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HomeMy WebLinkAboutHA36680 Leasing Office Bldg Roof Restoration at One Quail PlContract No. HA 36680 MEETING DATE: REQUEST: Recommendation STAFF REPORT PALM DESERT HOUSING AUTHORITY HOUSING DEPARTMENT January 11, 2018 Authorize the award of Contract No. HA36680 with Garland/DBS, Inc., for the Leasing Office Building Roof Restoration Project at One Quail Place Apartments in an amount not to exceed $69,971. By Minute Motion, that the Authority Board, 1) Authorize the award of Contract No. HA 36680 with Garland/DBS, Inc., for the Leasing Office Building Roof Restoration Project (the "Project") at One Quail Place Apartments. The base contract will be in an amount not to exceed $47,476 with an allowance for damaged wood replacement not to exceed $13,000, plus 20% contingency for additional unforeseen conditions not to exceed $9,495 under the U.S. Communities ("U.S. Communities") Agreement Contract No. 14-5903 pursuant to Section 3.32.110 and 3.30.260 of the City of Palm Desert Municipal Code; and 2) Authorize Staff to approve the use of the allowance necessary for replacement of damaged wood not to exceed $13,000; and 3) Authorize the Executive Director or designee to review and approve written requests for the use of the contingency amount of $9,495 for unforeseen conditions; and 4) Authorize the Chairman and/or the Executive Director to execute the contract and any documents necessary to facilitate the contract award and Project. Monies are available in the FY 2017/2018 Authority's capital replacement budget, in the appropriate Authority account. Committee/Commission Recommendation The Housing Commission will review this recommendation at its regular meeting of January 10, 2018. Upon request, a verbal report will be provided at the Authority's regular meeting of January 11, 2018. Strategic Plan This request does not apply to a specific strategic plan goal. January 11, 2018 Meeting - Staff Report Housing Authority — Authorize award of contract with Garland/DBS, Inc.; O.Q. Leasing Office Page 2 of 3 Executive Summary Approval of this request will allow Garland/DBS, Inc. ("Garland") to restore the leasing office building's roof at One Quail Place Apartments to repair the deteriorated roof. An allowance amount is also being requested as part of the approval in the event the subfloor is damaged. Staff is recommending the award of contract to Garland, in an amount not to exceed $47,476 for the base contract with an allowance for damaged wood not to exceed $13,000, plus 20% contingency for unforeseen conditions not to exceed $9,495. Background Analysis The Authority Board authorized the use of Garland/DBS, Inc. ("Garland") for roof management assessment, repairs and related services. Garland completed a roof assessment of the leasing office at One Quail Place and found that the underlayment material has deteriorated and is almost non-existent in some locations of the roof. Garland is recommending a restoration of the building's roof that will include replacement of the entire roof. The existing roof is original from when the community was built in 1985 and has had very minimal repairs to date. The proposed roof restoration includes a two (2) year workmanship warranty and a ten (10) year material warranty. The Authority would like to enter into an agreement with Garland through the U.S. Communities Contract No. 14-5903 (A copy is on file with the City of Palm Desert's City Clerk) to complete the proposed Project. U.S. Communities is a cooperative purchasing organization, established through a collaborative effort to assist public agencies and non- profits across the United States with the specific purpose of reducing procurement costs by leveraging group volume. U.S. Communities accomplishes this by soliciting proposals and awarding contracts that are held by a principal procurement agency for commonly purchased products and services at prices that have been assessed to be fair, reasonable, and competitive. Under the U.S. Communities established pricing, the maximum price an agency will be charged under the agreement would be approximately $93,258. However, Garland procured bids from three local contractors in an effort to provide an even lower market adjusted price for the Project. R&R Roofing / Waterproofing Inc., Subcontracting Roofing Company, of Lake Elsinore, provided the lowest bid to Garland in the amount of $47,476 plus $5.42 per square foot to replace damaged subfloor (total roof square footage is approximately 4,000 square feet). Staff recommends that the Authority Board authorize a contract with Garland for the Project. Staff also recommends that the Executive Director be authorized to review and approve January 11, 2018 Meeting - Staff Report Housing Authority — Authorize award of contract with Garland/DBS, Inc.; O.Q. Leasing Office Page 3 of 3 written requests for the use of the contingency for unforeseen conditions that require additional work. Fiscal Analysis The fiscal impact of this contract is the cost of the contract itself in an amount not to exceed $47,476 with an additional allowance for damaged wood not to exceed $13,000, plus 20% contingency for additional unforeseen conditions that may be necessary not to exceed $9,495, which will be paid from the FY 2017/2018 Authority's capital replacement budget. Pre�aPrema, a by:�. r d Jew Gonzales, Senior Management Analyst LEGAL REVIEW N/A William L. Strausz Legal Counsel APPLICANT: DEPT. I EVIE Janet Mocre` Director of Finance Garland/DBS, Inc. 3800 East 91st Street Cleveland, Ohio 44105 FINANCI1 VI W CITY MANAGER (r411"--( Janet Mo Lauri Aylaian Director o F nance Executive Director ATTACHMENTS: Garland/DBS, Inc. Proposal dated December 15, 2017 Draft Contract Apt2321....4.-LBY HOUSG AUTh ON,. �."!���3......., VERIFIED BY: I?I9IG r l wt Original on file with City Clerk's, Off. c,nri ANr) MOW since 1 895 Garland/DBS, Inc. 3800 East 91st Street Cleveland, OH 44105 Phone: (800) 762-8225 Fax: (216) 883-2055 ROOFING MATERIAL AND SERVICES PROPOSAL Palm Desert Housing Authority One Quail Place Building 1 Office 72-600 Fred Waring Drive Palm Desert, CA 92260 Tile Roof Restoration Date Submitted: 12/15/2017 Proposal #: 25-CA-170052 MICPA # 14-5903 California General Contractor License #: 949380 DBS Please Note: The following estimate is being provided according to the pricing established under the Master Intergovernmental Cooperative Purchasing Agreement (MICPA) with Cobb County, GA and U.S. Communities. This estimate should be viewed as the maximum price an agency will be charged under the agreement. Garland/DBS, Inc. administered a competitive bid process for the project with the hopes of providing a lower market adjusted price whenever possible. Scope of Work: Tile Roof Restoration (Entire Building) 1 REMOVE TILE ROOF SYSTEM ON THE ENTIRE BUILDING. 2 STACK AND SECURE THE TILE FOR RE -INSTALLATION. 3 REPLACE DAMAGED OR FAILED WOOD DECKING AT $5.42 PER SQ FT. 4 INSTALL (1) LAYER OF HPR AQUA SHIELD OVER THE ENTIRE WOOD DECKING. 5 INSTALL NEW FLASHINGS ON ALL PIPE PENETRATIONS, CLAMP AND CAULK. 6 RE -INSTALL THE TILE ROOF SYSTEM. 7 INSTALL NEW METAL BIRD STOP TO REPLACE THE OLD SYSTEM. 8 INSTALL NEW MUD TO REPLACE ALL THE MUD THAT WAS REMOVED DURING THE PROJECT. 9 INSTALL NEW GUTTER & DOWNSPOUT SYSTEM TO REPLACE EXISTING, SAME LIKE AND KIND. 10 CONTRACTOR WILL BE FINANCIALLY RESPONSIBLE TO REPLACE ALL LOST OR BROKEN TILE. 11 PREVAILING WAGE PROJECT. 12 PROVIDE A (2) YEAR CONTRACTOR WARRANTY. DRAFT FOR DISCUSSION CONTRACT FOR CONSTRUCTION SERVICES PALM DESERT HOUSING AUTHORITY LEASING OFFICE BUILDING ROOF RESTORATION AT ONE QUAIL PLACE APARTMENTS CONTRACT NO. HA 1. INTRODUCTION 1.1 Parties and Date. This Contract is made and entered into this 11th day of January, 2018, by and between the Palm Desert Housing Authority ("Authority") and Garland/DBS, Inc., ("Contractor") for construction services for the Authority's Leasing Office Building Roof Restoration Project at One Quail Place Apartments Contract No. HA ("Project"). Authority and Contractor are sometimes individually referred to herein as "Party" and collectively as "Parties." 1.2 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, proposals, specifications and documents therein, and attachments and addenda thereto: Roofing Materials and Services Proposal No. 25-CA-150766, Plans and Specifications "Section 07572 - Polyurethane Elastomeric Coating System For Roller Application on Plywood and Concrete Decks", and any others made part of Contractor's request for Proposal (Exhibit A). 1.3 Cooperative Procurement.This Contract is entered into pursuant to City of Palm Desert Municipal Code section 3.30.260, which authorizes participation with other governmental agencies who have, through a bidding process, determined to award or purchase goods and/or services from Contractor. 1.3.1 Program. The purchase has been made through the U.S. Communities Government Purchasing Alliance Contract No. 14-5903, a program for the procurement of goods and services for governmental agencies. Documents related to the procurement of this Contract shall be made available to Authority upon request. 1.3.2 Piggyback Contract. Contractor entered into a contract with Cobb County, Georgia dated September 14, 2014 for Roofing Supplies and Services, Waterproofing and Related Products and Services (the "Piggyback Contract"). Contractor represents and warrants that the Piggyback Contract was entered pursuant to a competitive procurement process consistent with the laws of California. Contractor shall provide goods and services under this Contract at the same prices and terms as established in the Piggyback Contract. Contractor represents and warrants that it is not currently, providing the same or similar goods or services for lower prices than those established in the Piggyback Contract. 2. AGREEMENT TO PROVIDE CONSTRUCTION SERVICES 2.1 Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the Owner 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 (the "Work"). All Work shall he subject to, and performed in accordance with this Contract. 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 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION professionals in the same discipline in the State of California. Unless the Special Conditions or Specifications state otherwise, Contractor shall be responsible for securing City of Palm Desert ("City") business license(s), building permits, and any other licenses or permits necessary to perform the Work. 2.2 Period of Performance and I,iauidated Damages. Contractor shall perform and complete all Work under this Contract within Twenty One (21) calendar days, beginning the effective date of the Notice to Proceed ("Contract "Time"). Contractor shall pay to the Authority as fixed and liquidated damages the sum of Three Hundred Dollars and Zero Cents ($300.00) per day for each and every calendar day of delay beyond the Contract Time. 2.3 Compensation. As consideration for performance of the Work required herein, Authority agrees to pay Contractor the Total Contract Price of Forty Seven Thousand Four Hundred Seventy Six Dollars and Zero Cents (S47,476) ("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 by the Authority. 2.4 Change Orders. Changes to the Contract Time or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the Authority. 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, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the Authority 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 adjustcd 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. 2.4.1 Changes Ordered By Authority. Authority 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. 2.4.2 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. 2.5 Parties' Representatives. The Authority hereby designates Jessica Gonzales, Senior Management Analyst and/or Teresa Vakili, Southern Region Vice President with RPM Company, or his/her designee, to act as its representative for the performance of this Contract ("Authority's Representative"). Authority's Representative shall have the power to act on behalf of the Authority for 2 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION all purposes under this Contract, and Contractor shall not accept direction or orders from any person other than the Authority's Representative or his/her designee. Before starting the Work, Contractor shall submit in writing the names, qualifications and experience of its proposed representative ("Contractor's Representative") and any proposed designee(s), all of whom shall be subject to the review and approval of the Authority. The Contractor's Representative and his/her designees shall have full authority to represent and act on behalf of the Contractor for all purposes under this Contract, shall supervise and direct the Work using their best skill and attention, and shall be responsible for the satisfactory coordination of all portions of the Work. Contractor's Representative or his/her designee shall be present at the Work site at all times that any Work is in progress. 3. PAYMENT AND TERMS 3.1 Monthly Invoices. Each month, Contractor shall submit to the Authority an itemized application for payment in the format supplied by the Authority indicating the amount of Work completed. Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Authority shall review the request and pay all undisputed amounts within 30 days. 3.1.1 Retention. No progress payments will be made for Work not completed in accordance with this Contract. From each approved progress estimate, five percent (5%) will be deducted and retained by the Authority, and the remainder will be paid to Contractor. All Contract retainage shall be released and paid to the Contractor and subcontractors pursuant to California Public Contract Code Section 7107. Contractor shall furnish Authority 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 Authority. 3.2 Deductions. Authority may deduct or withhold, as applicable, from each progress payment an amount necessary to protect Authority from loss because of: (1) liquidated damages which have accrued as of the date of the application for payment; (2) stop payment notices as allowed by state law; (3) unsatisfactory prosecution of the Work by Contractor; (4) sums representing expenses, losses, or damages as determined by the Authority, incurred by the Authority for which Contractor is liable under the Contract; and (5) any other sums which the Authority 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 Authority to deduct any of these sums from a progress payment shall not constitute a waiver of the Authority's right to such sums. 3.3 Independent Contractor; Control and Payment of Subordinates. The Work shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Work subject to the requirements of this Contract. Authority retains Contractor on an independent contractor basis and not as an employee. All persons performing Work shall not be employees of Authority or City and shall at all times be under Contractor's exclusive direction and control. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them. 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 he maintained throughout the term of this Agreement. Upon Authority's request, Contractor shall provide Authority with the identification information of any person performing Work and shall provide information related to the license, registration, and other qualifications of subcontractors. 3 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION 3.4 Termination. This Contract may be terminated by Authority at any time by giving Contractor three (3) days advance written notice. In the event of termination by Authority for any reason other than the fault of Contractor, Authority shall only pay Contractor for Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, Authority may terminate the Contract immediately without notice, may reduce payment to the Contractor in the amount necessary to offset Authority's resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. Authority 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. 4. WORK SITES 4.1 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 thc 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 improvements. No claim for allowances —time or money —will be allowed as to such matters. Unless expressly stated otherwise in the Special Conditions or Specifications, Contractor acknowledges that Work sites are occupied residential communities and that Work shall he completed in a manner that ensures minimal resident impact. 4.2 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 Authority immediately and prior to performing any work or altering the condition. 4.3 Removal of Waste and Debris. Contractor shall remove at its own expense all rubbish and waste materials resulting from its operations, including any material that may fall in swimming pools, lagoons, or other water features. If on private property, Contractor must obtain permission from property owner prior to removing debris. All debris must be removed before the end of the day unless otherwise directed by Authority or Authority's agent. 4.4 Notifications to Authority and Residents. The Contractor acknowledges that the Authority provides forty-eight (48) hours -notice in advance of the start of any Work that is to occur at any residential unit. Contractor shall provide sufficient notice to the Authority before beginning any such Work so that the Authority may provide timely notice to residents. 4.5 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Work, Contractor shall at all times 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. 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 thc telephone number of the local ambulance service, adjacent to all telephones at the Project site. 4.6 Paths of Travel. Pedestrian paths of travel must be maintained free of obstructions and hazardous conditions, except where the condition is necessary for completion of the Work. To the extent any portion of the Work requires obstructing pedestrian paths of travel, the Work shall be performed so as to minimize the extent of the obstruction. Where Contractor's operations may create hazardous conditions to pedestrian paths of travel, appropriate signing and barricades shall he installed to safely route 4 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION pedestrians around the impacted area. The Authority shall be given at least 48 hours -notice prior to the creation of any condition affecting pedestrian paths of travel. 4.7 Water Quality 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 local ordinances regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter -Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Contractor shall additionally comply with the lawful requirements of any local agency with jurisdiction over the location where the Work is to be conducted, regarding discharges of storm water to separate storm drain systems or other watercourses, including applicable requirements in municipal storm water management programs. 4.8 Hazardous Materials and Differing Conditions. Except as set forth in the Special Conditions or Specifications, should Contractor encounter material reasonably believed to be polychlorinated biphenyl (PCB) or other toxic wastes, hazardous substance and hazardous materials as defined in California state or federal law at the Site which have not been rendered harmless, the Contractor shall immediately stop work at the affected area and shall report the condition to the Authority in writing. The Authority shall contract for any services required to directly remove and/or abate PCBs. hazardous substances, other toxic wastes and hazardous materials, and shall not require the Contractor to subcontract for such services. The Work in the affected area shall not thereafter be resumed except by written agreement of the Authority and Contractor. 5. CONTRACTOR'S RESPONSIBILITIES 5.1 Loss and Damage. Contractor shall he responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, 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 Authority. 5.2 Laws and Regulations. 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 Ca1/OSI IA requirements, and shall give all notices required by law. Contractor shall he liable for all violations of such laws and regulations in connection with Work. If the Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the Authority in writing. Any necessary changes shall be made by written change order. If the Contractor performs any work knowing it to he contrary to such laws, rules and regulations, the Contractor shall be solely responsible for all costs arising therefrom. Contractor shall defend, indemnify and hold Authority, its officials, 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. Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to be inserted herein. 5.3 Warranty. 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 5 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION acceptance, Contractor shall within ten (10) days after being notified in writing by the Authority 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 Authority 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 Authority 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 the Contractor. 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 Authority, regardless of whether or not such warranties and guarantees have been transferred or assigned to the Authority by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the Authority. 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 Authority, the Authority 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. Contractor shall be obligated to fully reimburse the Authority for any expenses incurred hereunder upon demand. 5.4 Indemnification. Contractor shall defend (with counsel of Authority's choosing), indemnify and hold Authority and City, their officials, officers, agents, employees and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, to the extent arising out of or incident to any acts, omissions or willful misconduct of Contractor, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses. To the fullest extent permitted by law, Contractor shall defend, at Contractor's own cost, expense and risk, with counsel of Authority's choosing, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Authority, its officials, officers, agents, employees and representatives. To the extent of its liability, Contractor shall pay and satisfy any judgment, award or decree that may he rendered against Authority or City, their officials, officers, employees, agents, employees and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse Authority, its officials, officers, agents, employees, and representatives, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code Section 2782. 5.5 Insurance. 5.5.1 Contractor shall not commence work under this Agreement until it has provided evidence satisfactory to the Authority that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the Authority that the subcontractor has secured all insurance required under this section. 6 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION Without limiting Contractor's indemnification of Authority or City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to Authority. 5.5.1.1 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 $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability, and a $4,000,000 completed operations aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement. 5.5.1.2 Automobile Liability Insurance: Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 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 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. 5.5.1.3 Umbrella or Excess Liability Insurance: Contractor shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than $4,000,000 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 and employer's liability Such policy or policies shall include the following terms and conditions: A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason; Pay on behalf of wording as opposed to reimbursement; Concurrency of effective dates with primary policies; Policies shall "follow form" to the underlying primary policies; and Insureds under primary policies shall also be insureds under the umbrella or excess policies. 5.5.1.4 Workers' Compensation Insurance: Contractor shall 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 Authority, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the Palm Desert housing Authority, the City of Palm Desert, their officers, agents, employees and volunteers. 5.5.1.5 Builder's Risk Insurance (IF APPLICABLE): Upon commencement of construction and with approval of Authority, Contractor shall obtain and maintain builder's risk 7 BBK: December 2015 77802 00000\22649956.1 DRAFT FOR DISCUSSION insurance as specified below. The namcd insureds shall be Contractor, all Subcontractors (excluding those solely responsible for design Work) of any tier, suppliers, and Palm Desert Housing Authority, City of Palm Desert and their officers, officials, employees, and agents. Contractor shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to Authority. Policy shall be provided for replacement value on an "all risk" basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing Toss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub -limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub -limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to Authority to ensure adequacy of terms and sublimits. 5.5.1.6 Pollution Liability Insurance (IF APPICABLE): Environmental Impairment Liability Insurance shall be written on a Contractor's Pollution Liability form or other form acceptable to Agency providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $2,000,000 dollars per claim and $4,000,000 in the aggregate. All activities contemplated in this agreement shall be specifically scheduled on the policy as "covered operations." The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non -owned disposal sites. . The policy shall contain no endorsements or provisions limiting contractual liability or coverage for cross liability of claims or suits by one insured against another. Products/completed operations coverage shall extend a minimum of three 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 Palm Desert Housing Authority, City of Palm Desert, their officials, officers, employees, and agents, shall be included as insureds under the policy. 5.5.2 Insurance for Subcontractors: All Subcontractor's shall be included as additional insureds under the Contractor's policies, or the Contractor shall be responsible for causing Subcontractors to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the Palm Desert I lousing Authority and the City of Palm Desert as Additional Insureds to the Subcontractor's policies. Contractor shall provide to Authority satisfactory evidence as required under Insurance Section of this Agreement. 5.5.3 Proof of Insurance: Contractor shall provide certificates of insurance to Authority as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by Authority's Risk Manager prior to commencement of performance. The certificates and endorsements for each insurance policy shall he signed by a person authorized by that insurer to bind coverage on its behalf. Current certification of insurance shall he kept on file with Authority at all times during the term of this contract. Authority reserves the right to require complete, certified copies of all required insurance policies, at any time. 8 BBK: December 2015 77802.00000\22649956 1 DRAFT FOR DISCUSSION 5.5.4 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, his 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. Palm Desert Housing Authority, City of Palm Desert and their officers, officials, employees, and agents shall continue as additional insureds under such policies. 5.5.5 Authority's Rights of Enforcement: In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, Authority has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Authority will be promptly reimbursed by Contractor, or Authority will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, Authority may cancel this Agreement. 5.5.6 Acceptable Insurers: All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance 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 Authority's Risk Manager. 5.5.7 Waiver of Subrogation: All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Palm Desert I lousing Authority, City of Palm Desert, their elected or appointed officers, agents, officials, 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 Palm Desert housing Authority and City of Palm Desert, and shall require similar written express waivers and insurance clauses from each of its subcontractors. 5.5.8 Enforcement of Contract Provisions (Non Estoppel): Contractor acknowledges and agrees that any actual or alleged failure on the part of the Authority to inform Contractor of non- compliance with any requirement imposes no additional obligations on the Authority nor does it waive any rights hereunder. 5.5.9 Primary and Non -Contributing Insurance: All insurance coverages shall be primary and any other insurance, deductible, or self-insurance maintained by the indemnified parties shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions. 5.5.10 Requirements Not Limiting: Requirements of specific coverage features or limits contained in this Section arc 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. 5.5.11 Notice of Cancellation: Contractor agrees to oblige its insurance agent or broker and insurers to provide to Authority 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. 5.5.12 Additional Insured Status: General liability, Automobile Liability, and if applicable, Pollution Liability, policies shall provide or be endorsed to provide that the Palm Desert 9 BBK: December 2015 77802 00000\22649956 1 DRAFT FOR DISCUSSION Housing Authority, City of Palm Desert and their officers, officials, employees, and agents shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement, under such policies. This provision shall also apply to any excess liability policies. 5.5.13 Authority's Right to Revise Requirements: The Authority 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 a ninety (90)-day advance written notice of such change. If such change results in substantial additional cost to the Contractor, the Authority and Contractor may renegotiate Contractor's compensation. 5.5.14 Self -Insured Retentions: Any self -insured retentions must be declared to and approved by Authority. Authority 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 Authority. 5.5.15 Timely Notice of Claims: Contractor shall give Authority prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 5.5.16 Safety: Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the 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, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 5.5.17 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. 5.6 Bonds. 5.6.1 Delivery. To the extent payment and/or performance bonds are required by law or this Contract such bonds shall be executed or delivered concurrently with this Contract. If required, no payment will be made to Contractor until the bond has been received and approved by the Authority. If the Contractor fails to furnish any required bond, the Authority may terminate the Contract for cause. 5.6.2 Bond Provisions. No change or alteration of the Contract (including, without limitation, an increase in the Total Contract Price), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety of the obligation provided by the bond. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, the Contractor shall, upon request of the Authority, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the Authority. The obligations of the surety under the bonds shall continue so long as any obligation of Contractor related to the subject of the bond remains. 10 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION 5.6.3 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California -admitted surety and satisfactory to the Authority. 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 Authority. 5.6.4 Payment Bond. Contractor shall execute and provide to Authority a Payment Bond in the amount of the Forty Seven Thousand Four Hundred Seventy Six Dollars and Zero Cents ($47,476) and in a form provided or approved by the Authority. 5.6.5 Performance Bond. Contractor shall execute and provide to Authority a Performance Bond in the amount of the Forty Seven Thousand Four Hundred Seventy Six Dollars and Zero Cents ($47,476) and in a form provided or approved by the Authority. 6. LABOR LAWS 6.1 Prevailing Wages. 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 sec ., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If 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 $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Authority 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 Work available to interested parties upon request, and shall post copies at the Contractor's principal place of business and at the project site. Contractor shall defend, indemnify and hold the Authority, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. The Contractor and each subcontractor shall forfeit as a penalty to the Authority not more than two hundred dollars ($200.00) for each calendar day, or portion thereof, for each worker paid less than the stipulated prevailing wage rate for any work done by him, or by any subcontract under him, in violation of the provisions of the Labor Code. 6.2 Registration. If subject to prevailing wages, this Project will be subject to compliance monitoring and enforcement by the Department of Industrial Relations. Contractor shall comply with all requirements and regulations from the Department of Relations relating to labor compliance monitoring and enforcement. Pursuant to Labor Code sections 1725.5 and 1771.1, Contractor shall be registered with the Department of Industrial Relations to perform public work throughout the performance of the Work. 6.3 Apprenticeable 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. 6.4 I{ours 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 11 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION 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. 6.5 Payroll Records. In accordance with the requirements of California Labor Code Section 1776, Contractor shall keep accurate payroll records which are either on forms provided by the Division of Labor Standards Enforcement or which contain the same information required by such forms. Responsibility for compliance with California Labor Code Section 1776 shall rest solely with Contractor. and Contractor shall make all such records available for inspection at all reasonable hours. In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations on a weekly basis and in the format prescribed by the Department of Industrial Relations, which may include electronic submission 6.6 Contractor's Labor Certification. By its signature hereunder, Contractor certifies the following: "I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., 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." 7. MISCELLANEOUS 7.1 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: Authority: Garland/DBS, Inc. 3800 East 91s` Street Cleveland, Ohio 44105 ATTN: Title: Palm Desert Housing Authority 73-510 Fred Waring Drive Palm Desert, CA 92260 ATTN: Jessica Gonzales, Senior Management Analyst Any notice so given shall be considered received by the other Party forty-eight (48) hours after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall he deemed adequate notice on the date actual notice occurred, regardless of the method of servic 7.2 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, the Contractor hereby offers and agrees to assign to the Authority 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 Authority tender final payment to the Contractor, without further acknowledgment by the Parties. 12 BBK: December 2015 77802.00000\22649956.1 DRAFT FOR DISCUSSION 7.3 Miscellaneous. 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. Time is of the essence in the performance of this Contract. 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. 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 Authority. This Contract shall be governed by the laws of the State of California and shall be performed in Riverside County. This Contract may be executed in counterparts, each of which shall constitute an original. 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. 7.4 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. 7.5 Claims of $375,000 or Less. Notwithstanding any other provision herein, claims of $375,000 or less shall be resolved pursuant to the procedures set forth in California Public Contract Code §§ 20104, et seq. Contractor shall comply with the claim procedures set forth in Government Code section 900 et seq. prior to filing any lawsuit against the Authority. If no such Government Code claim is submitted, or if the prerequisite contractual requirements are not otherwise satisfied as specified herein. Contractor shall be barred from bringing and maintaining a lawsuit against the Authority. 8. CONTRACTOR'S CERTIFICATIONS 8.1 Certification of License. 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, as well as all other licenses, including businesses, pertinent to performing the Work. If this Contract is subject to the Prevailing Wage Law, Contractor further certifies that Contractor is currently registered with the Department of Industrial Relations to perform public work. 8.2 Authority to Enter Contract. Contractor has all requisite power and authority to conduct its business and to execute, deliver and perform the Contract. The individuals who have signed this Contract have the legal power, right and authority to make this Contract and hind Contractor. IN WITNESS WHEREOF, each of the Parties has caused this Contract to be executed on the day and year first above written. PALM DESERT HOUSING GARLAND/DBS, INC. AUTHORITY By: By: Sabby Jonathan, Chairman NAME: TITLE: 13 [If Corporation, TWO SIGNATURES, President OR Vice President AND BBK: December 2015 77802.00000\22649956.1 ATTEST: By: Secretary APPROVED AS TO FORM: By: Best Best & Krieger LLP General Counsel 14 DRAFT FOR DISCUSSION Secretary OR Treasurer REQUIRED] By: NAME: TI"I'I.,E: Contractor's License Number and Classification DIR Registration Number BBK: December 2015 77802.00000\22649956.1 EXHIBIT "A" PLANS AND SPECIFICATIONS The following plans and specifications are incorporated into this Contract herein by this reference: Roofing Materials and Services Proposal No. 25-CA-l50766, Plans and Specifications "Section 07572 - Polyurethane Elastomeric Coating System for Roller Application on Plywood and Concrete Decks" 77802.00000\22649956.1