission of the contract, agreement or bond, nor by any conditions precedent or
subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to
recover under any such contract or agreement or under the bond, nor by any fraud practiced by
any person other than the claimant seeking to recover on the bond and that this bond be construed
most strongly against the Surety and in favor of all persons for whose benefit such bond is given,
and under no circumstances shall Surety be released from liability to those for whose benefit such
bond has been given, by reason of any breach of contract between the owner or City and original
contractor or on the part of any obligee named in such bond, but the sole conditions of recovery
shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been
paid the full amount of his claim and that Surety does hereby waive notice of any such change,
extension of time, addition, alteration or modification herein mentioned and the provisions of
sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of
, 20_.
(Corporate Seal)
Contractor/ Principal
(Corporate Seal)
By
Title
Surety
By
Attorney -in -Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of
corporate authority attached. A Power -of -Attorney authorizing the person signing on behalf of the
Surety to do so much be attached hereto.
NOTE: A copy of the Power -of -Attorney authorizing the person signing on behalf of the Surety to
do so must be attached hereto.
Exhibit F-9
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the Individual
who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 20 , before me,
personally
appeared
, Notary Public,
, who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the
document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
r; Individual
Corporate Officer
Title(s)—
Partner(s) Limited
General
Attorney -In -Fact
Trustee(s)
Guardian/Conservator
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal.
Exhibit F-10
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On 20 , before me, Notary Public,
personally
appeared , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the
document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
i Individual
Corporate Officer
Title(s)
Partner(s) Limited
General
Attorney -In -Fact
Trustee(s)
Guardian/Conservator
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney -in -Fact. The Power -of -
Attorney to local representatives of the bonding company must also be attached.
Exhibit F-11