HomeMy WebLinkAboutReso 14-2023 (23-16)EXHIBIT A – DRAFT FORM OF AGREEMENT
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FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS
THIS AGREEMENT made and entered into this ____, day of ______, _____, between the CITY
OF SOUTH SAN FRANCISCO, a municipal corporation and political subdivision of the State of
California, hereinafter called “CITY”, and <Contractor>, Inc., hereinafter called “CONTRACTOR”1.
W I T N E S S E T H:
WHEREAS, City has taken appropriate proceedings to authorize construction of the public work
and improvements herein provided and execution of this contract.
WHEREAS, a notice was duly published for bids for the contract for the improvements hereinafter
described.
WHEREAS, on ____________, notice duly given, the City Council (“Council”) of said City
awarded the contract for the construction of the improvements hereinafter described to the Contractor,
which Contractor said Council found to be the lowest responsible bidder for said improvements.
WHEREAS, City and Contractor desire to enter into this agreement for the construction of said
improvements pursuant to the terms, definitions, and conditions set forth in the General Provisions and
other Contract Documents.
IT IS AGREED as follows:
1. Scope of Work. Contractor shall perform the Work described briefly as follows:
The Work consists of the furnishing of all labor, materials, tools, equipment, and services necessary for
the construction of the CDBG – CURB RAMP REPLACEMENT; PROJECT NO.ST2106; BID NO.
2674; in accordance with the Contract Documents.
Also included are any such other items or details not mentioned above that are required by the
Contract Documents, which are to be constructed or furnished and installed as shown on the plans, as
specified herein and as directed by the Engineer.
The aforementioned improvements are further described in the "Contract Documents" hereinafter
referred to.
2. The Contract Documents. The complete Contract consists of the following documents:
(A) Notice Inviting Bids
(B) Part I – Submitted Proposal (as accepted)
(C) This Agreement, including Contractor’s Payment Bond, Faithful Performance
Bond and Guaranty Bond.
(D) Part II – General Conditions
1. 1The term "Contractor" as used herein is employed without distinction as to either number or gender and shall
include whenever the context shall permit all agents, representatives, employees, servants, subcontractors and
business or social invitees.
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(E) Part III – Special Provisions: Special Conditions and Technical Specifications,
including State Standard Specifications.
(F) Part IV – Project Plans, approved <DATE>
(G) Administrative subsections of the State Standard Specifications.
All rights and obligations of City and Contractor are fully set forth and described in the contract
documents.
All of the above-named documents are intended to cooperate, so that any work called for in one
and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said
documents. The documents comprising the complete contract will hereinafter be referred to as “the
Contract Documents.”
3. Equipment - Performance of Work. Contractor shall furnish all tools, equipment,
apparatus, facilities, labor, and materials necessary to perform and complete in a good and workmanlike
manner the Work of general construction as called for, and for the manner designated in, and in strict
conformity with, the plans and specifications for said Work entitled:
CDBG – CURB RAMP REPLACEMENT PROJECT
PROJECT NO.ST2106; BID NO. 2674
The equipment, apparatus, facilities, labor, and materials shall be furnished and said Work
performed and completed as required in said plans and specifications under the direction and supervision
and subject to the approval of the Engineer of said City or the Engineer’s designated assistant.
4. Contract Price. City shall pay, and Contractor shall accept, in full payment for the Work
agreed to be done the sum of __________________________________ ($). Said price is determined by
the lump sum price contained in Contractor's bid proposal (“Bid”). The lump sum price and unit prices are
set forth in the completed Bid forms attached hereto and made a part hereof as if set forth herein verbatim.
In the event work is performed or materials furnished in addition to those set forth in Contractor's bid and
the specifications herein, such work and materials will be paid for at the unit prices therein contained. Said
amount shall be paid in installments as hereinafter provided.
5. Rights of City to Increase Working Days. If such Work is not completed within the time
specified, the Engineer shall have the right to increase the number of working days in the amount it may
determine will best serve the interest of the City. If it desires to increase said number of working days, it
shall have the further right to charge to Contractor and deduct from the final payment for the Work the
actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly
chargeable to Contractor and which accrue during the period of such extension, except that the cost of the
final service and preparation of the final estimates shall not be included in such charges, provided, however,
that no extension of time for the completion of such Work shall be allowed unless at least twenty (20)
calendar days prior to the time herein fixed for the completion thereof or the time fixed by the Engineer for
such completion as extended, Contractor shall have filed application for extension thereof, in writing with
the Engineer.
6. Option of City to Terminate Agreement in Event of Failure to Complete Work. If at any
time in the opinion of the Engineer, the Contractor has refused or failed to prosecute the Work or any
severable part thereof, with such diligence as will insure its work, or any completion within the time
specified, or any extensions thereof, or shall have failed to complete said work within such time, or if
Contractor should be adjudged a bankrupt, or if Contractor should make a general assignment for the benefit
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of Contractor's creditors, or if a receiver should be appointed in the event of Contractor's insolvency, or if
Contractor, or any Subcontractor, should violate any of the provisions of this Agreement, the Engineer may
give written notice to Contractor, and Contractor's sureties of its intention to terminate this Agreement, such
notice to contain the reasons for such intention to terminate this Agreement, and unless within five calendar
(5) days after the serving of such notice, such violation shall cease and satisfactory arrangements for the
correction thereof be made, this Agreement may, at the option of City, upon expiration of said time, cease
and terminate. Any excess of cost arising therefrom over and above the contract price will be charged
against the Contractor and the Contractor’s sureties who will be liable therefore. In the event of such
termination, all money due the Contractor or retained under the terms of this contract shall be forfeited to
the City; but such forfeiture will not release the Contractor or the Contractor’s sureties from liability or
failure to fulfill the contract. The Contractor and the Contractor’s sureties will be credited with the amount
of money so forfeited toward any excess of cost over and above the contract price, arising from the
suspension termination of the operations of the contract and the completion of the Work by the City as
above provided, and the Contractor will be so credited with any surplus remaining after all just claims for
such completion have been paid.
In the determination of the question whether there has been any such noncompliance with the
contract as to warrant the suspension termination or annulment thereof, the decision of the Engineer shall
be binding on all parties to the contract.
7. Termination of Contract for Convenience. The City also reserves the right to terminate the
contract at any time upon a determination by the Engineer in the Engineer's sole discretion that termination
of the contract is in the best interest of the City. If the City elects to terminate the contract for convenience,
the termination of the contract and the total compensation payable to the Contractor shall be governed by
the following:
(A) The City will issue the Contractor a written notice signed by the Engineer,
specifying that the contract is terminated. Upon receipt of said written notice, the Contractor will be
relieved of further responsibility for damage to the Work (excluding materials) as specified in Section VII-
18, "Contractor's Responsibility for the Work," of the General Conditions and, except as otherwise directed
in writing by the Engineer, the Contractor shall:
(1) Stop all work under the contract except that specifically directed to be completed prior to
acceptance.
(2) Perform work the Engineer deems necessary to secure the project for termination.
(3) Remove equipment and plant from the site of the Work.
(4) Take such action as is necessary to protect materials from damage.
(5) Notify all subcontractors and suppliers that the contract is being terminated and that their
contracts or orders are not to be further performed unless otherwise authorized in writing by the
Engineer.
(6) Provide the Engineer with an inventory list of all materials previously produced, purchased
or ordered from suppliers for use in the Work and not yet used in the Work, including its storage
location, and such other information as the Engineer may request.
(7) Dispose of materials not yet used in the Work as directed by the Engineer. It shall be the
Contractor's responsibility to provide the City with good title to all materials purchased by the City
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hereunder, including materials for which partial payment has been made as provided in Section IX-
2, “Progress Payments,” of the General Conditions and with bills of sale or other documents of title
for such materials.
(8) Subject to the prior written approval of the Engineer, settle all outstanding liabilities and
all claims arising out of subcontracts or orders for materials terminated hereunder. To the extent
directed by the Engineer, the Contractor shall assign to the City all the right, title, and interest of
the Contractor under subcontracts or orders for materials terminated hereunder.
(9) Furnish the Engineer with the documentation required to be furnished by the Contractor
under the provisions of the contract, including, on projects as to which Federal and State funds are
involved, all documentation required under the Federal and State requirements included in the
contract.
(10) Take such other actions as the Engineer may direct.
(B) Acceptance of the contract as hereinafter specified shall not relieve the Contractor
of responsibility for damage to materials. The Contractor shall continue to be responsible for damage to
materials after issuance of the Notice of Termination, except as follows:
(1) The Contractor’s responsibility for damage to materials for which partial payment has been
made as provided in Section IX-2, “Progress Payments,” of the General Conditions and for
materials furnished by the City for use in the Work and unused shall terminate when the Engineer
certifies that such materials have been stored in the manner and at the locations the Engineer has
directed.
(2) The Contractor’s responsibility for damage to materials purchased by the City subsequent
to the issuance of the notice that the contract is to be terminated shall terminate when title and
delivery of such materials has been taken by the City.
(3) When the Engineer determines that the Contractor has completed the Work under the
contract directed to be completed prior to termination and such other work as may have been
ordered to secure the project for termination, the Contractor will recommend that the Engineer
formally accept the contract to the extent performed, and immediately upon and after such
acceptance by the Engineer, the Contractor will not be required to perform any further Work
thereon and shall be relieved of the Contractor's contractual responsibilities for injury to persons or
property which occurs after the formal acceptance of the project by the Engineer.
(C) Termination of the contract shall not relieve the surety of its obligation for any just
claims arising out of the work performed.
(D) The total compensation to be paid to the Contractor shall be determined by the
Engineer on the basis of the following:
(1) The reasonable cost to the Contractor, without profit, for all work performed under the
contract, including mobilization, demobilization and work done to secure the project for
termination. In determining the reasonable cost, deductions will be made for the cost of materials
to be retained by the Contractor, amounts realized by the sale of materials, and for other appropriate
credits against the cost of the work. When, in the opinion of the Engineer, the cost of a contract
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item of work is excessively high due to costs incurred to remedy or replace defective or rejected
work, the reasonable cost to be allowed will be the estimated reasonable cost of performing such
work in compliance with the requirements of the plans and specifications and the excessive actual
cost shall be disallowed.
(2) A reasonable allowance for profit on the cost of the work performed as determined under
Subsection (1), provided the Contractor establishes to the satisfaction of the Engineer that it is
reasonably probable that the Contractor would have made a profit had the contract been completed
and provided further, that the profit allowed shall in no event exceed four (4) percent of said cost.
(3) The reasonable cost to the Contractor of handling material returned to the vendor, delivered
to the City, or otherwise disposed of as directed by the Engineer.
(4) A reasonable allowance for the Contractor’s administrative costs in determining the
amount payable due to termination of the contract.
(5) A reasonable credit to the City for defective or incomplete work not corrected.
All records of the Contractor and subcontractors necessary to determine compensation in
accordance with the provisions of this Section 5 shall be open to inspection or audit by representatives of
the City at all times after issuance of the Notice of Termination and for a period of three (3) years, thereafter,
and such records shall be retained for that period.
After acceptance of the Work by the Engineer, the Engineer may make payments on the basis of
interim estimates pending issuance of the Final Estimate in accordance with Section IX-7, “Final Payment,”
of the General Conditions when, in the Engineer's opinion, the amount thus paid, together with all amounts
previously paid or allowed, will not result in total compensation in excess of that to which the Contractor
will be entitled. All payments, including payment upon the Final Estimate shall be subject to deduction for
prior payments and amounts, if any, to be kept or retained under the provisions of the contract.
If this contract is terminated by the City for cause, and it is later determined that the proper basis
for a termination for cause did not exist, the termination shall be deemed to have been a termination for
convenience and governed by the terms of this contract dealing with such termination.
If the contract is terminated by the City for cause or convenience, such termination shall neither act
as a waiver by the City of its right to require the Contractor to correct defects in the Work performed by the
Contractor nor void any warranties applicable to the Work performed under the contract.
The provisions of this Section 5 shall be included in all subcontracts.
In the event of conflict between the termination provisions of this Section 8 and any other provision
or the contract, this Section 5 shall prevail.
8. Performance by Sureties. In the event of any termination as herein before provided, City
shall immediately give written notice thereof to Contractor and Contractor's sureties and the sureties shall
have the right to take over and perform the Agreement, provided, however, that if the sureties, within five
(5) working days after giving them said notice of termination, do not give the City written notice of their
intention to take over the performance of the Agreement and do not commence performance thereof within
five (5) working days after notice to the City of such election, City may take over the Work and prosecute
the same to completion by contract or by any other method it may deem advisable, for the account, and at
the expense, of Contractor, and the sureties shall be liable to City for any excess cost or damages occasioned
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City thereby; and, in such event, 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 therefore. Should Contractor contract in an individual capacity,
the surety bond shall contain the following provision: “Should Contractor contract in the Contractor’s
individual capacity, the death of the Contractor shall not relieve the surety of its obligations.”
9. Hold-Harmless Agreement and Contractor's Insurance. Contractor agrees to, and shall,
hold City, its elective and appointive boards, officers, agents, and employees harmless from any liability
for damage or claims for damage for personal injury, including death, as well as from claims for property
damage which may arise from Contractor's or any of Subcontractor's operations under this Agreement,
whether such operations be by Contractor or by any Subcontractor or Subcontractors, or by any one or more
persons directly or indirectly employed by, or acting as agent for, Contractor or any Subcontractor or
Subcontractors. Contractor agrees to, and shall, defend City and its elective and appointive boards, officers,
agents, and employees from any suits or actions at law or in equity for damages caused, or alleged to have
been caused, by reason of any of the aforesaid operations, provided as follows:
(A) The City does not, and shall not, waive any rights against Contractor which it may have by
reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the deposit
with City by Contractor, of any of the insurance policies hereinafter described in Paragraph 10,
“Insurance” hereof.
(B) That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and
claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of
the aforesaid operations of Contractor or any Subcontractor, regardless of whether or not such
insurance policies shall have been determined to be applicable to any of such damages or claims
for damages.
10. Insurance. The Contractor shall take out and maintain during the life of this Agreement
the following policies of insurance:
(A) Workers' Compensation and Employers' Liability Insurance providing full
statutory coverage.
In signing this Agreement, the Contractor makes the following certification, required by
Section 1861 of the California Labor Code:
"I am aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Workers' 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 the work
of this contract".
(B) Comprehensive General Liability Insurance.
Public Liability Insurance (includes premises, elevator - if applicable, products, completed
operations, personal injury and contractual):
(1) Bodily Injury Liability:
$ 500,000 each person $1,000,000 each occurrence
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(2) Property Damage Liability [includes XCU (explosion, collapse, and underground damage);
water damage and broad form property damage or third party liability]:
$ 500,000 per occurrence
(C) Comprehensive Automobile Liability Insurance (includes owned, non-owned, and
hired vehicles):
(1) Bodily Injury Liability:
$ 500,000 per person $1,000,000 each occurrence
(2) Property Damage Liability:
$ 500,000 each occurrence
(D) It is agreed that the insurance required by Subsections B and C, in an aggregate
amount of not less than ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000), shall
be extended to include as additional insured the City of South San Francisco, its elective and appointive
boards, commissions, officers, agents, employees, with respect to operations performed by the Contractor,
as described herein. Evidence of this insurance described above shall be provided to City upon execution
of this Agreement and shall be subject to approval of the City Attorney as to form, amount, and carrier.
The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced or
cancelled except upon thirty (30) calendar days written notice to City. In addition, the following
endorsement shall be made on said policy of insurance:
"The following are named as additional insured on the above policies: The City of South
San Francisco, its elective and appointive boards, officers, agents, and employees."
"Notwithstanding any other provision in this policy, the insurance afforded hereunder to the
City of South San Francisco shall be primary as to any other insurance or re-insurance
covering or available to the City of South San Francisco, and such other insurance or
reinsurance shall not be required to contribute to any liability or loss until and unless the
approximate limit of liability afforded hereunder is exhausted."
The above requirements that the City be named as additional insured, that the insurance
shall be primary to any other, and that the insurance not be cancelled without notice, shall be provided in
the form of an endorsement signed by an authorized representative of the insurance company providing
coverage, who shall declare his or her authority to sign on behalf of the insurer.
11. Proof of Carriage of Insurance. Contractor shall furnish City through the Engineer,
concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required and
that each carrier shall give City at least thirty (30) calendar days prior notice of the cancellation or change
of any policy during the effective period of this contract. Further, if the Contractor’s insurance policy
includes a self-insured retention that must be paid by a named insured as a precondition of the insurer’s
liability, or which has the effect of providing that payments of the self-insured retention by others, including
additional insureds or insurers do not serve to satisfy the self-insured retention, such provisions must be
modified by special endorsement so as to not apply to the additional insured coverage required by this
agreement so as to not prevent any of the parties to this agreement from satisfying or paying the self-insured
retention required to be paid as a precondition to the insurer’s liability. Additionally, the certificates of
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insurance must note whether the policy does or does not include any self-insured retention and also must
disclose the deductible.
12. Provisions Cumulative. The provisions of this Agreement are cumulative, and in addition
to and not in limitation of, any other rights or remedies available to City.
13. Notices. All notices shall be in writing and delivered in person or transmitted by certified
mail, postage prepaid.
Notices required to be given to City shall be addressed as follows:
City Clerk
City Hall, 400 Grand Avenue
South San Francisco, California 94080
Notices required to be given to Contractor shall be addressed as follows:
_________________________________________________________________________
_________________________________________________________________________
Notices required to be given sureties of Contractor shall be addressed as follows:
_________________________________________________________________________
Notices required to be given to the Escrow Agent of Contractor, if any, shall be addressed as
follows:
_________________________________________________________________________
14. Interpretation. As used herein, any gender includes each other gender, the singular includes
the plural, and vice versa.
IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, consisting of nine (9)
pages (being pages A-1 through A 9), each of which counterparts shall for all purposes be deemed an
original of said Agreement, have been duly executed by the parties hereinabove named, on the day and year
first hereinabove written.
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ATTEST: CITY: City of South San Francisco,
a municipal corporation
_______________________________ By: _____________________________
City Clerk Mike Futrell, City Manager
CONTRACTOR:_______________________
__________________________________
ATTEST: By:_______________________________
(If Contractor is an individual, so state.
_____________________________ If Contractor is a Corporation, a corporate seal
or signatures of the President or Vice President
and the Secretary Treasurer are required).
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ATTACHMENT A
ESCROW AGREEMENT FOR
SECURITY DEPOSITS IN LIEU OF RETENTION
THIS ESCROW AGREEMENT is made and entered into by and between the City of South
San Francisco whose address is 400 Grand Ave., P.O. Box 711, South San Francisco, CA 94083,
hereinafter referred to as "City," and ________________________________________,whose address
is ___________________________________________________________, hereinafter called
“Contractor” and ______________________________________________________________,whose
address is ___________________________________________________________, hereinafter called
“Escrow Agent.”
For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows:
1. Pursuant to Section 22300 of the Public Contract Code of the State of California,
Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings
required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner
and Contractor for __________________ in the amount of _______________dollars ($_____) dated
___________ (hereinafter referred to as the “Contract”). Alternately, on written request of the
Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent.
When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall
notify the Owner within 10 working days of the deposit. The market value of the securities at the time
of the substitution shall be at least equal to the cash amount then required to be withheld as retention
under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name
of _______________, and shall designate the Contractor as the beneficial owner.
2. The Owner shall make progress payments to the Contractor for those funds which
otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that
the Escrow Agent holds securities in the form and amount specified above.
3. When the Owner makes payment of retentions earned directly to the Escrow Agent,
the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created
under this contract is terminated. The Contractor may direct the investment of the payments into
securities. All terms and conditions of this agreement and the rights and responsibilities of the parties
shall be equally applicable and binding when the Owner pays the Escrow Agent directly.
4. Contractor shall be responsible for paying all fees for the expenses incurred by Escrow
Agent in administering the Escrow Account and all expenses of the Owner. These expenses and
payment terms shall be determined by the Owner, Contractor, and Escrow Agent.
5. The interest earned on the securities or the money market accounts held in escrow and
all interest earned on that interest shall be for the sole account of Contractor and shall be subject to
withdrawal by Contractor at any time and from time to time without notice to the Owner.
6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow
Account only by written notice to Escrow Agent accompanied by written authorization from the Owner
to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by
Contractor.
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7. The Owner shall have a right to draw upon the securities in the event of default by the
Contractor. Upon seven day’s written notice to the Escrow Agent from the Owner of the default, the
Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed
by the Owner.
8. Upon receipt of written notification from the Owner certifying that the Contract is final
and complete, and that the Contractor has complied with all requirements and procedures applicable to
the Contract, Escrow Agent shall release to Contractor all securities and interest on deposit less escrow
fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement
of all moneys and securities on deposit and payments of fees and charges.
9. Escrow Agent shall rely on the written notifications from the Owner and the Contractor
pursuant to Sections (5) to (8), inclusive, of this Agreement, and the Owner and Contractor shall hold
Escrow Agent harmless from Escrow Agent’s release and disbursement of the securities and interest as
set forth above.
10. The names of the persons who are authorized to give written notice or to receive
written notice on behalf of the Owner and on behalf of Contractor in connection with the foregoing, and
exemplars of their respective signatures are as follows:
On behalf of Owner: On behalf of Contractor:
__________________________________ __________________________________
Title Title
__________________________________ __________________________________
Name Name
__________________________________ __________________________________
Signature Signature
__________________________________ __________________________________
Address Address
On behalf of Escrow Agent:
__________________________________
Title
__________________________________
Name
__________________________________
Signature
__________________________________
Address
At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the
Escrow Agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers
on the date first set forth above.
Owner: Contractor:
__________________________________ __________________________________
Title Title
__________________________________ __________________________________
Name Name
__________________________________ __________________________________
Signature Signature
Approved as to form: Attest:
_____________________________________ __________________________________
City Attorney Date City Clerk