HomeMy WebLinkAboutCentec Construction - Contract - 3-11-2022CONTRACT
CITY OF FRESNO, CALIFORNIA
PUBLIC WORK OF IMPROVEMENT
THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a
California municipal corporation (City), and CENTEC CONSTRUCTION, a California sole
proprietorship (Contractor).
RECITALS
A. The City periodically requires removal and disposal of hazardous materials (lead
based paint and asbestos containing materials) pursuant to demolition on an
emergency basis due to fire, inclement weather, or other circumstance that
renders a building hazardous to the neighborhood and any persons entering the
building.
B. Contractor is qualified to provide these services on an emergency basis.
CONTRACT
1. Contract Documents. Specifications including General Conditions, Special
Conditions, and Technical Specifications for demolitions necessary on an
emergency basis during the period of the Contract, copies of which are annexed
hereto, and are hereby incorporated into and made a part of this Contract, and
shall be known as the Contract Documents.
2. Requirements Contract_ During the period of the Contract, Contractor shall provide
all the Services described in the Contract Documents. Contractor understands and
agrees that this is a requirements Contract, and the City shall have no obligation
to Contractor if no Services are required.
3. Price and Work. For the monetary consideration NOT TO EXCEED $250,000.00,
Contractor promises and agrees to perform or cause to be performed, in a good
and workmanlike manner, under the direction and to the satisfaction of the City's
Associate Environmental and Safety Consultant or City's Engineer and in strict
accordance with the Specifications, all of the work as set forth in the Contract
Documents.
4. Payment. City agrees to pay the consideration stated, at the times, in the amounts,
and under the conditions specified in the Contract Documents. The Contractor
agrees to accept electronic payment from the City.
5. Term of the Contract. The term of this Contract shall be effective January 1, 2022,
and shall continue in full force and effect through a period of up to six months from
March 10, 2022. The Contract may be terminated by either party upon 30 days
written notice.
6. Indemnification. To the furthest extent allowed by law including California Civil
Code Section 2782, Contractor shall indemnify, hold harmless and defend City and
each of its officers, officials, employees, agents, and volunteers from any and all
loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract,
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tort or strict liability, including, but not limited to personal injury, death at any time
and property damage) incurred by City, Contractor or any other person, and from
any and all claims, demands and actions in law or equity (including attorney's fees
and litigation expenses), arising or alleged to have arisen directly or indirectly out
of performance of this Contract. Contractor's obligations under the preceding
sentence shall apply regardless of whether City or any of its officers, officials,
employees, agents, or volunteers are passively negligent, but shall not apply to
any loss, liability, fines, penalties, forfeitures, costs or damages caused by the
active or sole negligence, or willful misconduct, of City or any of its officers,
officials, employees, agents, or volunteers.
If Contractor should subcontract all or any portion of the work to be performed
under this Contract, Contractor shall require each subcontractor to indemnify, hold
harmless, and defend City and each of its officers, officials, employees, agents,
and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Contract.
7. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section
6705 of the California Labor Code and, if said provisions are applicable to this
Contract, agrees to comply therewith.
& Worker's Compensation Certification. In compliance with the provisions of Section
1861 of the California Labor Code, Contractor hereby certifies as follows:
I am aware of the provisions of Section 3700 of the California Labor
Code which require every employer to be insured against liability for
worker's compensation or to undertake self-insurance in accordance
with the provisions of that Code, and I will comply with such
provisions before commencing the performance of work of this
Contract and will make my subcontractors aware of this provision.
9. The City Attorney, or designee, is hereby authorized and directed to execute and
implement this Agreement.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Contract on the day and year
here below written, of which the date of execution by City shall be subsequent to that of
Contractor's, and this Contract shall be binding and effective upon execution by both
parties.
CEYIEC C NSTRUCTION, a California CITY OF FRESNO,
sole( propri torship a California municipal corporation
M
Sustaita
Owner
Dated: 3 11 Zo 2- 2
Applicable Contractor License:
Number: 1080683
Name: Centec Construction
Date of Issuance: September 2, 2021
Contractor Address:
Centec Construction
Attention: Jesus Sustaita, Owner
P.O. Box 28058
Fresno, CA 93729
Phone: 559-475-0590
By:
Doug4 s T. Sloa
City Attorney
Dated: '7,—t/— Zz.—
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney _ I--
By: i
ief Assistant City Attorney
ATTEST:
TODD STERMER, CMC
Cityi4etyCl
By: 2 Z
Date
ZOz 2_
City address:
City of Fresno
ATTN: Erica Camarena, Chief Assistant City
Attorney
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-7500
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PAYMENT BOND
PUBLIC WORK
WHEREAS, the Principal has been awarded a requirements contract for removal and
disposal of hazardous materials in the City of Fresno on an emergency basis, in an
amount not to exceed $250,000; and
WHEREAS, the amount of the City payment is not yet known, as the projects under this
agreement come up under an emergency basis; and
WHEREAS, the Principal agrees to pay the bond in installments, starting with $50,000 to
be posted prior to any work commencing under the Contract; and
WHEREAS, the Principal agrees to pay the next installment of $50,000 when the work
conducted has reached $40,000 of the original $50,000, and so on if and until the Contract
amount reaches the limit;
NOW, THEREFORE, be it resolved, the Principal agrees as follows:
1. The Principal will timely seek to post a $50,000 bond prior to the commencement
of any work under the contract.
2. Once the bond is in place, if the Principal or subcontractors of the Principal shall
fail to pay any of the persons named in Section 9100 of the Civil Code, or amounts
due under the Unemployment Insurance Code with respect to work or labor
performed by any such claimant, or prevailing wages due and penalties incurred
pursuant to Sections 1774, 1775, 1813, or 1815 of the Labor Code, or for any
amounts required to be deducted, withheld, and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code,
with respect to the work and labor, the Surety will pay for the same, in an amount
not exceeding the sum specified above, and also, in case suit is brought upon this
bond, will pay, in addition to the face amount thereof, costs, and reasonable
expenses and fees, including reasonable attorney's fees, incurred by the Obligee
in successfully enforcing this obligation, to be awarded and fixed by the court, and
to be taxed as costs and to be included in the judgment therein rendered. The
benefit of this bond shall inure to any of the persons named in Section 9100 of the
Civil Code so as to give the right of action to those persons or their assigns in any
suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation shall become
null and void, otherwise it shall be and remain in full force and effect.
///
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No extension of time granted to the Principal and no change, alteration or addition in any
of the terms of the contract or any of the contract documents or the work to be performed
thereunder, whether made after notice or not, shall release or otherwise affect the
obligations of the Surety hereunder, and the Surety waives notice of any such extension,
change, alteration or addition.
)NSTRUCTION
PRINCIPAL
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City A ate
B
Y
Date
ity Attorney
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DIVISION II
GENERAL CONDITIONS
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DIVISION II
GENERAL CONDITIONS
Wherever used in the Specifications or any of the Contract documents, the following
words shall have the meaning herein given, unless the context requires a different
meaning.
1. California Building Code (CBC), Latest Edition; California Plumbing Code (CPC),
Latest Edition; California Mechanical Code (CMC), Latest Edition; National
Electrical Code (NEC), Latest Edition; California Fire Code (CFC), Latest Edition;
California Health and Safety Code (as applicable). For purposes of this definition,
"Latest Edition" shall mean the edition, and to the extent, adopted by the City
through the City of Fresno Municipal Code.
2. "City," "Buyer," "Owner," "Vendee," "City of Fresno" shall each mean and refer to
the City of Fresno, California.
3. "City Standard Specifications" City of Fresno, Standard Specifications,
Department of Public Works, dated September, 2010 and as amended from time -
to -time.
4. "Construction Manager" shall mean and refer to the Owner's authorized
representative at the Job Site, in responsible charge of administering the Contract.
The Construction Manager shall be the single point of contact for all
correspondence, submittals, progress payment requests, and contacts to and from
the Contractor.
5. "Contract," "Contract Documents" shall mean and refer to these Specifications, the
Agreement and all other standard Specifications, Buyer's Specifications and other
papers and documents incorporated by reference into or otherwise referred to in
any of the foregoing documents, whether or not attached thereto.
6. "Contractor," "Seller," "Vendor," "Supplier" shall each mean and refer to each
person or other entity awarded a Contract hereunder and named or to be named
in the Agreement with the Buyer to furnish the goods or services, or both, to be
furnished under the Contract.
7. "Council," "City Council" shall each mean and refer to the Council of the Buyer.
8. "Engineer," "City Engineer," shall mean and refer to the City Engineer and any duly
authorized representative.
9. "Goods," "Merchandise" shall each mean and refer to the equipment, material,
article, supply or thing to be furnished by the Seller under the Contract.
10. "Purchasing Manager" shall mean and refer to the Purchasing Manager of the
Buyer.
11. "Specifications" shall mean and refer to all of the Contract Documents.
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12. "State Standard Specifications" State of California, Department of Transportation,
Standard Specifications, Latest Edition.
13. "Working day" shall mean and refer to City regular business day.
14. "Associate Environmental and Safety Consultant" shall mean and refer to the City
Associate Environmental and Safety Consultant and any duly authorized
representative.
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INSURANCE REQUIREMENTS
(a) Throughout the life of this Agreement, Contractor shall pay for and maintain in full
force and effect all insurance as required herein with an insurance company(ies) either (i)
admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than "A-Vll" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by City's Risk Manager or designee at any time and in his/her
sole discretion. The required policies of insurance as stated herein shall maintain limits
of liability of not less than those amounts stated therein. However, the insurance limits
available to City, its officers, officials, employees, agents, and volunteers as additional
insureds, shall be the greater of the minimum limits specified therein or the full limit of any
insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, Contractor or any
of its subcontractors fail to maintain any required insurance in full force and effect, all
services and work under this Agreement shall be discontinued immediately, and all
payments due or that become due to Contractor shall be withheld until notice is received
by City that the required insurance has been restored to full force and effect and that the
premiums therefore have been paid for a period satisfactory to City. Any failure to
maintain the required insurance shall be sufficient cause for City to terminate this
Agreement. No action taken by City pursuant to this section shall in any way relieve
Contractor of its responsibilities under this Agreement. The phrase "fail to maintain any
required insurance" shall include, without limitation, notification received by City that an
insurer has commenced proceedings, or has had proceedings commenced against it,
indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Contractor shall not be deemed to release
or diminish the liability of Contractor, including, without limitation, liability under the
indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as a limitation upon the amount of indemnification to be provided by Contractor.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Contractor, vendors, suppliers, invitees, contractors, sub-
contractors, subcontractors, or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your business
operations. The Commercial General Liability policy shall be written on an occurrence
form and shall provide coverage for "bodily injury," "property damage" and "personal and
advertising injury" with coverage for premises and operations (including the use of owned
and non -owned equipment), products and completed operations, and contractual liability
(including, without limitation, indemnity obligations under the Agreement) with limits of
liability not less than those set forth under "Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of
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automobiles in the course of your business operations. The Automobile Policy shall be
written on an occurrence form and shall provide coverage for all owned, hired, and non -
owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile
coverage is used, the City, its officers, officials, employees, agents, and volunteers are to
be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
Contractor shall procure and maintain for the duration of the contract, and for five years
thereafter, insurance with limits of liability not less than those set forth below. However,
insurance limits available to City, its officers, officials, employees, agents, and volunteers
as additional insureds, shall be the greater of the minimum limits specified herein or the
full limit of any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY
(i) $2,000,000 per occurrence for bodily injury and property damage;
(ii) $2,000,000 per occurrence for personal and advertising injury;
(iii) $4,000,000 aggregate for products and completed operations; and,
(iv) $4,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation Insurance as required by the State of California with
statutory limits and EMPLOYER'S LIABILITY with limits of liability not less
than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
4. CONTRACTORS' POLLUTION LEGAL LIABILITY with coverage for bodily
injury, property damage or pollution clean-up costs that could result from of
pollution condition, both sudden and gradual. Including a discharge of pollutants
brought to the work site, a release of pre-existing pollutants at the site, or other
pollution conditions with limits of liability of not less than the following:
(i) $1,000,000 per occurrence or claim; and,
(ii) $2,000,000 general aggregate per annual policy period.
(a) In the event this Agreement involves the transportation of hazardous
material, either the Commercial Automobile policy or other
appropriate insurance policy shall be endorsed to include
Transportation Pollution Liability insurance covering materials to be
transported by Contractor pursuant to the Agreement.
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UMBRELLA OR EXCESS INSURANCE
In the event Contractor purchases an Umbrella or Excess insurance policy(ies) to meet
the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford
no less coverage than the primary insurance policy(ies). In addition, such Umbrella or
Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for
the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
Contractor shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and Contractor shall also be responsible for
payment of any self -insured retentions. Any self -insured retentions must be declared on
the Certificate of Insurance, and approved by, the City's Risk Manager or designee. At
the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such self -insured retentions as respects City,
its officers, officials, employees, agents, and volunteers; or
(ii) Contractor shall provide a financial guarantee, satisfactory to City's Risk Manager
or designee, guaranteeing payment of losses and related investigations, claim
administration and defense expenses. At no time shall City be responsible for the
payment of any deductibles or self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of Insurance required herein shall be endorsed to provide that the
coverage shall not be cancelled, non -renewed, reduced in coverage or in limits
except after 30 calendar days' written notice has been given to city, except 10 days
for nonpayment of premium. Contractor is also responsible for providing written
notice to the City under the same terms and conditions. Upon issuance by the
insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in
coverage or in limits, Contractor shall furnish City with a new certificate and
applicable endorsements for such policy(ies). In the event any policy is due to
expire during the work to be performed for City, Contractor shall provide a new
certificate, and applicable endorsements, evidencing renewal of such policy not
less than 15 calendar days prior to the expiration date of the expiring policy.
(ii) In the event this Contract involves any lead based environmental hazard (e.g., lead
based paint), the Contractors Pollution Liability insurance policy shall be endorsed
to include coverage for lead based environmental hazards. In the event this
Contract involves any asbestos environmental hazard (e.g., asbestos
remediation), the Contractors Pollution Liability insurance policy shall be endorsed
to include coverage for asbestos environmental hazards. In the event this Contract
involves any mold environmental hazard (e.g., mold remediation), the Contractors
Pollution Liability insurance policy shall be endorsed to include coverage for mold
environmental hazards and "microbial matter including mold" within the definition
of "Pollution" under the policy.
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(iii) The Commercial General, Pollution and Automobile Liability insurance policies
shall be written on an occurrence form.
(iv) The Commercial General, Pollution and Automobile Liability insurance policies
shall be endorsed to name City, its officers, officials, agents, employees and
volunteers as an additional insured. Contractor shall establish additional insured
status for the City and for all ongoing and completed operations under both
Commercial General and Pollution Liability policies by use of ISO Forms and an
executed manuscript insurance company endorsement providing additional
insured status. The Commercial General endorsements must be as broad as that
contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37.
(v) The Commercial General, Pollution and Automobile Liability insurance shall
contain, or be endorsed to contain, that the Contractors' insurance shall be primary
to and require no contribution from the City. The Commercial General and
Pollution Liability policies are required to include primary and non-contributory
coverage in favor of the City for both the ongoing and completed operations
coverage. These coverages shall contain no special limitations on the scope of
protection afforded to City, its officers, officials, employees, agents, and
volunteers. If Contractor maintains higher limits of liability than the minimums
shown above, City requires and shall be entitled to coverage for the higher limits
of liability maintained by Contractor.
(vi) Should any of these policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
(vii) For any claims related to this Agreement, Contractor's insurance coverage shall
be primary insurance with respect to the City, its officers, officials, agents,
employees and volunteers. Any insurance or self-insurance maintained by the
City, its officers, officials, agents, employees, and volunteers shall be excess of
the Contractor's insurance and shall not contribute with it.
(viii) The Workers' Compensation insurance policy shall contain, or be endorsed to
contain, a waiver of subrogation as to City, its officers, officials, agents, employees,
and volunteers.
(ix) The Commercial General, Pollution and Automobile Liability insurance policies
shall contain, or be endorsed to contain, a waiver of subrogation as to City, its
officers, officials, agents, employees, and volunteers.
PROVIDING OF DOCUMENTS - Contractor shall furnish City with all certificate(s) and
applicable endorsements effecting coverage required herein. All certificates and
applicable endorsements are to be received and approved by the City's Risk Manager or
designee prior to City's execution of the Agreement and before work commences. All
non -ISO endorsements amending policy coverage shall be executed by a licensed and
authorized agent or broker. Upon request of City, Contractor shall immediately furnish
City with a complete copy of any insurance policy required under this Agreement,
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including all endorsements, with said copy certified by the underwriter to be a true and
correct copy of the original policy. This requirement shall survive expiration or termination
of this Agreement. All subcontractors working under the direction of Contractor shall also
be required to provide all documents noted herein.
CLAIMS -MADE POLICIES - If any coverage required is written on a claims -made
coverage form:
(i) The retroactive date must be shown, and must be before the effective date of the
Agreement or the commencement of work by Contractor.
(ii) Insurance must be maintained and evidence of insurance must be provided for at
least 5 years after completion of the work or termination of the Agreement,
whichever first occurs.
(iii) If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a retroactive date prior to the effective date of the
Agreement, or work commencement date, Contractor must purchase "extended
reporting" period coverage for a minimum of 5 years after completion of the work
or termination of the Agreement, whichever first occurs.
(iv) A copy of the claims reporting requirements must be submitted to City for review.
(v) These requirements shall survive expiration or termination of the Agreement.
SUBCONTRACTORS - If Contractor subcontracts any or all of the services to be
performed under this Agreement, Contractor shall require, at the discretion of Risk
Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the
City to provide required indemnification and insurance protection. Any required Side
Agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is
required, Contractor will be solely responsible for ensuring that its subcontractors
maintain insurance coverage at levels no less than those required by applicable law and
is customary in the relevant industry.
PERFORMANCE AND PAYMENT BONDS
The Contractor shall provide good and sufficient surety bonds from a corporate surety
admitted by the California Insurance Commissioner to do business in the State of
California, on forms as those provided by the City in these Specifications, and approved
by the City. A Payment Bond is required for all contracts of $25,000.00 or more. A
Performance Bond is required if specified in the Special Conditions or the Technical
Specifications.
(a) The "Payment Bond" shall be for not less than 100% of the Contract price, to satisfy
claims of material suppliers and of mechanics and laborers employed by
Contractor on the work. For requirement contracts, the Contractor may pay the
bond in installments, starting with $50,000 to be posted prior to any work
commencing under the Contract. The bond shall be maintained by the Contractor
in full force and effect until the work is completed and accepted by the City, and
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until all claims for materials and labor are paid, and shall otherwise comply with
Chapter 5, Title III, Part 6, Division 4 of the California Civil Code.
(b) The "Faithful Performance Bond" shall be for 100% of the Contract price to
guarantee faithful performance of all work, within the time prescribed, in a manner
satisfactory to the City, and that all materials and workmanship will be free from
original or developed defects.
INDEMNIFICATION
To the furthest extent allowed by law including California Civil Code section 2782,
Contractor shall indemnify, hold harmless and defend City and each of its officers,
officials, employees, agents, and volunteers from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in Contract, tort or strict liability,
including, but not limited to personal injury, death at any time and property damage)
incurred by City, Contractor or any other person, and from any and all claims, demands
and actions in law or equity (including attorney's fees and litigation expenses), arising or
alleged to have arisen directly or indirectly out of performance of this Contract.
Contractor's obligations under the preceding sentence shall apply regardless of whether
City or any of its officers, officials, employees, agents, or volunteers are passively
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the active or sole negligence, or willful misconduct, of City or any of
its officers, officials, employees, agents, or volunteers.
If Contractor should subcontract all or any portion of the work to be performed under this
Contract, Contractor shall require each subcontractor to indemnify, hold harmless and
defend City and each of its officers, officials, employees, agents, and volunteers in
accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Contract.
GENERAL GUARANTY
Neither the final certificate of payment nor any provision in the Contract Documents nor
partial or entire occupancy of the premises by the City shall constitute an acceptance of
work not done in accordance with the Contract Documents or relieve the Contractor of
liability in respect to any express warranties or responsibility for faulty materials or
workmanship. The Contractor shall remedy any defects in the work and pay for any
damage to other work resulting therefrom, which shall appear within a period of one year
from the date of final acceptance of work unless a longer period is specified. The
Engineer or the Associate Environmental and Safety Consultant will give notice of
observed defects with reasonable promptness.
PRECEDENCE OF CONTRACT DOCUMENTS
The order of precedence of documents shall be: (1) Rules and Regulations of Federal
Agencies relating to the source of funds for this project; (2) Permits from other agencies
as may be required by law; (3) Supplemental Agreements, Change Orders, or Contract
the one dated later having precedence over another dated earlier; (4) Special Conditions;
(5) General Conditions; (6) Technical Specifications; (7) Plans; (8) Standard
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Specifications; (9) Standard Plans.
Detailed Plans shall have precedence over general Plans.
Whenever any conflict appears in any portion of the Contract, it shall be resolved by
application of the order of precedence.
PRE -CONSTRUCTION MEETING
Prior to the start of construction, the Engineer or the Associate Environmental and Safety
Consultant may call a meeting with all affected City Departments, governmental agencies
or utility companies to coordinate the construction with the Contractor so that no delays
will be encountered due to conflicts of operations.
ASSIGNMENT OF PAYMENT
Contractor hereby agrees he or she will not assign the payment of any monies due it (him
or her) from the City under the terms of this Contract to any other individual(s),
corporation(s) or entity(s). The City retains the right to pay any and all monies due
Contractor directly to Contractor.
PATENTS
For the purchase of equipment and material, the Vendor shall hold the City of Fresno, its
officers and employees, harmless from any and all liability for damages arising out of the
use of any patented material, equipment, device or process incorporated into or made a
part of or required by the manufacturer's Specifications to be used on or in connection
with the material, equipment or supplies purchased by the Buyer pursuant to these
Specifications, and Vendor agrees, by submission of a proposal hereunder, to defend the
Buyer, at Vendor's sole expense, in any action or suit for damages or injunctive relief on
account of any allegedly unauthorized use of or infringement of patent rights on any
patented material, equipment, device or process, if the Buyer is named as a defendant in
any such action or suit.
CODES AND ORDINANCES
Nothing in these Specifications is to be construed to permit work not conforming to
applicable codes.
MAINTENANCE OF RECORDS
Contractor and its subcontractors are required to maintain books, records, and other
documents pertinent to the work of this Contract in accordance with Generally Accepted
Accounting Principles. All such books, records, and other documents pertaining to the
Contract shall be available to City or its authorized representatives upon request during
regular business hours throughout the life of the Contract and for a period of five years
after final payment or, if longer, for any period required by law or any State or Federal
funding agreement applicable to this Contract. In addition, all books, documents, papers
and records of Contractor and its subcontractors pertaining to the Contract shall be
available for the purpose of making audits, examinations, excerpts, and transcriptions for
the same period of time by City or its authorized representatives, (and, in the event State
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or Federal funding is applicable to this Contract, then the respective State of California,
State of California Department of Transportation (Caltrans), the State of California State
Auditor, the United States, the Federal Highway Administration (FHWA), or any
authorized representatives of the aforementioned), and shall allow interviews during
normal business hours of any employees who might reasonably have information related
to such records. If any litigation, claim, negotiations, audit or other action is commenced
before the expiration of said time period, all records must be retained until such action is
resolved, or until the end of said time period whichever shall later occur. Failure or refusal
by Contractor or its subcontractors to comply with this provision shall be considered a
substantial failure to comply with this Contract, and City may declare Contractor in default
as set forth in these Specifications, withhold payment to Contractor, or take any other
action it deems necessary to protect its interests. This provision shall survive expiration
or termination of this Contract.
Contractor and its subcontractors shall establish and maintain an accounting system and
records that properly accumulate and segregate incurred Project costs by line item for the
Project. The accounting system shall enable the determination of incurred costs at interim
points of completion, and provide support for reimbursement payment vouchers or
invoices sent to or paid by the City.
Contractor and its subcontractors shall make the Contract and any State or Federal
funding agreement materials applicable to this Contract available at their respective
offices at all reasonable times during the entire Project period and five years from the
date of final payment to Contractor. This provision shall survive expiration or termination
of this Contract.
NONFEDERAL LABOR STANDARD PROVISIONS
GENERAL PROVISIONS: The following Nonfederal Labor Standards Provisions,
including the following provisions concerning: maximum hours of work, minimum rates
of pay, and overtime compensation, with respect to the categories and classifications of
employees hereinafter mentioned are included in the Contract pursuant to the
requirements of applicable State or local laws, but the inclusion of such provisions shall
not be construed to relieve the Contractor or any subcontractor from the pertinent
requirements of any corresponding Federal Labor Standard Provisions of this Contract.
In cases the minimum rates of pay set forth below shall be higher than the minimum rates
of pay required by or set forth in the Federal Labor Standards Provisions of this Contract
for corresponding classifications, the minimum rates of pay set forth below shall be
deemed, for the purpose of this Contract, to be the applicable minimum rates of pay for
such classifications. The limitations, if any, in these Nonfederal Labor Standards
Provisions upon the hours per day, per week or month which employees engaged on the
work covered by this Contract may be required or permitted to work thereon shall not be
exceeded.
SCHEDULE OF WAGES AND SALARIES: In accordance with the provisions of sections
1770 to 1781, inclusive of the Labor Code of the State of California and/or section 29
C.F.R. section 1.1(b)of the United States Labor Code, the Director of Industrial Relations
and/or the United States Secretary of Labor shall ascertain the general prevailing rate of
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wages applicable to the work to be done under this Contract to be included in these
Specifications by reference. (Copies of the wage rates or specific wage rate
determinations may be obtained from the Contract Compliance Officer at City of Fresno
Public Works Department, Construction Management Division, 1721 Van Ness, Fresno,
California 93721, (559) 621-5600.)
LABOR CODE SECTION 1775: PENALTIES FOR UNDER -PAYMENT OF WAGES: The
Contractor and each subcontractor shall comply with California Labor Code section 1775
and pay not less than the wages established by the Director of the Department of
Industrial Relations and/or the Federal government_ In accordance with such section
1775, Contractor or such subcontractor shall, as a penalty to the City, forfeit up to
$200.00, as determined by the Labor Commissioner, for each calendar day or portion
thereof for each worker under this Contract paid less than the established wage rates.
These penalties shall be withheld from progress payments then due. The Contractor shall
contain in each subcontract the requirements hereunder.
PENALTIES FOR VIOLATION OF EIGHT HOUR DAY: Eight hours labor constitutes a
regular day's work under this Contract. Contractor or any subcontractor under him or her
shall forfeit as a penalty to the City $25.00 for each worker employed in the execution of
this Contract by contractor or such subcontractor for each calendar day during which any
such worker is required or permitted to labor more than eight hours in any one calendar
day and 40 hours in any one calendar week in violation of sections 1810 to 1815,
inclusive, of the California Labor Code. Notwithstanding the provisions of Sections 1810
to 1814, inclusive, of the California Labor Code, and notwithstanding the foregoing, work
performed by employees of contractors and subcontractors in excess of 8 hours per day,
and 40 hours during any one week, shall be permitted upon public work upon
compensation for all hours in excess of 8 hours per day at not less than one and one-half
(1.5) times the basic rate of pay.
LABOR CODE SECTION 1777.5: EMPLOYMENT OF APPRENTICES: If this Contract
involves $30,000 or more, the Contractor and each subcontractor shall comply with
California Labor Code section 1777.5, as it may be amended from time to time, the entire
provisions of which are incorporated by this reference as if fully set forth herein, and
Article 10, Subchapter 1, Chapter 2, Title 8 of the California Code of Regulations for all
apprenticeable occupations applicable to the work as defined in such laws and
regulations. Contractor shall be responsible for the compliance with such Labor Code
section for all apprenticeable occupations and shall contain in each subcontract the
requirements hereunder. In accordance with section 1777.5 of the California Labor Code
and the rules and regulations of the California Apprenticeship Council, properly
indentured apprentices shall be employed in the execution of this Contract in at least the
ratio of not less than 1 hour of apprentice work for every 5 hours of journeyman work
(unless the respective contractor or subcontractor has been exempted from such ratio)
and paid the prevailing rate of per diem wages for apprentices in the trade to which he or
she is registered. The employment and training of each apprentice shall be in accordance
with either the apprenticeship standards and apprentice agreements under which he or
she is training, or the rules and regulations of the California Apprenticeship Council. Prior
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to commencing work on the Contract, Contractor and each subcontractor shall submit
contract award information to the City, if requested, and to an applicable apprenticeship
program that can supply apprentices to the job site. The information shall include an
estimate of journeyman hours to be performed under the Contract, the number of
apprentices proposed to be employed, and the approximate dates the apprentices would
be employed. Within sixty days after concluding work on the Contract, the Contractor
and each subcontractor shall submit to the City, if requested, and to the apprenticeship
program a verified statement of the journeyman and apprentice hours performed on the
Contract. Contractor shall employ apprentices for the number of hours computed before
the end of the Contract or, in the case of the subcontractor, before the end of the
subcontract and endeavor, to the greatest extent possible, to employ apprentices during
the same time period that the journeymen in the same craft or trade are employed at the
job site.
LABOR CODE SECTION 6705: If this Contract involves an estimated expenditure in
excess of $25,000.00 and excavation of any trench or trenches five feet or more in depth,
then your attention is directed to California Labor Code section 6705 relating to a detailed
plan showing the design of shoring, bracing, sloping, or other provisions to be made for
worker protection from the hazard of caving ground during the excavation of such trench
or trenches, the entire provisions of which are incorporated by this reference as if fully set
forth hereinafter.
Before execution of the Contract by the City, the Contractor shall submit to the City and
the Engineer or the Associate Environmental and Safety Consultant shall accept, if
satisfactory to him or her, said detailed plan.
If, in the Engineer's or the Associate Environmental and Safety Consultant's opinion, there
is any noncompliance with said detailed plan, then the Contractor shall stop forthwith all
trench work until, either in the Engineer's or the Associate Environmental and Safety
Consultant's or the State Division of Industrial Safety's opinion, there is compliance. The
City shall not be liable for costs incurred by the Contractor due to the work stoppage and
the Contractor will not be given nor is entitled to an extension of time to complete the work
within the time set forth in this Contract due to the work stoppage.
WAGE AND PRICE CONTROL: Notwithstanding any provisions of the Contract to the
contrary, the Contractor shall be bound by the orders issued and rules and regulations
adopted pursuant to the Economic Stabilization Act of 1970 (Public Law 91-379, 84
Statutes 799), as amended, or any subsequent Act of Congress.
COMPLIANCE WITH OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970: This
Contract is subject to all terms and conditions of the OCCUPATIONAL SAFETY AND
HEALTH ACT of 1970, the California Occupational Safety and Health Act and their
present and future amendments.
Contractor expressly assumes responsibility for compliance therewith and warrants that
all materials, supplies and equipment provided or installed pursuant to this Contract,
whether provided by the Contractor, subcontractor, or a supplier, fully satisfy the
requirements of said Acts. Contractor shall, upon insertion in each Contract with a
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subcontractor or supplier of a clause by which the subcontractor or supplier warrants such
compliance, be relieved of responsibility by the subcontractor or supplier.
LABOR CODE SECTION 1776 PAYROLLS AND BASIC RECORDS: The Contractor
and each subcontractor shall comply with California Labor Code section 1776, the entire
provisions of which are incorporated by this reference as if fully set forth herein, and
Contractor shall contain in each subcontract the requirements hereunder.
(a) Accurate payroll records and basic records relating thereto shall be maintained by
the Contractor and each subcontractor during the course of the work and preserved for a
period as required by law for all journeymen, apprentices, workers, and other employees
employed in connection with the work. Such records shall contain information as on the
payroll record forms provided by the Division of Labor Standards of the Department of
Industrial Relations, the name, address, social security number, work classification,
hourly rates of wages paid (including rates of contributions or costs anticipated for bona
fide fringe benefits or cash equivalents), daily and weekly number of hours worked,
deductions made and actual per diem wages paid. The Contractor shall maintain records
which show that the commitment to provide such benefits is enforceable, that the plan or
program is financially responsible, and that the plan or program has been communicated
in writing to all employees affected, and records which show the costs anticipated or the
actual cost incurred in providing such benefits.
Contractors employing apprentices or trainees under approved programs shall maintain
written evidence of the registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and the ratios and wage rates
prescribed in the applicable programs.
(b) (1) The Contractor shall submit weekly (seven days after each week ending
pay period) for each week in which any Contract work is performed a certified copy of all
payrolls to the Engineer or the Associate Environmental and Safety Consultant. The
payrolls submitted shall set out accurately and completely all of the information required
to be maintained under paragraph (a) of this clause. The Contractor is responsible for
the submission of certified copies of payrolls by all subcontractors.
(2) Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the Contractor or subcontractor or his or her agent who pays or supervises the
payment of the persons employed under the Contract and shall certify under penalty of
perjury under the laws of the State of California each of the following:
(i) That the payroll for the payroll period contains the information required to be
maintained under paragraph (a) of this clause entitled "LABOR CODE SECTION 1776;
PAYROLLS AND BASIC' and that such information is true, correct and complete;
(ii) That each employee employed on the Contract during the payroll period has been
paid the full weekly wages earned, without rebate, either directly or indirectly, and that no
deductions have been made either directly or indirectly from the full wages earned, other
than permissible deductions;
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(iii) That each employee has been paid not less than the applicable wage rates and
fringe benefits or cash equivalents for the classification of work performed, as specified
in the applicable wage determination incorporated into the Contract;
(iv) Contractor has complied with the requirements of California Labor Code sections
1771, 1811, and 1815 for any work performed hereunder by his or her employees.
(3) The weekly submission of a properly executed certification set forth on the reverse
side of Optional Form WH-347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph (b)(2) of this clause.
(4) The falsification of any of the above certifications may subject the Contractor or
Subcontractor to civil or criminal prosecution.
(c) The Contractor or subcontractor shall make certified copies of all the records
required under paragraph (a) of this clause available for inspection at all reasonable hours
at the principal office of the Contractor by, and furnished upon request to, the Engineer
or the Associate Environmental and Safety Consultant, the Division of Labor Standards
Enforcement of the Department of Industrial Relations, the Division of Apprenticeship
Standards of the Department of Industrial Relations, and each of their authorized
representatives. A certified copy of the employee's record shall likewise be made
available for inspection or furnished upon request by the employee or his or her
authorized representative. The Contractor shall provide hereunder the street address, city
and county of the location of the payroll records maintained by Contractor and shall
provide a notice of any change of location and address within five working days of such
change. The Contractor and subcontractors shall permit such representatives to interview
employees during working hours on the job. If the Contractor or subcontractor fails to
submit the required records within ten days after each week ending pay period, or to
furnish or make them available for inspection within ten days of request, (Contractor has
ten days to comply) after written notice, the Contractor shall forfeit $100.00 for each
calendar day, or portion thereof, for each worker, until strict compliance is effectuated,
pursuant to California Labor Code section 1776. These penalties shall be withheld from
progress payments then due.
LABOR CODE SECTION 1771.1: CONSTRUCTION REGISTRATION WITH
CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS: A Contractor or
Subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the
requirements of Section 4104 of the Public Contract Code, or engage in the performance
of any contract for public work, as defined in this chapter, unless currently registered and
qualified to perform public work pursuant to Section 1725.5. It is not a violation of this
section for an unregistered Contractor to submit a bid that is authorized by Section 7029.1
of the Business and Professions Code or by Section 10164 or 20103.5 of the Public
Contract Code, provided the Contractor is registered to perform public work pursuant to
Section 1725.5 at the time the contract is awarded. This project is subject to compliance
monitoring and enforcement by the Department of Industrial Relations. The prime
Contractor is required to post job site notices prescribed by California Code of
Regulations. All Contractors and Subcontractors must furnish electronic certified payroll
records directly to the Division of Labor Standards Enforcement.
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FAIR EMPLOYMENT PRACTICES AND NONDISCRIMINATION
In connection with the performance of work under this Contract, the Contractor agrees as
follows:
1. The Contractor shall not unlawfully discriminate, harass, or allow harassment
against any employee or applicant for employment because of race, religious
creed, color, national origin, ancestry, physical disability (including HIV and AIDS),
mental disability, medical condition (cancer), marital status, political affiliation, sex,
age (over 40), sexual orientation, and denial of family care leave or on any other
basis prohibited by law. The Contractor shall ensure that the treatment of
employees and evaluation of applicants for employment are free of such
discrimination and harassment. Such action shall include, but not be limited to,
the following: employment, upgrading, demotion or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Contractor
agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the State of California setting forth the
provisions of this Fair Employment Practices section.
2. Contractor and all subcontractors shall comply with the provisions of the Fair
Employment and Housing Act (Government Code, Section 12900 et seq.), and the
applicable regulations promulgated thereunder (California Code of Regulations,
Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment
and Housing Commission implementing Government Code Section 12990 (a-0,
set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations,
are incorporated into this Agreement by reference and made a part hereof as if set
forth in full.
3. Contractor assures City that it shall comply with the requirements of the Americans
with Disabilities Act (ADA) of 1990, (42 U.S.C. 12101 et seq.), which prohibits
discrimination on the basis of disability, as well as all applicable regulations and
guidelines issued pursuant to the ADA; the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000d (1988) et seq.; Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 794 (1989) and the Age Discrimination Act of 1975, as
amended, 42 U.S.C. 6102 (1994); together with all applicable regulations and
guidelines adopted to implement same. Said group of laws and requirements are
collectively referred to in this Contract as the "anti -discrimination laws".
4. The Contractor will send to each labor union or representative of workers with
which he or she has a collective bargaining agreement or other contract or
understanding, a written notice advising the said labor union or workers'
representative of the Contractor's commitments under this section, and shall post
copies of the notice in conspicuous places available to employees and applicants
for employment.
5. The Contractor will permit access to his or her records of employment, employment
advertisements, application forms, and other pertinent data and records by the
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City, State of California, the State Fair Employment and Housing Commission, or
any other appropriate agency designated by the City or the State of California, for
the purposes of investigation to ascertain compliance with the Fair Employment
Practices and Nondiscrimination section of this Contract.
6. Contractor agrees to collect and maintain information to show compliance with the
"anti -discrimination laws" including a list of discrimination complaints, reports of
any compliance reviews conducted by other agencies descriptions of any pending
discrimination -based lawsuits and data on the racial, ethnic, national origin, sex
and handicap characteristics of the population it serves.
7. Contractor agrees to cooperate with City, and any other appropriate agency
designated by the City, in all manners necessary to permit City and any such
agency to adequately report to the United States Environmental Protection Agency
on Contractor's compliance with the "anti -discrimination laws".
8. A finding of willful violation of the Fair Employment Practices section of this
Contract or of the California Fair Employment and Housing Act shall be regarded
by the City as a basis for determining the Contractor to be not a "responsible
Bidder" as to future contracts for which such Contractor may submit bids, for
revoking the Contractor's prequalification rating, if any, and for refusing to
establish, reestablish, or renew a prequalification rating for the Contractor.
The City will deem a finding of willful violation of the California Fair Employment
and Housing Act to have occurred upon receipt of written notice from the Fair
Employment and Housing Commission that it has investigated and determined that
the Contractor has violated the California Fair Employment and Housing Act and
has issued an order under California Government Code section 12973, section
12970, or obtained an injunction under California Government Code section
12973.
Upon receipt of such written notice from the Fair Employment and Housing
Commission, the City shall notify the Contractor that unless he or she
demonstrated to the satisfaction of the City within a stated period that the violation
has been corrected, that he or she will be reported to the City Council as not a
"responsible Bidder" on any future Contract.
9. The Contractor agrees, that should the City determine that the Contractor has not
complied with the Fair Employment Practices section of this Contract, then
pursuant to Labor Code sections 1735 and 1775, the Contractor shall forfeit, as a
penalty to the City, for each calendar day, or portion thereof, for each person who
was denied employment as a result of such noncompliance, the penalties provided
in the Labor Code for violation of prevailing wage rates. Such monies may be
recovered from the Contractor. The City may deduct any such damages from any
monies due the Contractor from the City. Furthermore, Contractor agrees that the
City shall have the right to terminate this Contract either in whole or in part, and
any loss or damage sustained by City in securing the goods or services thereunder
shall be borne and paid for by Contractor and by the surety under the performance
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bond, if any, and City may deduct from any moneys due or thereafter may become
due to Contractor, the difference between the price named in the Contract and the
actual cost thereof to City to cure Contractor's breach of the Contract.
10. Nothing contained in this Fair Employment Practices section shall be construed in
any manner or fashion so as to prevent the City from pursuing any other remedies
that may be available at law.
11. After award of the Contract, the Contractor shall certify to the City that he or she
has or will meet the following standards for affirmative compliance, which shall be
evaluated in each case by the City:
(a) The Contractor shall provide evidence, as required by the City, that he or
she has notified all supervisors, foremen, and other personnel officers in
writing of the content of the antidiscrimination clause and their
responsibilities under it.
(b) The Contractor shall provide evidence, as required by the City, that he or
she has notified all sources of employee referrals (including unions,
employment agencies, advertisement, Department of Employment) of the
content of the antidiscrimination clause.
(c) The Contractor shall file a Fair Employment Practices compliance report, as
required by the City. Willfully false statements made in such reports shall
be punishable as provided by law. The compliance report shall also spell
out the sources of the work force and who has the responsibility for
determining whom to hire, or whether or not to hire. The compliance report
shall be kept current throughout the Contract in that the Contractor shall
report any changes in or additions to the answers therein, including changes
in agreements with others. After the work or supplying materials is
complete, and before final payment, the Contractor shall submit a final
statement of compliance.
(d) Personally, or through his or her representatives, the Contractor shall,
through negotiations with the unions with whom he or she has agreements,
attempt to develop an agreement which will:
(1) Spell out responsibilities for nondiscrimination in hiring, referral,
upgrading and training.
(2) Otherwise implement an affirmative antidiscrimination program in
terms of the unions; specific areas of skill and geography, to the end
that qualified disadvantaged workers will be available and given an
equal opportunity for employment.
12. Contractor's signature on this Contract shall constitute a certification under the
penalty of perjury under the laws of the State of California that Contractor has,
unless exempted, complied with the nondiscrimination program requirements of
Government Code, Section 12990, and Title 2, California Code of Regulations,
Section 8103.
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13. The Contractor will include the provisions of the foregoing paragraphs 1 through
12 in every first tier subcontract so that such provisions will be binding upon each
such subcontractor.
GENERAL MISCELLANEOUS
Independent Contractor. In the furnishing of the work provided for herein, the Contractor
is acting as an independent contractor. Neither the Contractor, nor any of its officers,
associates, agents, or employees shall be deemed an employee, joint venturer, partner,
or agent of the City for any purpose. However, the City shall retain the right to verify that
the Contractor is performing its respective obligations in accordance with the terms of the
Contract.
Because of its status as an independent contractor, Contractor and its officers, agents,
and employees shall have absolutely no right to employment rights and benefits available
to City employees. Contractor shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all employee benefits
including, without limitation, health, welfare and retirement benefits. In addition, together
with its other obligations under this Contract, Contractor shall be solely responsible,
indemnify, defend and save City harmless from all matters relating to employment and
tax withholding for and payment of Contractor's employees, including, without limitation,
(i) compliance with Social Security and unemployment insurance withholding, payment of
workers compensation benefits, and all other laws and regulations governing matters of
employee withholding, taxes and payment; and (ii) any claim of right or interest in City
employment benefits, entitlements, programs and/or funds offered employees of City
whether arising by reason of any common law, de facto, leased, or co- employee rights
or other theory. It is acknowledged that during the term of this Contract, Contractor may
be providing services to others unrelated to City or to this Contract.
Notices. Any notice required or intended to be given to either party under the terms of
this Contract shall be in writing and shall be deemed to be duly given if delivered
personally or sent by United States registered or certified mail, with postage prepaid,
return receipt requested, addressed to the party to which notice is to be given at the
party's address set forth on the signature page of the Bid Proposal in the case of the
Contractor and at the address set forth on the signature page of the Contract in the case
of the City, or at such other address as the parties may from time to time designate by
written notice. Notices served by United States mail in the manner above described shall
be deemed sufficiently served or given at the time of the mailing thereof.
Binding. Subject to the following section, once this Contract is signed by all parties, it
shall be binding upon, and shall inure to the benefit of, all parties, and each parties'
respective heirs, successors, assigns, transferees, agents, servants, employees, and
representatives.
Assignment. The Contract is personal to the Contractor and there shall be no assignment,
transfer, sale, or subcontracting by the Contractor of its rights or obligations under the
Contract without the prior written approval of the City. Any attempted assignment,
transfer, sale, or subcontracting by the Contractor, its successors or assigns, shall be null
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and void unless approved in writing by the City.
Compliance with Law. In providing the services required under this Contract, Contractor
and its subcontractors shall at all times comply with all applicable laws of the United
States, the State of California and City, and with all applicable regulations promulgated
by federal, state, regional, or local administrative and regulatory agencies, now in force
and as they may be enacted, issued, or amended during the term of this Contract.
Waiver. The waiver by either party of a breach by the other of any provision of this
Contract shall not constitute a continuing waiver or a waiver of any subsequent breach of
either the same or a different provision of this Contract. No provisions of this Contract
may be waived unless in writing and signed by all parties to this Contract. Waiver of any
one provision herein shall not be deemed to be a waiver of any other provision herein.
Headings. The section headings in this Contract are for convenience and reference only
and shall not be construed or held in any way to explain, modify or add to the interpretation
or meaning of the provisions of this Contract.
Severability. The provisions of this Contract are severable. The invalidity, or
unenforceability of any one provision in this Contract shall not affect the other provisions.
Interpretation. The parties acknowledge that this Contract in its final form is the result of
the combined efforts of the parties and that, should any provision of this Contract be found
to be ambiguous in any way, such ambiguity shall not be resolved by construing this
Contract in favor of or against either party, but rather by construing the terms in
accordance with their generally accepted meaning.
Exhibits. Each exhibit and attachment referenced in this Contract is, by the reference,
incorporated into and made a part of this Contract.
Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in equity.
No Third Party Beneficiaries. The rights, interests, duties and obligations defined within
this Contract are intended for the specific parties hereto as identified in the preamble of
this Contract. Notwithstanding anything stated to the contrary in this Contract, it is not
intended that any rights or interests in this Contract benefit or flow to the interest of any
third parties other than expressly identified within this section. The parties do intend that
in the event that the State of California is funding the Project being constructed hereunder,
that the State of California be a third party beneficiary under this Contract and all rights,
interest and benefits of this Contract accrue to the State.
Funding. This Contract is contingent on the appropriation of funds by City. Should funds
not be appropriated, this Contract may be terminated by City upon prior written notice to
Contractor.
Governing Law and Venue. This Contract shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, excluding, however, any
conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes
of the filing of any action regarding the enforcement or interpretation of this Contract and
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any rights and duties hereunder shall be Fresno County, California.
Extent of Agreernent. Each party acknowledges that they have read and fully understand
the contents of this Contract. This Contract represents the entire and integrated
agreement between the parties with respect to the subject matter hereof and supersedes
all prior negotiations, representations or agreements, either written or oral. This Contract
may be modified only by written instrument duly authorized and executed by both City
and Contractor in accordance with City's current contract change order resolution for
public works of improvement as may be revised.
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DIVISION III
SPECIAL CONDITIONS
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DIVISION III
SPECIAL CONDITIONS
The work embraced herein shall be done in accordance with applicable provisions of the
Standard Specifications of the City of Fresno, Department of Public Works and with the
special conditions contained herein.
Inspection and other construction review shall be provided by the City of Fresno, except
where specified otherwise in Specifications or required permits.
CONTRACTOR'S RESPONSIBILITIES
Products Liability Insuranc6: If these specifications are for equipment with moving parts,
the Vendor shall provide the City of Fresno with verification of manufacturer's products
liability insurance in excess of $1,000,000 on said bid equipment, prior to issuance of a
purchase order.
Warranty: For the purpose of equipment and material, the Vendor, unless otherwise
provided in the Specifications, shall guarantee all items furnished in accordance with the
standard guarantee offered by the manufacturer to buyers and consumers of the product.
The Vendor shall be responsible for all warranty costs, including the transportation costs
to and from the repair station.
Disposal of Concrete and A. C. Surfacin : All concrete, A.C. and pavement removed
from the project site shall be disposed of at a site obtained by the Contractor and
approved by the Engineer or the Associate Environmental and Safety Consultant. No
recyclable material shall be disposed of at any landfill. All disposable recyclable materials
shall be disposed in a manner that facilitates recycling. Payment for disposal, including
all costs of hauling, shall be as specified in the Technical Specifications or Explanation of
Bid Items. The Contractor shall report quantities of disposed material in a manner that
enables the City to utilize diverted quantities as diversion credits pursuant to California
Integrated Waste Management Act of 1989 (Public Resources Code Sections 40000 et
seq.).
Disposal of Oil Cake Vegetation, Wood Debris, Structure Demolition and Other Debris:
All oil cake, wood debris, structure demolition, vegetation and any other debris removed
from the project site shall be legally disposed of at a site(s) obtained by the Contractor
("Disposal Site(s)") with prior written permission of the Engineer or the Associate
Environmental and Safety Consultant. Contractor shall identify the proposed Disposal
Site(s) at the pre -construction conference. Such Disposal Site(s) shall be a properly
licensed and permitted facility pursuant to state and local regulations for purposes of
accepting delivery of the respective materials. No recyclable material shall be disposed
of at any landfill. All disposable recyclable materials shall be disposed in a manner that
facilitates recycling. In addition to the following, a certificate of compliance stating disposal
location and manner of disposal of recyclable materials shall be submitted to the Engineer
or the Associate Environmental and Safety Consultant. Contractor shall make
arrangements for disposing of the materials at the Disposal Site(s) and pay all costs
involved. Arrangements shall include, but not be limited to, obtaining written authorization
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from the property owner of the Disposal Site(s) and before disposing of any material off
the project site, Contractor shall furnish to the Engineer or the Associate Environmental
and Safety Consultant the authorization or a certified copy thereof together with a written
release from the property owner absolving the City of Fresno from any and all
responsibility in connection with the disposal of material on the property of the Disposal
Site(s). Before any material is disposed of on the Disposal Site(s), the Contractor shall
obtain written permission from the Engineer or the Associate Environmental and Safety
Consultant to dispose of the material at the location designated in the authorization. It is
expressly understood and agreed that the City of Fresno assumes no responsibility to the
Contractor whatsoever by the granting of such permission and Contractor shall assume
all risks in connection with the use of the Disposal Site(s). The Contractor is cautioned to
make such independent investigation and examination as the Contractor deems
necessary to be satisfied as to the quantity and types of materials which may be disposed
of on the Disposal Site(s) and the status of any permits or licenses in connection
therewith. Within 24 hours of removing the respective material from the project site for
disposal, Contractor shall provide the Engineer or the Associate Environmental and
Safety Consultant with a certified copy of the weight slip from the Disposal Site obtained
by Contractor upon delivery of such debris, and a certified statement from Contractor
identifying the material constituting the debris and that it was disposed of at the Disposal
Site (identifying the facility and name of the owner) in accordance with all laws and
applicable regulations promulgated by Federal, State, regional, or local administrative and
regulatory agencies.
Payment for disposal, including all costs of hauling, shall be as specified in the Technical
Specifications. The Contractor shall report quantities of disposed material in a manner
that enables the City to utilize diverted quantities as diversion credits pursuant to the
California Integrated Waste Management Act of 1989 (Public Resources Code Sections
40000 et seq.)
PAYMENT
The contractor shall be eligible for payment after completion and acceptance of job. The
contractor must invoice the City, in order to initiate the payment process. Invoice shall be
sent to:
ATTENTION: TIMOTHY SCHULZ
CITY OF FRESNO
CODE ENFORCEMENT DIVISION
2600 FRESNO ST., ROOM 3070
FRESNO, CA 93721
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DIVISION IV
TECHNICAL SPECIFICATIONS
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DIVISION IV
TECHNICAL CONDITIONS
It is the purpose and intent of these Specifications to describe the minimum requirements
for the above project. All items not specifically mentioned which are required to complete
the service shall be included in the contract price. Services performed, and materials
used, shall conform in quality of material and workmanship to current industry standards.
The contract price shall include all costs of labor, equipment, disposal, and materials
necessary for the furnishing and constructing complete in place and operating, in
accordance with the specifications, for all work listed herein.
Before entering into this contract, Contractor should inspect the work site to verify the
work, and the conditions under which the work will be performed.
Parking _Permits All contractors using vehicles, necessary for the performance of work
for the City of Fresno, that require parking off the jobsite in an area subject to a parking
violation shall obtain a special parking permit issued by the City Traffic Engineer.
Contractors not possessing such a valid parking permit shall be required to otherwise
comply with the parking requirements of Chapter 10 of the Fresno Municipal Code, and
will be subject to fines for violation of the Code.
Permits and Fees The Contractor shall secure all permits required to complete the items
of this contract. No fees will be charged for any City permits, other than a fee for a water
meter for water usage. The water meter permit and fee can be obtained and paid for at
the Fresno City Water Division Office at 1910 East University Avenue, (559) 621-5300.
Clean-up Payment for clean-up shall be included in the contract price.
The Contractor shall perform all work necessary to complete the contract in a satisfactory
manner. Unless otherwise provided in writing, he or she shall furnish all materials,
equipment, tools, labor and incidentals necessary to complete the work.
This project shall be performed in accordance with the STANDARD SPECIFICATIONS
of the City of Fresno, as may be excerpted or amended below. Standard Specifications
may be purchased from the Department of Public Works Public Counter, 4th floor, City
Hall, 2600 Fresno Street, Fresno. The Standard Specifications are available on the City
of Fresno website (www.fresno.gov) by clicking on Public Works Department and
checking Department Technical Library.
City Inspection The work will be subject to inspection by the Engineer or the Associate
Environmental and Safety Consultant.
All work shall be done in conformance with the provisions in the Specifications and in
conformance with the requirements in all permits related to or required for the work, and
as directed by the Engineer or the Associate Environmental and Safety Consultant.
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REMOVAL AND DISPOSAL OF HAZARDOUS MATERIALS SPECIFICATIONS
ADMINISTRATION OF CONTRACT
The administration of this contract shall be controlled by the Code Enforcement Division
of the Office of the City Attorney. This supersedes any other references contrariwise.
The designated contact person and Project Manager is Timothy Schulz at (559) 621-
8425.
2. TIME FOR COMPLETION
The Contractor shall promptly commence work and shall diligently prosecute the work to
completion.
3. LEAD BASED PAINT AND ASBESTOS INSPECTION REPORTS
Lead based paint and asbestos inspection report(s) and specifications for lead based
paint and asbestos removal issued by the City's designated Consultant are hereby
included by reference and made part of these specifications. All requirements for removal
set forth therein must be followed by Contractor.
4. DOCUMENTATION REQUIRED PRIOR TO START OF WORK
a. Licenses and Registrations
i. California Contractor's License for Asbestos Work
ii. DOSH (Cal/OSHA) Registration for Asbestos
iii. Project Manager/Competent Person Training (OSHA)
b. Notification Documents
i. DOSH (Cal/OSHA)
ii. Environmental Protection Agency
iii. San Joaquin Valley Unified Air Pollution Control District
c. Employee (Submit for Each One)
i. Name, Job Classification and Social Security
ii, Number, Years with this Company
iii. Medical approval for Asbestos Work and Respirators
iv. Respirator Fit -Testing
d. Transportation and Disposal
i. Name, address, phone and registration of hauler(s).
ii. Name, address, phone and registration number of disposal site.
iii. Completed asbestos -containing waste landfill indemnification
agreement in the form as attached.
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e. Equipment Certifications
i. Negative Pressure Systems (ANSI Z-90.2-79)
ii. Rental Agency Notification of Use for Asbestos
iii. NIOSH approval for respirator(s).
iv. Permits for negative air machines if required.
f. Project Requirements
i. Decontamination Set-up, bag -out, isolation
ii. Work Scheduled and Project Phase Chart
iii. Air Monitoring Plan to meet OSHA requirements
g. Proof of Insurance
SUMMARY OF SCOPE OF WORK:
In accordance with the foregoing specifications, the scope of work includes
mobilization, complete removal, and proper disposal of all lead based paint and
asbestos containing material.
Work shall also include any and all Asbestos Notification and/or Removal fees
charged by the San Joaquin Valley Unified Air Pollution Control District and the
Contractor shall provide a fully executed "Demolition Permit Release" to the
Project Manager.
If any location is inspected and fined for any violation of standards, that was
controllable by the Contractor, the City will require reimbursement from the
Contractor.
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