HomeMy WebLinkAboutAGMT - Simmons Construction (Heather Park Storage) Recorded in Official Records, Orange County
RECORDING REQUESTED BY Tom Daly, Clerk-Recorder
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AND WHEN RECORDED MAIL TO 2009000043043 02:16pm 01130109
CITY OF SEAL BEACH 100 211 N12 1
Attn: City Clerk 0.00 0.00 0.00 0.00 0.60 0.00 0.00 0.00
211 - 8th Street
Seal Beach, CA 90740
Space of above this line for Recorder's use. Ii(
*** 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
December 12, 2008. The work was Heather Park Storage Unit CIP No. PR0902.
6. The name of the contractor, if any, for such improvement was: Simmons Construction. The
date of the Contract Award was: November 10, 2008.
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: Heather Park, Seal Beach,
California 90740.
Date: 7077- Of
a
Signature of owner or corporate officer of owner
named in paragraph 2 or his 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 L '27 , 2009, at al :each, California.
(Date of Signature)
Director of Public Works
• •
AN AGREEMENT
FOR
Heather Park Storage Facility
between
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City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Simmons Construction
1405 Sandpiper Drive
Seal Beach, CA 90740
THIS AGREEMENT is made and entered into this 10 day of November, 2008, by and between
the City of Seal Beach, a California charter city ( "City "), and Simmons Construction, a
Contractor ( "Contractor ").
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• RECITALS
A. WHEREAS, the City Council has approved the plans and specifications for the
Heather Park Storage Facility ( "Project ");
B. WHEREAS, Contractor has submitted a bid to City for the Project dated October
3, 2008.
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
1. Contractor's Services.
1.1 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.
1.2 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),
Worker's Compensation Insurance Certificate (Exhibit C), Insurance Endorsements (Exhibit D),
Acknowledgment of Penal and Civil Penalties Concerning Contractor Licensing Laws (Exhibit
E) and Labor Law Requirements (Exhibit F) 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.
1.3 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 therefore, except such labor, materials, equipment and services
as are specified in the Contract Documents to be furnished by Owner.
1.4 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.
2. Effective Date. This Agreement is effective as of November 10, 2008 (the
"Effective Date "), and shall remain in full force and effect until Contractor has rendered the
services required by this Agreement.
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3. Payment. For performing and completing the work in accordance with the
Contract Documents, Owner shall pay Contractor, in full compensation therefor, the contract
sum set forth in the Bidding Schedule. 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. Owner 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.
4. Contractor's Personnel.
4.1 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.
4.2 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.
4.3 Contractor shall indemnify and hold harmless City and its elected
officials, officers and 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.
4.4 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.
4.5 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.
5. Indemnification.
5.1 Contractor's Duty. Contractor shall indemnify and hold the City, its
elected officials, officers, employees, volunteers, agents, and those City agents serving as
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independent contractors in the role of City officials (collectively "Indemnitees ") free and
harmless from any and all claims, damages, penalties, obligations, demands, causes of action,
costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons,
including without limitation wrongful death, bid protests, and stop notice actions, 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 the City or the
other Indemnitees.
5.2 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.
5.3 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.
5.4 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 an Contractor shall be
conclusive in favor of the Indemnitee's right to recover under this indemnity provision.
6. Insurance.
6.1 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 and professional negligence which may arise from or in connection with the
performance of the services hereunder by Contractor, and its agents, representatives, employees
and subconsultants. Contractor shall complete and execute the following documents attached as
Exhibits hereto and incorporated herein by this reference:
6.1.1 Exhibit D -1: Additional Insured Endorsement - Commercial
General Liability
6.1.2 Exhibit D -2: Additional Insured Endorsement - Automobile
Liability
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6.1.3 Exhibit D -3: Additional Insured Endorsement
6.2 Minimum Scope of Insurance. Unless otherwise approved by City,
coverage shall be at least as broad as:
6.2.1 Insurance Services Office Commercial General Liability
coverage (occurrence form CG 0001).
6.2.2 Insurance Services Office form number CA 0001 (Ed. 1/87)
covering Automobile Liability, code 1 (any auto).
6.2.3 Worker's Compensation insurance as required by the State of
California and Employer's Liability Insurance.
6.2.4 Professional Liability insurance. Contractor shall provide to
City the standard form issued by the carrier.
6.3 Minimum Limits of Insurance. Contractor shall maintain limits no less
than:
6.3.1 General Liability: $1,000,000 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.
6.3.2 Automobile Liability: $1,000,000 per accident for bodily
injury and property damage.
6.3.3 Employer's Liability: $1,000,000 per accident and in the
aggregate for bodily injury or disease and Workers' Compensation Insurance in the amount
required by law.
6.4 Deductibles and Self - Insured Retentions. Contractor shall inform City of
any deductibles or self-insured retentions except with respect to professional liability insurance.
6.5 Other Insurance Provisions. The general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
6.5.1 City, its officers, officials, employees, designated volunteers
and agents serving as independent contractors in the role of city or agency 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 or agency officials which are not also limitations applicable to the named insured.
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6.5.2 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 or agency
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
or agency officials shall be excess of Contractor's insurance and shall not contribute with it.
6.5.3 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.
6.5.4 Each insurance policy required by this clause 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.
6.5.5 Each insurance policy, except for the professional liability
policy, required by this clause shall expressly waive the insurer's right of subrogation against
City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and
agents serving as independent contractors in the role of city or agency officials.
6.6 Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A:VII unless waived in writing by City's Risk
Manager.
6.7 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.
7. 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 Owner
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
$250.00 per calendar day. Such amount is hereby agreed upon as liquidated damages for the loss
to the Owner 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 Owner 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.
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8. 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.
9. 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
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: Simmons Construction
1405 Sandpiper Drive
Seal Beach, CA 90740
Attn: David Simmons
Telephone: (562) 889 -2127
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.
10. 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.
11. 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
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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.
12. 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 with such enforcement or interpretation.
13. 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.
14. 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.
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:
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By: By: f /
David Carmany, Otty Manager Name: ) Si
Title:
Attest: n ,
By: Gayttia By:
Linda Devine, City Clerk Name:
Title:
Approved as to Form:
By:
O�1
Quinn M. Barrow, City Attorney
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EXHIBIT A
FAITHFULL PERFORMANCE BOND
Exhibit A, Page 1
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EXHIBIT B
PAYMENT BOND
Exhibit B, Page 1
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EXHIBIT C
WORKER'S COMPENSATION INSURANCE CERTIFICATE
Exhibit C, Page 1
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EXHIBIT D-1
ADDITIONAL INSURED ENDORSEMENT
COMMERCIAL GENERAL LIABILITY
[INSERT INSURANCE CERTIFICATE SHOWING COMMERCIAL GENERAL LIABILITY]
Exhibit D-1, Page 1
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EXHIBIT D-2
ADDITIONAL INSURED ENDORSEMENT
AUTOMOBILE LIABILITY
[INSERT INSURANCE CERTIFICATE SHOWING AUTOMOBILE LIABILITY]
Exhibit D-2, Page 1
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EXHIBIT D-3
ADDITIONAL INSURED ENDORSEMENT
[INSERT INSURANCE CERTIFICATE SHOWING PROFESSIONAL INSURANCE LIABILITY]
Exhibit D-3, Page 1
57296-0200\1073470v7.doc
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EXHIBIT E
ACKNOWLEDGMENT OF PENAL AND CIVIL PENALTIES CONCERNING
CONTRACTOR LICENSING LAWS
Exhibit E, Page 1
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EXHIBIT F
LABOR LAW REQUIREMENTS
Exhibit F, Page 1
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