HomeMy WebLinkAboutAGMT - Post Earthworks Constructors, Inc. (Gum Grove Park) Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
RECORDING REQUESTED BY IIIIIIIIIIIIIIIIIIIiIIIIINIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE
AND WHEN RECORDED MAIL TO 2011000602606 2:30 pm 11/28/11
47 412 N12 1
CITY OF SEAL BEACH 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Attn: City Clerk
211 - 8th Street
Seal Beach, CA 90740
Space of above this line for Recorder's use. l -
*** No Recording Fee Pursuant to Government Code Section 6103, 27383 ****
NOTICE OF COMPLETION
Notice pursuant to Civil Code Section 3093, must be filed within 10 days after completion.
Notice is hereby given that:
1. The undersigned is owner or corporate officer of the owner of the interest or estate stated
below in the property hereinafter described:
2. The full name of the owner is: City of Seal Beach.
3. The address of the owner is: 211 —8th Street, Seal Beach, CA 90740.
4. The nature of the interest or estate of the owner is: In Fee. The City of Seal Beach.
5. A work of improvement on the property hereinafter is described as substantially completed on
September 29, 2011. The work was Gum Grove Park Slope Repair Project. No. PR1101.
6. The name of the contractor(s), if any, for such improvement was: Post Earthworks
Constructors, Inc. The date of the Contract Award was May 9, 2011.
7. The property on which said work of improvement was completed in the City of Seal Beach,
County of Orange, State of California, and is described as follows: Gum Grove Park.
Date: t i( 1 H I II
411101. P11;1",:,
Director of Public Works, City o •al Beach
Signature of owner or corporate • icer of owner
named in paragraph 2 or agent.
VERIFICATION
I, the undersigned, say: the Director of Public Works declarant of the foregoing notice of
completion; have read said notice of completion and know the contents thereof; the same is true
of my own knowledge.
I declare under penalty of perjury the foregoing is true and correct.
Executed on I / I`� I/ , 2011, at Seal Beach, California.
( ate Signature) /
•
/,‘,01P ,
Director of Public*orks, City off eal Beach
• •
PUBLIC WORKS AGREEMENT
FOR GUM GROVE PARK SLOPE STABILIZATION
PROJECT NO. PR1101
between
-'E SEAL , '`
k mpot, .1
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City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Post Earthworks Constructors, Inc.
2967 E. Coronado Street
Anaeim, CA 92806
(714) 632 -5290
THIS AGREEMENT is made as of May 9, 2011, by and between'the City of Seal Beach,
a California charter city ( "City"), and Post Earthworks Constructors, Inc. ( "Contractor").
• •
RECITALS
A. WHEREAS, the City Council has approved the plans and specifications for
the Gum Grove Park Slope Stabilization Project Number PR1101 ( "Project ") with
respect to design criteria; and
B. WHEREAS, Contractor has submitted a bid to City for the Project dated
April 26, 2011 in the amount of $64,392.86 ( "Accepted Proposal" hereinafter). The
Accepted Proposal is attached hereto as Exhibit G and contains, among other things,
provisions defining the Project scope.
NOW, THEREFORE, in consideration of performance by the parties of the
mutual promises, covenants, and conditions herein contained, the parties hereto agree
as follows:
AGREEMENT
Contractor's Services.
Scope and Level of Services. For and in consideration of the mutual
promises set forth herein, and subject to the terms and conditions set forth in this
Agreement, Contractor shall perform and complete in good and workmanlike manner all
work ( "Work ") required by this Agreement and the documents listed in Subsection 1.2
for the Project.
Contract Documents. The "Contract Documents" that comprise the
agreement between the City and the Contractor are the: Notice Inviting Bids,
Instructions to Bidders, Accepted Proposal, Non - Collusion Affidavit, Bid Schedule(s),
List of Subcontractors, Contractor's Industrial Safety Record, Contractor's Qualification
Statement, Bid Security Forms for Check or Bond, Specifications, General and Special
Provisions and documents referenced therein, all addenda as prepared prior to the date
of bid opening setting forth any modifications or interpretations of any of said
documents, this Agreement, Exhibits attached to this Agreement, including but not
limited to the Performance Bond (Exhibit A), Payment Bond (Exhibit B), Workers'
Compensation Insurance Certificate (Exhibit C), Insurance Endorsements (Exhibit D),
Acknowledgment of Penal and Civil Penalties Concerning Contractor Licensing Laws
(Exhibit E), Labor Law Requirements (Exhibit F), Accepted Proposal (Exhibit G) and any
and all supplemental agreements executed amending or extending the Work
contemplated and that may be required to complete the Work in a substantial and
acceptable manner. These Contract Documents are hereby incorporated into this
Agreement.
The Work shall be performed in accordance with the Plans, Specifications
and other Contract Documents. Contractor shall furnish at its own expense all labor,
materials, equipment and services necessary therefor, except such labor, materials,
equipment and services as are specified in the Contract Documents to be furnished by
City.
• •
In the event of any material discrepancy between the express provisions
of this Agreement and the provisions of the other Contract Documents, the provisions of
this Agreement shall prevail.
Effective Date. This Agreement is effective as of May 9, 2011 (the "Effective
Date "), and shall remain in full force and effect until Contractor has rendered the
services required by this Agreement.
Payment. For performing and completing the Work in accordance with the
Contract Documents, City shall pay Contractor, in full compensation therefor, the
amount of $64,392.86, subject to any additions and deletions pursuant to the terms of
the Contract Documents. Said sum shall constitute payment in full for all work
performed hereunder, including, without limitation, all labor, materials, equipment, tools
and services used or incorporated in the Work, supervision, administration, overhead,
expenses and any and all other things required, furnished or incurred for completion of
the Work as specified in the Contract Documents. City shall make payments to
Contractor on account of the contract sum at the time, in the manner, and upon the
conditions specified in the Contract Documents.
Contractor's Personnel.
All Work shall be performed by Contractor or under Contractor's direct
supervision, and all personnel shall possess the qualifications, permits, and licenses
required by state and local law and by the Notice Inviting Bids /Instructions to Bidders to
perform such Services, including, without limitation, a City of Seal Beach business
license as required by the Seal Beach Municipal Code.
Contractor shall be responsible for payment of all employees' wages and
benefits, and shall comply with all requirements pertaining to employer's liability,
workers' compensation, unemployment insurance, and Social Security. Contractor shall
fully comply with the workers' compensation law regarding Contractor and Contractor's
employees.
Contractor shall indemnify and hold harmless City and its elected officials,
officers, employees, servants, designated volunteers, and agents serving as
independent contractors in the role of city officials, from any and all liabilities, damages,
claims, costs and expenses of any nature to the extent arising from Contractor's alleged
violations of personnel practices.
Contractor is, and shall at all times remain as to City, a wholly
independent contractor. Contractor shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its
agents shall have control over the conduct of Contractor or any of Contractor's
employees, except as set forth in this Agreement. Contractor shall not, at any time, or
in any manner, represent that it or any of its officers, agents, or employees are in any
manner employees of City. Contractor shall pay all required taxes on amounts paid to
Contractor under this Agreement, and indemnify and hold City harmless from any and
• •
all taxes, assessments, penalties, and interest asserted against City by reason of the
work performed pursuant to this Agreement.
City shall have the right to offset against the amount of any fees due to
Contractor under this Agreement any amount due to City from Contractor as a result of
Contractor's failure to promptly pay to City any reimbursement or indemnification arising
under this Section 4.
Indemnification.
Contractor's Duty. Contractor shall defend, indemnify, and hold the City,
its elected officials, officers, employees, volunteers, agents, and those City agents
serving as independent contractors in the role of City officials (collectively
"Indemnitees ") free and harmless from and against any and all claims (including, without
limitation, claims for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, bid protests, stop notices, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a "Claim," collectively, "Claims "), in any manner arising out of or incident to the
performance of the Agreement, including without limitation, the payment of all
consequential damages and attorneys' fees and other related costs and expenses.
Further, Contractor shall appoint competent defense counsel, at Contractor's own cost,
expense and risk, to defend any and all such suits, actions or other legal proceedings of
every kind arising out of or incident to the performance of the Agreement that may be
brought or instituted against Indemnitees. Contractor shall pay and satisfy any
judgment, award or decree that may be rendered against City or the other Indemnitees
in any such suit, action, or other legal proceeding arising out of or incident to the
performance of the Agreement. Contractor shall reimburse the City and the other
Indemnitees, 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 not be restricted to insurance proceeds, if any, received by
Contractor or Indemnitees. This indemnity shall apply to all Claims and liability
regardless of whether any insurance policies are applicable.
Bid Protests. In addition to its obligations pursuant to Section 5.1,
Contractor shall reimburse the City for all attorneys' fees and costs incurred by City in
connection with, arising out of or incident to any bid protest.
City's Sole Negligence. Nothing in Section 5.1 shall be construed to
require Contractor to indemnify Indemnitees for that portion of any Claim to the extent
arising from the sole negligence or willful misconduct of the Indemnitees.
Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights
that they may possess against Contractor because of the acceptance by City, or the
deposit with City, of any insurance policy or certificate required pursuant to this
Agreement.
• •
Waiver of Right of Subrogation. Contractor, on behalf of itself and all
parties claiming under or through it, hereby waives all rights of subrogation against the
Indemnitees, while acting within the scope of their duties, from all claims, losses, and
liabilities arising out of or incident to activities or operations performed by or on behalf of
the Indemnitor.
Survival. The provisions of this Section 5 shall survive the termination of
the Agreement and are in addition to any other rights or remedies that Indemnitees may
have under the law. Payment is not required as a condition precedent to an
Indemnitee's right to recover under this indemnity provision, and an entry of judgment
against a Contractor shall be conclusive in favor of the Indemnitee's right to recover
under this indemnity provision.
Insurance.
Liability Insurance. Contractor shall procure and maintain in full force and
effect for the duration of this Agreement insurance against claims for injuries to persons
or damages to property which may arise from or in connection with the performance of
the services hereunder by Contractor, and its agents, representatives, employees and
subcontractors. The policy limits set forth below do not act as a limitation upon the
amount of indemnification to be provided by Contractor. Contractor shall complete and
execute the following documents attached as Exhibits hereto and incorporated herein
by this reference:
Exhibit D -1: Additional Insured Endorsement - Commercial
General Liability.
Exhibit D -2: Additional Insured Endorsement - Automobile Liability.
Exhibit D -3: Additional Insured Endorsement.
Minimum Scope of Insurance. Unless otherwise approved by City,
coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87)
covering Automobile Liability, code 1 (any auto).
Insurance Services Office form number CG 20 10 11 85 (Ed. 11/85)
covering Additional Insured — Owners, Lessees or Contactors (Form B).
Workers' Compensation insurance as required by the State of
California and Employer's Liability Insurance.
Minimum Limits of Insurance. Contractor shall maintain limits no less
than:
• •
General Liability: $2,000,000 per occurrence and in the aggregate
for bodily injury, personal injury and property damage. Commercial General Liability
Insurance or other form with a general aggregate limit shall apply separately to this
Agreement or the general limit shall be twice the required occurrence limit.
Automobile Liability: $2,000,000 per occurrence for bodily injury
and property damage.
Employer's Liability: $1,000,000 per occurrence and in the
aggregate for bodily injury or disease and Workers' Compensation Insurance in the
amount required by law.
Deductibles and Self- Insured Retentions. Contractor shall inform City of
any deductibles or self- insured retentions except with respect to any professional
liability insurance.
Other Insurance Provisions. The general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
City, its officers, officials, employees, designated volunteers and
agents serving as independent contractors in the role of City officials, are to be covered
as additional insureds as respects: liability arising out of activities performed by or on
behalf of Contractor; products and completed operations of Contractor; premises
owned, occupied or used by Contractor; or automobiles owned, leased, hired or
borrowed by Contractor. The coverage shall contain no limitations on the scope of
protection afforded to City, its officers, officials, employees, designated volunteers or
agents serving as independent contractors in the role of City officials which are not also
limitations applicable to the named insured.
For any claims related to this Agreement, Contractor's insurance
coverage shall be primary insurance as respects City, its officers, officials, employees,
designated volunteers and agents serving as independent contractors in the role of City .
officials. Any insurance or self- insurance maintained by City, their officers, officials,
employees, designated volunteers or agents serving as independent contractors in the
role of City officials shall be excess of Contractor's insurance and shall not contribute
with it.
Contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
Each insurance policy required by this Section 6 shall be endorsed
to state that coverage shall not be canceled or materially modified except after 30 days
prior written notice by first class mail has been given to City.
Each insurance policy, except for any professional liability policy,
required by this Section 6 shall expressly waive the insurer's right of subrogation
against City and its elected officials, officers, employees, servants, attorneys,
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designated volunteers, and agents serving as independent contractors in the role of city
or agency officials.
Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A :VIII unless waived in writing by City's Risk
Manager.
Verification of Coverage. All insurance coverages shall be confirmed by
execution of endorsements on forms approved by the City. The endorsements are to
be signed by a person authorized by that insurer to bind coverage on its behalf. All
endorsements are to be received and approved by City before services commence. As
an alternative to City forms, Contractor's insurer may provide complete, certified copies
of all required insurance policies, including endorsements effecting the coverage
required by these specifications.
Liquidated Damages. Should the Contractor fail to complete the project, or any
part thereof, in the time agreed upon in the Contract, the Contractor shall reimburse the
City for the additional expense and damage for each calendar day that the Contract
remains uncompleted after the Contract completion date. It is agreed that the amount
of such additional expense and damage incurred by reason of failure to complete the
Contract is the per diem rate of $ 750 per calendar day. Such amount is hereby
agreed upon as liquidated damages for the loss to the City resulting from the failure of
the Contractor to complete the project within the allotted time and to the value of the
operation of the works dependent thereon. It is expressly understood and agreed that
this amount is a reasonable amount and is established in lieu of damages that are
incapable of calculation at the inception hereof; and this amount is not to be considered
in the nature of a penalty. The City shall have the right to deduct such damages from
any amount due, or that may become due to the Contractor, or the amount of such
damages shall be due and collectible from the Contractor or the Contractor's Surety.
Progress payments made after the scheduled completion date shall not constitute a
waiver of liquidated damages.
Suspension. City may, in writing, order Contractor to suspend all or any part of
the Contractor's Services for the convenience of City or for work stoppages beyond the
control of City or Contractor. A suspension of the Services does not void this
Agreement.
Notices. Any notices, bills, invoices, or reports authorized or required by this
Agreement shall be in writing and shall be deemed received on (a) the day of delivery if
delivered by hand or overnight courier service during Contractor's and City's regular
business hours or by facsimile before or during Contractor's regular business hours; or
(b) on the third business day following deposit in the United States mail, postage
prepaid, to the addresses heretofore set forth in the Agreement, or to such other
addresses as the parties may, from time to time, designate in writing pursuant to the
provisions of this Section. All notices shall be addressed as follows:
If to City: City Clerk
0 •
City of Seal Beach
211 -8th Street
Seal Beach, California 90740
Telephone: (562) 431 -2527
Fax: (562) 493 -9857
With a copy to:
Public Works Director
City of Seal Beach
211 -8th Street
Seal Beach, California 90740
If to Contractor: Post Earthworks Constructors, Inc.
2967 E. Coronado Street
Anaheim, CA 92806
Telephone: (714) 632 -5290
Fax: (714) 632 -7967
Attn: Chris Post
Non - Assignability; Subcontracting. Contractor shall not assign, transfer, or
subcontract any interest in this Agreement or the performance of any of Contractor's
obligations hereunder. Any attempt by Contractor to so assign, transfer, or subcontract
any rights, duties, or obligations arising hereunder shall be null, void and of no effect.
Compliance with Laws. Contractor shall comply with all applicable federal, state
and local laws, ordinances, codes and regulations in force at the time Contractor
performs the Services.
Non - Waiver of Terms, Rights and Remedies. Waiver by either party of any one
or more of the conditions of performance under this Agreement shall not be a waiver of
any other condition of performance under this Agreement. In no event shall the making
by City of any payment to Contractor constitute or be construed as a waiver by City of
any breach of covenant, or any default which may then exist on the part of Contractor,
and the making of any such payment by City shall in no way impair or prejudice any
right or remedy available to City with regard to such breach or default.
Attorneys' Fees. In the event that either party to this Agreement shall commence
any legal action or proceeding to enforce or interpret the provisions of this Agreement,
the prevailing party in such action or proceeding shall be entitled to recover its costs of
suit, including all attorneys' fees incurred in connection therewith.
Construction. The validity, interpretation, and performance of this Agreement
shall be controlled by and construed under the laws of the State of California. In the
event of any asserted ambiguity in, or dispute regarding the interpretation of any matter
herein, the interpretation of this Agreement shall not be resolved by any rules of
interpretation providing for interpretation against the party who causes the uncertainty to
• 1
Agreement, the prevailing party in such action or proceeding shall be entitled to recover
its costs of suit, including all attorneys' fees incurred in connection therewith.
14. Construction. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State of
California. In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
15. Entire Agreement. This Agreement, including any other documents
incorporated herein by specific reference, represents the entire and integrated
agreement between Contractor and City. This Agreement supersedes all prior oral or
written negotiations, representations, or agreements. This Agreement may not be
amended, nor any provision or breach hereof waived, except in a writing signed by the
parties which expressly refers to this Agreement.
16. Severability. The invalidity in whole or in part of any provisions of this
Agreement shall not void or affect the validity of the other provisions of this Agreement.
IN WITNESS WHEREOF, the parties, through their respective authorized
representatives, have executed this Agreement as of the date first written above.
CITY OF SEAL BEACH CONTRACTOR:
By: •� �,C • ,� • ' .�` By: Post Earthworks Constructors, Inc.
, ' ity Manager
Name: Chris Post
Title: President
Attest:
By: , By: ' \
Lin • a Devine, ity Clerk
Name: C LS
Title: -�.,� �.
Approved as to Form:
By: �:LL
d nk uinn M. = arrCity Attorney
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