CC - Item 4C - Attachment E (Construction Contract Agreement)
Attachment E
Construction Agreement
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PUBLIC WORKS CONTRACT
PAVEMENT REHABILITATION PROJECT FY 26-27, PROJECT NO. 21850, ANNUAL
PREVENTATIVE PAVEMENT MAINTENANCE NO. 21034, AND SIDWALK
REPLACEMENT PROGRAM NO. 24009
THIS CONTRACT “Contract” is made and entered into on July 28th, 2026, by and
between the City of Rosemead, a general law city, located in the County of Los Angeles,
State of California (“City”), and Hardy & Harper, Inc. , a corporation, located at 32 Rancho
Circle, Lake Forest, CA 92630 (“Contractor”). City and Contractor may be referred to,
individually or collectively as the “Party” or “Parties.”
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and
agreements herein contained, said parties do hereby agree as follows:
Section 1. Recitals.
City, issued a Notice Inviting Bids No. 2026-06, to be submitted on or before 02:00 P.M.
on July 1st, 2026, for the following: Pavement Rehabilitation Project FY 26-27 Project No.
21850. Annual Preventative Pavement Maintenance Project No. 21034, and Sidewalk
Replacement Program Project No. in the City of Rosemead, California, hereinafter called
“Project”.
On July 1st, 2026 said bids were duly opened.
At its regular meeting held on July 28th, 2026, the City Council duly accepted the bid of
Contractor for the Project as being the lowest responsible bid received and directed that
a written contract be entered into with Contractor.
Section 2. Contract Documents. This Contract consists of the following documents
(“Contract Documents”), all of which are made a part of this Contract:
2.1 Notice Inviting [Informal] Bids
2.2 Instructions to Bidders
2.3 Bid Proposal, as accepted, including the Certificate of Bidders’ Experience
and Qualifications and the List of Subcontractors
2.4 Notice of Award
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2.5 Notice to Proceed
2.6 This Contract
2.7 Verification of California Contractor’s License
2.8 Contractor’s Certificate Regarding Workers’ Compensation
2.9 Security for payment (labor and materials)
2.10 Security for performance
2.11 Certificate(s) of Insurance
2.12 General Conditions/Specifications
2.13 Special Provisions
2.14 Plans and Standard Drawings
2.15 Standard Specifications for Public Works Construction “S.S.P.W.C”. or
“Greenbook”
2.16 Addenda Nos. Addendum #1 dated June 23rd, 2026.
All of the above-mentioned documents are intended to complement the other
documents so that any work called for in one, and not mentioned in the others, or vice
versa, is to be executed the same as if mentioned in all of said documents. In the event
of a discrepancy between the provisions of the Contractor’s documents and the City’s
documents, the City’s documents take precedence with respect to resolution of the
discrepancy.
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Section 3. The Work.
3.1 Contract Documents Define “Work”. The work (“Work”) to be performed by
Contractor is described in the Contract Documents.
3.2 Professional Standards Required. In completing the Work, Contractor must
employ, at a minimum, the applicable generally accepted professional
standards of its industry in existence at the time of performance as utilized
by persons engaging in similar work.
3.3 Contractor Provides All Equipment. Except as specifically provided in the
Contract Documents, Contractor must furnish, at its sole expense, all of the
labor, materials, tools, equipment, services and transportation necessary to
perform all of the Work.
3.4 Contract Documents Strictly Control. Contractor must perform all of the
Work in strict accordance with the Contract Documents.
Section 4. Time to Perform the Work.
4.1 Time is of Essence. Time is of the essence with respect to Contractor’s
Work. Contractor agrees to diligently pursue performance of the Work within
the time specified by the Contract Documents.
4.2 Excusable Delays. Contractor will be excused from any delay in
performance or failure to perform due to causes beyond the control of
Contractor. Such causes include, but are not limited to, acts of God, acts of
terrorism, acts of federal, state or local governments, acts of City, court
orders, fires, floods, epidemics, strikes, embargoes, and unusually severe
weather.
4.3 Notification of Delays. If Contractor is delayed by any cause beyond
Contractor’s control, City may, but is not required to, grant a time extension
for the completion of the Work. If delay occurs, Contractor must notify City
in writing within 48 hours of the cause and the extent of the delay and how
such delay interferes with Contractor’s performance of the Work.
Section 5. Compensation and Payment.
5.1 Compensation. Subject to any limitations provided in the Contract
Documents, City agrees to pay Contractor as full consideration for the
faithful performance of all of the Work the total amount of Two Million Seven
Hundred Ninety Thousand Dollars ($2,790,000) (“Compensation”).
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5.2 Monthly Invoice. Contractor must furnish City with an invoice for the Work
performed in accordance with the Contract Documents. Contractor may not
submit invoices more often than once every 30 days.
5.3 City Review of Invoices. City will review each invoice and determine
whether the Work performed is in accordance with the Contract Documents.
The Director may require Contractor to provide a release of all undisputed
Contract amounts contained in the invoice.
5.4 Disputes on Invoices. If City disputes any item on an invoice, City will give
Contractor notice stating the reasons for the dispute. The Parties will meet
and confer in good faith to attempt to resolve the dispute.
5.5 30 Days to Pay Invoice. Except as to any charges for the Work performed
that the City disputes, City will cause Contractor to be paid within 30 days
of the date of the invoice or the date that Contractor furnishes City with a
release of all undisputed Contract amounts, whichever occurs later.
5.6 Partial Invoices. In the event there is any claim specifically excluded by
Contractor from the operation of any release, City may retain an amount not
to exceed the amount of the excluded claim.
5.7 No Additional Compensation. Said compensation shall cover all expenses,
losses, damages, and consequences arising out of the nature of the work
during its progress or prior to its acceptance including those for well and
faithfully completing the work and the whole thereof in the manner and time
specified in the contract documents, and also including those arising from
actions of the elements, unforeseen difficulties or obstructions encountered
in the prosecution of the work, suspension or discontinuance of the work,
and all other unknowns or risks of any description connected with the work.
5.8 This Contract is subject to the provisions of Article 1.7 (commencing at
Section 20104.50) of Division 2, Part 3 of the Public Contract Code
regarding prompt payment of contractors by local governments. Article 1.7
mandates certain procedures for the payment of undisputed and properly
submitted payment requests within 30 days after receipt, for the review of
payment requests, for notice to Contractor of improper payment requests,
and provides for the payment of interest on progress payment requests
which are not timely made in accordance with that Article. This Contract
hereby incorporates the provisions of Article 1.7 as though fully set forth
herein.
5.9 Retention of 5% of Contract Price. City shall retain five percent (5%) of the
Compensation the provisions of Section 17, entitled “Notice of Completion”
herein have been met.
5.10 Final payment, constituting the entire unpaid balance of Compensation,
shall be paid by City to Contractor no sooner than thirty-five (35) days after
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a Notice of Completion has been recorded, unless otherwise stipulated in
the Notice of Completion, provided the work has then been completed, the
Contract fully performed, and a final [certificate for payment] has been
issued.
Section 6. Labor Code Requirements.
6.1 Compliance with SB 854 Registration: This Work is subject to compliance
monitoring and enforcement by the Department of Industrial Relations. No
prime contractor or subcontractor may be listed on a bid proposal for a
public works project (submitted on or after March 1, 2015) unless registered
with the Department of Industrial Relations pursuant to Labor Code section
1725.5. No prime contractor or subcontractor may be awarded a contract
for public work on a public works project (awarded on or after April 1, 2015)
unless registered with the Department of Industrial Relations pursuant to
Labor Code section 1725.5. The Contractor will be required to post job site
notices as described in 8 California Code of Regulation section 16451(d).
6.2 Compliance with Prevailing Wage Laws. Contractor is aware of and will
comply with the requirements of California Labor Code Section 1720, et
seq., and 1770, et seq., and California Code of Regulations, Title 8, Section
16000, et seq., (“Prevailing Wage Laws”), which require the payment of
prevailing wage rates and the performance of other requirements on “public
works” and “maintenance” projects.
6.3 Penalty Excessive Work Hours. Contractor acknowledges that under
California Labor Code sections 1810 and following, 8 hours of labor
constitutes a legal day’s work. Contractor will forfeit as a penalty to City the
sum of $25.00 for each worker employed in the execution of this Contract
by Contractor or any subcontractor for each calendar day during which such
worker is required or permitted to work more than 8 hours in any one
calendar day and 40 hours in any one calendar week in violation of the
provisions of Labor Code section 1810. (Labor Code § 1813.)
6.4 List of Current Prevailing Wages. Copies of the determination of the Director
of the Department of Industrial Relations of the prevailing rate of per diem
wages for each craft, classification or type of worker needed to execute this
Contract will be made available upon request from the Director’s office at
111 S. First Street, Rosemead California 91801.
6.5 Posting of Prevailing Wages Required. Contractor must post at the work
site, or if there is no regular work site then at its principal office, for the
duration of the Contract, a copy of the determination by the Director of the
Department of Industrial Relations of the specified prevailing rate of per
diem wages. (Labor Code § 1773.2.)
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6.6 Payment of Prevailing Wages Required. Contractor, and any subcontractor
engaged by Contractor, must pay not less than the specified prevailing rate
of per diem wages to all workers employed in the execution of the contract.
(Labor Code § 1774.) Contractor is responsible for compliance with Labor
Code section 1776 relative to the retention and inspection of payroll records.
6.7 Indemnification for Non-Compliance. Contractor shall defend, indemnify
and hold the City, its elected officials, officers, employees and agents free
and harmless from any claim or liability arising out of any failure or alleged
failure to comply with the Prevailing Wage Laws.
6.8 Penalty for Insufficient Payment. Contractor must comply with all provisions
of Labor Code section 1775. Under Section 1775, Contractor may forfeit as
a penalty to City up to $50.00 for each worker employed in the execution of
the Contract by Contractor or any subcontractor for each calendar day, or
portion thereof, in which the worker is paid less than the prevailing rates.
Contractor may also be liable to pay the difference between the prevailing
wage rates and the amount paid to each worker for each calendar day, or
portion thereof, for which each worker was paid less than the prevailing
wage rate.
6.9 Use of Apprentices. Nothing in this Contract prevents Contractor or any
subcontractor from employing properly registered apprentices in the
execution of the Contract. Contractor is responsible for compliance with
Labor Code section 1777.5 for all apprenticeable occupations. This statute
requires that contractors and subcontractors must submit contract award
information to the applicable joint apprenticeship committee, must employ
apprentices in apprenticeable occupations in a ratio of not less than one
hour of apprentice’s work for every five hours of labor performed by a
journeyman (unless an exception is granted under §1777.5), must
contribute to the fund or funds in each craft or trade or a like amount to the
California Apprenticeship Council, and that contractors and subcontractors
must not discriminate among otherwise qualified employees as apprentices
solely on the ground of sex, race, religion, creed, national origin, ancestry
or color. Only apprentices defined in Labor Code section 3077, who are in
training under apprenticeship standards and who have written apprentice
contracts, may be employed on public works in apprenticeable occupations.
Section 7. Non-Discrimination.
7.1 No Illegal Discrimination. Contractor shall not discriminate in its recruiting,
hiring, promotion, demotion or termination practices on the basis of race,
religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, or sexual orientation
in the performance of this Contract and shall comply with the provisions of
the California Fair Employment and Housing Act as set forth in Part 2.8 of
Division 3, Title 2 of the California Government Code; the Federal Civil
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Rights Act of 1964, as set forth in Public Law 88-352, and all amendments
thereto; Executive Order 11246; and all administrative rules and regulations
issued pursuant to such acts and order.
7.2 Compliance With Immigration Laws. Contractor hereby promises and
agrees to comply with all of the provisions of the Federal Immigration and
Nationality Act (8 USCA 1101, et seq.), as amended; and, in connection
therewith, shall not employ unauthorized aliens as defined therein. Should
Contractor so employ such unauthorized aliens for the performance of work
and/or services covered by this Agreement, and should the Federal
Government impose sanctions against the City for such use of unauthorized
aliens, Contractor hereby agrees to, and shall, reimburse City for the cost
of all such sanctions imposed, together with any and all costs, including
attorney’s fees, incurred by the City in connection therewith.
Section 8. General Legal Compliance.
8.1 Compliance With All Laws. In performing the Work, Contractor must comply
with all applicable statutes, laws and regulations, including, but not limited
to, OSHA requirements and the Rosemead Municipal Code.
8.2 Permits & Licenses Required. Contractor must, at Contractor’s sole
expense, obtain all necessary permits and licenses required for the Work,
and give all necessary notices and pay all fees and taxes required by law,
including, without limitation, any business license tax imposed by City.
8.3 Contractors License Required. Contractor must maintain a valid California
Contractor’s License throughout the term of this Contract.
Section 9. Clayton and Cartwright Act Assignments. In entering into this Contract
or a contract with a subcontractor to supply goods, services, or materials
pursuant to this Contract for the Project, Contractor and any or
subcontractor is deemed to have offered and agreed to assign to City all
rights, title, and interest in and to all causes of action it may have under
Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act
(Chapter 2, commencing with Section 16700 of Part 2 of Division 7 of the
California Business and Professions Code), arising from purchases of
goods, services, or materials for the Project. This assignment will be
deemed made and will become effective at the time City tenders final
payment to Contractor, without further acknowledgement by the Parties.
Section 10. Hazardous waste and unknown conditions.
10.1 Notification of Hazardous Material Required. Contractor shall, without
disturbing the condition, notify City in writing as soon as Contractor, or any
of Contractor’s subcontractors, agents or employees have knowledge and
reporting is possible, of the discovery of any of the following conditions:
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10.1.1 The presence of any material that the Contractor believes is
hazardous waste, as defined in Section 25117 of the Health and
Safety Code;
10.1.2 Subsurface or latent physical conditions at the site differing from
those indicated in the specifications; or,
10.1.3 Unknown physical conditions at the site of any unusual nature,
different materially from those ordinarily encountered and generally
recognized as inherent in work of this character provided for in this
Contract.
10.2 Fencing off Hazardous Material. Pending a determination by City of
appropriate action to be taken, Contractor shall provide security measures
(e.g., fences) adequate to prevent the hazardous waste or physical
conditions from causing bodily injury to any person.
10.3 City’s Investigation of Conditions. City shall promptly investigate the
reported conditions. If City, through its Director or director’s designee, and
in the exercise of its sole discretion, determines that the conditions do
materially differ, or do involve hazardous waste, and will cause a decrease
or increase in the Contractor’s cost of, or time required for, performance of
any part of the work, then City shall issue a change order.
10.4 No Unapproved Delay For Hazardous Materials. In the event of a dispute
between City and Contractor as to whether the conditions materially differ,
or involve hazardous waste, or cause a decrease or increase in the
Contractor’s cost of, or time required for, performance of any part of the
work, Contractor shall not be excused from any scheduled completion date,
and shall proceed with all work to be performed under the Contract.
Contractor shall retain any and all rights which pertain to the resolution of
disputes and protests between the parties.
Section 11. Independent Contractor. Contractor is and will at all times remain as to
City a wholly independent contractor. Neither the City nor any of its officers,
employees, or agents will have control over the conduct of Contractor or
any of Contractor’s officers, employees, agents or subcontractors, except
as expressly set forth in the Contract Documents. Contractor may not at any
time or in any manner represent that it or any of its officers, employees,
agents, or subcontractors are in any manner officers, employees, agents or
subcontractors of City.
Section 12. Warranty & Guarantee
12.1 New Materials. Contractor guarantees that all materials and equipment
furnished will be new unless otherwise specified in the Contract Documents.
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12.2 One Year Guarantee. Contractor guarantees all materials and equipment
furnished and Work performed for a period of one (1) year from the date of
substantial completion is free from all defects due to faulty materials or
workmanship. Contractor shall promptly make such corrections as may be
necessary by reasons of such defects including the repairs of any damage
to other property, whether real or personal. The City will give notice of
observed defects with reasonable promptness. If Contractor fails to make
such repairs, or other Work that may be made necessary by such defects,
the City may do so and charge the Contractor the cost thereby incurred,
plus 10% for administrative expenses. The Performance Bond shall remain
in full force and effect through the guarantee period. Contractor shall
execute the Public Improvement Warranty attached hereto and incorporate
hereon by this reference as Attachment "A."
Section 13. Bonds. Contractor shall provide a payment bond and a performance bond
consistent with the terms of this section. Each bond shall (1) be in writing;
(2) signed by at least one admitted surety insurer under oath; (3) if a bond
is signed by more than one surety insurer, include a statement that the
sureties are jointly and severally liable on the obligations required
hereunder; (4) list the address at which the principal and surety/sureties
may be served with notices, papers, and other documents under this
chapter; (5) be in the form of a bond and not in a deposit in lieu of a bond;
(6) be consistent with any other requirements of the City that reasonably
relate to a guarantee that the project will be completed at no cost to the City.
13.1 Payment Bond. Contractor shall furnish and file with City a bond in the sum
of one hundred percent (100%) of the Compensation. Consistent with Civil
Code § 9554, the bond shall provide that if the Contractor or any
subcontractors hired by Contractor fails to pay (1) any of the persons named
in Civil Code § 9100; (2) amounts due under the Unemployment Insurance
Code with respect to work or labor performed under this Agreement; or (3)
for any amounts required to be deducted, withheld, and paid over to the
Employment Development Department from the wages of employees of the
contractor and subcontractors pursuant to Unemployment Insurance Code
§13020 with respect to the work and labor that the sureties will pay for the
same, and also, in case suit is brought upon the bond, a reasonable
attorney’s fee, to be fixed by the court. The bond shall, by its terms, inure to
the benefit of any of the persons named in Civil Code § 9100 so as to give
a right of action to those persons or their assigns in any suit brought upon
the bond. The bond provided under this section shall be released by written
authorization of the City Engineer at the completion of the one year warranty
period described in section 12.2, above, provided that Contractor is not in
default on any provision of this Agreement.
13.2 Performance Bond. Contractor, before commencing said Project, shall
furnish and file with City a bond, or bonds, in a form satisfactory to the City,
in the sum of one hundred percent (100%) of the contract price thereof
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conditioned upon the faithful performance of this Contract and upon the
payment of all labor and materials furnished in connection with this
contract..
Section 14. Indemnification.
14.1 City and each of its officers, employees, Contractors and agents including,
without limitation, the City Council, Project Manager and each City
Representative, shall not be liable or accountable in any manner for loss or
damage that may happen to any part of the Work; loss or damage to
materials or other things used or employed in performing the Work; injury,
sickness, disease, or death of any person; or damage to property resulting
from any cause whatsoever except their sole negligence, willful misconduct
or active negligence, attributable to performance or character of the Work,
and Contractor releases all of the foregoing persons and entities from any
and all such claims.
14.2 To the furthest extent permitted by law (including, without limitation, Civil
Code Section 2782), Contractor shall defend, indemnify, and hold harmless,
City and each of its officers, officials, employees, representatives,
volunteers, Contractors and agents including, without limitation, the City
Council, Project Manager and each City Representative, from claims, suits,
actions, losses and liability of every kind, nature and description including,
without limitation, claims and fines of regulatory agencies and attorney’s
fees and Contractor’s fees, directly or indirectly arising out of, connected
with, or resulting from performance of the Work, failure to perform the Work,
or condition of the Work that is caused in whole or part by any act or
omission of Contractor, Subcontractors, anyone directly or indirectly
employed by any of them, or anyone for whose acts any of them may be
liable, resulting from any cause whatsoever except for liability for loss,
damage, or expense arising from City’s sole negligence, willful misconduct,
or active negligence.
14.3 In the event of any dispute between Contractor and City, as to whether
liability arises from the sole or active negligence of the City or its officers,
employees, or agents, Contractor will be obligated to pay for City’s defense
until such time as a final judgment has been entered adjudicating the City
as solely or actively negligent. Contractor will not be entitled in the absence
of such a determination to any reimbursement of defense costs including
but not limited to attorney’s fees, expert fees, and costs of litigation.
14.4 With respect to third-party claims against Contractor, Contractor waives any
and all rights to any type of express or implied indemnity including, without
limitation, costs of defense, against City and each of its officers, officials,
employees, Contractors and agents including, without limitation, City, the
governing board, Project Manager and each City Representative. City shall
provide timely notice to Contractor of any third-party claim relating to the
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Contract Documents, in accordance with Public Contract Code Section
9201.
14.5 Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of Contractor, its Subcontractors of
any tier, or the officers or agents of any of them.
14.6 To the furthest extent permitted by law (including, without limitation, Civil
Code § 2782), the indemnities, releases of liability and limitations of liability,
claims procedures, and limitations of remedy expressed throughout
Contract Documents shall apply even in the event of breach of Contract,
passive negligence, fault or strict liability of the party(ies) indemnified,
released, or limited in liability, and shall survive the termination, rescission,
breach, abandonment, or completion of the Work or the terms of the
Contract Documents. If Contractor fails to perform any of these defense or
indemnity obligations, City may in its discretion back charge Contractor for
City’s costs and damages resulting therefrom and withhold such sums from
progress payments or other Contract moneys which may become due.
14.7 City’s officers, representatives, directors, agents, volunteers, or employees
shall not be personally responsible for any liability arising under the
Agreement, except such obligations as are specifically set forth herein.
14.8 Withholding Funds. In the event of any Claim made against City, City may,
in its sole discretion, reserve, retain or apply any funds due to Contractor
under this Contract for the purpose of resolving such Claim.
14.9 Survival of Terms. The provisions of this section will survive the expiration
or earlier termination of this Agreement.
Section 15. Insurance. Contractor shall not commence work under this contract until
Contractor shall have obtained all insurance required by the Contract
Documents and such insurance shall have been approved by City as to
form, amount and carrier, nor shall Contractor allow any subcontractor to
commence work on any subcontract until all similar insurance required of
the subcontractor shall have been so obtained and approved.
A. Workers’ Compensation Insurance. Contractor shall take out and maintain,
during the life of this contract, Workers’ Compensation Insurance and
Employer’s Liability Insurance for all of Contractor’s employees employed
at the site of improvement; and, if any work is sublet, Contractor shall
require the subcontractor similarly to provide Workers’ Compensation
Insurance and Employers’ Liability Insurance in accordance with Labor
Code Section 3700 for all of the latter’s employees, unless such employees
are covered by the protection afforded by Contractor. If any class of
employees engaged in work under this contract at the site of the Project is
not protected under any Workers’ Compensation law, Contractor shall
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provide and shall cause each subcontractor to provide adequate insurance
for the protection of employees not otherwise protected. Contractor shall
indemnify City for any damage resulting to it from failure of either Contractor
or any subcontractor to take out or maintain such insurance.
i. Workers Compensation Insurance in the amount of not less than
Statutory Limits set by the State of California.
ii. Employer’s Liability Insurance in the amount of not less than ONE
MILLION DOLLAR ($1,000,000).
B. COMMERCIAL GENERAL LIABILITY, PRODUCTS/COMPLETED
OPERATIONS HAZARD, AUTOMOBILE LIABILITY, AND CONTRACTUAL
GENERAL LIABILITY INSURANCE.
(i.) Commercial General Liability Insurance. CONTRACTOR shall maintain
commercial general liability insurance with coverage at least as broad
as Insurance Services Office form CG 00 01, in an amount not less than
ONE MILLION DOLLAR ($1,000,000) per occurrence, TWO MILLION
DOLLARS ($2,000,000) general aggregate, for bodily injury, personal
injury, and property damage. The policy must include contractual liability
that has not been amended. Any endorsement restricting standard ISO
“insured contract” language will not be accepted.
(ii.) Products/Completed Operations Hazard Insurance. CONTRACTOR
shall maintain Products/Completed Operations Hazard insurance with
coverage in an amount not less than ONE MILLION DOLLAR
($1,000,000) per claim. Products liability coverage shall extend for a
minimum of three years (3) after project completion, and completed
operations coverage for construction agreements shall extend for 10
years from the date of substantial completion of the project or the statute
of repose, whichever is longer. Coverage shall be included on behalf of
the insured for covered claims arising out of the actions of independent
contractors. If the insured is using subcontractors, the Policy must
include work performed “by or on behalf” of the insured. Policy shall
contain no language that would invalidate or remove the insurer’s duty
to defend or indemnify for claims or suits expressly excluded from
coverage. Policy shall specifically provide for a duty to defend on the
part of the insurer. The City, its officials, officers, agents, and employees,
shall be included as additional insureds under the Products and
Completed Operations coverage.
(iii.) Automobile Liability Insurance. CONTRACTOR shall maintain
automobile insurance at least as broad as Insurance Services Office
form CA 00 01 covering bodily injury and property damage for all
activities of the CONTRACTOR arising out of or in connection with work
to be performed under this agreement, including coverage for any
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owned, hired, non-owned, or rented vehicles, in an amount not less than
ONE MILLION DOLLAR ($1,000,000) combined single limit for each
accident.
C. CONTRACTOR’S POLLUTION LIABILITY, TRANSPORTATION POLLUTION
LIABILITY, BUILDER’S RISK, AND INSTALLATION EXPOSURE
INSURANCE.
(i.) CONTRACTOR’S POLLUTION LIABILITY INSURANCE. Coverage
shall provide for liability arising out of sudden, accidental, and gradual
pollution, and remediation. The policy limit shall be no less than ONE
MILLION DOLLAR ($1,000,000) per claim and in the aggregate. All
activities contemplated in this agreement shall be specifically scheduled
on the policy as “covered operations.” The policy shall provide coverage
for remediation of the site in the event of an environmental
contamination event arising out of the materials, supplies, products,
work, operations, or workmanship.
(ii.) TRANSPORTATION POLLUTION LIABILITY INSURANCE. Coverage
shall be in an amount not less than FIVE MILLION DOLLARS
($5,000,000) combined single limit per accident and shall include
Pollution Liability (CA9948) and MCS-90 Endorsements. The policy
shall provide coverage for transportation of pollutants/contaminants to
and from the job site and the hauling of waste from the project site to the
final disposal location, including non-owned disposal sites.
(iii.) BUILDER’S RISK INSURANCE. Upon commencement of construction
and with approval of CITY, CONTRACTOR shall obtain and maintain
builder’s risk (course of construction) for the entire duration of the project
until only the CITY has an insurable interest. The builder’s risk coverage
shall include the coverages as specified below:
a. The named insureds shall be CONTRACTOR and CITY, including its
officers, officials, employees, representatives, agents, and
volunteers. All Subcontractors (excluding those solely responsible
for design work) of any tier and suppliers shall be included as
additional insureds as their interests may appear. CONTRACTOR
shall not be required to maintain property insurance for any portion
of the Project following transfer of control thereof to CITY. The policy
shall contain a provision that all proceeds from the builder’s risk
policy shall be made payable to the CITY. The CITY will act as a
fiduciary for all other interests in the Project.
b. Project. There shall be no coinsurance penalty or provisional limit
provision in any such policy. Policy must include: (1) coverage for
any ensuing loss from faulty workmanship, nonconforming Work,
omission or deficiency in design or specifications; (2) coverage
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against machinery accidents and operational testing; (3) coverage
for removal of debris, and insuring the buildings, structures,
machinery, equipment, materials, facilities, fixtures and all other
properties constituting a part of the Project; (4) Ordinance or law
coverage for contingent rebuilding, demolition, and increased costs
of construction; (5) transit coverage (unless insured by the supplier
or receiving contractor), with sub-limits sufficient to insure the full
replacement value of any key equipment item; (6) Ocean marine
cargo coverage insuring any Project materials or supplies, if
applicable; (7) coverage with sub-limits sufficient to insure the full
replacement value of any property or equipment stored either on or
off the Site or any staging area. Such insurance shall be on a form
acceptable to CITY to ensure adequacy of terms and sublimits and
shall be submitted to the CITY prior to commencement of
construction.
(iv.)INSTALLATION “FLOATER” EXPOSURE INSURANCE. If required by the
CITY or not covered by builders’ risk (course of construction) coverage,
CONTRACTOR shall obtain an “installation floater” for the value of the
property and covering the portion of the work to be constructed, installed,
altered, or repaired by CONTRACTOR. The installation floater policy must
include coverage for the fixtures, materials, supplies, machinery, and
equipment used in or incidental to the construction project as well as
property kept off-site or while in transit. Coverage must include property of
others in the CONTRACTOR’S care, custody, or control. In addition to
CONTRACTOR, the CITY and all subcontractors shall be named as
additional insureds on the policy with coverage extending through the final
completion date.
D. PROOF OF INSURANCE. CONTRACTOR shall provide certificates of
insurance and required endorsements to CITY as evidence of insurance
coverage required herein. Insurance certificates and endorsements must be
approved by CITY prior to the commencement of work. Current certification of
insurance shall be kept on file with CITY for the contract period and any
additional length of time required thereafter. CITY reserves the right to require
complete, certified copies of all required insurance policies, at any time.
E. NOTICE TO COMMENCE WORK. The City will not issue any notice
authorizing Contractor or any subcontractor to commence work under this
contact until Contractor has provided to the City the proof of insurance as
required.
F. DURATION OF COVERAGE. CONTRACTOR shall procure and maintain for
the contract period, and any additional length of time required thereafter,
insurance against claims for injuries to persons or damages to property, or
financial loss which may arise from or in connection with the performance of
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work hereunder by CONTRACTOR, their agents, representatives, employees,
or subcontractors.
G. PRIMARY/NONCONTRIBUTING. Coverage provided by CONTRACTOR shall
be primary and an insurance or self-insurance procured or maintained by CITY
shall not be required to contribute with it. The limits of insurance required herein
may be satisfied by a combination of primary and umbrella or excess insurance.
Any umbrella or excess insurance shall contain or be endorsed to contain a
provision that such coverage shall also apply on primary and non-contributory
basis for the benefit of CITY before the CITY’s own insurance or self-insurance
shall be called upon to protect it as named insured.
H. CITY’S RIGHTS OF ENFORCEMENT. In the event any policy of insurance
required under this agreement does not comply with these specifications or is
canceled and not replaced, CITY has the right but not the duty to obtain the
insurance it deems necessary, and any premium paid by CITY will be promptly
reimbursed by CONTRACTOR or CITY will withhold amounts sufficient to pay
premium from CONTRACTOR’S payments. In the alternative, CITY may cancel
this agreement.
I. ACCEPTABLE INSURERS. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to
transact business of insurance or is on the List of Approved Surplus Line
Insurers in the State of California, with an assigned policyholder’s Rating of A-
(or higher) and Financial Size Category Class VII (or larger) in accordance with
the latest edition of Best’ Key Rating Guide, unless otherwise approved by the
Director of Human Resources & Risk Management.
J. WAIVER OF SUBROGATION. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against
CITY, its elected or appointed officers, agents, officials, employees,
representatives and volunteers or shall specifically allow CONTRACTOR or
others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. CONTRACTOR hereby waives its
own right of recovery against CITY and shall require similar written express
waivers and insurance clauses from each of its subcontractors.
K. ENFORCEMENT OF CONTRACT PROVISIONS (NON ESTOPPEL).
CONTRACTOR acknowledges and agrees that any actual or alleged failure on
part of the CITY to inform CONTRACTOR of non-compliance with any
requirement imposes no additional obligations on the CITY nor does it waive
any rights hereunder.
L. REQUIREMENTS NOT LIMITING. Requirements of specific coverage features
or limits contained in this section are not intended as limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by
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any insurance. Specific reference to a given coverage feature is for purposes
of clarification only as it pertains to a given issue and is not intended by any
party or insured to be all inclusive, or to the exclusion of other coverage, or a
waiver of any type. If the CONTRACTOR maintains higher limits than the
minimums shown above, the CITY requires and shall be entitled to coverage
for the higher limits maintained by the CONTRACTOR. Any available insurance
proceeds in excess of the specified minimum limits of insurance and coverage
shall be available to the City.
M. NOTICE OF CANCELLATION. CONTRACTOR agrees to oblige its insurance
agent or broker and insurers to provide the CITY with a thirty (30) day notice of
cancellation (except for nonpayment for which a ten (10) day notice is required)
or nonrenewal of coverage for each required coverage. If any of the
CONTRACTOR’S insurers are unwilling to provide such notice, then
CONTRACTOR shall have the responsibility of notifying the CITY immediately
in the event of CONTRACTOR’S failure to renew any of the required insurance
coverages, or insurer’s cancellation or nonrenewal.
N. ADDITIONAL INSURED STATUS. General Liability, Automobile Liability, and
umbrella/excess liability insurance policies shall provide or be endorsed to
provide that CITY and its officers, officials, employees, agents, representatives,
and volunteers shall be additional insureds under such policies.
O. PROHIBITION OF UNDISCLOSED COVERAGE LIMITATIONS. None of the
coverages required herein will be in compliance with these requirements if they
include any limiting endorsement of any kind that has not been first submitted
to CITY and approved of in writing.
P. SEPARATION OF INSUREDS. A severability of interests provision must apply
for all additional insureds ensuring that CONTRACTOR’S insurance shall apply
separately to each insured again whom claim is made or suit is brough, except
with respect to the insurer’s limits of liability. The policy(ies) shall not contain
any cross-liability exclusions.
Q. PASS THROUGH CLAUSE. CONTRACTOR agrees to ensure that its
subcontractors, subcontractors, and any other party who is brough onto or
involved in the project/service by CONTRACTOR (hereinafter collectively
“subcontractor”), provide the same minimum insurance coverage and
endorsements required of CONTRACTOR. CONTRACTOR agrees to monitor
and review all such coverage and assumes all responsibility for ensuring that
such coverage is provided in conformity with the requirements of this section.
However, in the event CONTRACTOR’S subcontractor cannot comply with this
requirement, which proof must be submitted to the CITY, CONTRACTOR shall
be required to ensure that its subcontractor provide and maintain insurance
coverage and endorsements sufficient to the specific risk of exposure involved
with subcontractor’s scope of work and services, with limits less than required
of the CONTRACTOR, but in all other terms consistent with the
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CONTRACTOR’s requirements under this agreement. This provision does not
relieve the CONTRACTOR’ of its contractual obligations under the agreement
and/or limit its liability to the amount of insurance coverage provided by its
subcontractors. This provision is intended to solely provide CONTRACTOR
with the ability to utilize a subcontractor who may be otherwise qualified to
perform the work or services but may not carry the same insurance limits as
required of the CONTRACTOR under this agreement given the limited scope
of work or services provided by the subcontractor. CONSULANT agrees that
upon request, all agreements with subcontractors, and others engaged in this
project, will be submitted to CITY for review.
R. CITY’S RIGHT TO REVISE SPECIFICATIONS. The CITY reserves the right to
at any time during the term of the contract to change the amounts and types of
insurance required by giving the CONTRACTOR ninety (90) days advance
written notice of such change. If such change results in substantial additional
cost to the CONTRACTOR, the CITY and CONTRACTOR may renegotiate the
CONTRACTOR’S compensation.
S. SELF-INSURED RETENTIONS. Any self-insured retentions must be declared
to and approved by CITY. CITY reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible, or require proof
of ability to pay losses and related investigations, claim administrative, and
defense expenses within the retention through confirmation from the
underwriter.
T. TIMELY NOTICE OF CLAIMS. CONTRACTOR shall give CITY prompt and
timely notice of claims made or suits instituted that arise out of or result from
CONTRACTOR’S performance under this agreement, and that involve or may
involve coverage under any of the required liability policies.
U. ADDITIONAL INSURANCE. CONTRACTOR shall also procure and maintain,
at this own cost and expense, any additional kinds of insurance, which in its
own judgment may be necessary for its proper protection and prosecution of
the work.
Section 16. Liquidated Damages. The parties agree that it would be impractical and
extremely difficult to fix the actual damages to the City in the event the
Project is not commenced and/or completed on or before the dates
specified for commencement and completion of the Project in the Contract
Documents. The parties have considered the facts of a breach of this
contract and have agreed that the liquidated damages sum hereinafter set
forth is reasonable as liquidated damages in the event of a breach, and that
said sum shall be presumed to be the amount of the damages sustained by
the City in the event such work is not begun and/or completed and accepted
by the times so specified in the Contract Documents, the sum of Five
Hundred Dollars ($ 500.00) shall be presumed to be the amount of damages
suffered by the CITY for each day’s delay in the starting and/or completion
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and acceptance of said Project after the dates specified in the Contract
Documents for the start and/or completion thereof, and Contractor hereby
agrees to pay said sum of Five Hundred Dollars ($500.00) as liquidated
damages for each day of delay in the starting and/or completing and
acceptance of said Project beyond the dates specified in the Contract
Documents. Any and all such liquidated damages assessed shall be done
so in accordance with that certain edition of the Standard Specification for
Public Works Construction currently in effect on the execution date of this
Contract.
Section 17. Notice of Completion. Upon completion of Project and acceptance of
same by the City Council, the City Clerk shall have cause to be recorded a
Notice of Completion with the office of the Los Angeles County Recorder;
and, after thirty-five (35) days from the date said Notice of Completion is
recorded, the Director of Finance of City shall release the funds retained
pursuant to Section 5 hereof; provided there have been no mechanics’ liens
or stop notices filed against said work which have not been paid, withdrawn
or eliminated as liens against said work.
Section 18. Notice.
18.1 All written notices required or permitted to be given under this Contract will
be deemed made when received by the other Party at its respective address
as follows:
To City: City of Rosemead
8838 East Valley Boulevard
Rosemead CA 91770
Attention: Sam Gutierrez
Tel: (626) 569-2158
Email: sgutierrez@rosemeadca.gov
To Contractor: Hardy & Harper, Inc.
32 Rancho Circle
Lake Forest, CA 92630
Attention: Michael Amundson
Tel: (714) 444-1851
Email: mamundson@hardyandharper.com
18.2 Notice will be deemed effective on the date personally delivered or
transmitted by facsimile. If the notice is mailed, notice will be deemed given
three days after deposit of the same in the custody of the United States
Postal Service, postage prepaid, for first class delivery, or upon delivery if
using a major courier service with tracking capabilities.
18.3 Any Party may change its notice information by giving notice to the other
Party in compliance with this section.
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Section 19. Termination
19.1 Except as otherwise provided, City may terminate this Contract at any time
with or without cause. Notice of termination will be in writing.
19.2 Should the Contract be terminated pursuant to this section, City may
procure on its own terms services similar to those terminated.
19.3 By executing this document, Contractor waives any and all claims for
damages that might otherwise arise from City’s termination under this
section.
19.4 If City takes over the Work as provided in this section, City may, without
liability for so doing, take possession of, and utilize in completing the Work,
such materials, appliances, plant, and other property belonging to
Contractor as may be on the site of the Work and necessary for the
completion of the Work.
Section 20. Project Documents. All data, drawings, maps, models, notes,
photographs, reports, studies and other documents (collectively, “Project
Documents”) prepared, developed or discovered by Contractor in the
course of performing any of the Work under this Contract will become the
sole property of City. Upon the expiration or termination of this Contract,
Contractor must turn over all original Project Documents to City in its
possession, but may retain copies of any of the Project Documents it may
desire.
Section 21. General Provisions.
21.1 Authority to Execute. Each Party represents and warrants that all necessary
action has been taken by such Party to authorize the undersigned to
execute this Contract and to bind it to the performance of its obligations.
21.2 Assignment. Contractor may not assign this Contract without the prior
written consent of City, which consent may be withheld in the City’s sole
discretion since the experience and qualifications of Contractor were
material considerations for this Contract.
21.3 Binding Effect. This Contract is binding upon the heirs, executors,
administrators, successors and permitted assigns of the Parties.
21.4 Integrated Contract. This Contract, including the Contract Documents, is the
entire, complete, final and exclusive expression of the Parties with respect
to the Work to be performed under this Contract and supersedes all other
agreements or understandings, whether oral or written, between Contractor
and City prior to the execution of this Contract.
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21.5 Modification of Contract. No amendment to or modification of this Contract
will be valid unless made in writing and approved by Contractor and by the
City Council or City Manager, as applicable. The Parties agree that this
requirement for written modifications cannot be waived and that any
attempted waiver will be void.
21.6 Counterparts and Facsimile Signatures. This Contract may be executed in
several counterparts, each of which will be deemed an original, and all of
which, when taken together, constitute one and the same instrument.
Amendments to this Contract will be considered executed when the
signature of a party is delivered by facsimile transmission. Such facsimile
signature will have the same effect as an original signature.
21.7 Waiver. Waiver by any Party of any term, condition, or covenant of this
Contract will not constitute a waiver of any other term, condition, or
covenant. Waiver by any Party of any breach of the provisions of this
Contract will not constitute a waiver of any other provision, or a waiver of
any subsequent breach or violation of any provision of this Contract.
Acceptance by City of any Work performed by Contractor will not constitute
a waiver of any of the provisions of this Contract.
21.8 Interpretation. This Contract will be interpreted, construed and governed
according to the laws of the State of California. Each party has had the
opportunity to review this Contract with legal counsel. The Contract will be
construed simply, as a whole, and in accordance with its fair meaning. It will
not be interpreted strictly for or against either party.
21.9 Severability. If any term, condition or covenant of this Contract is declared
or determined by any court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Contract will not be affected
and the Contract will be read and construed without the invalid, void or
unenforceable provision.
21.10 Venue. In the event of litigation between the parties, venue in state trial
courts will be in the County of Los Angeles. In the event of litigation in a
U.S. District Court, venue will be in the Central District of California, in Los
Angeles.
21.11 Electronic Transmission of Contract and Signature. The Parties agree that
this Contract may be signed and transmitted by electronic mail by either/any
or both/all Parties, and that such signatures shall have the same force and
effect as original signatures, in accordance with California Government
Code section 16.5 and Civil Code section 1633.7.
[Signatures on the following page]
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THE UNDERSIGNED AUTHORIZED REPRESENTATIVES of the Parties have
executed this Contract as follows:
CITY OF ROSEMEAD CONTRACTOR
Hardy & Harper, Inc.
Tax Payer ID:
Richard Belmudez, Interim
City Manager Date
Print Name:
ATTEST:
Title:
(President, VP)
Ericka Hernandez, City Clerk Date
APPROVED AS TO FORM:
Signature
Print Name:
Rachel Richman Date
City Attorney
Title:
(Treasurer, Secretary)
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ATTACHMENT A
PUBLIC IMPROVEMENTS WARRANTY
On ____________________, 202__, the City of Rosemead (“City:”) accepted as
complete and meeting the standards of City, the following public improvement(s):
______________________________________________________________________
______________________________________________________________________
___________________________________________________________________,
built and constructed by or for _____________________, ("Contractor")
Contractor hereby warrants and guarantees the aforementioned public improvements as
to the material used and workmanship performed for a period of one (1) year following
the date set forth above.
In the event of a defect, malfunction, or failure to conform the improvement specifications
and all applicable local standards, the Contractor shall repair or replace said
improvements at Contractor's own and sole expense within a reasonable time from notice
of the defect from City. Should Contractor fail to cure any defect within a reasonable
period of time, Contractor agrees to reimburse City for any and all costs of City's efforts
to cure any defect once City has provided notice to the Contractor of the defect and the
City's intent to cure such defect.
Should litigation be necessary to enforce the provisions of this warranty, the prevailing
party shall be entitled to reimbursement for attorneys fees and court and related costs.
Executed at________________________, California, on the day and year first written
above.
CONTRACTOR
By:_____________________________
__
Signature
By:_____________________________
__ (Typed Name)
Its:_____________________________
__ Title
By:_____________________________
__ Signature
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By:_____________________________
__ (Typed Name)
Its:_____________________________
__ Title
[NOTARY REQUIRED]