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All Cities Engineering, Inc.-2018-41 2018-41 CONTRACT AGREEMENT THIS CONTRACTORS AGREEMENT ("Agreement") is made and entered into this 12th day of October, 2018, ("Effective Date") by and between the CITY OF GRAND TERRACE ("City"), a public entity, and All Cities Engineering, Inc. ("Contractor"), a California Corporation. 1. Scope of Services. Contractor shall perform all the services as described as follows:- a) For and in consideration of the payments and agreements hereinafter mentioned to be made and performed by said City, said Contractor agrees with said City to perform and complete in.a workmanlike manner all work required under the Bidding Schedule of the City's Specification, in accordance with the Specifications and Drawings therefor, to furnish at his own expense all labor, materials, equipment, tools and services necessary therefor, except those materials, equipment, tools and services as may be stipulated in said specification to be furnished by said City and to do everything required by this Agreement and the said Specifications and Drawings. b) The Notice Inviting Bids, Instructions to Bidders, Proposal, Information required of Bidder, Specification, Drawings, Exhibits and all addenda issued by the City with respect to the foregoing prior to the opening of bids, are hereby incorporated in and made a part of this Agreement. c) In entering into a Public Works Contract for a subcontract to supply goods, services or materials pursuant to a Public Works Contract, the Contractor or subcontractor offers and agrees to assign to the 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 Business and Professions Code, arising from purchases of goods, services, or materials pursuant to the Public Works Contract or the subcontract. This assignment shall be made and become effective at the time ,the City tenders final payment to the Contractor without further,acknowledgment by the parties. 2. Term. This Agreement shall be effective on the date first written above and the Agreement shall remain in effect for 30 days or until terminated as provided herein. 3. Compensation/Payment. Contractor shall perform the Services under this Agreement for the total sum not to exceed $6,750.00. Payment shall be made in accordance with City is usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to City at the address set forth in Section 4, hereof. 4. Notices. Any notices required to be given hereunder shall be in writing and shall be personally served or given by mail. Any notice given by mail shall be deemed given when deposited in the United States Mail, certified and postage prepaid, addressed to the party to be served as follows: 5. To City To D-1 City of Grand Terrace All Cities Engineering 22795 Barton Road 5881 Snowgrass Trail Grand Terrace, CA 923.13 Jurupa Valley, CA 92509 6. Prevailing Wage. If applicable, Contractor and all subcontractors are required to pay the general prevailing wage rates of per diem wages and overtime and holiday wages determined by the Director of the Department of Industrial Relations under Section. 1720 et seq. of the California Labor Code and implemented the City Council of the City of Grand Terrace. The Director's determination is on file and open to inspection in the office of the City Clerk and is referred to and made a part hereof; the wage rates therein ascertained, determined, and specified are referred to and made a part hereof as though fully set forth herein. 7. Contract Administration. A designee of the City will be appointed to administer this Agreement on behalf of City and shall be referred to herein as Contract Administrator. 8. Standard of Performance. While performing the Services, Contractor shall exercise the reasonable care and skill customarily exercised by reputable members of Contractors in the Metropolitan Southern California Area, and shall use reasonable diligence and best judgment while exercising its skill and expertise. 9. Personnel. Contractor shall furnish all personnel necessary to perform the Services and shall be responsible for their performance . and compensation. Contractor recognizes that the qualifications and experience of the personnel to be used are vital to Contractor and timely completion of the Services. 10. Assignment and Subcontracting. Neither party shall transfer any right, interest, or obligation in or under this Agreement to any other entity without prior written consent of the other party. In any event, no assignment shall be made unless the assignee expressly assumes the obligations of assignor under this Agreement, in writing satisfactory to the parties. Contractor shall not subcontract any portion of the work required by this Agreement without prior written approval by the responsible City's Contract Administrator. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations.set forth in Section 13. Contractor acknowledges that any transfer of rights may require City Manager and/or City Council approval. 11. Independent Contractor. In the performance of this Agreement, Contractor and his employees, subcontractors and agents, shall act in an independent capacity as independent contractors, and not as officers or employees of the City or the City of Grand Terrace. Contractor acknowledges and agrees that the City has no obligation to pay or withhold state or federal taxes or to provide workers' compensation or unemployment insurance to Contractor to Contractors employees, subcontractors and agents. Contractor as an independent contractor shall be responsible for any and all taxes that apply to Contractor as an employer. 12. PERS Eligibility Indemnity. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer D-2 contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits. 12 Indemnifications. 12.1 Indemnity. Except as to the sole negligence or willful misconduct of the City, Contractor shall defend, indemnify and hold the City, and its officers, employees and agents, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including attorneys' fees, which arises out of or is in any way connected with the performance of work under this Agreement by Contractor or any of the Contractor's employees, agents or subcontractors and from all claims by Contractor's employees, subcontractors and agents for compensation for services rendered to in the performance of this Agreement, notwithstanding that the City may have benefitted from their services. This indemnification provision shall apply to any.acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of Contractor or of Contractor's employees, subcontractors or agents. 12.2 Attorney's Fees. The parties expressly agree that any payment, attorneys' fees; costs or expense that the City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this Section, and that this Section shall survive the expiration or early termination of the Agreement. .13. Insurance. 13.1 General Provisions. Prior to the City's execution of this Agreement, Contractor shall provide satisfactory evidence of, and shall thereafter maintain during the term of this Agreement, such insurance policies and coverage's in the types, limits, forms and ratings required herein. The rating and required insurance policies and coverage's may be modified in writing by the City's Risk Manager or City Attorney, or a designee, unless such modification is prohibited by law. 13.1.1 Limitations. These minimum amounts of coverage shall not constitute any limitation or cap on Contractor's indemnification obligations under Section 12 hereof. 13.1.2 Ratings. Any insurance policy or coverage provided by Contractor as required by this Agreement shall be deemed inadequate and a material breach of this Agreement, unless such policy or coverage is. issued by insurance companies authorized to transact insurance business in the State of California with a policy holder's rating of A- or higher and a Financial Class of VII or higher. 13.1.3 Cancellation. The policies shall not be canceled unless thirty (30) days prior written notification of intended cancellation has been given to City by certified or registered mail, postage prepaid. 13.1.4 Adequacy. The City, its officers, employees and agents make no representation that the types or limits of insurance specified to be carried by D-3 Contractor pursuant to this Agreement are adequate to protect. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage as deems adequate, at Contractor's sole expense. 13.2 Workers' Compensation Insurance: By executing this Agreement, certifies that Contractor is aware of and will comply with Section 3700 of the Labor Code of the State of California requiring every employer to be insured against liability for workers' compensation, or to undertake self-insurance before commencing any of the work. Contractor shall carry the insurance or provide for self-insurance required by California law to protect said Contractor from claims under the Workers' Compensation Act. Prior to City's execution of this Agreement, Contractor shall file with City either (1) a certificate of insurance showing that such insurance is in effect, or that Contractor is self- insured for such coverage, or (2) a certified statement that Contractor has no employees, and acknowledging that if Contractor does employ any person, the necessary certificate of insurance will immediately be filed with City. Any certificate filed with City shall provide that City will be given ten (10) days prior written notice before modification or cancellation thereof. 13.3 Commercial General Liability and Automobile Insurance. Prior to City's execution of this Agreement, Contractor shall obtain,and shall thereafter maintain during the term of this Agreement, commercial general liability insurance and .automobile liability insurance as required to insure against damages for personal injury, including accidental death, as well as from claims for property damage, which may arise from or which may concern operations by anyone directly or indirectly employed by, connected with, or acting for or on behalf of Contractor. The City and the City, and its officers, employees and agents, shall be named as additional insured's under the Contractor's insurance policies. 13.3.1 Contractor's commercial general liability insurance policy shall cover both bodily injury (including death) and property damage (including, but not limited to, premises operations liability, products-completed operations liability, independent 's liability, personal injury liability, and contractual liability) in an amount not less than $1,000,000 per occurrence and a general aggregate limit in the amount of not less than $2,000,000. 13.3.2 Contractors automobile liability policy shall cover both bodily injury. and —property damage in an amount not less than $500,000 per occurrence and an aggregate limit of not less than $1,000,000. All of Contractor's automobile and/or commercial general liability insurance policies shall cover all vehicles used in connection with Contractor's performance of this Agreement, which vehicles shall include, but are not limited to, owned vehicles, leased vehicles, Contractor's employee vehicles, non-owned vehicles and hired vehicles. 13.3.3 Prior to City's execution of this Agreement, copies of insurance policies or original certificates and additional insured endorsements evidencing the coverage required by this Agreement, for both commercial general and automobile liability insurance, shall be filed with City and shall include the City and its officers, employees and agents, as additional insured's. Said policies shall be in the usual .form of commercial general and automobile liability insurance policies, but shall include the following provisions: It is agreed that the City of Grand.Terrace and its officers, employees and agents, are added as additional insures under this policy, solely for work done by and on D-4 behalf of the named insured for the City of Grand Terrace. 13.4 Subcontractors' Insurance. Contractor shall require all of its subcontractors to carry insurance, in an amount sufficient to cover the risk of injury, damage or loss that may be caused by the subcontractors' scope of work and activities provided in furtherance of this Agreement, including, but without limitation, the following coverage's: Workers Compensation, Commercial General Liability, Errors and Omissions, and Automobile liability. Upon City's request, Contractor shall provide City with satisfactory evidence that Subcontractors have obtained insurance policies and coverage's required by this section. 14. Business Tax. Contractor understands that the Services performed under this Agreement constitutes doing business in the City of Grand Terrace, and Contractor agrees that Contractor will register for and pay a business tax pursuant to Chapter 5.04 of the Grand Terrace Municipal Code and keep such tax certificate current during the term of this Agreement. 15. Time of Essence. Time is of the essence for each and every provision of this Agreement. 16. City's Right to Employ Other. City reserves the right to employ other in connection with the Services. 17. Solicitation. Contractor warrants that they have not employed or retained any person or City to solicit or secure this Agreement, nor has it entered into any agreement or understanding for a commission, percentage, brokerage, or contingent fee to be paid to secure this Agreement. For breach of this warranty, City shall have the right to terminate this Agreement without liability and pay only for the value of work has actually performed, or, in its sole discretion, to deduct'from the Agreement price or otherwise recover from Contractor the full amount of such commission, percentage, brokerage or commission fee. The remedies specified in this section shall be in addition to and not in lieu of those remedies otherwise specified in this Agreement. 18. General Compliance with Laws. Contractor shall keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Professional, or in any way affect the performance of services by Contractor pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances and regulations. 19. Amendments. This Agreement may be modified or amended only by a written Agreement and/or change order executed by the Contractor and the City. 20. Termination. City, by notifying Contractor in writing, shall have the right to terminate any or all of professional's services and work covered by this Agreement at any time, with or without cause. In the event of such termination, Contractor may submit s final written statement of the amount of Contractor's services as of the date of such termination based upon the ratio that the work completed bears.to the total work required to make the report complete, subject to the City's rights under Sections 16 and 21 hereof. In ascertaining the work actually rendered through the termination date, City shall consider completed work, work in progress and complete and incomplete reports and other documents only after delivered to City. D-5 20.1 Other than as stated below, City shall give Contractor thirty (30) days prior written notice prior to termination. 20.2 City may terminate this Agreement upon fifteen (15) days written notice to Contractor, in the event: 20.2.1 Contractor substantially fails to perform or materially breaches the Agreement; or 20.2.2 City decides to abandon or postpone the Services. 21. Offsets. Contractor acknowledges and agrees that with respect to any business tax or penalties thereon, utility charges, invoiced fee or other debt which Contractor owes or may owe to the City, City reserves the right to withhold and offset said amounts from payments or refunds or reimbursements owed by City to Contractor. Notice of such withholding and offset shall promptly be given to by City in writing. In the event of a dispute as to the amount owed or whether such amount is owed to the City, City will hold such disputed amount until either the appropriate appeal process has been completed or until the dispute has been resolved. 22. Successors and Assigns. This Agreement shall be binding upon City and its successors and assigns, and upon Contractor and its permitted'successors and assigns, and shall not be assigned by, Contractor either in whole or in part, except as otherwise provided in paragraph 9 of this Agreement. 23. Governing Law, Venue, Dispute Resolution and Attorneys' Fees. This Agreement shall be governed by and construed in accordance with laws of the State of California. Specifically, Government Code Section 9204 (A summary of which is attached hereto as Attachment "A"). If any disputed portion of the claim is not resolved with the procedure set forth in Attachment "A", prior to commencing suit in a court of competent jurisdiction,_ any unresolved portion of any controversy, dispute or claim arising out of the Agreement shall first be submitted to an alternative dispute resolution process as set forth in Section 24 herein. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement"shall be tried in a court of competent jurisdiction in the County of San Bernardino, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. In the event either party hereto shall bring .suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition of this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs thereof, including reasonable attorneys' fees, to be set by the court in such action. 24. Alternative Dispute Resolution. In the event that there is_any controversy, dispute or claim arising out of or relating to this Agreement, which have not been resolved pursuant to the process outlined in Attachment"A", the parties hereto shall consult and negotiate with each other and, recognizing their mutual interest, attempt to reach a solution satisfactory to both parties. If they do not reach settlement within a period of 60 days, the matter shall be submitted to nonbinding arbitration("Process")by written notice from either party to the other. The parties shall meet and confer in good faith and select an arbitrator that is agreeable to both sides. The Process shall be completed no later than 120 days ("Process Period") after tender of the aforementioned written notice, unless the Parties mutually agree to an extension of the Process Period. If the matter is not successfully resolved by the Process, within the Process Period, the parties are free to commence litigation in a court of competent jurisdiction as defined in Section D-6 23 herein. Any litigation cominenced without both parties' consent prior to the end of the Process Period, shall be subject to a stay until the end of the Process Period. The Parties further agree to equally bear the cost of the Process. 25. Nondiscrimination. During Contractor's performance of this Agreement, Contractor shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of. Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex; or sexual orientation, in the selection and retention of employees and 'subcontractors.and the procurement of materials and equipment, except as provided in Section 12940 of the California Government Code. Further, Contractor agrees to conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. 26. Severability. Each provision, term, condition, covenant and/or restriction, in whole and in. part, of this Agreement shall be considered severable. In the event any provision, term, condition, covenant and/or restriction, in whole and/or in part, of this Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part tlieteof shall be severed from this Agreement and shall not affect any other provision, term, condition, covenant and/or restriction of this Agreement, and the remainder of the Agreement shall continue in full force and effect. - 27. Authority: The individuals executing this Agreement and the instruments referenced herein . on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions Hereof and thereof. 28. Entire Agreement: This Agreement constitutes the final; complete, and exclusive statement of the terms of.the agreement between the parties pertaining to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings or agreements of the parties. Neither party has been induced to enter into this Agreement by, nor is, neither party relying on, any representation or warranty outside those expressly set forth in this Agreement. 29. Interpretation. City and Contractor acknowledge and agree that this Agreement is the product of mutual anus-length negotiations and accordingly, the rule of construction, which provides that the ambiguities in a document shall be construed against the drafter of that document, shall have no application to the interpretation and enforcement of this Agreement. 29.1 Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of the Agreement or any of its terms. References to section numbers are to sections in the Agreement unless expressly stated otherwise. 29.2 This Agreement shall be governed by and construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. D-7 i IN WITNESS WHEREOF City and Contractor have caused this Agreement to be duly executed the day and year first above written. THE CITY OF GRAND TERRACE, A public body By: G. d Du City al ger Attest: _ Debra L. Thomas City Clerk APPROVED AS O FO aL:: �.��• Cr✓r rG City Attorney CONTRACTOR By: [Printed Name and Title] D-9 ATTACHMENT"A" SUMMARY OF PUBLIC CONTRACT CODE § 9204 A"claim"is a separate demand on the City by a contractor on a public works project and sent by registered mail or certified mail with return receipt requested, for one or more of the following: •A time extension, including relief from penalties for delay; • Payment by the City of money damages under the terms of the contract; • Payment of an amount that is disputed by the City. Initial Review The claim must be supported by appropriate documentation. The City has 45 days within which to review the claim and provide the contractor with a written statement identifying the disputed and undisputed portions of the claim. If the City does not issue a written statement,the claim is deemed rejected in its entirety. The City will pay any undisputed portion of the claim within 60 days of issuing the statement. Meet& Confer If the contractor disputes the City's written response, or if the City does not issue one,the contractor may request in writing an informal conference to meet and confer for possible settlement of the claim. The City will schedule the meet and confer conference within 30 days of this request and provide a written statement identifying the remaining disputed and undisputed portions of the claim within 10 business days of the meet and confer. The City will pay the undisputed portion within 60 days of issuing this statement. Mediation With respect to any disputed portion remaining after the meet and confer,the City and contractor must submit the matter to nonbinding mediation, agree to a mediator within 10 business days after issuing the written statement, and share mediation costs equally. If mediation is unsuccessful,then the terms of the public works agreement and applicable law will govern resolution of the dispute. Miscellaneous Provisions Amounts not paid by the City in a timely manner bear interest at 7%per annum. Subcontractors may submit claims via this procedure through the general contractor. The City and contractor may waive the requirement to mediate, but cannot otherwise waive these claim procedures D-10 ji. r.l1i _ -y A L L C I TIE S E N G I N E E R I N G I N C _ 5881 Snowgrass Trail Jurupa Valley,Ca. 92509 (909)643- 3398 10/12/2018 PROPOSAL I PROPOSE TO FURNISH ALL MATERIAL AND PERFORM ALL LABOR NECESSARY TO COMPLETE THE FOLLOWING: N0. NIT ESTIMED QUANTITY ''.ITE,M'PRICE. TOTAL ITEM �.• DESCRIPTION :U AT... . ,:•• 1 MOBILIZATION LS 1 $1,000:00 $1,000.00 2 ADA RAMP PER CITY STD EA 1 $4,250.00 $4,250.00 3 REMOVE AND HAUL AWAY EXISTING EA 2 $250. 00 $500.00 CONCRETE PLANTER BORDERS AND ASPHALT 4 REPLACE CONCRETE PLANTER EA 2 $500.00 $1000.00 BORDERS AND PATCH DAMAGED ASPHALT 5 6 OTAL 6 750.0 8 9 10 11 12 13 14 15 Quotation prepared by: JAVIER CASTRO This is a quotation on the goods named,subject to the conditions noted below: INCLUDES PREVAILING WAGES PRICE DOES NOT INCLUDE PERMITS [Quantities will be measured at end of project and billed Accordingly.] THIS PRICE IS GOOD FOR 30 DAYS To accept this quotation, sign here and return: Thank you for your business!