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HomeMy WebLinkAboutWhillock Construction, Inc. Demolition Playhouse 500 E Plaza - 2016AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND WHILLOCK CONTRACTING, INC. THIS AGREEMENT is entered into by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and WHILLOCK CONTRACTING, INC., a corporation (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to provide hazardous materials removal & disposal and demolition, removal and disposal of building materials at 500 E. Plaza Blvd. WHEREAS, the CITY has determined that the CONTRACTOR is a corporation and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY agrees to engage the CONTRACTOR, and the CONTRACTOR agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services shall be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on June 7, 2016. The duration of this Agreement is for the period of June 7, 2016 through December 31, 2016. The working days to complete and finalize their work is set forth in Section 7 of Attachment A. 3. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit "A". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall appear at meetings to keep staff and City Council advised of the progress on the Project. The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 25% from the base amount. 4. PROJECT COORDINATION AND SUPERVISION. Carlos Aguirre is hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Chris Moore thereby is designated as the Project Director for the CONTRACTOR. 5. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A" shall not exceed $106,712 — Base amount plus Additive Proposal Alternates A & B without prior written authorization from the City. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 6. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONTRACTOR and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. 2 City of National City and Whitlock Contracting, Inc. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CITY, and CONTRACTOR thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONTRACTOR'S written work product for the CITY'S purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or SUBCONTRACTORS, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its SUBCONTRACTOR(S) shall require the SUBCONTRACTOR(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S employees, except as herein set forth, and the CONTRACTOR or the CONTRACTOR'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONTRACTOR its agents, servants, and employees are as to the CITY wholly independent CONTRACTOR, and that the CONTRACTOR'S obligations to the CITY are solely such as are prescribed by this Agreement. 3 City of National City and Whillock Contracting, Inc. 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR and each of its SUBCONTRACTOR(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 12. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR'S professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and 4 City of National City and Whitlock Contracting, Inc. selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, or employees. CITY will cooperate reasonably in the defense of any action, and CONTRACTOR shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 5 City of National City and Whillock Contracting, Inc. 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 17. INSURANCE AND BONDS. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONTRACTOR(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ❑ If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Contractor's Pollution Liability and/or Asbestos Pollution Liability will be applicable to the work to be performed, with a limit of no less than $2,000,000.00 per occurrence and $4,000,000.00 aggregated per policy period of one year. If the Contractor maintains broader coverage and/or high limits than the City requires then the City shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. E. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONTRACTOR has no employees subject to the California Workers' Compensation and Labor laws, CONTRACTOR shall execute a Declaration to that effect. Said Declaration shall be provided to CONTRACTOR by CITY. 6 City of National City and Whitlock Contracting, Inc. F. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. K. Performance and Payment Bonds. CONTRACTOR shall furnish the City with a Performance Bond equal to 100% of their bid, and a Payment Bond equal to 100% of their bid, prior to execution of the Agreement. All bonds are to be secured from a surety company that meets all of the State of California bonding requirements, as defined in Code of Civil Procedure Section 995.120, and is authorized by the State of California, and all documents required by Code of Civil Procedure Section 995.660, to the extent required by law. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 7 City of National City and Whitlock Contracting, Inc. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 7. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is 8 City of National City and Whillock Contracting, Inc. outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Carlos Aguirre Community Development Manager Housing and Asset Management City of National City 140 E. 12th, Suite B National City, CA 91950-4301 To CONTRACTOR: Chris Moore Project Manager Whillock Contracting, Inc. P.O. Box 2322 La Mesa, CA 91943 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. 9 City of National City and Whitlock Contracting, Inc. The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 22 by the CONTRACTOR. 23. PREVAILING WAGES. CONTRACTOR shall comply with state prevailing wage requirements, as further set forth in Section 10.1.2 of Attachment A. 24. ADDITIONAL GENERAL CONTRACT TERMS AND CONDITIONS. CONTRACTOR shall comply with the general contract terms, conditions, and requirements attached hereto and incorporated herein as Attachments A through L. More specifically, CONTRACTOR shall: 1) comply with the General Contract Conditions contained within Attachment A; 2) submit a complete and executed Performance Bond - Attachment B; 3) submit a complete and executed Payment Bond - Attachment C; 4) execute the Certificate Regarding Contractor's License attached as Attachment D; 5) submit a completed and executed Designation of Subcontractors - Attachment E; 6) execute the Contractor's Certificate of Worker's Compensation Insurance - Attachment F; 7) submit a completed Emergency Notification List - Attachment G; 8) execute the Gurantee Agreement - Attachment H; 9) submit a completed Contractor's Certification of Completion when the work is completed - Attachment I; 10) submit a completed and executed Contractor's Affidavit of Payment — Attachment J; 11) submit a completed and executed Consent of Surety for Final Payment — Attachment K; and, 12) submit a completed and executed Contractor's Affidavit of Disposal upon completion of the contract — Attachment L. 25. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. 10 City of National City and Whillock Contracting, Inc. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such parry's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. 11 City of National City and Whitlock Contracting, Inc. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Ron Morrison, Mayor PROVED Claudia Gac' City Attorney STOFO 12 WHILLOCK CONTRACTING, INC. (Corporation — signatures of two corporate officers required) By: By: (Name) (Print) ecreocy (Title) (Name) v& _ B• Whrlla.k. (Print) (Title) City of National City and Whillock Contracting, Inc. EXHIBIT A EMERGENCY CONTRACT Hazardous Material Removal & Disposal and Demolition, Removal and Disposal 500 E. Plaza, National City, CA 91950 This is a prevailing wage project under the laws of the State of California. 100% Performance and Labor/Materials Bonds are required SCOPE OF SERVICES AND PROPOSED PRICE BASE PROPOSAL, (Phases 1 & 2) Phase 1 1. Mobilization. 2. Obtain necessary permits. (City to reimburse actual permit fees.) 3. Install and maintain storm water BMP's. 4. Provide proper SDAPCD notification for abatement. 5. Removal of all hazardous and asbestos containing materials identified in Air & Building Sciences, LLC report dated January 30, 2006. 6. Removal and disposal of all plastics (seating chairs, carpet flooring, vinyl flooring, light fixtures, etc.). 7. Provide and install proper signage, if required. 8. Demobilize. Phase 2 1. Fire Department to burn structure to rubble. O 1:2T d ht Nd 7 OfKle 2. Mobilize for complete removal and disposal. 3. Install and maintain storm water BMP's. 4. Remove and dispose of structure rubble, burn ash and all building remains. 5. Materials to be disposed of as C&D material (non recyclable). 6. Demolish and dispose of all block and concrete walls, slabs and foundations from existing building. 7. import and place fill soil materials and compact to 90% relative compaction from City soil stockpile located near Harding Avenue and 20th Street in National City. Fill all excavations as a result of the foundation and wall removal to within 2" of finish grade. 8. Clean the site of all remaining debris, loose soil, and dust. 9. Demobilize. Id30Md >R9N3 BASE PROPOSAL LUMP SUM PRICE: $ 97,043 .00 ADDITIVE PROPOSAL ALTERNATE "A": 1. Install straw waddle around the excavated area. ADDTIVE PROPOSAL ALTERNATE "A" LUMP SUM PRICE: $ AiTO ) 3I1GN 20 AID 1,329.00_ ADDITIVE PROPOSAL ALTERNATE "B": 1. Pave the remaining 2" to finished grade with C-2, PG-6410 asphalt in accordance to 2012 Greenbook standards. DESCRIPTION UNIT QTY UNIT PRICE EXTENSION 2"AC Payment TON 60 $139.00 $8,340.00 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT NON -COLLUSION AFFIDAVIT The undersigned declares: The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or a sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose. Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder and has full knowledge of whether any acts of collusion occurred or did not occur. I declare under penalty of perjury under the taws of the State of California that the foregoing is true and correct and that this declaration is executed on: 4/18/16 Date Signature of Corporate Offi or Owner Tory M. Whillock /°Secretary Print name and title Whillock Contracting, Inc. Name of Company Non -Collusion Affidavit Page 1 of 1 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT CERTIFICATE REGARDING CONTRACTOR'S LICENSE 1. Contractor is required to possess one of the following State Contractor's License: State of California Class "A or 8"' Contractor's License, contractor doing asbestos abatement must have a C22 license and ASB certification. 2. A failure to possess the required license, a failure to truthfully set forth the following information, or a failure to execute this Certificate renders the proposal nonresponsive and requires the City to reject the proposal. (Business and Professions Code Section 7028.15) 3. Contractor declares, under penalty of perjury, that he possesses the required Contractor's license(s) which: a. Bears the license number(s): 572217 b. Expires on: 06/30/2017 c. Official Company Name: Whitlock Contracting, Inc. This required license determination has been made by the Owner. Any Contractor holding a different license who feels he is qualified to bid on this work must so advise the owner at least seven (7) days prior to the bid opening. A review of the contemplated work will be made and the Owner's decision as to the required license will be final. Certificate Regarding Contractor's License Page 1 of 1 %., ,,> CONTRACTORS STATE LICENSE BOARD V, Contractor's License Detail for License # 572217 DISCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this Information, you should be aware of the following limitations. CSLB complaint disclosure le restricted by law (88P 7124.6) If this entity s subject to pubic complaint dsclosure, a Mk for complaint disclosure wll appear below. Click on the Irk or button to obtain complebt and/or legal action nfomatton Per B8P 7071.17, only construction related civil judgments reported to the CSLB are daclosed. Prthmaona are not listed unless the contactor falls to comply with the teams of the arbitration. Due to workload, there maybe relevant Mormation that has not yet bean misted onto the Boards fcense database. Oata current as of 4/14/2016 11:10:03 AM Business Information WHiLLOCK CONTRACTING INC P O BOX 2322 LA MESA. CA 91943 Business Phone Number..(619) 579-0700 Entity Corporation Issue Date 08✓30/1989 Expire Date 06/30/2017 License Statue !This license is current and active. Information below should be reviewed. Classifications A - GENERAL ENGINEERING CONTRACTOR C21 • BUILDING MOVING, DEMOLITION C12 - EARTHWORK AND PAVING B - GENERAL BUILDING CONTRACTOR C22 - ASBESTOS ABATEMENT Certifications 1. ASS- ASBESTOS (Check COSH Asbestos Registration) HAZ - HAZARDOUS SUBSTANCES REMOVAL Bonding Information Contractor's Bond fihis license fled a Contractor's Band with TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA. "Bond Number: 106312186 !Bond Amount: $15,000 'Effective Date: 01/01/2018 }Contractor's Bond History Bond of Qualifying Individual The qualifying individual MARK BATEMAN WHILLOCK certified that he/she owns 10 percent or more of the voting stock/membership Interest of this company; therefore, the Bond of Qualifying Individual is not required. Effective Date: 05/19/2015 Kira Bond History The qualifying Individual BRENT PATRICK WHILLOCK certified that he/she owns 10 percent or more of the voting stock/membership Interest of this company; therefore, the Bond of Qualifying Individual Is not required. Effective Date: 04/29/2008 [This license has workers compensation insurance with !Policy NumberA681665801 !Effective Date: 08/01/2012 !Expire Date: 08/01/2018 h/Vorkers' Compensation History__._____._....___....._--.-._ .. Workers' Comoenattign e CALIFORNIA INSURANCE COMPANY 115/1e/2o15 • COSH REGISTRATION VERIFIED FOR C22 Miscellaneous Information Other I Personnel fisted on this license (currant or disassociated) are bated on other licenses. J j I of l 4114/201611:10 AM SOO E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT DESIGNATION OF SUBCONTRACTORS In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act (Section 4100 et sec of the Government Code of the State of California) the Bidder has set forth below the full name and the location of the place of business of each Subcontractor who will perform work or labor or render service to the Prime Contractor in or about the construction of the work or improvement, or a Subcontractor licensed by the State of California who, under subcontract to the Prime Contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications to which the attached bid is responsive, and the portion of the work which will be done by each Subcontractor for each subcontract in excess of one-half of one percent of the Prime Contractor's total bid. The Bidder understands that if he fails to specify a subcontractor for any potion of the work to be performed under the contract in excess of one-half of one percent of his bid, he shall be deemed to have agreed to perform such portion of the work with contractor's own forces. Substitution shall not be allowed, except in cases of public emergency or necessity, and then only after a finding, reduced to writing as a public record of the City, setting forth the facts constituting the emergency or necessity. If no subcontractors are to be employed on the project, enter the word "'NONE". Use an additional sheet and attach if necessary. Number of sheets attached for listed subcontractors 1. Percentage (%) of total contract amount that is subcontracted 28.8:1 (Do not include specialty items in the calculation.) Designation of Subcontractors Page 1 of 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT DESIGNATION OF SUBCONTRACTORS Subcontractor Name Business Location CSLB be se DIR Registration Number Description of Work Subcontractor ContractNu Amount ($) Portion Ifk ASE Contracting, Inc. El Cajon, CA 765083 1000009348 Abatement $27,957.00 28.81% _ Kirk Paving, Inc Lakeside, CA 749206 1000002341 Asphalt Paving - Alternate Bid Item #2 $7,920.00 N/A Designation of Subcontractors Page 2 of 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT IRAN CONTRACTING ACT CERTIFICATION (Public Contract Code section 2200 etseq.) As required by California Public Contract Code section 2204, under penalty of perjury the Contractor hereby certifies upon execution of this document that the following statements as to the Contractor's status in regard to the Iran Contracting Act of 2010 (Public Contract Code section 2200 etseq.) is true and correct: The Contractor is not: 1. identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203; or 2. provides goods or services of twenty million dollars ($20,000,000) or more in the energy sector of Iran, including a person that provides oil or liquefied natural gas tankers, or products used to construct or maintain pipelines used to transport oil or liquefied natural gas, for the energy sector of Iran; or 3. a financial institution that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran. In accordance with Public Contract Code section 2205, false certification of this form will be reported to the California Attorney General and may result in civil penalties equal to the greater of $250,000 or twice the Contract Price, termination of the Contract and/or ineligibility to bid on contracts for three years. Whillock Contracting, Inc Company Name Signature of Corporate 0 r or Owner Tory M. Whillock / Secretary Print Name and Title 04/18/2016 Date This Certification applies to Contracts over $1,000,000 Iran Contracting Act Certification Page 1 of 1 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of industrial Relations. See http://www.dir.ca.gov/Public-Works/PublicWorks.html for additional information. No bid will be accepted nor any contract entered into without proof of the contractor's and subcontractors' current registration with the Department of Industrial Relations to perform public work. By submitting this form the Bidder hereby certifies that he/she is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of 'Industrial Relations. Name of Bidder: Whitlock Contracting, Inc DIR Registration Number: 1000001767 Bidder further acknowledges: 1. Bidder shall maintain a current DIR registration for the duration of the project. 2. Bidder shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contracts with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project. 3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non -responsive. Public Works Contractor Registration Certification Page 1 of 1 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT CONTRACTOR'S CERTIFICATE OF WORKER'S COMPENSATION INSURANCE Section 3700 of the Labor Code provides in part as follows: "Every employer except the state shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation to one or more insurers duly authorized to write compensation insurance in this state,. (b) By securing from the Director of Industrial Relations a certificate of consent to self -insure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his employees. I am aware of the provisions of Section 3700 of the Labor Code, which require every employer to be insured against liability for worker's compensation or to undertake self-insurance in accordance with the provisions of that code, and 1 will comply with such provisions before commencing theperformance of the work of this contract. 1 further certify that if I should contract or subcontract with any person, including firm or company, to do all or any part of the work for which this proposal covers, I shall assure compliance by that contractor or subcontractor with the provisions of Section 3700 of the Labor Code. (In accordance with Article 5, commencing at Section 1860, Chapter 1, Part 7, Division 2, of the Labor Code, the above certificate must be signed and filed with the awarding body with proof of insurance, or self-insurance prior to performing any work under this contract.) Contractor's Certificate of Worker's Compensation Insurance Page 1 of 1 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT INFORMATION REQUIRED OF BIDDERS Failure to complete all information may render your bid non -responsive. (Indicate not applicable "N/A" where appropriate.) NOTE: Where Bidder is a joint venture, pages shall be duplicated and information provided for all parties to the joint venture. Name of Bidder: Type, if Entity: Bidder Address: Whillock Contracting, Inc Corporation P.O. Box 2322 La Mesa, CA 91943 619-579-0955 619-579-0700 estimating@whillockcontracting.com Facsimile Number Telephone Number E-Mail How many years has Bidder's organization been in business as a Contractor? 25+ How many years has Bidder's organization been in business under its present name? 25+ Under what other or former names has Bidder's organization operated? Whitlock Construction If Bidder's organization is a corporation, answer the following: Date of Incorporation: 06/10/1988 State of Incorporation: California President's Name: Mark B. Whitlock Vice -President's Name(s): Brent P. Whillock Secretary's Name: Treasurer's Name: Tory M. Whitlock Susan K. Whillock Information Required of Bidders Page 1 of 3 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT If an individual or a partnership, answer the following: Date of Organization: N/A Name and address of all partners (state whether general or limited partnership): N/A If other than a corporation or partnership, describe organization and name principals: N/A List other states in which Bidder's organization is legally qualified to do business: N/A What type of work does the Bidder normally perform with its own forces? Demolition, grading, and excavation Has Bidder ever failed to complete any work awarded to it? If so, note when, where, and why: No. Within the last five years, has any officer or partner of Bidder's organization ever been an officer or partner of another organization when it failed to complete a contract? If so, attach a separate sheet of explanation: No. Information Required of Bidders Page 2 of 3 500 E. PLAZA DEMOLITION AND DISPOSAL List Trade References: Donald D. Differnbaugh Construction Inc. (619) 654-1375 HM Pitt Labs, Inc SKS Inc. (619) 981-0267 (800) 275-00839 BID DOCUMENT List Bank References (Bank and Branch Address): California Bank & Trust Alpine Branch #204 2250 Alpine Blvd. Alpine, CA 91901 Name of Bonding Company and Name and Address of Agent: Travelers Casualty & Security Companyof America c/o Jerry Mosier (619) 749-1102 PO Box 2149 Lakeside, CA 92040 Information Required of Bidders Page 3 of 3 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT VERIFICATION AND EXECUTION By signing and submitting this Verification and Execution torm, the bidder certifies and declares under penalty of perjury under the laws of the State of California that all the information contained in all bid documents is true and correct and that any deviations, errors and omissions may subject the bid to a determination as non -responsive. Further, the bidder agrees to defend by legal counsel of the Agency's choosing, and to indemnify and hold harmless the City of National City against all legal challenges to this bidder's bid. Whillock Contracting, Inc. Official Company Name DBA, if any Signature of Corporate Offices-6r Partner, or Owner Tory M. Whillock / Secretary Print name and title Signature of second Corpor Officer (required for corporations) Mark B. Whillock / President Print name and title 04/18/2016 Date Failure to fully execute this document will render the bid non -responsive. Verification and Execution Page 1 of 1 Exhibit B Playhouse on Plaza Demolition Project- Background and Explanation The property originally was a Christian Science Church building. In 1976, a small non-profit theater production company, Lamb's Players Incorporated, purchased, renovated, and used the facility as a venue for 119 productions until 1994, when Lamb's opened a new theater in Coronado. The old arena - style theater, which some compared to a slightly less plush version of The Old Globe Theatre's Cassius Carter Centre Stage, accommodated a maximum occupancy of 172 people. Its backstage rooms and cubicles doubled as Lamb's administrative offices during the day. On April 28, 2005, the Community Development Commission of the City of National City purchased the Playhouse from Lamb's Players Incorporated (closed escrow on May 26, 2005) and has held it as a vacant property since. There is no public record of any improvements being made on this property. A resolution adopted on December 13, 2005 states that environmental studies under CEQA are not applicable to the construction management of the Playhouse on Plaza. The document also states that after inspection by Fire and Building Safety Staff, the property was not suitable for use. Proposals to renovate by non -profits to keep the building operational have been made, yet improvements were deemed too costly. At that time renovation estimates ranged from $1,000,000 to $3,000,000. The property was appraised on 3/20/2016. The value of the property, as is, with the building intact is $400,000. The value of the property, vacant, with the building removed is $495,000. The value is in the land, not the building. The clearing of the building improves the value of the parcel and removes any ongoing health and safety issues. The building and property were previously owned by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency. Ownership was transferred to the City of National City on May 17, 2016, through Council Resolution 2017-70 and Successor Agency Resolution 2017-77. Unsafe Conditions of Building The building was damaged in a fire on May 22, 2015 leaving a hole in the roof of the conference room area of the building. The opening created by the fire has exposed the interior of the building to the elements. It also provided an access point for homeless people to enter the building. There has been a constant homeless issue at this location for several years now. The city has received complaints from area residents about the homeless congregating at the playhouse. The police department and code enforcement have had to clean people out of the unsafe building several times. The City Housing Inspector has deemed the building Unsafe to Occupy. Investigations made by the Fire Marshall and the Building Official in April of 2016 revealed structural deterioration in the basement at the south entryway and that fire damage compromised windows, doors, interior, and exterior walls, and flooring. Due to the outstanding conditions that are out of compliance with the California Fire Code, Life Safety Code, and California Code of Regulations staff recommends that the City Council declare the demolition and remediation an emergency and waive the public advertising for the contract bid process as typically required due to the adverse and hazardous conditions of the building. Exhibit B Controlled Burn Exercise and Demolition As part of the removal, the National City Fire Department would like to conduct a controlled burn exercise. A contractor is needed to prepare the building for the exercise and remove the debris after the burn. The City contacted three contractors requesting proposals for the work. After reviewing the proposals, Whillock Contracting Inc. was selected as the lowest responsible bidder. The work will be conducted in the following phases: 1. Contractor will obtain all required permits, provide proper signage (if required) and take all preparatory steps for the removal of hazardous and asbestos containing materials; and, remove and properly dispose of all hazardous materials from existing building prior to the burn exercise. 2. National City Fire Department will conduct a controlled burn sometime during the late summer / early fall. 3. Contractor will remove and dispose structure rubble, burn ash, and building remains; demolish and dispose of all block and concrete walls, slabs, and foundation; import and place fill soil materials and compact to 90% relative compaction and fill any excavation to within 2" of finish grade; and, clean site of all remaining debris, loose soil, and dust. After the building burn, demolition, and removal of debris, the City of National City will continue to maintain the vacant lot. ATTACHMENT A GENERAL CONTRACT CONDITIONS SECTION 1 - CHANGES IN WORK 1-1 CHANGES INITIATED BY THE CITY 1-1.1 General. With the signing of the contract documents, the contractor acknowledges that his representative is authorized to sign change orders. 1-1.2 Agreed Prices. All proposed change order work shall be submitted with a detailed cost estimate. The detailed cost estimate shall indicate material, labor, equipment, overhead, and all incidentals required to perform change in work. 1-1.3 Payment for Overtime Work. Except as otherwise provided in this Section, the Contractor shall not receive additional compensation for overtime work; i.e., work in excess of eight (8) hours in any one calendar day or forty (40) hours in any one calendar week, even though such overtime work may be required under emergency conditions and may be ordered by the Engineer in writing. Additional compensation will be paid to the Contractor for overtime work only in the event extra work is ordered by the Engineer and the change order specifically authorizes the use of overtime work and then, only to such extent as overtime work of a similar nature in the same locality. All costs of inspection and testing performed during overtime work by the Contractor, which is allowed solely for the convenience of the Contractor shall be borne by the Contractor. The City shall have the authority to deduct the cost of all such inspection and testing from any partial payments otherwise due to the Contractor. 1-1.4 General. The Contractor, in providing the services set forth herein, shall not perform work in excess of the project without the written permission of the City or its designated representative. All requests for extra work shall be by written change order submitted to the City prior to the commencement of the work. 1-1.6 Payment. 1-1.7.1 Basis for Establishing Costs. (a) Labor. The costs of labor will be the actual cost for wages prevailing for each craft or type of workers performing the extra work at the time extra work is done, plus a labor surcharge set forth in the California Department of Transportation publication entitled "Labor Surcharge and Equipment Rates", which is in effect on the date upon which the work is accomplished and which is a part of the Contract. Said labor surcharge shall constitute full compensation for all payments imposed by the State and Federal laws and for all other payments made to, or on behalf of, the workman, other than the prevailing wages. The use of labor classifications which would increase the extra work cost will not be permitted unless the Contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not In! itials included in the invoice for equipment rentals. The labor cost for workers shall be proportioned to all of their assigned work and only that applicable to extra work shall be paid. Non -direct labor costs including superintendence shall be considered part of the mark-up of subsection 3-3.2.3(a) (b) Tool and Equipment Rental. The Contractor will be paid for the use of equipment at the rental rates listed for such equipment in the Department of Transportation publication entitled "Labor Surcharge and Equipment Rental Rates" which is in effect on the date upon which it is accomplished and which is a part of the Contract, regardless of ownership and any such rental or other agreement, if such may exist, for the use of such equipment entered into by the Contractor. If it is deemed necessary by the Engineer to use equipment not listed in the said publication, a suitable rental rate for such equipment will be established by the Engineer. The Contractor may furnish any cost data, which might assist the Engineer in the establishment of such rental rate. 1-1.7.2 Markup. (a) The markup for extra work by the contractor for their own work shall be: a. Labor 20% b. Materials 15% c. Tools and equipment 15% (b) The markup for extra work by the subcontractor for their own work shall be: a. Labor 20% b. Materials 15% c. Tools and equipment 15% The prime contractor markup for subcontractor work shall be 5%. Regardless of the number of hierarchical tiers of Subcontractors, the 5% Contractor's mark-up may be applied one time only to the performing Subcontractor's total cost. Costs for additional bond premiums shall be calculated at the end of the project and a change order for the credit or additional costs shall be paid at that time by Change Order. SECTION 2- DISPUTE RESOLUTION PROCESS. 2-1.1 Mandatory Non -Binding Mediation. If a dispute arises out of, or relates to this contract, or the breach thereof, and if said dispute cannot be settled through contract provisions provided for claim settlement or negotiations, the parties agree to first endeavor to settle the dispute in an amicable manner, using mandatory mediation under the Construction Industry Mediation Rules of the American Arbitration Association or any other neutral organization agreed upon before having recourse in a court of law. 2-1.2 Mandatory Mediation Costs. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator, and the cost of any proofs or expert advice produced Initials at the direct request of the mediator, shall be borne equally by the parties, unless they agree otherwise. 2-1.3 Selection of Mediator. A single mediator that is acceptable to both parties shall be used to mediate the dispute. The mediator will be knowledgeable in construction aspects and may be selected from lists furnished by the American Arbitration Association (AAA) or any other agreed upon mediator. To initiate mediation, the initiating party shall serve a Request for Mediation on the opposing party. If the mediator is selected from a list provided by AAA, the initiating party shall concurrently file with AAA a "Request for Mediation" along with the appropriate fees; a copy of requested mediators marked in preference order, and, a preference for available dates. If AAA is selected to coordinate the mediation (Administrator), within 10 Working Days from the receipt of the initiating party's Request for Mediation, the opposing party shall file the following: a copy of the list of the preferred mediators listed in preference order, after striking any mediators to which they have any factual objection, and, a preference for available dates. If the parties agree not to use AAA, then a mutually agreed upon mediator, date and place for the mediation shall be agreed upon. The Administrator will appoint or the parties shall agree upon the highest, mutually preferred, Mediator from the individual parties' lists who is available to serve within the designated time frames. 2-1.4 Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal manner and discovery will not be allowed. The discussions, statements, or admissions will be confidential to the proceedings and will not be used for any other purpose as it relates to the party's legal position. The parties may agree to exchange any information they deem necessary. Both parties shall have an authorized representative attend the mediation. Each representative shall have the authority to recommend entering into a settlement. Either party may have attorney(s), witnesses or expert(s) present. Either party may request a list of witnesses and notification whether attorney(s) will be present. Any resultant agreements from mediation shall be documented in writing. Mediation results and documentation, by themselves, shall be "non -binding" and inadmissible for any purpose in any legal proceeding, unless such admission is otherwise agreed upon, in writing, by both parties. Mediators shall not be subject to any subpoena or liability and their actions shall not be subject to discovery. 2-1.5 Dispute Resolution Board. If mediation is unsuccessful in settling the dispute and if both parties agree, a no mandatory dispute resolution board process may be used. The parties may impanel a Dispute Resolution Board (DRB) and the DRB process shall be conducted in accordance with the City's alternative dispute resolution process, utilizing board members who are individuals who have expertise in construction. The selection process shall be administered by the American Arbitration Association, or any other such neutral organization selected by the City, hereinafter called the "Administrator". Claims made for $60,000 or less shall be heard by 1 DRB member and claims for more than $60,000 shall be heard by 3 DRB members. To initiate the DRB procedures, the parties shall jointly execute and file a "Submission to Dispute Resolution Board Procedures" request with the Administrator. Upon receipt by the Administrator Initials of the submission form, the Administrator shall furnish to the parties a list of individuals skilled in dispute resolution and having expertise in construction from which to select the Dispute Resolution Board. Within 10 Working Days from the date the list is sent to the parties, the parties shall return the list to the Administrator, striking any individuals to which the parties have any factual objections and numbering the remaining in preference order. The Administrator shall appoint the highest mutually preferred individuals to the DRB that are available to serve in the time frame designated above. 2-1.6 Dispute Resolution Board Costs. The costs for DRB hearings and proceedings, which include those of either the 1 person or 3 person boards hearing the dispute, will be shared equally by both parties. Fees shall be jointly negotiated by both parties directly with the DRB Adm inistrator. 2-1.7 Conduct of Dispute Resolution Board Hearings. DRB hearings shall be informal and discovery shall not be permitted. The parties may agree to exchange any information they deem necessary. Each party shall have a maximum of 2 hours for presentation, unless otherwise agreed upon. Outside experts, including attorneys, may address their specialty if the opposing party is notified in advance. Each party will be given full opportunity to present its views and supporting information, including documents, drawings, or other pertinent material. All such evidence and displays shall be considered confidential and shall be retained by the presenting party. Discussions or admissions during DRB discussions shall be considered as part of privileged settlement discussions, without prejudice to any party's legal position. Any resultant agreements from a DRB Hearing shall be documented, in writing, by both parties. The DRB results and documentation, by themselves, shall be non -binding and inadmissible for any purpose in any legal proceeding, unless such admission is otherwise agreed upon, in writing, by both parties. DRB members shall not be subject to any subpoena or liability and their actions shall not be subject to discovery. Within 10 Working Days after the hearing, the DRB will make its recommendation, in writing, for resolution of the dispute to all parties. The DRB will strive for consensus and unanimity in its decision making. If such is unattainable, however, separate written recommendations may be made as majority or minority reports. 2.2 CLAIMS. Claim is a written demand by the Contractor that seeks an adjustment in the Contract Price or the Contract Time, or other relief associated with a dispute arising under or relating to the Contract, including a breach of any provision thereof. A voucher, invoice, or other routine request for payment is not a Claim. A Claim shall conform to these specifications and may be considered after the City has previously denied a request by the Contractor for a Change Order seeking the demanded relief. The Contractor shall submit a Claim to the City if a dispute occurs that arises from or relates to the Contract. The Claim shall seek all relief to which the Contractor asserts it is entitled as a result of the event(s) giving rise to the dispute. The Contractor shall substantiate Claims, and shall process Claims in accordance with this subsection. The Contractor's failure to process a Claim in accordance with this subsection shall constitute a waiver of all relief associated with the dispute. Claims shall be subject to 6-11, "CITY'S RIGHT TO AUDIT." Initials Contractor shall continue to perform the Services and the Work and maintain the Schedule during any dispute proceedings and City will continue to make payments for undisputed Services and Work. A claim arising under the Contract, unlike a claim relating to the Contract, is a claim that can be resolved under a Contract provision that provides for or excludes the relief sought by the claimant. Such claims shall be resolved under the applicable provisions of the Contract. The City's claims process in this subsection shall not relieve Contractor of his statutory obligations to present claims prior to any action under the California Government Code. 2-2.1 Time of Claim. The Contractor shall promptly, but in no event later than 30 days after the event(s) giving rise to the claim, deliver the claim to the City. The Contractor shall not process a claim unless the City has previously denied a request by the Contractor for a Change Order that sought the relief to be pursued in the claim. 2-2.2 Claim Certification Requirements. If the claim seeks an increase in the Contract Price, the Contract Time, or both, the Contractor shall submit with the claim an affidavit certifying that: a) The claim is made in good faith and covers all costs and delays to which the Contractor is entitled as a result of the event(s) giving rise to the claim; b) The amount claimed accurately reflects the adjustments in the Contract Price, the Contract Time, or both to which the Contractor believes it is entitled; and c) All supporting costs and pricing data are current, accurate, complete, and represent the best of the Contractor's knowledge and belief. The Contractor shall ensure that the affidavit is executed by an official who has the authority to legally bind Contractor. 2-3.3 Claim Resolution Process. The Contractor shall submit claim certification and request for a settlement meeting and the City's Determination to the Engineer within 20 Working Days of receipt of the Engineer's initial determination. 2-3.4 Initial Determination. Initial Determination is the City's written approval or non -approval of a Claim from the Contractor. Within 30 days of receipt of a Claim, the City will deliver an Initial Determination to the Contractor. The City will not consider and will return to the Contractor any written demand that does not conform to the requirements of 3-7, "CLAIMS." 2-3.5 Final Determination. If the Contractor disagrees with the Initial Determination, the Contractor may request a Final Determination. The Contractor's request shall be in writing and shall be delivered to the City within 30 days of the date of the Initial Determination. The City will deliver a Final Determination to the Contractor within 30 days after receipt of the Contractor's written request. Final Determination is the City's final written decision on the Contractor's appeal of the City's Initial Determination on the Contractor's Claim. 2-3.6 Settlement Meeting. Within 15 Working Days of receipt of the Contractor's request for a "Settlement Meeting", the Engineer will schedule a "Settlement Meeting" between the Contractor's representative, the City's representative, and the Engineer. This meeting will be an opportunity for the Contractor to explain its claim to senior management of the City. If a settlement agreement cannot be reached, the Engineer and the City will proceed to make a joint written determination. " V Initials 2-3.7 City's Determination. The City will make a written determination within 20 Working Days after the settlement meeting. The written determination shall be final and binding on the Contractor unless the Contractor notifies the City and the Engineer in writing of its objection within 15 Working Days after receipt of the written determination, and files a "Request for Mediation" in accordance with 3-6, "DISPUTE RESOLUTION PROCEDURES." Failure to give notice of objection within said 15 Working Days period shall be deemed to be a waiver of its right to pursue the claim. 2-3.8 Mandatory Assistance. If a third party dispute or litigation, or both, arises out of, or relates in any way to the Services provided under this contract, upon the City's request, the Contractor agrees to assist in resolving the dispute or litigation. The Contractor assistance includes, but is not limited to, providing professional consultations, attending mediations, arbitrations, depositions, trials or any event related to the dispute resolution, litigation, or both. 2-3.9 Attorney Fees Related To Mandatory Assistance. In providing the City with dispute or litigation assistance, the Contractor and or Subcontractors or their agents, officers, and employees may incur expenses and or costs. The Contractor agrees that any attorney fees it may incur are not reimbursable. 2-3.1.0 Compensation for Mandatory Assistance. The City will reimburse the Contractor for reasonable fees and expenses incurred by the Contractor for any required assistance rendered in accordance with 3-7.8, "Mandatory Assistance" as Extra Work. The City in its sole discretion shall determine whether these fees and expenses were necessary due to the conduct of or failure to act by the Contractor or Subcontractors or their respective agents, officers, and employees. If the City determines that the basis of the dispute or litigation in which these fees and expenses were incurred were the result of the conduct of or failure to act by the Contractor or Subcontractors or their respective agents, officers, and employees, in part or in whole, the City shall be entitled to be reimbursed for any payments made for these fees and expenses. Reimbursement may be through any legal means necessary, including the City's withholding of payment. SECTION 3 - CONTROL OF MATERIALS 3-1 MATERIALS AND WORKMANSHIP 3-1.1 Protection of Work and Materials. 3-1.2 Property Rights in Material. Nothing in the contract shall be construed as vesting in the contractor any right of property in the materials used after they have been attached or affixed to the work or the soil. All such materials shall become the property of the City upon being so attached or affixed. Initials SECTION 4 - PROSECUTION, PROGRESS AND ACCEPTANCE OF WORK 4-1.1 Construction Schedule. The contractor shall comply with the following construction schedule requirements: a) The Contractor shall be responsible for developing, coordinating, revising, updating, and maintaining the cost loaded construction schedule (Schedule) utilizing the Critical Path Method (CPM). b) Schedule versions shall be based solely on the Work as awarded, and shall exclude any substitute proposals even if the Contractor pursues a substitution in accordance with provisions of the Contract. c) The approved proposals and approved Change Orders shall be included in the Schedule updates. d) Total float is the number of days by which a part of the Work in the Schedule may be delayed from its early dates without necessarily extending the Contract Time. The Contract float is the number of days between the Contractor's anticipated date for early completion of the Work, or specified part, and the corresponding Contract Time. Total float and Contract Time float belong to the Project and are not for the exclusive benefit of any Party. They shall be available to the City or the Contractor to accommodate changes in the Work or to mitigate the effect of events, which may delay performance or completion. e) Monthly progress payments are contingent upon the submittal of an updated Schedule to the Engineer. The City may refuse to recommend the whole or part of any monthly payment if, in the Engineer 's opinion, the Contractor's failure, or refusal to provide the required Schedule information precludes a proper evaluation of the Contractor's ability to complete Project within the Contract Time. f) The Schedule shall show a breakdown of Work into activities and relationships to the extent required to effectively manage the Work. The Schedule shall show the division of the Work into activities and specify the progression from the Notice to Proceed (NTP) to the end of the Contract Time. g) The Schedule shall include appropriate time allowances and constraints for submittals, items of interface with Work performed by others, and specified construction, start-up and performance tests. h) The Contractor shall include in the Schedule inclusive in the Contract Time allotted, three 3 Working Days for the City to conduct a Walk-through. i) The Contractor shall include in the Schedule inclusive in the Contract Time allotted 10 Working Days for generation of the Punchlist. The Contractor shall Work diligently to complete all Punchlist items within 20 Working Days after officially being provided the Punchlist by the Engineer. j) If the Contractor modifies or changes the Schedule, for Change Order Work or otherwise, the Engineer shall be notified in writing with an explanation. k) Comments made by the Engineer on the Schedule during review will not relieve the Contractor from compliance with requirements of the Contract. The Engineer may request that the Contractor and major Subcontractors (defined herein as being any Subcontractor or Supplier with 5% or more of the value of the Contract) participate in review of any Schedule submission. The Schedule revisions shall be submitted within 10 Working Days after the Engineer's review. Initials I) The Schedule shall show work to be done by the City personnel, such as but not limited to, submittal reviews (separate tasks for each), sewer televising, water main connections, water testing, and operational performance tests as separate tasks. The Schedule shall show appropriate time allowances for Work performed by other agencies. m) If completion of any part of the Work, delivery of equipment or materials, or provision of the Contractor submittals is behind schedule and will impact the completion date of the Work, the Contractor shall submit a written recovery plan acceptable to the Engineer for completing the Work by the current Contract completion date. n) The Contractor shall not be entitled to any extension in Contract Time, or recovery for any delay incurred because of extensions in an early completion date, until all Contract float is used, performance of the Work extends beyond the corresponding Contract Time, and a recovery plan is submitted demonstrating that the delay cannot be mitigated or offset through actions such as rescheduling Work. o) Misrepresentation of actual Work durations in order to suppress available float time shall be cause for rejection of the Schedule and any revisions or updates. p) The Schedule shall include procurement related activities, which lead to the delivery of permanent materials to the Site in a timely manner. Procurement activities include activities such as preparation of Shop Drawings and Working Drawings, review and acceptance of Shop Drawings and Working Drawings, materials fabrication, materials delivery, etc., as appropriate. q) The Schedule shall be reasonably balanced over the construction duration. Upon receipt, the Engineer will review the Schedule and provide comments, as appropriate, for revision by the Contractor. r) Each Schedule activity shall be assigned a budget. Separate Bid items shall be separate activities. The Schedule shall specify costs for each phase of the Contract. The cost value of all Schedule activities shall equal the Contract values shown in the Bid both individually and in total and include Change Orders. s) If the Engineer questions the logic of the Schedule, the Engineer may at any time request a Schedule narrative that describes the approach to the Work and the rationale used to develop the Schedule relationships and logic. t) When specified in the Contract Documents, the specified Plant Establishment Period is included in the stipulated Contract Time and will begin with the acceptance of the installation of the re -vegetation plan in accordance with the Special Provisions. All costs for producing, editing and adjusting the construction schedule shall be included in the various items of work and there shall be no additional costs to the City. SECTION 5- DEFAULT BY THE CONTRACTOR. 5.1 General. The City will consider the Contractor in default of the Contract if prior to the Acceptance, the Contractor: a) becomes insolvent, assigns its assets for the benefit of its creditors, is unable to pay its debts as they become due, or is otherwise financially unable to complete the Work, b) abandons the Work by failing to report to the Work site and diligently prosecute the Work to completion, Initials c) disregards written instructions from the City or materially violates provisions of the Contract Documents, d) fails to prosecute the Work according to the schedule approved by the Engineer, e) fails to notify the Engineer upon discovery of items of Native American, Archaeological, or Paleontological interests, f) disregards laws or regulations of any public body having jurisdiction, or g) commits continuous or repeated violations of regulatory or statutory safety requirements, then Notices, and other written communications regarding default between the Contractor, the Agency, and the Surety shall be transmitted in accordance with 2-12, "SPECIAL NOTICES." 5.2 Notice to Cure. The City will issue a written notice to cure the default to the Contractor and its Surety. The Contractor shall commence satisfactory corrective actions within 5 Working Days after receipt. 5.3 Notice of Termination for Default. If the Contractor fails to commence satisfactory corrective action within 5 Working Days after receipt of the notice to cure, or to diligently continue satisfactory and timely correction of the default thereafter, then the City will consider the Contractor in default of the Contract and: a) will terminate the Contractor's right to perform under the Contract by issuing a written notice of termination for default to the Contractor and its Surety, b) may use any materials, equipment, tools or other facilities furnished by the Contractor to secure and maintain the Work site, and c) may furnish labor, equipment, and materials the Agency deems necessary to secure and maintain the Work site. The provisions of this subsection shall be in addition to all other legal rights and remedies available to the City. The Contractor shall be entitled to no further payment until the remaining portion of the Work has been completed. The Contractor will be paid the actual amount due based on Contract Unit Prices or lump sum Bid and the quantity of the Work completed at the time of default, less damages caused to the City by acts of the Contractor. Costs incurred by the City in performing the Contractor's work, plus a markup of 15% on those costs for overhead, shall be deducted from monies due or to become due to the Contractor. The Contractor shall pay to the City any amount by which those costs and markup exceed the unpaid balance of the Contract Price. 5.4 Responsibilities of the Surety. Upon receipt of the written notice of termination for default, the Surety shall immediately assume all rights, obligations, and liabilities of the Contractor under the Contract. If the Surety fails to protect and maintain the Work site, the City may do so, and may recover all costs incurred. The Surety shall notify the City that it is assuming all rights, obligations and liabilities of the Contractor under the Contract and all money that is due, or would become due, to the Contractor shall be payable to the Surety as the Work progresses, subject to the terms of the Contract. Initials Within 15 Working Days of receipt of the written notice of termination for default, the Surety shall submit to the City a written plan detailing the course of action it intends to take to remedy the default. The City will review the plan and notify the Surety if the plan is satisfactory. If the Surety fails to submit a satisfactory plan, or if the Surety fails to maintain progress according to the plan accepted by the City, the City may, upon 48 hours written notice, exclude the Surety from the premises, take possession of all material and equipment, and complete the Work in any way the City deems to be expedient. The cost of completing the Work by the City shall be charged against the Surety and may be deducted from any monies due, or which would become due, the Surety. If the amounts due under the Contract are insufficient for completion, the Surety shall pay to the City, within 30 days after the City submits an invoice, all costs in excess of the remaining Contract Price. The provisions of this subsection shall be in addition to all other rights and remedies available to the City under law. 5.5 Payment. The Surety will be paid for completion of the Work in accordance with 9-3 less the value of damages caused to the City by acts of the Contractor. SECTION 6- TERMINATION OF THE CONTRACT FOR CONVENIENCE. The City may terminate the Contract in whole or, from time to time, in part, if it becomes impossible or impracticable to proceed, because of conditions or events beyond the control of the City e.g., if the City Council does not appropriate sufficient monies to fund the Contract. The City will issue a written notice of termination for convenience in accordance with 2-12, "SPECIAL NOTICES." Upon receipt, the Contractor shall immediately proceed as follows: a) Stop Work immediately or in accordance with the Notice of Termination. b) Notify Subcontractors and suppliers to immediately cease their work and place no further subcontracts for materials, services, or facilities, except as necessary to complete any authorized continued portion of the Contract. c) Terminate all Subcontracts to the extent that they relate to the Work terminated. d) With approval by the Engineer, settle all outstanding obligations arising from the termination of subcontracts; the approval of which will be final for purposes of this section. e) As directed by the Engineer, transfer the title and deliver to the City, completed or partially completed drawings, plans, calculations, specifications and any other documents and records that, if the Contract had been completed, would be required to be furnished to the City. f) Complete performance of the Work not terminated. g) Take all necessary steps and actions to minimize all costs to the City as a result of the termination. h) Take any action that may be necessary, or that the Engineer may direct, for the protection and preservation of the property related to this contract that is in the possession of the Contractor and in which the City has or may acquire an interest. Initials The Contractor will be paid without duplication for: a) work completed in accordance with the Contract Documents prior to the effective date of termination for convenience; b) reasonable costs incurred in settlement of terminated contracts with Subcontractors, suppliers and others; and c) reasonable expenses directly attributable to termination. The Contractor shall submit a final termination settlement proposal to the City no later than 90 days from the effective date of termination, unless extended, in writing, by the City upon written request by the Contractor. If the Contractor fails to submit a proposal, the City may determine the amount, if any, due the Contractor as a result of the termination. The City will pay the Contractor the amount it determines to be reasonable. If the Contractor disagrees with the amount determined by the City as being reasonable, the Contractor shall provide notice to the City within 30 days of receipt of payment. Any amount due shall be as later determined by arbitration, if the City and the Contractor agree thereto, or as fixed in a court of law. All settlements related to termination of the contract in accordance with this section will be subject to the approval of the Mayor or designee and may also require City Council approval before ultimately becoming final. 6.1 Termination Settlement. After termination, the Contractor shall submit a final termination settlement proposal to the Engineer in the form and with the certification prescribed by the Engineer. The Contractor shall submit the proposal promptly, but no later than 6 months from the effective date of termination, unless extended, in writing, by the Engineer upon written request of the Contractor within this 6 month period. If the Engineer determines that the facts justify it, a termination settlement proposal may be received and acted on after 6 months or any extension. If the Contractor fails to submit the proposal within the time allowed, the City may, in good faith, determine, on the basis of information available, the fair and reasonable amount, if any, due the Contractor as a result of the termination and pay the amount determined. If the Contractor does not agree that the amount determined by the Engineer is fair and reasonable and if the Contractor gives notice of such disagreement to the City in accordance with this subsection, within 30 days of receipt of payment, then the amount due shall be as later determined by arbitration, if the City and the Contractor agree thereto, or as fixed in a court of law. 6.2 Payment to the Contractor Due to Termination. Subject to 6-5.1, "Termination Settlement" the Contractor and the Engineer may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. The agreed amount may not exceed the total dollar amount authorized by the City as reduced by (1) the amount of payments previously made; and (2) the Contract Price of work not terminated. The contract shall be amended, and the Contractor paid the agreed amount. Subsection 6-5.3, "Failure to Agree on Payment," shall not limit, restrict, or affect the amount that may be agreed upon to be paid in accordance with this subsection. 6.3 Failure to Agree on Payment. If the Contractor and the City fail to agree on the whole amount to be paid because of the termination of Work, the City will pay the Contractor the fair and Initials reasonable amounts determined in good faith by the City as follows, but without duplication of any amounts agreed on in accordance with 6-5.2, "Payment to Contractor Due to Termination:" a) The Contract Price for completed services accepted by the City not previously paid or adjusted for any saving of freight and other charges. The total of: i. The costs incurred in the performance of the Work terminated, including initial costs and preparatory expense allocable thereto, but excluding any costs attributable to services paid or to be paid in accordance with 6-5.6, "Failure to Agree on Payment"; ii. The fair and reasonable cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Contract if not included in subdivision "a", above; iii. A sum, as provided in subdivision "a", above, determined by the Engineer to be fair and reasonable under the circumstances; however, if it appears that the Contractor would have sustained a loss on the entire contract, had it been completed, the City will allow no profit and shall reduce the settlement to reflect the indicated rate of loss. iv. The reasonable costs of settlement of the Work terminated, including: v. Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination of settlement proposals and supporting data; vi. The termination and settlement of subcontracts (excluding the amounts of such settlements); and vii. Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of property in which the City has or may acquire an interest. 6.4 Determination of Amount Due the Contractor. In arriving at the amount due the Contractor in accordance with this section, there shall be deducted: a) The fair value of property destroyed, lost, stolen, or damaged that has become undeliverable to the City except to the extent the City expressly assumed the risk of loss; b) all un-liquidated advance or other payments to the Contractor under the terminated portion of this contract; c) any claim which the City has against the Contractor under this contract; and d) the agreed price for or the proceeds of sale of materials, supplies, or other things acquired by the Contractor or sold under the provisions of this section and not recovered by or credited to the City. 6.5 Partial Termination. If the termination is partial, the Contractor may file a proposal with the Engineer for an equitable adjustment of the price(s) of the continued portion of the Contract. The City will make any equitable adjustment agreed upon. Any proposal by the Contractor for an equitable adjustment under this section shall be requested within 90 days from the effective date of termination, unless extended, in writing, by the Engineer. 6.5.1 Partial Termination Payments. The City may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the Contractor for the terminated Initials portion of the Contract if the Engineer believes the total of these payments will not exceed the amount to which the Contractor will be entitled. If the total payments exceed amounts finally determined to be due, the Contractor shall repay the excess to the City upon demand, together with interest. Interest shall be at a rate of 6% per annum compounded daily and shall be computed for the period from the date the excess payment is received by the Contractor to the date the excess is repaid. Interest shall not be charged on any excess payment due to a reduction in the Contractor's termination settlement proposal because of retention or disposition, or a later date determined by the Engineer because of the circumstances. 6.6 Records and Documents Relating to Termination. Unless otherwise provided in the Contract or by statute, the Contractor shall maintain all records and documents relating to the terminated portion of this contract for 3 years after final settlement. This includes all books and other evidence bearing on the Contractor's costs, expenses, and settlement under this contract. The Contractor shall make these records and documents available to the City, at the Contractor's office, at all reasonable times, without any direct charge. If approved by the Engineer, photographs, microphotographs, and other authentic reproductions may be maintained instead of original records and documents. 6.7 Rights of the City Preserved. Where the Contract has been terminated by the City in accordance with 6-5, "Termination of Contract" the termination will not affect any rights or remedies of the City against the Contractor then existing or which may thereafter accrue. Any retention or payment of monies paid to the Contractor by the City shall not release the Contractor from liability. 6.8 Damages Caused By Act Of God. As provided in §7105 of the California Public Contract Code, if this contract is not financed by revenue bonds, the Contractor shall not be responsible for the cost of repairing or restoring damage to the Project when damage was proximately caused by an act of God, in excess of 5% of the Contract Price if: a) the Project damaged was built in accordance with the Contract requirements, and b) there are no insurance requirements in the Contract for the damages. 6.9 Extension of Time. Should the Contractor incur a delay, a written request to the Engineer stating the reason(s) for the delay and the number of working days required shall be submitted within five (5) working days after the delay was incurred. The Engineer shall respond in writing within five (5) working days of the date of receipt of the request. Extension of time, if granted, shall follow the change order process. 6.9.1 Contract Time Extension and Schedule Analysis. A claim for extension in Contract Time will not be granted unless the Contractor can demonstrate through a Critical Path Method (CPM) analysis of the Schedule's critical path(s) that the increases in the time to perform or complete the Work, or specified part of the Work, beyond the corresponding Contract Time arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, and that such causes in fact lead to performance or completion of the Work, or specified part in question, beyond the corresponding Contract Time, despite the Contractor's reasonable and diligent actions to guard against those effects. Initials The Schedule analysis shall use delay sub networks ("fragnets") to show the impact of the Work that is the basis of the Claim on specific impacted critical path Schedule activities. Fragnet is a group of schedule network activities representing a delay or change event. Where the Contractor is prevented from completing any part of the Work within the Contract Time (or milestones) due to delay to a "critical path" activity beyond the control of both the City and the Contractor, an extension of the Contract Time (or Contract milestones) in an amount equal to the time lost on the critical path of the Project due to such delay shall be the Contractor's sole and exclusive remedy for such delay. 6.9.2 Event of Force Majeure (Event). Any party to this contract may be excused for any delay or failure to perform its duties and obligations except for obligations to pay money, caused by and to the extent that such failure or delay is caused by an Event. If an Event causes a delay or failure in performance of only a portion of the obligations of a Party, then only that portion of performance which was delayed or prevented by such cause shall be deemed excused. Performance of all other obligations of a Party shall not be excused by an Event. Any delay or failure to perform shall only excuse the Party for a period no longer than the delay or failure in performance caused by such Event. The Contractor shall not be entitled to damages or additional payment for any delay caused by an Event. SECTION 7 TIME OF COMPLETION The Contractor shall have TWENTY (20) working days to complete and finalize the project. For each utive calendar day in of the timc specified for completion of this portion of , 7.1 Requirements Preparatory To Requesting a Walk-through. Walk-through is the procedure used by the City to generate a Punch list prior to Acceptance. The following items shall be required prior to requesting a walk-through: a) Remove temporary facilities from the Site. b) Thoroughly clean the Site. c) Provide completed and signed Redlines in accordance with 2-5.4, "Red -lines Drawings." d) Provide all material and equipment maintenance and operation instructions and/or manuals. e) Provide all tools that are a permanent part of equipment installed in the Project. f) Provide and properly identify all keys; construction and permanent. g) Provide all final Special Inspection reports required by the applicable building Code. h) Provide all items that this contract requires to be supplied as extra stock. All items shall be wrapped, sealed, or placed in a container as necessary to allow for storage by the City for Initials future use. The amount specified in this contract shall be verified by the City and the Contractor. i) Ensure all EOCP documents and certified wage rate documents (if applicable) have been submitted from the NTP until Acceptance. j) The spare parts for the proposed irrigation system as specified in the Special Provisions (if applicable). k) See other specification sections for additional requirements. 7.1 Walk-through and Punch list Procedure. The following procedure outlines the steps to be taken upon the Contractor's assertion that the Project is complete: a) When the Contractor considers that the Work and Services are complete, the Contractor shall in writing notify the City that the Project is complete and request that the City perform a walk-through for generation of a Punch list. The Contractor shall notify the City at least 7 days in advance of the time the walk-through is to be performed. b) The City will determine if the Contractor is ready for a walk-through by verifying whether the Contractor has provided or completed all items as required by 6-8.1, "Defective Work," whether the Contractor has obtained the applicable certifications, and by evaluating completeness by inspecting the Project and the specified Work required by the Contract Documents. c) If the Work includes underground sewer conduit installations, the inspection will include televising in accordance with 306-1.4.8, "Televising Sewer Mains and Storm Drains." d) The City will facilitate a walk-through. e) The Contractor shall make available at the Site for walk-through attendees the plans and specifications and the technical data such as submittals and equipment manuals. f) The City will generate the Punch list within 15 Working Days from the date of the walk- through and submit it to the Contractor. The City will not provide a preliminary Punch list. If the City begins to generate a Punch list and finds the Project is not substantially complete as defined herein, the City will terminate the walk-through and notify the Contractor in writing. h) If, at any time during the City's evaluation of the corrective Work required by the Punch list, the City discovers that additional corrective Work is required, the City may include that corrective Work in the Punch list. The Contractor shall be solely responsible for the Site until the Project is completely operational, all Punch list items have been corrected, and all operation and maintenance manuals have been accepted by the City. i) The City will meet with the Contractor until all Punch list items are corrected. If the Contractor takes longer than 30 Working Days to complete the corrective Work, the Project shall be subject to re-evaluation. g) Initials j) During the 35-day stop notice/lien period that commences on the date the NOC is recorded, the Contractor shall submit to the City the retention billing. After the City receives the retention billing, the City will mail to the Contractor a "Release of Claims" form, which shall be completed by the Contractor and returned to the City before the retention will be released. k) Upon Acceptance, the Contractor shall assemble and deliver to the City all records, documents, warranties, material certifications, bonds, guarantees, maintenance and service agreements, and maintenance and operating manuals. Written warranties, except manufacturer's standard printed warranties, shall be on the Contractor's and the Contractor's agents, material suppliers, installers, or manufacturer's letterhead, addressed to the Contractor. Warranties shall be submitted in the format described in this section, modified as approved by the City to suit the conditions pertaining to the warranty. 1) See other specification sections for additional requirements. The cost of the Contractor's participation in the punch -list process shall be included in the various items of work and there shall be no additional costs to the City. Failure of the Contractor to complete the Work within the timewed will result in damages being sustained by the City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. For each consecutive calendar day in excess of the time specified for completion efthe Work, adju ted in accordance with Subsection 6 6, the Contractor shall Execution of the Contract shall constitute agreement by the City and the Contractor that Five as a penalty, and that such sum may be deducted from payments due the Contractor if such delay occurs. SECTION 9- GUARANTEE In conjunction with the manufacturer's warranty/guarantee for all products provided and in accordance with the executed guarantee agreement, all work shall be guaranteed by the Contractor for a period of one (1) year from the date of acceptance of the work against defective workmanship and materials furnished by the Contractor. The Contractor shall promptly replace or repair, in a manner satisfactory to the Engineer, any such defective work, after notice to do so from the Engineer, and upon the Contractor's failure to make such replacement or repairs promptly, the City may perform this work and the Contractor and his surety shall be liable for the cost thereof. Initials SECTION 10 - RESPONSIBILITIES OF THE CONTRACTOR 10.1 LABOR 10.1.2 Laws. Pursuant to Sections 1720 et seq. and 1770 et seq. of the California Labor Code, the successful bidder shall pay not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. Copies of such prevailing rate or per diem wages are on file in the City Engineer's office, which copies shall be made available to any interested party on request at the posted reproduction charge. The successful bidder shall post a copy of such wage determinations at each job site. SECTION 11- PROJECT SITE MAINTENANCE 11.1 General. Contractor shall recycle all designated recyclable materials in compliance with the City of National City Municipal Code Chapter 15.80, Construction and Demolition Debris (Ordinance No. 2009-2309). Such materials are, but not limited to, concrete, asphalt, dirt, metals, road base material, wood waste, paper products and tree trimmings. Further, the higher economic costs of landfill disposal versus the lower cost of recycling disposal make it in each contractor's best interest to recycle as much as possible. Proof of compliance with City of National City Municipal Code Chapter 15.80 shall be provided by both completing the Contractor's Affidavit of Disposal, and fulfilling the requirements of Chapter 15.80, including proof of diversion regardless of disposal site. SECTION 12- WATER POLLUTION CONTROL SITE MANAGEMENT (SWPPP) AND GENERAL ENVIRONMENTAL CONDITIONS. 12.1 General. At a minimum, the Contractor shall be required to do the following: Protect all new and existing storm water conveyance system structures from sedimentation and concrete rinse, or other construction related debris and discharges with gravel bags and filter fabric or by any other equal product that is approved by the Resident Engineer. Temporary gravel bags shall be installed, maintained, and later removed as approved by the Resident Engineer. The Contractor will not be paid any additional money for the maintenance, removal and replacement of gravel bag at the same location. Gravel bags fill material shall be one-half to one -inch Class 2 aggregate base, clean and free from clay and deleterious material. Gravel bag fabric shall be woven high -density polyethylene fabric with a minimum unit weight of 5 oz./square yard. The fabric shall have a Mullen burst strength of at least 350 psi, conforming to the requirements of ASTM Designation D 3786, and an ultraviolet (UV) stability exceeding 70 percent. Gravel bags, when filled, shall have nominal dimensions (length x width x height) of 16 in. x 12 in. x 6 in., and a fill mass of 35 to 60 pounds. The Contractor shall use other methods if ponding will encroach in to the traffic or onto erodible surfaces and slopes. Flow from a severe storm shall not overtop the curb. Temporary gravel bags shall be maintained to provide for adequate sediment holding capacity. The Contractor shall remove the sediment behind the barrier when it reaches one-third the height of the barrier and immediately before and after each storm event. When no longer required for the intended purpose, temporary gravel bag barriers shall be removed from the site of work. Storm drain inlet sediment control measures shall be of sufficient capacity and dimensions so as to handle received flows and debris without blocking or diverting flows from the inlets. Area around the inlet shall be provided for water to pond without flooding structures and property. The storm drain inlet sediment control measures shall not Initials impede the safe flow of traffic. The storm drain inlet sediment control measures shall be of sufficient weight so as not to shift out of place, or shall be secured in place against movement. Protect all drainage structures within 100 Feet of the work if there is a threat to water quality. Inlet sediment control measures shall be maintained daily or more often if needed. Maintaining inlet sediment control measures shall include removing and disposing of accumulated trash & debris when depth exceeds one -third the height of filter/trap. Waste materials shall be removed and disposed in accordance with the Green Book Maintaining inlet sediment control protection shall also include daily checks for excessive debris and for damaged inlet sediment control measures. Damaged inlet sediment control measures shall be repaired or replaced immediately. When storm drain inlet protection is no longer required for the work, as approved by the Resident Engineer, the inlet sediment control measures shall be completely removed. Storm drain inlet protection shall not be removed until upstream soils are stabilized. Materials for inlet sediment control shall become the property of the contractor and shall be removed from the site of the work and disposed off -site as specified in the contract. It is the contractor's responsibility to insure that the BMP's are operational and working properly. Furthermore, the Contractor shall be held responsible for any citation and/or fine due discharges or malfunctioning of the BMP's. Contractor shall be responsible for any and all other best management practices (BMPs) that are a threat to the water quality as deemed necessary by the City Engineer. Compensation shall be paid under the various line items. No additional compensation shall be paid. 12.2 ENVIRONMENTAL PROTECTION. The Contractor shall comply with all applicable standards, orders, or requirements of the Environmental Protection Agency regulations (40 CFR, Part 15). 12.3 FLOOD DISASTER PROTECTION ACT OF 1973.The Contractor shall comply with all applicable standards, orders, or requirements of the Flood Disaster Protection Act of 1973 (42 USC 4001 etseq, as amended). 12.4 GRAFFITI CONTROL. The Contractor shall maintain all site improvements, including any temporary facilities, equipment or other materials in a graffiti free condition throughout the construction period, until acceptance of the project by the City. Graffiti encountered on the job site shall be removed by the Contractor within twenty-four (24) hours. Costs for removal shall be included in the various items of work. 12.5 NOISE ABATEMENT AND CONTROL. The Contractor shall comply with the provisions of the City of National City Municipal Code, Noise Abatement and Control, and the County of San Diego Code of Regulatory Ordinances, Noise Abatement and Control. In the event of conflict, the most stringent requirement shall apply. If the Contractor chooses to conduct work activities during times when a Noise Permit is required, the Contractor shall apply for, obtain, and pay for the Noise Permit at no additional cost to City. Initials The Contractor shall coordinate their activities in such a way that minimizes the disturbance with the any adjacent or nearby schools. The Contractor shall attend any coordination meetings with any schools. The cost of noise mitigation and coordination efforts shall be included in the various items of work and there shall be no additional costs to the City. 12.6 Project Appearance. The Contractor shall maintain a neat appearance to the work. In any area visible to the public, the following shall apply: a. When practicable, broken concrete and debris developed during clearing and grubbing shall be disposed of concurrently with its removal. If stockpiling is necessary, the material shall be removed or disposed of weekly. b. The Contractor shall furnish trash bins for all debris from structure construction. All debris shall be placed in trash bins daily. Forms and false -work that are to be re -used shall be stacked neatly concurrently with their removal. Forms and false -work that are not to be re -used shall be disposed of concurrently with their removal. c. Full compensation for conforming to the provisions in this section shall be considered as included in prices paid for the various contract items of work involved and no additional compensation will be allowed. 12.7 Sound Control Requirements. The Contractor shall comply with all local sound control and noise level rules, regulations and ordinances, which apply to any work performed pursuant to the contract. Each internal combustion engine, used for any purpose on the job or related to the job, shall be equipped with a muffler of a type recommended by the manufacturer. No internal combustion engine shall be operated on the project without said muffler. If required see the attached Mitigated Negative Declaration Document in the appendices. 12.8 Hazardous Waste. If the Contractor encounters material in demolition or work that he has reason to believe may be hazardous waste, as defined by Section 25117 of the Health and Safety Code, he shall immediately so notify the Engineer in writing. Demolition in the immediate area of the suspected hazardous material shall be suspended until the Engineer authorizes it to be resumed. If such suspension delays the current controlling operation, the Contractor will be granted an extension of time as provided in Section 5-5 "Delays" of the Standard Specifications. The City reserves the right to use other forces for exploratory work to identify and determine the extent of such material and for removing hazardous material from such area. SECTION 13- PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS 13.1 Contractor shall replace/repair any property or private improvements, which are damaged or removed as a result of its operations to current City of National City standards and to the satisfaction of the City Engineer in an as good or better condition. Contractor will take measures to minimize inconvenience to the City, including but not limited to: a. Advance notification of the impending work and the estimated duration of the work. b. Care in access to and from the building by the Contractor's equipment, materials and/or personnel. Initials c. Private property and improvements must be repair, restored and/or replaced within 7 days of the completion of the adjacent work. The cost of protecting, removing and restoring of items necessary to complete the work shall be included in the various line items of work and there shall be no additional cost to the City. SECTION 14-PROJECT SAFETY Section 14.1-Safety Orders. The Contractor shall be solely and completely responsible for conditions on the job site, including safety of all persons (including employees) and property during performance of the work. This requirement shall apply continuously and is not limited to normal working hours. Safety provisions shall conform to U.S. Department of Labor, the California Occupational Safety and Health Act (OSHA), and all other applicable Federal, State, County, and City laws, ordinances, codes, the requirements set forth below, and any regulations that may be detailed in other parts of these documents. Where any of these are in conflict, the more stringent requirement shall be followed. The Contractor's failure to thoroughly familiarize himself with the aforementioned safety provisions shall not relieve him from compliance with the obligations and penalties set forth herein. The Contractor shall develop and maintain for the duration of this contract, a safety program that will effectively incorporate and implement all required safety provisions. The Contractor shall appoint an employee who is qualified and authorized to supervise and enforce compliance with the safety program. The duty of the City and its consultants is to conduct construction review of the Contractor's performance and shall not include a review or approval of adequacy of the Contractor's safety supervisor, the safety program, or any safety measures taken in, on, or near the construction site. If death or serious injuries or serious damages are caused, the accident shall be reported immediately by telephone or messenger to the City's inspector or other representative. In addition, the Contractor must promptly report in writing to the City all accidents whatsoever arising out of or in connection with, the performance of the work whether on, or adjacent to the site, giving full details and statements of witnesses. 14.2 Public Safety During Non -Working Hours. Notwithstanding the Contractor's primary responsibility for safety on the job site when the Contractor is not present, the Engineer, at his option after attempting to contact the Contractor, may direct City forces to perform any functions he may deem necessary to ensure public safety at or in the vicinity of the job site. If such procedure is implemented, the Contractor will bear all expenses incurred by the City. In all cases the judgment of the Engineer shall be final in determining whether or not an unsafe situation exists however this does not alleviate the contractor's responsibility and liability to maintain a safe worksite at all times. Initials SECTION 15- PROJECT CLOSEOUT 15.1 Cleanup. In addition to the requirement that the job site be kept clean during the progress of the work, the contractor is similarly obligated to thoroughly clean up the construction site at the end of the job before the work can be accepted. Final acceptance of work will be withheld until the contractor has satisfactorily complied with all of the requirements for final cleanup of the project site. Disposal of all waste and refuse shall be at the contractor's expense. No waste or rubbish of any nature is allowed to be disposed of at the site except upon receipt of written approval by the City. 15.2 Final Inspection. When the work is completed satisfactorily, and in accordance with the terms of the contract, the contractor shall submit a written request to the Engineer and Building Department for the final inspection. Upon receiving such notification from the contractor, the City will arrange for the final inspection of the work. The representative of the contractor and the subcontractors should participate in the inspection tour to respond to any questions that may be raised by the representative of the City. Prior to, but in no case later than, the pre -final inspection period, dates should be established for equipment testing, systems validation, acceptance periods, warranty dates, and instructional requirements that may be required by the contract. Following the pre -final inspection of the work, the City's representative will prepare a Punch List setting forth in accurate detail any items of work that have been found to be not in accordance with the requirements of the contract documents. When notified by the contractor that all of the pre -final Punch List items have been completed, the Engineer and his/her representative accompanied by the representatives of the other City Departments with the presence of the Contractor will conduct the final inspection of the work. Then, if all punch list items have been completed satisfactorily, and if no new items are discovered, the final inspection date will be considered as the completion date for the project. If, following the final inspection of any portion of the work, there remains a question as to whether one or more Punch List items have not been properly completed, but otherwise the overall project is substantially complete, the Engineer may issue an updated Punch List and consider the final inspection date as the completion date if the contractor completes the updated punch list items within a specified period of time. 15.3 Contract Final Balance. Upon the completion of work, the Engineer will prepare the Contract Final Balance and will submit it to the contractor for their approval. 15.4 Acceptance. The project will be scheduled for the City Council's acceptance if the following items are satisfactorily met: a. The work has been completed satisfactorily, and in accordance with the terms of the contract. b. All of the punch list items have been completed and the project is accepted by the Engineer and signed off as complete and acceptable by the City Building Department. Initials c. Record (As -built) drawings have been submitted and accepted by the Engineer. d. All of the payroll records (contractor and subcontractors) have been submitted and accepted. e. Operating manuals and instructions for equipment items, keying schedule, maintenance stock items, certifications of inspection, and systems validation have been submitted. f. Guarantee Agreement is submitted to and accepted by the Engineer. g. Contractor's Certificate of Completion, Affidavit of Disposal, Affidavit of Payment, Consent of Surety for Final Payment have been signed and submitted to the Engineer. h. Contract Final Balance has been approved or conditionally approved by the Contractor and submitted to the Engineer. i. Notice of Completion will be filed with the County Recorder once all of the above listed items are complete. SECTION 16 - MEASUREMENT AND PAYMENT 16.1 Partial and Final Payment. Invoices shall be submitted in a form satisfactory to the City. As a minimum, the invoice shall include: bid item numbers, unit or lump sum prices bid, the quantities of each bid item for the current and past invoices, the dollar amount of each bid item and a total amount. From each progress estimate, five percent (5%) will be deducted and retained by the City, and the remainder, less the amount of all previous payment, will be paid to the Contractor. The five percent (5%) retention shall apply to all work done. The last Friday of the month is established as the closure date for the purpose of making monthly progress payment. Undisputed payments will be paid within thirty (30) working days. Pursuant to California Government Code Section 4590, securities may be substituted for money that would be withheld, in which case the City will make payment of the normal retention. Use of this option shall be at the Contractor's request and expense, subject to the following conditions: 1. Securities shall be those eligible for investment of State funds under Government Code Section 16430 or bank certificates of deposit acceptable to the City; and shall have a value of at least one hundred and ten percent (110%) of the amount of retention to be paid to the Contractor in accordance with this subsection. 2. Securities or certificates of deposit shall be placed in an escrow account with the City Treasurer or a bank acceptable to the City. 3. Contractor shall bear all expenses involved, including that of the City and the escrow agent in connection with escrow deposits. 4. Contractor shall enter into an escrow agreement satisfactory to the City, which agreement shall include provisions governing inter alia: a. The amount of securities to be deposited. b. Providing Powers of Attorney or other documents necessary for transfer of securities to be deposited. Initials c. Conversion to cash to provide funds to meet defaults by the Contractor including, but not limited to, termination of the Contractor's control over the work, stop notices filed pursuant to law, assessment of liquidated damages or other amounts to be kept or retained under provisions of the contract. d. Decrease in value of securities on deposit. e. Termination of the escrow upon completion of the contract. 5. Contractor shall obtain the written consent of the Surety to such an agreement. Pursuant to California Public Contract Code § 20114.50, the City shall make all progress payments no later than thirty (30) days after receipt of an undisputed and properly submitted progress payment request from the Contractor. Upon receipt of a progress payment request, the City shall review, as soon as practicable, the progress payment request to determine if the progress payment request is proper and accurate. If the City determines that the progress payment request is not proper or accurate or both, the City shall return the progress payment request to the Contractor no later than seven (7) days after receipt If the City returns a progress payment request to the Contractor pursuant to this paragraph, the City shall include a writing setting forth the reasons why the progress payment request is not proper or accurate. If the City fails to make a progress payment no later than thirty (30) days after receipt of an undisputed and properly submitted progress payment request from the Contractor, the City shall pay interest to the Contractor equivalent to the legal rate set forth in Code of Civil Procedure § 685.011(a). Initials Removal and disposal of building materials at 500 E. Plaza Blvd. Premium: $970.00 PERFORMANCE BOND (Attachment B) Issued in Three (3) Original Identical Counterparts WHEREAS, the City of National City has awarded Whillock Contracting, Inc., hereinafter designated as the "Principal", the CITY OF NATIONAL CITY CONSTRUCTION CONTRACT BY AND BETWEEN THE CITY OF NATIONAL CITY AND WHILLOCK CONTRACTING, INC. Bond #: 106418143k-, WHEREAS, said Principal is required under the terms of said contract to furnish a bond for the faithful performance of said contract. NOW, THEREFORE, we, the Principal and Travelers Casualty and Surety Company of America as surety, are held and firmly bound unto the City Council of the City of National City, hereinafter called the "Council", in the penal sum of **Ninety Seven Thousand Forty Three and 00/100** ($ **97,043.00** ) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH THAT if the above bounden Principal, his/her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the said contract any alteration thereof made as therein provides, on his or their part, to be kept and performed at the time and in the amount therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City of National City, the City Council, their officers, agents, and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and virtue. And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed herein or the specifications accompanying the same shall in any wise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or additions to the terms of the contract or to the work or to the specifications. Removal and disposal of building materials at 500 E. Plaza Blvd. In the event suit is brought upon this bond by the City of National City and judgment is recovered, the surety shall pay all costs incurred by the Council in such suit, including a reasonable attorney's fee to be fixed by the Court. IN WITNESS WHEREOF three identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the 2nd day of Travelers Casualty and Surety Company of America (SEAL) erry E Mo r, Attorney -in -Fact Surety (SEAL) (SEAL) Whillock Contracting, Inc. June , 2016. Tory M Whillock, Secretary cipal (SEAL) (SEAL) (SEAL) WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER TRAVELERS POWER OF ATTORNEY Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Attorney -In Fact No. 229473 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Certificate No. 006614028 KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Jerry E. Mosier of the City of Sall Carlos , State of California , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or perrtntd in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this 30th day of November 2015 State of Connecticut Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company ZEORPOR4">'ei 1 l?..1 PORA C, �'•.SEAU/c7i By: City of Hartford ss. Robert L. Raney, senior Vice President On this the 30th day of November 2015 before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2016. V\.034iAlt C . Marie C. Tctreault, Notary Public 58440-8-12 Printed in U.S.A. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity • and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and Unit States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Comp, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and anies this 2nd day of June , 20 16. I�i� '• Kevin E. Hughes, Assistant Sec tary To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attomey-In-Fact number, the above -named individuals and the details of the bond to which the power is attached. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER Removal and disposal of building materials at 500 E. Plaza Blvd. PERFORMANCE BOND (continued) ATTORNEY -IN -FACT ACKNOWLEDGEMENT OF SURETY STATE OF COUNTY OF On this for ) ss day of , 2016, before me, the undersigned, a Notary Public in and said County and State, personally appeared known to me to be the person whose name is subscribed to the within instrument as the attorney -in -fact of the , the corporation named as Surety in said instrument, and acknowledged to me that he subscribed the name of said corporation thereto as Surety, and his own name as attorney -in -fact. NOTE: Signature of those executing for Surety must be properly acknowledged. NOTE: The Attorney -in -fact must attach a certified copy of the Power of Attorney. Signature: Name (Type or Print): Notary Public in and for said County and State My Commission expires: ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego On June 2, 2016 before me, Kathy L. Tilley, Notary Public (insert name and title of the officer) personally appeared Tory M Whillock and Jerry E Mosier who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my • :nd and official seal. Sign KATHY L. TILLEY Comm. 1F 2025288 -I NOTARY IDUSUC•CAUFONNIA0 SAN DIEGO COUNTYs 0 My Commission Expires May 19. 2017 Removal and disposal of building materials at 500 E. Plaza Blvd. Premium included in Performance Bond Bond #: 106418143 PAYMENT BOND (Attachment C) Issued in Three (3) Original Identical Counterparts WHEREAS, the City of National City has awarded Whillock Contracting, Inc., hereinafter designated as the "Principal", the CITY OF NATIONAL CITY CONSTRUCTION CONTRACT BY AND BETWEEN THE CITY OF NATIONAL CITY AND WHILLOCK CONTRACTING, INC. WHEREAS, said Principal is required by Chapter 5 (commencing at Section 3225) and Chapter 7 (commencing at Section 3247), Title 15, Part 4, Division 3 of the California Civil Code to furnish a bond in connection with said contract; NOW, THEREFORE, we, the Principal and Travelers Casualty and Surety Company of America as surety, are held and firmly bound unto the City Council of the City of National City, hereinafter called the "Council", in the penal sum of **Ninety Seven Thousand Forty Three and 00/100** lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his/her or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay any of the persons named in Section 3181 of the California Civil Code, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Franchise Tax Board from the wages of employees of the Contractor and his subcontractors pursuant to Section 18806 of the Revenue and Taxation Code, with respect to such work and labor the Surety will pay for the same in an amount not exceeding the sum hereinafter specified, and also, in case suit is brought upon this bond, a reasonable attorney's fee, to be fixed by the Court. This Bond shall inure to the benefit of any of the persons named in Section 3181 of the California Civil Code, so as to give a right of action to such persons or their assigns in any suit brought upon this bond. I Removal and disposal of building materials at 500 E. Plaza Blvd. PAYMENT BOND (continued) It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement hereinabove described or pertaining or relating to the furnishing of labor, materials, or equipment therefore, not by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement hereinabove described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner of Public Entity and original contractor or on the part of any obliges named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 3110 or 3112 of the California Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned. IN WITNESS WHEREOF three identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the 2nd day of June 2016. Travelers Casualty and Surety Company of America (SEAL) r, Attorney -in -Fact (SEAL) Whillock Contracting, Inc. Tory M Whillock, Secretary (SEAL) --- Surety Principal (SEAL) (SEAL) (SEAL) TRAVELERS) WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER POWER OF ATTORNEY Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Attorney -In Fact No. 229473 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Certificate No. 006614029 KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Jerry E. Mosier of the City of San Carlos State of California , their true and lawful Attomey(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of,guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permittoi in an ions or pnceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this day of November 2015 Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Chi t E�cag. SEAL,.o5. �h �'Fw NGta6 `d 1wM Af State of Connecticut City of Hartford ss. By: 30th St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Robert L. Raney, Senior Vice President On this the 30th day of November 2015 before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2016. cuudt Marie C. Tetreault, Notary Public 58440-8-12 Printed in U.S.A. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attomeys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attomey or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and Unit �es Fi4eliby and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Com, w rcli in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand an anies this 2nd day of Jurie , 20 16 . te" ✓(ice"' Kevin E. Hughes, Assistant Sec tary To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney -In -Fact number, the above -named individuals and the details of the bond to which the power is attached. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER Removal and disposal of building materials at 500 E. Plaza Blvd. PAYMENT BOND (continued) ATTORNEY -IN -FACT ACKNOWLEDGEMENT OF SURETY STATE OF ) COUNTY OF ) ) ss On this day of , 2016, before me, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person whose name is subscribed to the within instrument as the attorney -in -fact of the , the corporation named as Surety in said instrument, and acknowledged to me that he subscribed the name of said corporation thereto as Surety, and his own name as attorney -in -fact. NOTE: Signature of those executing for Surety must be properly acknowledged. NOTE: The Attorney -in -fact must attach a certified copy of the Power of Attorney. Signature: Name (Type or Print): (Notary Public in and for said County and State) My Commission expires: ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego On June 2, 2016 before me, Kathy L. Tilley, Notary Public (insert name and title of the officer) personally appeared Tory M Whillock and Jerry E Mosier who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my and and official seal. Signa if (Seal) KATHY L. TILLEY comm. # 202524a 1 NOTASY►USUC•CAUFO N$aA SAN DIEGO COUNTY A My Commission Expires 1 May 19, 2017 ACORLI CERTIFICATE OF LIABILITY INSURANCE L""— DATE(MMIDD/YYYY) 06/01 /16 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER MOSIER INSURANCE AGENCY PO Box 2149 Lakeside, CA 92040-2149 License#:0716633 CONTACT NAME: License#:0716633 IAIC No. Ext): (619)749-1102 FAX (A/C. No): (619)334-1192 E-MAIL ADDRESS: jerryAimosier.com INSURER(S) AFFORDING COVERAGE NAIC # INSURERA: California Insurance Co 38865 INSURED Whillock Contracting Inc. PO Box 2322 La Mesa CA 91943 INSURERS: Westchester Surplus Lines Ins Co 10172 INSURERC: INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: • THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSO SUBR WVD POLICY NUMBER POLICY EFF (MM/DDIYYYY) POLICY EXP (MM/DD/YYYY) LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ CLAIMS -MADE OCCUR DAMAGE TO RENTED PREMISES (Ea $ ._ occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ _ P POLICY PRO- JECT LOC PRODUCTS - COMP/OP AGG $ OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ ANY AUTO BODILY INJURY (Per person) $ OWNED AUTOS ONLY SCHEDULED AUTOS BODILY INJURY (Per accident) $ _ HIRED AUTOS ONLY NON -OWNED AUTOS ONLY PROPERTY DAMAGE (Per accident) $ $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY PER OTH- STATUTE ER A ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? Y / N N N / A Y 46-816658-01-02 E.L. EACH ACCIDENT $ 1,000,000 (Mandatory in NH) 08/01/15 08/01/16 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1 ,000,000 B Pollution Liability Y G24281966 003 06/02/16 06/02/18 Each Occurrence General 5,000,000 5,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) 10 day notice of cancellation for non pay.Certificate holder is named as additional insured per contract requirements.Re: Ongoing grading, excavation and demolition operations of the insured.Job #1446:Hazardous materials removal & disposal and demolition, removal and disposalof building materials at 500 E. Plaza Blvd. CERTIFICATE HOLDER CANCELLATION City of National City 1243 National City Blvd National City, CA 91950 SHOULD ANY OF T - SCRIBED POLICIES BE CANCELLED BEFORE THE EXPIR' •N DATE THE OF, NOTICE WILL BE DELIVERED IN ACCORDA E WITH THE POLICY P' OVISIONS. AUTHORIZE REPRESENTATIVE © 1988-2015 ACOR r CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 01 03 03 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule where you are required by a written contract to obtain this waiver from us. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. The premium for this endorsement is shown in the Schedule. Schedule 1. ( ) Specific Waiver Name of person or organization: (4 Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: 3. Premium 1500 The premium charge for this endorsement shall be of the premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described. 4. Minimum Premium 5. Advance Premium This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. Endorsement Effective 08/01/15 Policy No. 46-816658-01-02 Endorsement No. 9 Insured Whillock Contracting, Inc. Premium$ 1,500.00 Insurance Company California Insurance Company Countersigned by doK A� RO CERTIFICATE OF LIABILITY INSURANCE E DATD/YYYY) 06/02/ 6/02/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POUCIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER FEDERATED MUTUAL INSURANCE COMPANY HOME OFFICE: P.O. BOX 328 OWATONNA, MN 55060 CONTACT NAME: CLIENT CONTACT CENTER PHONE X (A/C, No, Ext): 888-333-4949 (A/C, No): 507-446-4664 ADDRESS: CLIENTCONTACTCENTEReFEDINS.COM INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: FEDERATED MUTUAL INSURANCE COMPANY 13935 INSURED 385-065-8 WH I LLOCK CONTRACTI NG I NC 346 FRONT ST EL CAJON, CA 92020 INSURER B: INSURER C: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 110 REVISION NUMBER: 0 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DDIYYYY) POLICY EXP IMMIDD/YYYYI LIMITS A X COMMERCIAL GENERAL LIABILITY Y N 9159641 01/01/2016 01/01/2017 EACH OCCURRENCE $1,000,000 CLAIMS -MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) $100,000 GEN'L MED EXP (Any one person) $5,000 PERSONAL&ADVINJURY $1,000,000 AGGREGATE POLICY OTHER: X LIMIT APPLIES JECT PER: LOC GENERAL AGGREGATE $2,000,000 PRODUCTS - COMP/OP AGG $2,000,000 A AUTOMOBILE X — _ LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS SCHEDULED Y N 9159641 01/01/2016 01/01/2017 COMBINED SINGLE LIMIT (Ea accident) $1,000,000 BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE (Per accident) A X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE N N 9159642 01/01/2016 01/01/2017 EACH OCCURRENCE $5,000,000 AGGREGATE $5,000,000 DED RETENTION WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below YIN N N / A PER STATUTE OTH- ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L DISEASE •POLICY LIMIT DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) SEE ATTACHED PAGE CERTIFICATE HOLDER CANCELLATION 385-065-8 CITY OF NATIONAL CITY 1243 NATIONAL CITY BLVD NATIONAL CITY, CA 91950-4301 ACORD 25 (2014/01) 110 0 SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE O 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ACO AGENCY CUSTOMER ID: 385-065-8 LOC #: ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY FEDERATED MUTUAL INSURANCE COMPANY NAMED INSURED WHILLOCK CONTRACTING INC 346 FRONT ST EL CAJON, CA 92020 POLICY NUMBER SEE CERTIFICATE # 110.0 CARRIER SEE CERTIFICATE ## 110.0 NAIC CODE EFFECTIVE DATE: SEE CERTIFICATE ## 110.0 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE THE CERTIFICATE HOLDER IS AN ADDITIONAL INSURED SUBJECT TO THE CONDITIONS OF THE ADDITIONAL INSURED - OWNERS, LESSORS OR CONTRACTORS - AUTOMATIC STATUS WHEN REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU ENDORSEMENT FOR GENERAL LIABILITY. THE CERTIFICATE HOLDER IS AN ADDITIONAL INSURED SUBJECT TO THE CONDITIONS OF THE ADDITIONAL INSURED BY CONTRACT ENDORSEMENT FOR BUSINESS AUTO LIABILITY. GENERAL LIABILITY COVERAGE CONTAINS CG 25 03 DESIGNATED CONSTRUCTION GENERAL AGGREGATE LIMIT ENDORSEMENT APPLICABLE TO EACH CONSTRUCTION PROJECT AS REQUIRED BY WRITTEN CONTRACT OR WRITTEN AGREEMENT. JOB #1446 FOR REASONS OTHER THAN NON-PAYMENT OF PREMIUM, 30 DAYS NOTICE WILL BE PROVIDED TO THE CERTIFICATE -HOLDER IN THE EVENT THAT THE ISSUING COMPANY CANCELS THE POLICY BEFORE THE EXPIRATION DATE OF THE POLICY. ACORD 101 (2008/01) O 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD GL COMMERCIAL GENERAL LIABILITY CC 20 33 04 13 THIS ENDORSEMENT CHANGES THE POUCY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED n OWNERS, LESSEES OR CONTRACTORS w AUTOMATIC STATUS WHEN REQUIRED IN CONSTR TION AGREEMENT EEMENT WITH YOU This errdorswrrieni uaadlfi,2s Insurance provided under the € iewing; COMMERCIAL GENERAL LUA.EILITY COVERAGE PART A. Section If - Who Is An 1433sere:ai Is amended to 1 . include as an acfdiiio;ai insured any person or organization far hlr:u(n you are performing operations when you and :,;,on person or organization have agreed ::r: wr#fir+.9, in a contrast or agreement that such person or organization he added as an additional insured on your policy. ��t3tit3 person or r7r'L),arrr;:ation is an additional insured only with :respect. to liability for "bodf i injury". 'properlyMenage" or 'personal arid advertising injury" caused. in whole or in part, by; 1. Your arts or rim :ssion: ar 2. The acts or omissions of those acting on your behalf: in the performance of 'your ongoing operations tor the additional insured. However, the insurance afforded to sucta addrt•toa& insured; 1, Only applies to the extent permitted by law; and 2, xVIIM aol be broader than that which yor, are required by the: contract or agreement to provide for such additional insured, A person's or organize -lien's status set ar3 additional insured under this endorsement ends when your operations for that additional Insured are. completed. CC203304'13 With respect to the in surarce afforded to theses additiart;at insureds. tee following additional esxctusians apply: This insurance does not apply to. 1. "Bodll:r' injury 'property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professtonai archit cturei, engineering or surveying services, including: et. The preparirj, approving, or failing to prepare or approve, maps, shop drawings, opinions., reports, Sur'veyr,, field orders, change orders or drawings and specifications; or h. Supervisory, inspection, architectural or E3 ngirreering activities. This exclusion applies even if the claims against any insured attegee negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence' which cursed the "bodily injury" or "property damage', or the offense which caused the "pers nat and advertising injury". involved the rendering of or the failure to reader any profeasiornat architectural. engineering or surveying services. ff) insurance Set -Vises Office, Inc.. 2D12 saw 1 of 2 Policy Number::i1.r39ti41 Transaction Effective :ate: 04-14-2016 "#3ici#°,•' injury". or "property damage' occurrinp .after: a. Ail work, including 3riateriais, parts or equipment t rnisl-t d in oortr:ectiort with such Work, on the project (other than service, rriain enarce or repairs) to he per€ormec# by or on taefiatf of the additional insured(s) st the tocatiori of the covered operations has been completed; or b. Thmt portion of "your work'out of which the injury or damage arises has been put te' its irstended r-se by :any person or on0anizelicin <;thrnr Mari ancther contractor £;r £>ai;a£;or3':rartor :3rxa.3;eci in i)erfr,rnring operations for a3 rirrr.ipa i ..,: a part of th€ sarne project. Page 2 of 2 wG2t3n04 Z C. With respect to the insurance afforded to these additionet insureds, the Wowing is added to Section ##t Of insurance: The n30st P2 tbM pay on b£ehaif of the additional insured is the amount of insurance; 1. Required by the contract or agreement you t"f. V£: entered into with the a3c€dit orrai insured; or 2. Available under the xppti;.atite limits of insurance shown #r3 the Dec:#aratiors£,; whichever is less. This endorsement shalt rust increase the appheab#e Lihnits of Insurance shown in the Declarations.. ((:) Er urance Services Office, Inc.. 2012 Policy Number: r15ft641 .{ransaction E feetiva Date: 04-14-:2.016 GL POLICY NUMBER: 9159541 COMMERCIAL GENERAL LIABILITY CG25030-509 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL L1ABELJTY COVERAGE PART SCHEDULE Designated Construction Project(s): Each construction project as required by written contract or written agreement. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. For ail sums which the insured becomes loyally obligated to pay as damages caused by "occurrences" under Section I - Coverage A, and for all medical expenses caused by accidents under Section I - Coverage C, which can be attributed only to ongoing operations et a single designated construction project .shown in the Schedule above 1. A separate Designated Construction Project General Aggregate Limit applies to each designated construction project, and that limit is equal to the amount of the General Aggregate Limit 4hown in the Declarations. 2. The Designated Construction Project General Aggregate Limit is the most We will pay for the sum of all damages under Coverage A, except damages because of 'bodily injury" or "property damage" included in the "products - completed operations hazard", and for medical expenses under Coverage C regardless of the number of: a. Insureds; b. Claims made or 'suits" brought; or c. Persons or organizations making claims or bringing 'suits" CG 25 03 05 09 3. Arty payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the Designated Construction Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Designated Construction Project General Aggregate Limit. for any other designated construction project shown in the Schedute above. 4. The limits shown in the Declarations for Each Occurrence, Damage To Premises Rented To You and Medical Expense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construction Project General Aggregate Limit. <a insurance Services Office, Inc.. 2008 Page 1 of 2 Policy Number: 9159641 Transaction Effective Date: 04-14-2016 8. For all sums which the insured becomes #ega##y obligated to pay es damages caused by "occurrences' under Section t - Coverage A, and for all medical expenses caused by accidents Linder Section # - Coverage C, which cannot:rya attributed only io ongoing Operatiun:s at a single designated construction project shown in the Schedule- above: 1. Any payments made under Coverage A for darnuiges or tinder Coverage C for medical expenses shad reduce the amount available under the Aggregate Limit or 11.1� Products -completed Operations Aggregate Limit, whichever in applicable: and 2. Such payments shall net reduce any Designated Cionstract on Project General Aggregate t.imli. Page 2 of 2 When c average for liability arising out ot the "products -completed operations hazard" is provided, any payments for damages because of "bodily injury" or "property damage" included In the `praducts-completed operations hazard" will reduce the Pioducts-oornp#eted Operations Aggregate Limit, and not reduce the General Aggregate Limit nor the Designated Construction Pn::jeect. General Aggregator #f the applicable designated construction project has been abandoned, delayeed; or 2tbaind ned and then restarted, or if the authr*rized contracting parties deviate from plan., blueprints, designs, specifications or timetables, the project will still be deemed to he the same construction project. The provisions of Section. t#t - Limits Of Insurance not otherwise modified by this endorsement sha:t continue to apply as stipulated. <<:;, insurance Services Office, Enc.. 2008 pe i,c:y'#urrnbsr: g159641 Transaction Effective Dote:04-'14,2016 THIS ENDORSEMENT CHANCES THE POLICY, PLEASE READ IT CAREFULLY. ADDITIONAL INSURED BY CONTRACT ENDORSEMENT This endorsement modifies insurance provided under the following; BUSINESS AUTO COVERAGE PART With respect to coverage provided by this endorsement, the provisions of the Coverage Forme apply unless modified by the endorsement, A. WHO IS AN INSURED for "bodily injury" and 'property damage" liability is amended to inciude: Any person or organization other than a joint venture, for which you have agreed by written contract to procure bcxti?y injury ar property damage 'auto" liability insurance arising out of operation of a covered "auto" with your permission. However, this additional insurance does not apply to: (1) The owner or anyone else from whom you hire or borrow a covered "auto", This exception does not apply if the covered "auto" is a "trailer' connected to a covered "auto" you own. (2) Your "employee" if the covered "auto" Is owned by that "employee" or a member of his or her household. ('s`) Someone using a covered "auto" while he or she is working in a business of selling, servicing, repairing, parking or storing "auto"" unless that business is yours. (4) Anyone other than your "employees", partners (if you are a partnership), members (if you are a limited liability company), ar a lessee or borrower or any of their "employees", while moving property to or from a covered "auto". (5) A partner (if you are a partnership), or a member (if you are a limited liability company) for e covered "auto" owned by hire or her or a member of his or her household, B. The coverage extended to any additional insured by this endorsement is limited to, and subject to all terms, conditions, and exclusions of the Coverage Part to which this endorsement is attached. in addition, coverage shall not exceed the terms and rzmditions that are required by the terms of the written agreement to add any insured, or to procure insurance. C. The limits of insurance applicable to such insurance shall be the lesser of the limits required by the agreement between the parties, ar the limits provided by this policy. Additional exclusions. The insurance afforded to any person or organization as an insured under this endorsement does not apply; To loss" which occurs poor to the date of your contract with such person or organization, 2. To "loss" arising out of the sole negligence of any person or organization that would not be an insured except for this endorsement. 3. To "toss' for any leased or rented "auto" when the lessor or his or her agent takes possession of the leased or rented "auto" or the policy period ends, whichever occurs first. includes copyrighted material of Insurance Services Office, Inc. with its permission. CA-F-127 03-03) Policy Number: 9159641 Transaction Effective Date:05-12-2016 Removal and disposal of building materials at 500 E. Plaza Blvd. CERTIFICATE REGARDING CONTRACTOR'S LICENSE (Attachment D) 1. Contractor is required to possess one of the following State Contractor's License: State of California Class "A or B" Contractor's License, contractor doing asbestos abatement must have a C22 license and ASB certification 2. A failure to possess the required license, a failure to truthfully set forth the following information, or a failure to execute this Certificate renders the proposal nonresponsive and requires the City to reject the proposal. (Business and Professions Code Section 7028.15) 3. Contractor declares, under penalty of perjury, that he possesses the required Contractor's license(s) which: a. Bears the license number(s): 572217 b. Expires on: 06/30/2017 -r— 7/ (njzlri� Signature of Prime Cgxftractor Date Signature of Prime Con .ctor Date - ec_cekary N\ofY 6.\A)h r ck- Wesirk Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) This required license determination has been made by the City of National City. Any Contractor holding a different license who feels he is qualified to bid on this work must so advise the City Engineer at least seven (7) days prior to the bid opening. A review of the contemplated work will be made and the City's decision as to the required license will be final. 1-1 Removal and disposal of building materials at 500 E. Plaza Blvd. DESIGNATION OF SUBCONTRACTORS (Attachment E) In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act (Section 4100 et sec of the Government Code of the State of California) the undersigned Bidder has set forth below the full name and the location of the place of business of each Subcontractor who will perform work or labor or render service to the Prime Contractor in or about the construction of the work or improvement, or a Subcontractor licensed by the State of California who, under subcontract to the Prime Contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications to which the attached bid is responsive, and the portion of the work which will be done by each Subcontractor for each subcontract in excess of one-half of one percent of the Prime Contractor's total bid. The Bidder understands that if he fails to specify a subcontractor for any portion of the work to be performed under the contract in excess of one-half of one percent of his bid, he shall be deemed to have agreed to perform such portion of the work with contractor's own forces. Substitution shall not be allowed, except in cases of public emergency or necessity, and then only after a finding, reduced to writing as a public record of the City, setting forth the facts constituting the emergency or necessity. If no subcontractors are to be employed on the project, enter the word "NONE". Item # Subcontractor Description of Work % of Item ASE CrINkfackiely Inc. Aba1EYmenr 2$.81g0 1(Lrk -P MC' Inc . kehoM Podiny - Al-ker6ork &A S-km 2 N/A Use an additional sheet and attach if necessary. Number of sheets attached for listed subcontractors Percentage (%) of total contract amount that is subcontracted 2R.81 % (Do not include specialty items in the calculation.) Signed this j(A day of SUf1e , 2016. 1011-100 Signature of Prime Contrac r Date Signature of Prime Co tractor 612111.- Date \j R. \J \hits- Sec ta.ry isl\c l� Wtniliork-psident Print name and title Print name and title 1-2 Removal and disposal of building materials at 500 E. Plaza Blvd. CONTRACTOR'S CERTIFICATE OF WORKER'S COMPENSATION INSURANCE (Attachment F) Section 3700 of the Labor Code provides in part as follows: "Every employer except the state shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation to one or more insurers duly authorized to write compensation insurance in this state. (b) By securing from the Director of Industrial Relations a certificate of consent to self -insure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his employees. I am aware of the provisions of Section 3700 of the Labor Code, which require every employer to be insured against liability for worker's compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract. I further certify that if I should contract or subcontract with any person, including firm or company, to do all or any part of the work for which this proposal covers, I shall assure compliance by that contractor or subcontractor with the provisions of Section 3700 of the Labor Code. \j V\ \\ .` .-C&11 n J:Lne (Legal Name of Bidder) By: ,`11►11 Title: ecrekm (In accordance with Article 5, commencing at Section 1860, Chapter 1, Part 7, Division 2, of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any work under this contract.) 1-3 Removal and disposal of building materials at 500 E. Plaza Blvd. EMERGENCY NOTIFICATION LIST (Attachment G) In reference to Section 7-6 of the Standard Specifications my/our representatives at the construction site for the above subject project will be: On -site Project Superintendent: qxPrktWhk11 Name (ier652o-118Li ((01)579-O-7oo CeII number/Office number Other 24-hour available person with authority to order work: -1c6(1WV \k/h\\cc\C" Name (619)520 -17404 I579-cs)co CeII number/Office number Other 24-hour available person with authority to order work: Mara \ki h1 \\dcd- Name (WO 5 20 -01/1619 -0-1 co CeII number/Office number I am aware that one of the named representative(s) shall be present at the work site whenever work is in progress. Further, each of these responsible persons can be contacted in an emergency situation and have complete authority to act on the Contractor's behalf. Signature of Prime Contra Signature of Prime Contr. or Abry \\I ck-Sieciekary tk r 1c ()), \ Jhillock,-TrMtaarrl- Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) 1-4 Removal and disposal of building materials at 500 E. Plaza Blvd. GUARANTEE AGREEMENT (Attachment H) We hereby guarantee that removal and disposal of building materials at 500 E. Plaza Blvd., Specification No. 16.06 has been installed in accordance with the drawings and specifications and that the work as installed will fulfill the requirements included in the specifications. The undersigned agrees to promptly repair or replace, in a manner satisfactory to the Engineer, any or all of such work, together with any other adjacent work which may be displaced in connection with such repair or replacement, that may prove to be defective in workmanship or material within a period of one (1) year from the date of acceptance of the above referenced project by the CITY, ordinary wear and tear and unusual abuse or neglect excepted. The Contractor also agrees to hold the CITY harmless from claims of any kind arising from damage due to said defects in the work constructed under the Contract. In the event that the undersigned fails to comply with the abo\ period of time, as determined by the CITY, the undersigned I the repair of said defects and the Contractor and his/her su thereof. Firm name Signature of Prime Contractor or Sub -Contractor Addre Signat Print name and title Print n Countersigned (required by Prime Contractor if this Guarantee Firm name Addres rsc)S- Signature of Prime Contractor Signature of Prime Contractor Print name and title Print name and title Contact for Service: Name Address Telephone number and email address Removal and disposal of building materials at 500 E. Plaza Blvd. CONTRACTOR'S CERTIFICATION OF COMPLETION (Attachment I) DATE: TO: City Engineer City of National City Engineering Department 1243 National City Boulevard National City, CA 91950 FROM: (Firm or Corporation) This is to certify that I, acting as an authorized official of the above stated firm or corporation, have been properly authorized by said firm or corporation to sign the following statements pertaining to the subject contract: I know, of my own personal knowledge, and do hereby certify, that the work of the contract described above has been performed, and materials used and installed in every particular, in accordance with, and in conformity to, the contract drawings and specifications. The contract work is now complete in all parts and requirements, and ready for your final inspection. I understand that neither the determination by the Engineer that the work is complete, nor the acceptance thereof by the Owner, shall operate as a bar to claim against the Contractor under the terms of the guarantee provisions of the contract documents. Signature of Prime Contractor Signature of Prime Contractor Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) Removal and disposal of building materials at 500 E. Plaza Blvd. CONTRACTOR'S AFFIDAVIT OF PAYMENT (Attachment J) To All Whom It May Concern: WHEREAS, the undersigned has been contracted by the City of National City to furnish labor and materials for removal and disposal of building materials at 500 E. Plaza Blvd., Specification No. 16-06, under a contract dated the day of , 2016, in the City of National City, County of San Diego, State of California, of which City of National City is the Owner. NOW, THEREFORE, this day of , 2016 the undersigned, as the Contractor for the above -named Contract pursuant to the Conditions of the Contract hereby certifies that, except as listed below, he has paid in full or has otherwise satisfied all obligations for all materials and equipment furnished, for all work, labor, and services performed, and for all known indebtedness and claims against the Contractor for damages arising in any manner in connection with the performance of the Contract referenced above for which the Owner or his property might in anyway be held responsible. EXCEPTIONS: (If none, write "None". If required by the Owner, the Contractor shall furnish bond satisfactory to the Owner for each exception.) Signature of Prime Contractor Date Signature of Prime Contractor Date Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) Removal and disposal of building materials at 500 E. Plaza Blvd. CONSENT OF SURETY FOR FINAL PAYMENT (Attachment K) In accordance with the provisions of the contract between the City and the Contractor, and the following named Surety: on the Payment Bond in the amount of Dollars, of the following named Contractor: hereby approves of final payment to the Contractor, and further agrees that said final payment to the Contractor shall not relieve the Surety named herein of any of its obligations to the City of National City, California, as set forth in said Surety company's bond. IN WITNESS WHEREOF, the Surety Company has hereunto set its hand and seal this day of , 2016. Signature of Authorized Surety Representative Title (CORPORATE SEAL) Removal and disposal of building materials at 500 E. Plaza Blvd. CONTRACTOR'S AFFIDAVIT OF DISPOSAL (Attachment L) WHEREAS, on the day of , 2016, the undersigned entered into and executed a contract with the City of National City, a municipal corporation, for removal and disposal of building materials at 500 E. Plaza Blvd., as particularly described in said contract and identified as Specification No. 16.06 and WHEREAS, the specifications of said contract requires the Contractor to affirm that "all brush, trash, debris, and surplus materials resulting from this project have been disposed of in a legal manner" and that all designated recyclable materials are properly recycled in compliance with the City of National City Municipal Code, Chapter 15.80, Construction and Demolition Debris (Ordinance No. 2009-2309). WHEREAS, said contract has been completed, all surplus materials disposed of, and proof of compliance with the City of National City Municipal Code has been furnished. NOW, THEREFORE, in consideration of the final payment by the City of National City to said Contractor under the terms of said contract, the undersigned Contractor, hereby certifies and affirms under penalty of perjury that all surplus materials as described in said contract have been disposed of at the following location(s): Type of material disposed of Type of material disposed of Name of disposal site Name of disposal site Address of disposal site Address of disposal site Type of material disposed of Type of material disposed of Name of disposal site Name of disposal site Address of disposal site Address of disposal site By signing and submitting this form to the City of National City on this day of , 2016, I (we) hereby certified and swear under penalty of perjury under the laws of the State of California that the aforementioned information is true and correct without omission, error or misrepresentation. Signature of Prime Contractor Date Signature of Prime Contractor Date Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) RESOLUTION NO. 2016 -- 77 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE FORMAL BID PROCESS AS ALLOWED IN NATIONAL CITY MUNICIPAL CODE SECTION 2.60.230 (A) AND (C), AUTHORIZING THE MAYOR TO EXECUTE A DEMOLITION CONTRACT WITH WHILLOCK CONTRACTING, INC., IN THE NOT TO EXCEED AMOUNT OF $132,715, WHICH INCLUDES A 25% CONTINGENCY, FOR THE PLAYHOUSE ON PLAZA DEMOLITION PROJECT LOCATED AT 500 EAST PLAZA BOULEVARD, AND ESTABLISHING A PROJECT APPROPRIATION TOTALING $253,001 TO ACCOUNT FOR SAID DEMOLITION CONTRACT AND OTHER COSTS RELATED TO PROJECT MANAGEMENT, ENGINEERING, ENVIRONMENTAL TESTING, AND A CONTROLLED FIRE TO BE CONDUCTED BY THE NATIONAL CITY FIRE DEPARTMENT WHEREAS, on May 22, 2015, the Playhouse on Plaza ("Playhouse") located at 500 East Plaza Boulevard was severely damaged in a fire leaving a hole in the roof of the conference room area of the building that has provided an access point for homeless people to enter the building; and WHEREAS, further investigation by the National City Fire Marshal and Building Official in April 2016 revealed structural deterioration in the basement at the south entryway and that the fire damage compromised windows, doors, interior, exterior walls, and flooring; and WHEREAS, on May 25, 2016, the National City Housing Inspector determined that the building was unsafe to occupy; and WHEREAS, the California Fire Code, Life Safety Code, and California Code of Regulations all require prompt correction of the adverse and hazardous conditions found at the Playhouse; and WHEREAS, due to special circumstances caused by the adverse and hazardous conditions of the building, it is recommended that the City Council declare the demolition and remediation of the Playhouse an emergency and waive the formal bid process pursuant to National City Municipal Code Section 2.60.230 (A) and (C); and WHEREAS, the City contacted three contractors for proposals for the work and after review staff recommends contracting with the lowest, responsive responsible bidder, Whillock Contracting, Inc., to complete the demolition and remediation work for the not to exceed amount of $132,715. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the demolition of the deteriorated structure and remediation of outstanding environmental and safety hazards at the Playhouse on Playhouse located at 500 East Plaza Boulevard constitutes an emergency permitting waiving the formal bid process pursuant to National City Municipal Code Section 2.60.230 (A) and (C). BE IT FURTHER RESOLVED that the City Council authorizes the Mayor to execute a demolition contract with Whillock Contracting, Inc., in the not to exceed amount of $132,715, which includes a 25% contingency, for the Playhouse on Plaza Demolition Project. Resolution No. 2016 — 77 Page Two BE IT FURTHER RESOLVED that the City Council authorizes the establishment of a project appropriation totaling $253,001 to account for the demolition contract and other costs related to project management, engineering, environmental testing, and a controlled fire that will be conducted by the National City Fire Department. PASSED and ADOPTED this 7th day of June, 2016. Morrison, Mayor Michael R. Dalla, City Clerk APPROVED AS TO FOR► : is acit a . ilva City Attorne Passed and adopted by the Council of the City of National City, California, on June 7, 2016 by the following vote, to -wit: Ayes: Councilmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California 2Li1 K City City o ational City, California CI rk of the f By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2016-77 of the City of National City, California, passed and adopted by the Council of said City on June 7, 2016. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: 1June 7, 20161, AGENDA ITEM NO.i 'EM TITLE: Resolution of the City Council of the City of National City waiving the public works contract bid process as allowed in National City Municipal Code Section 2.60.230(A), authorizing the Mayor to execute a demolition contract in the not -to -exceed amount of $132,715 that includes a 25% contingency with Whillock Contracting, Inc. for the Playhouse on Plaza Demolition Project at 500 E. Plaza Blvd in National City, and establishing a project appropriation totaling $253,001 to account for the demolition contract and other costs related to project management, engineering costs, environmental testing, and a controlled fire to be conducted by the National City Fire Department. PREPARED BY: Carlos Aguirre, Community Dev. Mg PHONE: (619) 336-4391, EXPLANATION: See Attachment No. 1 Background Report FINANCIAL STATEMENT: ACCOUNT NO. Revenue Account 001-00000-3643 Insurance Settlements The City received $253,001 from an insurance claim for damage caused by a 2015 fire. These funds will be appropriated to cover the costs of demolition and related expenses. Project Expenditure Account 001-409-500-598-1177 Playhouse Demolition Project ENVIRONMENTAL REVIEW: The project is exempt from environmental review pursuant to Section 15300.1 of Article 19 of the California Environmental Quality Act. DEPARTMENT: Housing, Grants, & Asset "" nagement APPROVED B APPROVED: LI ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the Resolutionj BOARD / COMMISSION RECOMMENDATION: N/A TTACHMENTS: 1. Background Report 2. Whillock Demolition Contract 3. Resolution K sa�..V !to. rd06-`�`1 Attachment No. 1 Playhouse on Plaza Demolition Project- Background and Explanation The property originally was a Christian Science Church building. In 1976, a small non-profit theater production company, Lamb's Players Incorporated, purchased, renovated, and used the facility as a venue for 119 productions until 1994, when Lamb's opened a new theater in Coronado. The old arena - style theater, which some compared to a slightly less plush version of The Old Globe Theatre's Cassius Carter Centre Stage, accommodated a maximum occupancy of 172 people. Its backstage rooms and cubicles doubled as Lamb's administrative offices during the day. On April 28, 2005, the Community Development Commission of the City of National City purchased the Playhouse from Lamb's Players Incorporated (closed escrow on May 26, 2005) and has held it as a vacant property since. There is no public record of any improvements being made on this property. A resolution adopted on December 13, 2005 states that environmental studies under CEQA are not applicable to the construction management of the Playhouse on Plaza. The document also states that after inspection by Fire and Building Safety Staff, the property was not suitable for use. Proposals to renovate by non -profits to keep the building operational have been made, yet improvements were deemed too costly. At that time renovation estimates ranged from $1,000,000 to $3,000,000. The property was appraised on 3/20/2016. The value of the property, as is, with the building intact is $400,000. The value of the property, vacant, with the building removed is $495,000. The value is in the land, not the building. The clearing of the building improves the value of the parcel and removes any ongoing health and safety issues. The building and property were previously owned by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency. Ownership was transferred to the City of National City on May 17, 2016, through Council Resolution 2017-70 and Successor Agency Resolution 2017-77. Unsafe Conditions of Building The building was damaged in a fire on May 22, 2015 leaving a hole in the roof of the conference room area of the building. The opening created by the fire has exposed the interior of the building to the elements. It also provided an access point for homeless people to enter the building. There has been a constant homeless issue at this location for several years now. The city has received complaints from area residents about the homeless congregating at the playhouse. The police department and code enforcement have had to clean people out of the unsafe building several times. The City Housing Inspector has deemed the building Unsafe to Occupy (See Attachment 1-A). Additionally, investigations made by the Fire Marshal and the Building Official in April of 2016 (See Attachment 1-B) revealed structural deterioration in the basement at the south entryway and that fire damage compromised windows, doors, interior, and exterior walls, and flooring. Due to the outstanding conditions that are out of compliance with the California Fire Code, Life Safety Code, and California Code of Regulations staff recommends that the City Council declare the demolition and remediation an emergency and waive the public advertising for the contract bid process as typically required due to the adverse and hazardous conditions of the building. Page 1 of 4 Attachment No. 1 Controlled Burn Exercise and Demolition As part of the removal, the National City Fire Department would like to conduct a controlled burn exercise. A contractor is needed to prepare the building for the exercise and remove the debris after the burn. The City contacted three contractors requesting proposals for the work. After reviewing the proposals, Whillock Contracting Inc. was selected as the lowest responsible bidder. The work will be conducted in the following phases: 1. Contractor will obtain all required permits, provide proper signage (if required) and take all preparatory steps for the removal of hazardous and asbestos containing materials; and, remove and properly dispose of all hazardous materials from existing building prior to the burn exercise. 2. National City Fire Department will conduct a controlled burn sometime during the late summer / early fall. 3. Contractor will remove and dispose structure rubble, burn ash, and building remains; demolish and dispose of all block and concrete walls, slabs, and foundation; import and place fill soil materials and compact to 90% relative compaction and fill any excavation to within 2" of finish grade; and, clean site of all remaining debris, loose soil, and dust. After the building burn, demolition, and removal of debris, the City of National City will continue to maintain the vacant lot. Page 2 of 4 Attachment No. 1-A May 25, 2016 City of National City Attn: Carlos Aguirre 140 E 12th Street National City, CA 91950 RE: Unsafe to Occupy To: Property Owner CALIFORNIA —6 NATIONAL Orr N�V3Z3 On May 22, 2015 the National City Fire Department responded to a fire on your property located at 500 E Plaza Blvd in National City, CA, further identified as "Lamb's Playhouse". This letter is to inform you that due to the extent of the fire damage, this building is now deemed Unsafe to Occupy. The property will be posted "Do Not Enter" until the building property is demolished. Should you have any questions or require additional clarification or assistance, please do not hesitate to contact the Inspector at 619-336-4301. Gabriel R. Ibarra, LRCIA, CCEO Housing Inspector The enclosed notice has been mailed to you by certified mail and first-class mail. Receipt constitutes service of notice. Housing, Grants and Asset Management Department 140 East 12th Street, Suite B, National City, CA 91950-4301 (619) 336-4301 gibarra@nationalcityca.gov Attachment 1-B City of National City Fire Department Phone (619) 336-4550 dostAarelairoto *aseripos* i Lamb Players Theatre DATE: April 6, 2016 TO: Greg Rose FROM: Robert Hernandez / Fire Marshal and Luis Sainz / Building Ofi'idai SUBJECT: Lamb Players Theatre In preparation for the control three bum at the Lamb Players Theatre located at 500 East Plaza Blvd. in the City of National City, we would like to document the following; e investigation by the Building Official and the Fire Marshal, revealed structural deterioration in the basement at the south entryway into the seating theatre • Due to the extinguishment of the fire which occurred on May 23, 2015, several opening were cut into the roof as a result of firefighting efforts • Fire damage compromised windows, doom, interior and exterior walls, flooring, duct systems, electrical, and roof framing Attachment No. 2 AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND WHILLOCK CONTRACTING, INC. THIS AGREEMENT is entered into by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and WHILLOCK CONTRACTING, INC., a corporation (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to provide hazardous materials removal & disposal and demolition, removal and disposal of building materials at 500 E. Plaza Blvd. WHEREAS, the CITY has determined that the CONTRACTOR is a corporation and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY agrees to engage the CONTRACTOR, and the CONTRACTOR agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services shall be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on June 7, 2016. The duration of this Agreement is for the period of June 7, 2016 through December 31, 2016. The working days to complete and finalize their work is set forth in Section 7 of Attachment A. 3. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit "A". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on .personnel, of the CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall appear at meetings to keep staff and City Council advised of the progress on the Project. Attachment No. 2 The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 25% from the base amount. 4. PROJECT COORDINATION AND SUPERVISION. Carlos Aguirre is hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Chris Moore thereby is designated as the Project Director for the CONTRACTOR. 5. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A" shall not exceed $106,712 — Base amount plus Additive Proposal Alternates A & B without prior written authorization from the City. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 6. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONTRACTOR and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. 2 City of National City and Whillock Contracting, Inc. Attachment No. 2 Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CITY, and CONTRACTOR thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONTRACTOR'S written work product for the CITY'S purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or SUBCONTRACTORS, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its SUBCONTRACTOR(S) shall require the SUBCONTRACTOR(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S employees, except as herein set forth, and the CONTRACTOR or the CONTRACTOR'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONTRACTOR its agents, servants, and employees are as to the CITY wholly independent CONTRACTOR, and that the CONTRACTOR'S obligations to the CITY are solely such as are prescribed by this Agreement. 3 City of National City and Whillock Contracting, Inc. Attachment No. 2 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR and each of its SUBCONTRACTOR(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 12. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR'S professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and 4 City of National City and Whillock Contracting, Inc. Attachment No. 2 selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, or employees. CITY will cooperate reasonably in the defense of any action, and CONTRACTOR shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 5 City of National City and Whillock Contracting, Inc. Attachment No. 2 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 17. INSURANCE AND BONDS. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONTRACTOR(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ❑ If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Contractor's Pollution Liability and/or Asbestos Pollution Liability will be applicable to the work to be performed, with a limit of no less than $2,000,000.00 per occurrence and $4,000,000.00 aggregated per policy period of one year. If the Contractor maintains broader coverage and/or high limits than the City requires then the City shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. E. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONTRACTOR has no employees subject to the California Workers' Compensation and Labor laws, CONTRACTOR shall execute a Declaration to that effect. Said Declaration shall be provided to CONTRACTOR by CITY. 6 City of National City and Whitlock Contracting, Inc. Attachment No. 2 F. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. K. Performance and Payment Bonds. CONTRACTOR shall furnish the City with a Performance Bond equal to 100% of their bid, and a Payment Bond equal to 100% of their bid, prior to execution of the Agreement. All bonds are to be secured from a surety company that meets all of the State of California bonding requirements, as defined in Code of Civil Procedure Section 995.120, and is authorized by the State of California, and all documents required by Code of Civil Procedure Section 995.660, to the extent required by law. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 7 City of National City and Whillock Contracting, Inc. Attachment No. 2 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon maybe entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 7. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is 8 City of National City and Whillock Contracting, Inc. Attachment No. 2 outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Carlos Aguirre Community Development Manager Housing and Asset Management City of National City 140 E. 12th, Suite B National City, CA 91950-4301 To CONTRACTOR: Chris Moore Project Manager Whillock Contracting, Inc. P.O. Box 2322 La Mesa, CA 91943 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. 9 City of National City and Whillock Contracting, Inc. Attachment No. 2 The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 22 by the CONTRACTOR. 23. PREVAILING WAGES. CONTRACTOR shall comply with state prevailing wage requirements, as further set forth in Section 10.1.2 of Attachment A. 24. ADDITIONAL GENERAL CONTRACT TERMS AND CONDITIONS. CONTRACTOR shall comply with the general contract terms, conditions, and requirements attached hereto and incorporated herein as Attachments A through L. More specifically, CONTRACTOR shall: 1) comply with the General Contract Conditions contained within Attachment A; 2) submit a complete and executed Performance Bond - Attachment B; 3) submit a complete and executed Payment Bond - Attachment C; 4) execute the Certificate Regarding Contractor's License attached as Attachment D; 5) submit a completed and executed Designation of Subcontractors - Attachment E; 6) execute the Contractor's Certificate of Worker's Compensation Insurance - Attachment F; 7) submit a completed Emergency Notification List - Attachment G; 8) execute the Gurantee Agreement - Attachment H; 9) submit a completed Contractor's Certification of Completion when the work is completed - Attachment I; 10) submit a completed and executed Contractor's Affidavit of Payment — Attachment J; 11) submit a completed and executed Consent of Surety for Final Payment — Attachment K; and, 12) submit a completed and executed Contractor's Affidavit of Disposal upon completion of the contract — Attachment L. 25. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. 10 City of National City and Whillock Contracting, Inc. Attachment No. 2 H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. 11 City of National City and Whillock Contracting, Inc. Attachment No. 2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney 12 WHILLOCK CONTRACTING, INC. (Corporation — signatures of tin o corporate officers required) By: (Name) (Print) (Title) By: (Name) (Print) (Title) City of National City and Whillock Contracting, Inc. Z.AU LDl1 11 EMERGENCY CONTRACT Attachment No. 2 Hazardous Material Removal & Disposal and Demolition, Removal and Disposal 500 E. Plaza, National City, CA 91950 This is a prevailing wage project under the laws of the State of California. 100% Performance and Labor/Materials Bonds are required SCOPE OF SERVICES AND PROPOSED PRICE BASE PROPOSAL, (Phases 1 & 2) Phase 1 1. Mobilization. 2. Obtain necessary permits. (City to reimburse actual permit fees.) 3. install and maintain storm water BMP's. 4. Provide proper SDAPCD notification for abatement. 5. Removal of all hazardous and asbestos containing materials identified in Air & Building Sciences, LLC report dated January 30, 2006. 6. Removal and disposal of all plastics (seating chairs, carpet flooring, vinyl flooring, light fixtures, etc.). 7. Provide and install proper signage, if required. 8. Demobilize. Phase 2 1. Fire Department to burn structure to rubble. 2. Mobilize for complete removal and disposal. 3. Install and maintain storm water BMP's. 4. Remove and dispose of structure rubble, burn ash and all building remains. 5. Materials to be disposed of as C&D material (non recyclable). 6. Demolish and dispose of all block and concrete walls, slabs and foundations from existing building. 7. Import and place fill soil materials and compact to 90% relative compaction from City soil stockpile located near Harding Avenue and 20th Street in National City. Fill all excavations as a result of the foundation and wall removal to within 2" of finish grade. 8. Clean the site of all remaining debris, loose soil, and dust. 9. Demobilize. BASE PROPOSAL LUMP SUM PRICE: $ 97,043 .00 ADDITIVE PROPOSAL ALTERNATE "A": 1. Install straw waddle around the excavated area. ADDTIVE PROPOSAL ALTERNATE "A" LUMP SUM PRICE: $ ' d3 Q (icl ' DNS MI3 "IUNOIWN:10 \1I3 9 T 3Thd ;ZTWd GrOe 1,329.00 ADDITIVE PROPOSAL ALTERNATE "B": 1. Pave the remaining 2" to finished grade with C-2, PG-6410 asphalt in accordance to 2012 Greenbook standards. DESCRIPTION UNIT QTY UNIT PRICE EXTENSION 2"AC Payment TON 60 $139.00 $8,340.00 Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT NON -COLLUSION AFFIDAVIT The undersigned declares: The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or a sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose. Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder and has full knowledge of whether any acts of collusion occurred or did not occur. I declare under penalty of perjury under the taws of the State of California that the foregoing is true and correct and that this declaration is executed on: 4/18/16 Date Signature of Corporate Offi or Owner Tory M. Whillock ecretary Print name and title Whillock Contracting, Inc. Name of Company Non -Collusion Affidavit Page 1 of 1 Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT CERTIFICATE REGARDING CONTRACTOR'S LICENSE 1. Contractor is required to possess one of the following State Contractor's License: State of California Class "A or B" Contractor's License, contractor doing asbestos abatement must have a C22 license and ASB certification. 2. A failure to possess the required license, a failure to truthfully set forth the following information, or a failure to execute this Certificate renders the proposal nonresponsive and requires the City to reject the proposal. (Business and Professions Code Section 7028.15) 3. Contractor declares, under penalty of perjury, that he possesses the required Contractor's license(s) which: a. Bears the license number(s): 572217 b. Expires on: 06/30/2017 c. Official Company Name: Whillock Contracting, Inc. This required license determination has been made by the Owner. Any Contractor holding a different license who feels he is qualified to bid on this work must so advise the owner at least seven (7) days prior to the bid opening.. A review of the contemplated work will be made and the Owner's decision as to the required license will be final. Certificate Regarding Contractor's License Page 1 of 1 CONTRACTORS STATE LICENSE BOARD Contractor's License Detail for License # 572217 Attachment No. 2 DISCLAIMER: A license status check provides Information taken from the CSLB license database. Before relying on this Information, you should be aware of the following limitations. CSLB complaintdackrure Is taskicted by pow (B&P 7124.6) If this entity Is subject to pubic complaint dadesure, a Mk for oomplaht disclosure WI appear below. Click on the link or button to obtain complaint and/or legal action Wolmdlon. Per BLP 7071.17 , oray construction related civil ketrnents reported to the CSLB are disclosed. tebtrarons are not Ivied unless the contractor idis Co comply with the terms of the mbltraion. Due to woddoed, there maybe relevant Information that has not yet bean entered onto the Board's kenae d iabase. Data current as of 4/14/201 B 11:10:03 AM Business Information WHILLOCK CONTRACTING INC P O BOX 2322 LA MESA, CA 81943 Buskless Phone Nurnber.(619) 578-0700 Entity Corporation Issue Date 0500/1989 Expiry Date 06130/2017 License Stitt IThis license is current and active. [All Information below should be reviewed. Classifications A -GENERAL ENGINEERING CONTRACTOR C21 -BUILDING MOVING, DEMOLITION C12 - EARTHWORK AND PAVING B - GENERAL BUILDING CONTRACTOR C22 -ASBESTOS ABATEMENT ASS - ASBESTOS (Check DOSH Asbestos Registration) HAZ - HAZARDOUS SUBSTANCES REMOVAL Certifications Bonding Information Contractors Bond IThia license filed a Contractors Bond with TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA. ;Bond Number: 106312186 Bond Amount: $15,000 ;Effective Date: 01/01/2016 !Contractors Bond History-_........-......._ . Bond of Qualifying Individual The qualifying individual MARK BATEMAN WHILLOCK certified that hefahe owns 10 percent or more of the voting stoddmombershlp Interest of this company; therefore, the Bond of Qualifying Individual is not required. Effective Date: 05/19/2015 BQre Bond History The qualifying individual BRENT PATRICK W)-IILLOCK certified that he/she awns 10 percent or more of the voting stock/membership Interest of this company: therefore, the Bond of Qualifying Individual la not required. Effective Date: 04/29/2008 Workers' Compensation !This license has workers compensation insurance with the CALIFORNIA INSURANCE COMPANY ?Policy Number:4681685601 Effective Date: 06/01/2012 (Expire Date: 08/01/2016 Vorfcers' Compensation History 05/192015-DOSH REGISTRATION VERIFIED FOR C22 Miscellaneous Information lithm IPortofino' listed on this license (current or disassociated) are Nsted on other licenses. Iof 4/141201611:10 AM Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT DESIGNATION OF SUBCONTRACTORS In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act (Section 4100 et sec of the Government Code of the State of California) the Bidder has set forth below the full name and the location of the place of business of each Subcontractor who will perform work or labor or render service to the Prime Contractor in or about the construction of the work or improvement, or a Subcontractor licensed by the State of California who, under subcontract to the Prime Contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications to which the attached bid is responsive, and the portion of the work which will be done by each Subcontractor for each subcontract in excess of one-half of one percent of the Prime Contractor's total bid. The Bidder understands that if he fails to specify a subcontractor for any portion of the work to be performed under the contract in excess of one -hall of one percent of his bid, he shall be deemed to have agreed to perform such portion of the work with contractor's own forces. Substitution shall not be allowed, except in cases of public emergency or necessity, and then only after a finding, reduced to writing as a public record of the City, setting forth the facts constituting the emergency or necessity. If no subcontractors are to be employed on the project, enter the word "NONE". Use an additional sheet and attach if necessary. Number of sheets attached for fisted subcontractors 1 Percentage (%) of total contract amount that is subcontracted 28.81 % (Do not include specialty items in the calculation.) Designation of Subcontractors Page 1 of 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT DESIGNATION OF SUBCONTRACTORS Subcontractor Name Etusiness Location C5Lh1 License Number DER Number Description of Work Subcontractor Contract Amount ($) Portion (%) of Work of ASE Contracting, Inc. El Cajon, CA 765083 1000009348 Abatement $27,957.00 28.81% Kirk Paving, Inc Lakeside, CA 749206 1000002341 Asphalt Paving - Alternate Bid Item #2 $7,920.00 N/A Designation of Subcontractors Page 2 of 2 Z ON luawg3eW Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT IRAN CONTRACTING ACT CERTIFICATION (Public Contract Code section 2200 et seq.) As required by California Public Contract Code section 2204, under penalty of perjury the Contractor hereby certifies upon execution of this document that the following statements as to the Contractor's status in regard to the Iran Contracting Act of 2010 (Public Contract Code section 2200 et seq.) is true and correct: The Contractor is not: 1. identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203; or 2. provides goods or services of twenty million dollars ($20,000,000) or more in the energy sector of Iran, including a person that provides oil or liquefied natural gas tankers, or products used to construct or maintain pipelines used to transport oil or liquefied natural gas, for the energy sector of Iran; or 3. a financial institution that extends, for 45 days or more, credit in the amount of $20,000,000 or more to any other person or entity identified on the current list of persons and entities engaging in investment activities in Iran prepared by the California Department of General Services in accordance with subdivision (b) of Public Contract Code section 2203, if that person or entity uses or will use the credit to provide goods or services in the energy sector in Iran. In accordance with Public Contract Code section 2205, false certification of this form will be reported to the California Attorney General and may result in civil penalties equal to the greater of $250,000 or twice the Contract Price, termination of the Contract and/or ineligibility to bid on contracts for three years. Whillock Contracting, Inc Company Name Signature of Corporate Off6or Owner Tory M. Whillock / Secretary Print Name and Title 04/18/2016 Date This Certification applies to Contracts over $1,000,000 Iran Contracting Act Certification Page 1 of 1 Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/Public-Works/PublicWorks.html for additional information. No bid will be accepted nor any contract entered into without proof of the contractor's and subcontractors' current registration with the Department of industrial Relations to perform public work. By submitting this form the Bidder hereby certifies that he/she is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations. Name of Bidder: Whillock Contracting, Inc DIR Registration Number: 1000001767 Bidder further acknowledges: 1. Bidder shall maintain a current DIR registration for the duration of the project. 2. Bidder shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contracts with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project. 3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non -responsive. Public Works Contractor Registration Certification Page 1 of 1 Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT CONTRACTOR'S CERTIFICATE OF WORKER'S COMPENSATION INSURANCE Section 3700 of the Labor Code provides in part as follows: "Every employer except the state shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation to one or more insurers duly authorized to write compensation insurance in this state. (b) By securing from the Director of Industrial Relations a certificate of consent to self -insure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his employees. am aware of the provisions of Section 3700 of the Labor Code, which require every employer to be insured against liability for worker's compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract. I further certify that if I should contract or subcontract with any person, including firm or company, to do all or any part of the work for which this proposal covers, 1 shall assure compliance by that contractor or subcontractor with the provisions of Section 3700 of the Labor Code. (In accordance with Article 5, commencing at Section 1860, Chapter 1, Part 7, Division 2, of the Labor Code, the above certificate must be signed and filed with the awarding body with proof of insurance, or self-insurance prior to performing any work under this contract.) Contractor's Certificate of Worker's Compensation Insurance Page 1 of 1 Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT INFORMATION REQUIRED OF BIDDERS Failure to complete all information may render your bid non -responsive. (Indicate not applicable "N/A" where appropriate.) NOTE: Where Bidder is a joint venture, pages shall be duplicated and information provided for all parties to the joint venture. Name of Bidder: Type, if Entity: Bidder Address: Whillock Contracting, Inc Corporation P.O. Box 2322 La Mesa, CA 91943 619-579-0955 619-579-0700 estimating@whillockcontracting.com Facsimile Number Telephone Number E-Mail How many years has Bidder's organization been in business as a Contractor? 25+ How many years has Bidder's organization been in business under its present name? 25+ Under what other or former names has Bidder's organization operated? Whillock Construction If Bidder's organization is a corporation, answer the following: Date of Incorporation: 06/10/1988 State of incorporation: California President's Name: Mark B. Whillock Vice -President's Name(s): Brent P. Whillock Secretary's Name: Tory M. Whillock Treasurer's Name: Susan K. Whillock Information Required of Bidders Page 1 of 3 500 E. PLAZA DEMOLITION AND DISPOSAL Attachment No. 2 BID DOCUMENT If an individual or a partnership, answer the following: Date of Organization: N/A Name and address of all partners (state whether general or limited partnership): N/A If other than a corporation or partnership, describe organization and name principals: N/A List other states in which Bidder's organization is legally qualified to do business: NIA What type of work does the Bidder normally perform with its own forces? Demolition, grading, and excavation Has Bidder ever failed to complete any work awarded to it? if so, note when, where, and why: No. Within the last five years, has any officer or partner of Bidder's organization ever been an officer or partner of another organization when it failed to complete a contract? if so, attach a separate sheet of explanation: No. Information Required of Bidders Page 2 of 3 500 E. PLAZA DEMOLITION AND DISPOSAL Attachment No. 2 BID DOCUMENT List Trade References: Donald D. Diffembaugh Construction Inc. (619) 654-1375 HM Pitt Labs, Inc (619) 981-0267 SIBS Inc. (800) 275-00839 List Bank References (Bank and Branch Address): California Bank & Trust Alpine Branch #204 2250 Alpine Blvd. Alpine, CA 91901 Name of Bonding Company and Name and Address of Agent: Travelers Casualty & Security Company of America c/o Jerry Mosier (619) 749-1102 PO Box 2149 Lakeside, CA 92040 Information Required of Bidders Page 3 of 3 Attachment No. 2 500 E. PLAZA DEMOLITION AND DISPOSAL BID DOCUMENT VERIFICATION AND EXECUTION By signing and submitting this Verification and Execution form, the bidder certifies and declares under penalty of perjury under the laws of the State of California that all the information contained in all bid documents is true and correct and that any deviations, errors and omissions may subject the bid to a determination as non -responsive. Further, the bidder agrees to defend by legal counsel of the Agency's choosing, and to indemnify and hold harmless the City of National City against all legal challenges to this bidder's bid. Whillock Contracting, Inc. Official Company Name DBA, if any Signature of Corporate Officr Partner, or Owner Tory M. Whillock / Secretary Print name and title Signature of second Corpor'Officer (required for corporations) Mark B. Whillock / President Print name and title 04/18/2016 Date Failure to fully execute this document will render the bid non -responsive. Verification and Execution Page 1 of 1 Attachment No. 2 ATTACHMENT A GENERAL CONTRACT CONDITIONS SECTION 1 - CHANGES IN WORK 1-1 CHANGES INITIATED BY THE CITY 1-1.1 General. With the signing of the contract documents, the contractor acknowledges that his representative is authorized to sign change orders. 1-1.2 Agreed Prices. All proposed change order work shall be submitted with a detailed cost estimate. The detailed cost estimate shall indicate material, labor, equipment, overhead, and all incidentals required to perform change in work. 1-1.3 Payment for Overtime Work. Except as otherwise provided in this Section, the Contractor shall not receive additional compensation for overtime work; i.e., work in excess of eight (8) hours in any one calendar day or forty (40) hours in any one calendar week, even though such overtime work may be required under emergency conditions and may be ordered by the Engineer in writing. Additional compensation will be paid to the Contractor for overtime work only in the event extra work is ordered by the Engineer and the change order specifically authorizes the use of overtime work and then, only to such extent as overtime work of a similar nature in the same locality. All costs of inspection and testing performed during overtime work by the Contractor, which is allowed solely for the convenience of the Contractor shall be borne by the Contractor. The City shall have the authority to deduct the cost of all such inspection and testing from any partial payments otherwise due to the Contractor. 1-1.4 General. The Contractor, in providing the services set forth herein, shall not perform work in excess of the project without the written permission of the City or its designated representative. All requests for extra work shall be by written change order submitted to the City prior to the commencement of the work. 1-1.6 Payment. 1-1.7.1 Basis for Establishing Costs. (a) Labor. The costs of labor will be the actual cost for wages prevailing for each craft or type of workers performing the extra work at the time extra work is done, plus a labor surcharge set forth in the California Department of Transportation publication entitled "Labor Surcharge and Equipment Rates", which is in effect on the date upon which the work is accomplished and which is a part of the Contract. Said labor surcharge shall constitute full compensation for all payments imposed by the State and Federal laws and for all other payments made to, or on behalf of, the workman, other than the prevailing wages. The use of labor classifications which would increase the extra work cost will not be permitted unless the Contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not Initials Attachment No. 2 included in the invoice for equipment rentals. The labor cost for workers shall be proportioned to all of their assigned work and only that applicable to extra work shall be paid. Non -direct labor costs including superintendence shall be considered part of the mark-up of subsection 3-3.2.3(a) (b) Tool and Equipment Rental. The Contractor will be paid for the use of equipment at the rental rates listed for such equipment in the Department of Transportation publication entitled "Labor Surcharge and Equipment Rental Rates" which is in effect on the date upon which it is accomplished and which is a part of the Contract, regardless of ownership and any such rental or other agreement, if such may exist, for the use of such equipment entered into by the Contractor. If it is deemed necessary by the Engineer to use equipment not listed in the said publication, a suitable rental rate for such equipment will be established by the Engineer. The Contractor may furnish any cost data, which might assist the Engineer in the establishment of such rental rate. 1-1.7.2 Markup. (a) The markup for extra work by the contractor for their own work shall be: a. Labor 20% b. Materials 15% c. Tools and equipment 15% (b) The markup for extra work by the subcontractor for their own work shall be: a. Labor 20% b. Materials 15% c. Tools and equipment 15% The prime contractor markup for subcontractor work shall be 5%. Regardless of the number of hierarchical tiers of Subcontractors, the 5% Contractor's mark-up may be applied one time only to the performing Subcontractor's total cost. Costs for additional bond premiums shall be calculated at the end of the project and a change order for the credit or additional costs shall be paid at that time by Change Order. SECTION 2- DISPUTE RESOLUTION PROCESS. 2-1.1 Mandatory Non -Binding Mediation. If a dispute arises out of, or relates to this contract, or the breach thereof, and if said dispute cannot be settled through contract provisions provided for claim settlement or negotiations, the parties agree to first endeavor to settle the dispute in an amicable manner, using mandatory mediation under the Construction Industry Mediation Rules of the American Arbitration Association or any other neutral organization agreed upon before having recourse in a court of law. 2-1.2 Mandatory Mediation Costs. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator, and the cost of any proofs or expert advice produced Initials Attachment No. 2 at the direct request of the mediator, shall be borne equally by the parties, unless they agree otherwise. 2-1.3 Selection of Mediator. A single mediator that is acceptable to both parties shall be used to mediate the dispute. The mediator will be knowledgeable in construction aspects and may be selected from lists furnished by the American Arbitration Association (AAA) or any other agreed upon mediator. To initiate mediation, the initiating party shall serve a Request for Mediation on the opposing party. If the mediator is selected from a list provided by AAA, the initiating party shall concurrently file with AAA a "Request for Mediation" along with the appropriate fees; a copy of requested mediators marked in preference order, and, a preference for available dates. If AAA is selected to coordinate the mediation (Administrator), within 10 Working Days from the receipt of the initiating party's Request for Mediation, the opposing party shall file the following: a copy of the list of the preferred mediators listed in preference order, after striking any mediators to which they have any factual objection, and, a preference for available dates. If the parties agree not to use AAA, then a mutually agreed upon mediator, date and place for the mediation shall be agreed upon. The Administrator will appoint or the parties shall agree upon the highest, mutually preferred, Mediator from the individual parties' lists who is available to serve within the designated time frames. 2-1.4 Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal manner and discovery will not be allowed. The discussions, statements, or admissions will be confidential to the proceedings and will not be used for any other purpose as it relates to the party's legal position. The parties may agree to exchange any information they deem necessary. Both parties shall have an authorized representative attend the mediation. Each representative shall have the authority to recommend entering into a settlement. Either party may have attorney(s), witnesses or expert(s) present. Either party may request a list of witnesses and notification whether attorney(s) will be present. Any resultant agreements from mediation shall be documented in writing. Mediation results and documentation, by themselves, shall be "non -binding" and inadmissible for any purpose in any legal proceeding, unless such admission is otherwise agreed upon, in writing, by both parties. Mediators shall not be subject to any subpoena or liability and their actions shall not be subject to discovery. 2-1.5 Dispute Resolution Board. If mediation is unsuccessful in settling the dispute and if both parties agree, a no mandatory dispute resolution board process may be used. The parties may impanel a Dispute Resolution Board (DRB) and the DRB process shall be conducted in accordance with the City's alternative dispute resolution process, utilizing board members who are individuals who have expertise in construction. The selection process shall be administered by the American Arbitration Association, or any other such neutral organization selected by the City, hereinafter called the "Administrator". Claims made for $60,000 or less shall be heard by 1 DRB member and claims for more than $60,000 shall be heard by 3 DRB members. To initiate the DRB procedures, the parties shall jointly execute and file a "Submission to Dispute Resolution Board Procedures" request with the Administrator. Upon receipt by the Administrator Initials Attachment No. 2 of the submission form, the Administrator shall furnish to the parties a list of individuals skilled in dispute resolution and having expertise in construction from which to select the Dispute Resolution Board. Within 10 Working Days from the date the list is sent to the parties, the parties shall return the list to the Administrator, striking any individuals to which the parties have any factual objections and numbering the remaining in preference order. The Administrator shall appoint the highest mutually preferred individuals to the DRB that are available to serve in the time frame designated above. 2-1.6 Dispute Resolution Board Costs. The costs for DRB hearings and proceedings, which include those of either the 1 person or 3 person boards hearing the dispute, will be shared equally by both parties. Fees shall be jointly negotiated by both parties directly with the DRB Administrator. 2-1.7 Conduct of Dispute Resolution Board Hearings. DRB hearings shall be informal and discovery shall not be permitted. The parties may agree to exchange any information they deem necessary. Each party shall have a maximum of 2 hours for presentation, unless otherwise agreed upon. Outside experts, including attorneys, may address their specialty if the opposing party is notified in advance. Each party will be given full opportunity to present its views and supporting information, including documents, drawings, or other pertinent material. All such evidence and displays shall be considered confidential and shall be retained by the presenting party. Discussions or admissions during DRB discussions shall be considered as part of privileged settlement discussions, without prejudice to any party's legal position. Any resultant agreements from a DRB Hearing shall be documented, in writing, by both parties. The DRB results and documentation, by themselves, shall be non -binding and inadmissible for any purpose in any legal proceeding, unless such admission is otherwise agreed upon, in writing, by both parties. DRB members shall not be subject to any subpoena or liability and their actions shall not be subject to discovery. Within 10 Working Days after the hearing, the DRB will make its recommendation, in writing, for resolution of the dispute to all parties. The DRB will strive for consensus and unanimity in its decision making. If such is unattainable, however, separate written recommendations may be made as majority or minority reports. 2.2 CLAIMS. Claim is a written demand by the Contractor that seeks an adjustment in the Contract Price or the Contract Time, or other relief associated with a dispute arising under or relating to the Contract, including a breach of any provision thereof. A voucher, invoice, or other routine request for payment is not a Claim. A Claim shall conform to these specifications and may be considered after the City has previously denied a request by the Contractor for a Change Order seeking the demanded relief. The Contractor shall submit a Claim to the City if a dispute occurs that arises from or relates to the Contract. The Claim shall seek all relief to which the Contractor asserts it is entitled as a result of the event(s) giving rise to the dispute. The Contractor shall substantiate Claims, and shall process Claims in accordance with this subsection. The Contractor's failure to process a Claim in accordance with this subsection shall constitute a waiver of all relief associated with the dispute. Claims shall be subject to 6-11, "CITY'S RIGHT TO AUDIT." Initials Attachment No. 2 Contractor shall continue to perform the Services and the Work and maintain the Schedule during any dispute proceedings and City will continue to make payments for undisputed Services and Work. A claim arising under the Contract, unlike a claim relating to the Contract, is a claim that can be resolved under a Contract provision that provides for or excludes the relief sought by the claimant. Such claims shall be resolved under the applicable provisions of the Contract. The City's claims process in this subsection shall not relieve Contractor of his statutory obligations to present claims prior to any action under the California Government Code. 2-2.1 Time of Claim. The Contractor shall promptly, but in no event later than 30 days after the event(s) giving rise to the claim, deliver the claim to the City. The Contractor shall not process a claim unless the City has previously denied a request by the Contractor for a Change Order that sought the relief to be pursued in the claim. 2-2.2 Claim Certification Requirements. If the claim seeks an increase in the Contract Price, the Contract Time, or both, the Contractor shall submit with the claim an affidavit certifying that: a) The claim is made in good faith and covers all costs and delays to which the Contractor is entitled as a result of the event(s) giving rise to the claim; b) The amount claimed accurately reflects the adjustments in the Contract Price, the Contract Time, or both to which the Contractor believes it is entitled; and c) All supporting costs and pricing data are current, accurate, complete, and represent the best of the Contractor's knowledge and belief. The Contractor shall ensure that the affidavit is executed by an official who has the authority to legally bind Contractor. 2-3.3 Claim Resolution Process. The Contractor shall submit claim certification and request for a settlement meeting and the City' s Determination to the Engineer within 20 Working Days of receipt of the Engineer's initial determination. 2-3.4 Initial Determination. Initial Determination is the City's written approval or non -approval of a Claim from the Contractor. Within 30 days of receipt of a Claim, the City will deliver an Initial Determination to the Contractor. The City will not consider and will return to the Contractor any written demand that does not conform to the requirements of 3-7, "CLAIMS." 2-3.5 Final Determination. If the Contractor disagrees with the Initial Determination, the Contractor may request a Final Determination. The Contractor's request shall be in writing and shall be delivered to the City within 30 days of the date of the Initial Determination. The City will deliver a Final Determination to the Contractor within 30 days after receipt of the Contractor's written request. Final Determination is the City' s final written decision on the Contractor' s appeal of the City's Initial Determination on the Contractor's Claim. 2-3.6 Settlement Meeting. Within 15 Working Days of receipt of the Contractor's request for a "Settlement Meeting", the Engineer will schedule a "Settlement Meeting" between the Contractor's representative, the City's representative, and the Engineer. This meeting will be an opportunity for the Contractor to explain its claim to senior management of the City. If a settlement agreement cannot be reached, the Engineer and the City will proceed to make a joint written determination. Initials Attachment No. 2 2-3.7 City's Determination. The City will make a written determination within 20 Working Days after the settlement meeting. The written determination shall be final and binding on the Contractor unless the Contractor notifies the City and the Engineer in writing of its objection within 15 Working Days after receipt of the written determination, and files a "Request for Mediation" in accordance with 3-6, "DISPUTE RESOLUTION PROCEDURES." Failure to give notice of objection within said 15 Working Days period shall be deemed to be a waiver of its right to pursue the claim. 2-3.8 Mandatory Assistance. If a third party dispute or litigation, or both, arises out of, or relates in any way to the Services provided under this contract, upon the City's request, the Contractor agrees to assist in resolving the dispute or litigation. The Contractor assistance includes, but is not limited to, providing professional consultations, attending mediations, arbitrations, depositions, trials or any event related to the dispute resolution, litigation, or both. 2-3.9 Attorney Fees Related To Mandatory Assistance. In providing the City with dispute or litigation assistance, the Contractor and or Subcontractors or their agents, officers, and employees may incur expenses and or costs. The Contractor agrees that any attorney fees it may incur are not reimbursable. 2-3.1.0 Compensation for Mandatory Assistance. The City will reimburse the Contractor for reasonable fees and expenses incurred by the Contractor for any required assistance rendered in accordance with 3-7.8, "Mandatory Assistance" as Extra Work. The City in its sole discretion shall determine whether these fees and expenses were necessary due to the conduct of or failure to act by the Contractor or Subcontractors or their respective agents, officers, and employees. If the City determines that the basis of the dispute or litigation in which these fees and expenses were incurred were the result of the conduct of or failure to act by the Contractor or Subcontractors or their respective agents, officers, and employees, in part or in whole, the City shall be entitled to be reimbursed for any payments made for these fees and expenses. Reimbursement may be through any legal means necessary, including the City's withholding of payment. SECTION 3 - CONTROL OF MATERIALS 3-1 MATERIALS AND WORKMANSHIP 3-1.1 Protection of Work and Materials. 3-1.2 Property Rights in Material. Nothing in the contract shall be construed as vesting in the contractor any right of property in the materials used after they have been attached or affixed to the work or the soil. All such materials shall become the property of the City upon being so attached or affixed. Initials Attachment No. 2 SECTION 4 - PROSECUTION, PROGRESS AND ACCEPTANCE OF WORK 4-1.1 Construction Schedule. The contractor shall comply with the following construction schedule requirements: a) The Contractor shall be responsible for developing, coordinating, revising, updating, and maintaining the cost loaded construction schedule (Schedule) utilizing the Critical Path Method (CPM). b) Schedule versions shall be based solely on the Work as awarded, and shall exclude any substitute proposals even if the Contractor pursues a substitution in accordance with provisions of the Contract. c) The approved proposals and approved Change Orders shall be included in the Schedule updates. d) Total float is the number of days by which a part of the Work in the Schedule may be delayed from its early dates without necessarily extending the Contract Time. The Contract float is the number of days between the Contractor's anticipated date for early completion of the Work, or specified part, and the corresponding Contract Time. Total float and Contract Time float belong to the Project and are not for the exclusive benefit of any Party. They shall be available to the City or the Contractor to accommodate changes in the Work or to mitigate the effect of events, which may delay performance or completion. e) Monthly progress payments are contingent upon the submittal of an updated Schedule to the Engineer. The City may refuse to recommend the whole or part of any monthly payment if, in the Engineer 's opinion, the Contractor's failure, or refusal to provide the required Schedule information precludes a proper evaluation of the Contractor's ability to complete Project within the Contract Time. f) The Schedule shall show a breakdown of Work into activities and relationships to the extent required to effectively manage the Work. The Schedule shall show the division of the Work into activities and specify the progression from the Notice to Proceed (NTP) to the end of the Contract Time. g) The Schedule shall include appropriate time allowances and constraints for submittals, items of interface with Work performed by others, and specified construction, start-up and performance tests. h) The Contractor shall include in the Schedule inclusive in the Contract Time allotted, three 3 Working Days for the City to conduct a Walk-through. i) The Contractor shall include in the Schedule inclusive in the Contract Time allotted 10 Working Days for generation of the Punchlist. The Contractor shall Work diligently to complete all Punchlist items within 20 Working Days after officially being provided the Punchlist by the Engineer. j) If the Contractor modifies or changes the Schedule, for Change Order Work or otherwise, the Engineer shall be notified in writing with an explanation. k) Comments made by the Engineer on the Schedule during review will not relieve the Contractor from compliance with requirements of the Contract. The Engineer may request that the Contractor and major Subcontractors (defined herein as being any Subcontractor or Supplier with 5% or more of the value of the Contract) participate in review of any Schedule submission. The Schedule revisions shall be submitted within 10 Working Days after the Engineer's review. Initials Attachment No. 2 1) The Schedule shall show work to be done by the City personnel, such as but not limited to, submittal reviews (separate tasks for each), sewer televising, water main connections, water testing, and operational performance tests as separate tasks. The Schedule shall show appropriate time allowances for Work performed by other agencies. m) If completion of any part of the Work, delivery of equipment or materials, or provision of the Contractor submittals is behind schedule and will impact the completion date of the Work, the Contractor shall submit a written recovery plan acceptable to the Engineer for completing the Work by the current Contract completion date. n) The Contractor shall not be entitled to any extension in Contract Time, or recovery for any delay incurred because of extensions in an early completion date, until all Contract float is used, performance of the Work extends beyond the corresponding Contract Time, and a recovery plan is submitted demonstrating that the delay cannot be mitigated or offset through actions such as rescheduling Work. o) Misrepresentation of actual Work durations in order to suppress available float time shall be cause for rejection of the Schedule and any revisions or updates. p) The Schedule shall include procurement related activities, which lead to the delivery of permanent materials to the Site in a timely manner. Procurement activities include activities such as preparation of Shop Drawings and Working Drawings, review and acceptance of Shop Drawings and Working Drawings, materials fabrication, materials delivery, etc., as appropriate. q) The Schedule shall be reasonably balanced over the construction duration. Upon receipt, the Engineer will review the Schedule and provide comments, as appropriate, for revision by the Contractor. r) Each Schedule activity shall be assigned a budget. Separate Bid items shall be separate activities. The Schedule shall specify costs for each phase of the Contract. The cost value of all Schedule activities shall equal the Contract values shown in the Bid both individually and in total and include Change Orders. s) If the Engineer questions the logic of the Schedule, the Engineer may at any time request a Schedule narrative that describes the approach to the Work and the rationale used to develop the Schedule relationships and logic. t) When specified in the Contract Documents, the specified Plant Establishment Period is included in the stipulated Contract Time and will begin with the acceptance of the installation of the re -vegetation plan in accordance with the Special Provisions. All costs for producing, editing and adjusting the construction schedule shall be included in the various items of work and there shall be no additional costs to the City. SECTION 5- DEFAULT BY THE CONTRACTOR. 5.1 General. The City will consider the Contractor in default of the Contract if prior to the Acceptance, the Contractor: a) becomes insolvent, assigns its assets for the benefit of its creditors, is unable to pay its debts as they become due, or is otherwise financially unable to complete the Work, b) abandons the Work by failing to report to the Work site and diligently prosecute the Work to completion, Initials Attachment No. 2 c) disregards written instructions from the City or materially violates provisions of the Contract Documents, d) fails to prosecute the Work according to the schedule approved by the Engineer, e) fails to notify the Engineer upon discovery of items of Native American, Archaeological, or Paleontological interests, f) disregards laws or regulations of any public body having jurisdiction, or g) commits continuous or repeated violations of regulatory or statutory safety requirements, then Notices, and other written communications regarding default between the Contractor, the Agency, and the Surety shall be transmitted in accordance with 2-12, "SPECIAL NOTICES." 5.2 Notice to Cure. The City will issue a written notice to cure the default to the Contractor and its Surety. The Contractor shall commence satisfactory corrective actions within 5 Working Days after receipt. 5.3 Notice of Termination for Default. If the Contractor fails to commence satisfactory corrective action within 5 Working Days after receipt of the notice to cure, or to diligently continue satisfactory and timely correction of the default thereafter, then the City will consider the Contractor in default of the Contract and: a) will terminate the Contractor's right to perform under the Contract by issuing a written notice of termination for default to the Contractor and its Surety, b) may use any materials, equipment, tools or other facilities furnished by the Contractor to secure and maintain the Work site, and c) may furnish labor, equipment, and materials the Agency deems necessary to secure and maintain the Work site. The provisions of this subsection shall be in addition to all other legal rights and remedies available to the City. The Contractor shall be entitled to no further payment until the remaining portion of the Work has been completed. The Contractor will be paid the actual amount due based on Contract Unit Prices or lump sum Bid and the quantity of the Work completed at the time of default, less damages caused to the City by acts of the Contractor. Costs incurred by the City in performing the Contractor's work, plus a markup of 15% on those costs for overhead, shall be deducted from monies due or to become due to the Contractor. The Contractor shall pay to the City any amount by which those costs and markup exceed the unpaid balance of the Contract Price. 5.4 Responsibilities of the Surety. Upon receipt of the written notice of termination for default, the Surety shall immediately assume all rights, obligations, and liabilities of the Contractor under the Contract. If the Surety fails to protect and maintain the Work site, the City may do so, and may recover all costs incurred. The Surety shall notify the City that it is assuming all rights, obligations and liabilities of the Contractor under the Contract and all money that is due, or would become due, to the Contractor shall be payable to the Surety as the Work progresses, subject to the terms of the Contract. Initials Attachment No. 2 Within 15 Working Days of receipt of the written notice of termination for default, the Surety shall submit to the City a written plan detailing the course of action it intends to take to remedy the default. The City will review the plan and notify the Surety if the plan is satisfactory. If the Surety fails to submit a satisfactory plan, or if the Surety fails to maintain progress according to the plan accepted by the City, the City may, upon 48 hours written notice, exclude the Surety from the premises, take possession of all material and equipment, and complete the Work in any way the City deems to be expedient. The cost of completing the Work by the City shall be charged against the Surety and may be deducted from any monies due, or which would become due, the Surety. If the amounts due under the Contract are insufficient for completion, the Surety shall pay to the City, within 30 days after the City submits an invoice, all costs in excess of the remaining Contract Price. The provisions of this subsection shall be in addition to all other rights and remedies available to the City under law. 5.5 Payment. The Surety will be paid for completion of the Work in accordance with 9-3 less the value of damages caused to the City by acts of the Contractor. SECTION 6- TERMINATION OF THE CONTRACT FOR CONVENIENCE. The City may terminate the Contract in whole or, from time to time, in part, if it becomes impossible or impracticable to proceed, because of conditions or events beyond the control of the City e.g., if the City Council does not appropriate sufficient monies to fund the Contract. The City will issue a written notice of termination for convenience in accordance with 2-12, "SPECIAL NOTICES." Upon receipt, the Contractor shall immediately proceed as follows: a) Stop Work immediately or in accordance with the Notice of Termination. b) Notify Subcontractors and suppliers to immediately cease their work and place no further subcontracts for materials, services, or facilities, except as necessary to complete any authorized continued portion of the Contract. c) Terminate all Subcontracts to the extent that they relate to the Work terminated. d) With approval by the Engineer, settle all outstanding obligations arising from the termination of subcontracts; the approval of which will be final for purposes of this section. e) As directed by the Engineer, transfer the title and deliver to the City, completed or partially completed drawings, plans, calculations, specifications and any other documents and records that, if the Contract had been completed, would be required to be furnished to the City. f) Complete performance of the Work not terminated. g) Take all necessary steps and actions to minimize all costs to the City as a result of the termination. h) Take any action that may be necessary, or that the Engineer may direct, for the protection and preservation of the property related to this contract that is in the possession of the Contractor and in which the City has or may acquire an interest. Initials Attachment No. 2 The Contractor will be paid without duplication for: a) work completed in accordance with the Contract Documents prior to the effective date of termination for convenience; b) reasonable costs incurred in settlement of terminated contracts with Subcontractors, suppliers and others; and c) reasonable expenses directly attributable to termination. The Contractor shall submit a final termination settlement proposal to the City no later than 90 days from the effective date of termination, unless extended, in writing, by the City upon written request by the Contractor. If the Contractor fails to submit a proposal, the City may determine the amount, if any, due the Contractor as a result of the termination. The City will pay the Contractor the amount it determines to be reasonable. If the Contractor disagrees with the amount determined by the City as being reasonable, the Contractor shall provide notice to the City within 30 days of receipt of payment. Any amount due shall be as later determined by arbitration, if the City and the Contractor agree thereto, or as fixed in a court of law. All settlements related to termination of the contract in accordance with this section will be subject to the approval of the Mayor or designee and may also require City Council approval before ultimately becoming final. 6.1 Termination Settlement. After termination, the Contractor shall submit a final termination settlement proposal to the Engineer in the form and with the certification prescribed by the Engineer. The Contractor shall submit the proposal promptly, but no later than 6 months from the effective date of termination, unless extended, in writing, by the Engineer upon written request of the Contractor within this 6 month period. If the Engineer determines that the facts justify it, a termination settlement proposal may be received and acted on after 6 months or any extension. If the Contractor fails to submit the proposal within the time allowed, the City may, in good faith, determine, on the basis of information available, the fair and reasonable amount, if any, due the Contractor as a result of the termination and pay the amount determined. If the Contractor does not agree that the amount determined by the Engineer is fair and reasonable and if the Contractor gives notice of such disagreement to the City in accordance with this subsection, within 30 days of receipt of payment, then the amount due shall be as later determined by arbitration, if the City and the Contractor agree thereto, or as fixed in a court of law. 6.2 Payment to the Contractor Due to Termination. Subject to 6-5.1, "Termination Settlement" the Contractor and the Engineer may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. The agreed amount may not exceed the total dollar amount authorized by the City as reduced by (1) the amount of payments previously made; and (2) the Contract Price of work not terminated. The contract shall be amended, and the Contractor paid the agreed amount. Subsection 6-5.3, "Failure to Agree on Payment," shall not limit, restrict, or affect the amount that may be agreed upon to be paid in accordance with this subsection. 6.3 Failure to Agree on Payment. If the Contractor and the City fail to agree on the whole amount to be paid because of the termination of Work, the City will pay the Contractor the fair and Initials Attachment No. 2 reasonable amounts determined in good faith by the City as follows, but without duplication of any amounts agreed on in accordance with 6-5.2, "Payment to Contractor Due to Termination:" a) The Contract Price for completed services accepted by the City not previously paid or adjusted for any saving of freight and other charges. The total of: i. The costs incurred in the performance of the Work terminated, including initial costs and preparatory expense allocable thereto, but excluding any costs attributable to services paid or to be paid in accordance with 6-5.6, "Failure to Agree on Payment"; ii. The fair and reasonable cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Contract if not included in subdivision "a", above; iii. A sum, as provided in subdivision "a", above, determined by the Engineer to be fair and reasonable under the circumstances; however, if it appears that the Contractor would have sustained a loss on the entire contract, had it been completed, the City will allow no profit and shall reduce the settlement to reflect the indicated rate of loss. iv. The reasonable costs of settlement of the Work terminated, including: v. Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination of settlement proposals and supporting data; vi. The termination and settlement of subcontracts (excluding the amounts of such settlements); and vii. Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of property in which the City has or may acquire an interest. 6.4 Determination of Amount Due the Contractor. In arriving at the amount due the Contractor in accordance with this section, there shall be deducted: a) The fair value of property destroyed, lost, stolen, or damaged that has become undeliverable to the City except to the extent the City expressly assumed the risk of loss; b) all un-liquidated advance or other payments to the Contractor under the terminated portion of this contract; c) any claim which the City has against the Contractor under this contract; and d) the agreed price for or the proceeds of sale of materials, supplies, or other things acquired by the Contractor or sold under the provisions of this section and not recovered by or credited to the City. 6.5 Partial Termination. If the termination is partial, the Contractor may file a proposal with the Engineer for an equitable adjustment of the price(s) of the continued portion of the Contract. The City will make any equitable adjustment agreed upon. Any proposal by the Contractor for an equitable adjustment under this section shall be requested within 90 days from the effective date of termination, unless extended, in writing, by the Engineer. 6.5.1 Partial Termination Payments. The City may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the Contractor for the terminated Initials Attachment No. 2 portion of the Contract if the Engineer believes the total of these payments will not exceed the amount to which the Contractor will be entitled. If the total payments exceed amounts finally determined to be due, the Contractor shall repay the excess to the City upon demand, together with interest. Interest shall be at a rate of 6% per annum compounded daily and shall be computed for the period from the date the excess payment is received by the Contractor to the date the excess is repaid. Interest shall not be charged on any excess payment due to a reduction in the Contractor's termination settlement proposal because of retention or disposition, or a later date determined by the Engineer because of the circumstances. 6.6 Records and Documents Relating to Termination. Unless otherwise provided in the Contract or by statute, the Contractor shall maintain all records and documents relating to the terminated portion of this contract for 3 years after final settlement. This includes all books and other evidence bearing on the Contractor's costs, expenses, and settlement under this contract. The Contractor shall make these records and documents available to the City, at the Contractor's office, at all reasonable times, without any direct charge. If approved by the Engineer, photographs, microphotographs, and other authentic reproductions may be maintained instead of original records and documents. 6.7 Rights of the City Preserved. Where the Contract has been terminated by the City in accordance with 6-5, "Termination of Contract" the termination will not affect any rights or remedies of the City against the Contractor then existing or which may thereafter accrue. Any retention or payment of monies paid to the Contractor by the City shall not release the Contractor from liability. 6.8 Damages Caused By Act Of God. As provided in §7105 of the California Public Contract Code, if this contract is not financed by revenue bonds, the Contractor shall not be responsible for the cost of repairing or restoring damage to the Project when damage was proximately caused by an act of God, in excess of 5% of the Contract Price if: a) the Project damaged was built in accordance with the Contract requirements, and b) there are no insurance requirements in the Contract for the damages. 6.9 Extension of Time. Should the Contractor incur a delay, a written request to the Engineer stating the reason(s) for the delay and the number of working days required shall be submitted within five (5) working days after the delay was incurred. The Engineer shall respond in writing within five (5) working days of the date of receipt of the request. Extension of time, if granted, shall follow the change order process. 6.9.1 Contract Time Extension and Schedule Analysis. A claim for extension in Contract Time will not be granted unless the Contractor can demonstrate through a Critical Path Method (CPM) analysis of the Schedule' s critical path(s) that the increases in the time to perform or complete the Work, or specified part of the Work, beyond the corresponding Contract Time arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, and that such causes in fact lead to performance or completion of the Work, or specified part in question, beyond the corresponding Contract Time, despite the Contractor's reasonable and diligent actions to guard against those effects. Initials Attachment No. 2 The Schedule analysis shall use delay sub networks ("fragnets") to show the impact of the Work that is the basis of the Claim on specific impacted critical path Schedule activities. Fragnet is a group of schedule network activities representing a delay or change event. Where the Contractor is prevented from completing any part of the Work within the Contract Time (or milestones) due to delay to a "critical path" activity beyond the control of both the City and the Contractor, an extension of the Contract Time (or Contract milestones) in an amount equal to the time lost on the critical path of the Project due to such delay shall be the Contractor's sole and exclusive remedy for such delay. 6.9.2 Event of Force Majeure (Event). Any party to this contract may be excused for any delay or failure to perform its duties and obligations except for obligations to pay money, caused by and to the extent that such failure or delay is caused by an Event. If an Event causes a delay or failure in performance of only a portion of the obligations of a Party, then only that portion of performance which was delayed or prevented by such cause shall be deemed excused. Performance of all other obligations of a Party shall not be excused by an Event. Any delay or failure to perform shall only excuse the Party for a period no longer than the delay or failure in performance caused by such Event. The Contractor shall not be entitled to damages or additional payment for any delay caused by an Event. SECTION 7 TIME OF COMPLETION The Contractor shall have TWENTY (20) working days to complete and finalize the project. witaaheld from monies due it the f$500 ( • u a d n 11 1 d d ) 7.1 Requirements Preparatory To Requesting a Walk-through. Walk-through is the procedure used by the City to generate a Punch list prior to Acceptance. The following items shall be required prior to requesting a walk-through: a) Remove temporary facilities from the Site. b) Thoroughly clean the Site. c) Provide completed and signed Redlines in accordance with 2-5.4, "Red -lines Drawings." d) Provide all material and equipment maintenance and operation instructions and/or manuals. e) Provide all tools that are a permanent part of equipment installed in the Project. f) Provide and properly identify all keys; construction and permanent. g) Provide all final Special Inspection reports required by the applicable building Code. h) Provide all items that this contract requires to be supplied as extra stock. All items shall be wrapped, sealed, or placed in a container as necessary to allow for storage by the City for Initials Attachment No. 2 future use. The amount specified in this contract shall be verified by the City and the Contractor. i) Ensure all EOCP documents and certified wage rate documents (if applicable) have been submitted from the NTP until Acceptance. j) The spare parts for the proposed irrigation system as specified in the Special Provisions (if applicable). k) See other specification sections for additional requirements. 7.1 Walk-through and Punch list Procedure. The following procedure outlines the steps to be taken upon the Contractor's assertion that the Project is complete: a) When the Contractor considers that the Work and Services are complete, the Contractor shall in writing notify the City that the Project is complete and request that the City perform a walk-through for generation of a Punch list. The Contractor shall notify the City at least 7 days in advance of the time the walk-through is to be performed. b) The City will determine if the Contractor is ready for a walk-through by verifying whether the Contractor has provided or completed all items as required by 6-8.1, "Defective Work," whether the Contractor has obtained the applicable certifications, and by evaluating completeness by inspecting the Project and the specified Work required by the Contract Documents. c) If the Work includes underground sewer conduit installations, the inspection will include televising in accordance with 306-1.4.8, "Televising Sewer Mains and Storm Drains." d) The City will facilitate a walk-through. e) The Contractor shall make available at the Site for walk-through attendees the plans and specifications and the technical data such as submittals and equipment manuals. f) The City will generate the Punch list within 15 Working Days from the date of the walk- through and submit it to the Contractor. The City will not provide a preliminary Punch list. If the City begins to generate a Punch list and finds the Project is not substantially complete as defined herein, the City will terminate the walk-through and notify the Contractor in writing. h) If, at any time during the City's evaluation of the corrective Work required by the Punch list, the City discovers that additional corrective Work is required, the City may include that corrective Work in the Punch list. The Contractor shall be solely responsible for the Site until the Project is completely operational, all Punch list items have been corrected, and all operation and maintenance manuals have been accepted by the City. i) The City will meet with the Contractor until all Punch list items are corrected. If the Contractor takes longer than 30 Working Days to complete the corrective Work, the Project shall be subject to re-evaluation. g) Initials Attachment No. 2 j) During the 35-day stop notice/lien period that commences on the date the NOC is recorded, the Contractor shall submit to the City the retention billing. After the City receives the retention billing, the City will mail to the Contractor a "Release of Claims" form, which shall be completed by the Contractor and returned to the City before the retention will be released. k) Upon Acceptance, the Contractor shall assemble and deliver to the City all records, documents, warranties, material certifications, bonds, guarantees, maintenance and service agreements, and maintenance and operating manuals. Written warranties, except manufacturer's standard printed warranties, shall be on the Contractor's and the Contractor's agents, material suppliers, installers, or manufacturer's letterhead, addressed to the Contractor. Warranties shall be submitted in the format described in this section, modified as approved by the City to suit the conditions pertaining to the warranty. 1) See other specification sections for additional requirements. The cost of the Contractor's participation in the punch -list process shall be included in the various items of work and there shall be no additional costs to the City. Failure of the Contractor to complete the Wyk within the time allowed will result in damages being sustained by the City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. For each consecutive calendar day in excess of the time specified Execution of the Contract shall constitute agrccmcnt by the City and the Contractor that Five by the failure of the Contractor to complete the Work within the allotted time, that such sum is from payments duc the Contractor if such delay occurs. SECTION 9- GUARANTEE In conjunction with the manufacturer's warranty/guarantee for all products provided and in accordance with the executed guarantee agreement, all work shall be guaranteed by the Contractor for a period of one (1) year from the date of acceptance of the work against defective workmanship and materials furnished by the Contractor. The Contractor shall promptly replace or repair, in a manner satisfactory to the Engineer, any such defective work, after notice to do so from the Engineer, and upon the Contractor's failure to make such replacement or repairs promptly, the City may perform this work and the Contractor and his surety shall be liable for the cost thereof. Initials Attachment No. 2 SECTION 10 - RESPONSIBILITIES OF THE CONTRACTOR 10.1 LABOR 10.1.2 Laws. Pursuant to Sections 1720 et seq. and 1770 et seq. of the California Labor Code, the successful bidder shall pay not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations. Copies of such prevailing rate or per diem wages are on file in the City Engineer's office, which copies shall be made available to any interested party on request at the posted reproduction charge. The successful bidder shall post a copy of such wage determinations at each job site. SECTION 11- PROJECT SITE MAINTENANCE 11.1 General. Contractor shall recycle all designated recyclable materials in compliance with the City of National City Municipal Code Chapter 15.80, Construction and Demolition Debris (Ordinance No. 2009-2309). Such materials are, but not limited to, concrete, asphalt, dirt, metals, road base material, wood waste, paper products and tree trimmings. Further, the higher economic costs of landfill disposal versus the lower cost of recycling disposal make it in each contractor's best interest to recycle as much as possible. Proof of compliance with City of National City Municipal Code Chapter 15.80 shall be provided by both completing the Contractor's Affidavit of Disposal, and fulfilling the requirements of Chapter 15.80, including proof of diversion regardless of disposal site. SECTION 12- WATER POLLUTION CONTROL SITE MANAGEMENT (SWPPP) AND GENERAL ENVIRONMENTAL CONDITIONS. 12.1 General. At a minimum, the Contractor shall be required to do the following: Protect all new and existing storm water conveyance system structures from sedimentation and concrete rinse, or other construction related debris and discharges with gravel bags and filter fabric or by any other equal product that is approved by the Resident Engineer. Temporary gravel bags shall be installed, maintained, and later removed as approved by the Resident Engineer. The Contractor will not be paid any additional money for the maintenance, removal and replacement of gravel bag at the same location. Gravel bags fill material shall be one-half to one -inch Class 2 aggregate base, clean and free from clay and deleterious material. Gravel bag fabric shall be woven high -density polyethylene fabric with a minimum unit weight of 5 oz./square yard. The fabric shall have a Mullen burst strength of at least 350 psi, conforming to the requirements of ASTM Designation D 3786, and an ultraviolet (UV) stability exceeding 70 percent. Gravel bags, when filled, shall have nominal dimensions (length x width x height) of 16 in. x 12 in. x 6 in., and a fill mass of 35 to 60 pounds. The Contractor shall use other methods if ponding will encroach in to the traffic or onto erodible surfaces and slopes. Flow from a severe storm shall not overtop the curb. Temporary gravel bags shall be maintained to provide for adequate sediment holding capacity. The Contractor shall remove the sediment behind the barrier when it reaches one-third the height of the barrier and immediately before and after each storm event. When no longer required for the intended purpose, temporary gravel bag barriers shall be removed from the site of work. Storm drain inlet sediment control measures shall be of sufficient capacity and dimensions so as to handle received flows and debris without blocking or diverting flows from the inlets. Area around the inlet shall be provided for water to pond without flooding structures and property. The storm drain inlet sediment control measures shall not Initials Attachment No. 2 impede the safe flow of traffic. The storm drain inlet sediment control measures shall be of sufficient weight so as not to shift out of place, or shall be secured in place against movement. Protect all drainage structures within 100 Feet of the work if there is a threat to water quality. Inlet sediment control measures shall be maintained daily or more often if needed. Maintaining inlet sediment control measures shall include removing and disposing of accumulated trash & debris when depth exceeds one -third the height of filter/trap. Waste materials shall be removed and disposed in accordance with the Green Book Maintaining inlet sediment control protection shall also include daily checks for excessive debris and for damaged inlet sediment control measures. Damaged inlet sediment control measures shall be repaired or replaced immediately. When storm drain inlet protection is no longer required for the work, as approved by the Resident Engineer, the inlet sediment control measures shall be completely removed. Storm drain inlet protection shall not be removed until upstream soils are stabilized. Materials for inlet sediment control shall become the property of the contractor and shall be removed from the site of the work and disposed off -site as specified in the contract. It is the contractor's responsibility to insure that the BMP's are operational and working properly. Furthermore, the Contractor shall be held responsible for any citation and/or fine due discharges or malfunctioning of the BMP's. Contractor shall be responsible for any and all other best management practices (BMPs) that are a threat to the water quality as deemed necessary by the City Engineer. Compensation shall be paid under the various line items. No additional compensation shall be paid. 12.2 ENVIRONMENTAL PROTECTION. The Contractor shall comply with all applicable standards, orders, or requirements of the Environmental Protection Agency regulations (40 CFR, Part 15). 12.3 FLOOD DISASTER PROTECTION ACT OF 1973.The Contractor shall comply with all applicable standards, orders, or requirements of the Flood Disaster Protection Act of 1973 (42 USC 4001 etseq, as amended). 12.4 GRAFFITI CONTROL. The Contractor shall maintain all site improvements, including any temporary facilities, equipment or other materials in a graffiti free condition throughout the construction period, until acceptance of the project by the City. Graffiti encountered on the job site shall be removed by the Contractor within twenty-four (24) hours. Costs for removal shall be included in the various items of work. 12.5 NOISE ABATEMENT AND CONTROL. The Contractor shall comply with the provisions of the City of National City Municipal Code, Noise Abatement and Control, and the County of San Diego Code of Regulatory Ordinances, Noise Abatement and Control. In the event of conflict, the most stringent requirement shall apply. If the Contractor chooses to conduct work activities during times when a Noise Permit is required, the Contractor shall apply for, obtain, and pay for the Noise Permit at no additional cost to City. Initials Attachment No. 2 The Contractor shall coordinate their activities in such a way that minimizes the disturbance with the any adjacent or nearby schools. The Contractor shall attend any coordination meetings with any schools. The cost of noise mitigation and coordination efforts shall be included in the various items of work and there shall be no additional costs to the City. 12.6 Project Appearance. The Contractor shall maintain a neat appearance to the work. In any area visible to the public, the following shall apply: a. When practicable, broken concrete and debris developed during clearing and grubbing shall be disposed of concurrently with its removal. If stockpiling is necessary, the material shall be removed or disposed of weekly. b. The Contractor shall furnish trash bins for all debris from structure construction. All debris shall be placed in trash bins daily. Forms and false -work that are to be re -used shall be stacked neatly concurrently with their removal. Forms and false -work that are not to be re -used shall be disposed of concurrently with their removal. c. Full compensation for conforming to the provisions in this section shall be considered as included in prices paid for the various contract items of work involved and no additional compensation will be allowed. 12.7 Sound Control Requirements. The Contractor shall comply with all local sound control and noise level rules, regulations and ordinances, which apply to any work performed pursuant to the contract. Each internal combustion engine, used for any purpose on the job or related to the job, shall be equipped with a muffler of a type recommended by the manufacturer. No internal combustion engine shall be operated on the project without said muffler. If required see the attached Mitigated Negative Declaration Document in the appendices. 12.8 Hazardous Waste. If the Contractor encounters material in demolition or work that he has reason to believe may be hazardous waste, as defined by Section 25117 of the Health and Safety Code, he shall immediately so notify the Engineer in writing. Demolition in the immediate area of the suspected hazardous material shall be suspended until the Engineer authorizes it to be resumed. If such suspension delays the current controlling operation, the Contractor will be granted an extension of time as provided in Section 5-5 "Delays" of the Standard Specifications. The City reserves the right to use other forces for exploratory work to identify and determine the extent of such material and for removing hazardous material from such area. SECTION 13- PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS 13.1 Contractor shall replace/repair any property or private improvements, which are damaged or removed as a result of its operations to current City of National City standards and to the satisfaction of the City Engineer in an as good or better condition. Contractor will take measures to minimize inconvenience to the City, including but not limited to: a. Advance notification of the impending work and the estimated duration of the work. b. Care in access to and from the building by the Contractor's equipment, materials and/or personnel. Initials Attachment No. 2 c. Private property and improvements must be repair, restored and/or replaced within 7 days of the completion of the adjacent work. The cost of protecting, removing and restoring of items necessary to complete the work shall be included in the various line items of work and there shall be no additional cost to the City. SECTION 14-PROJECT SAFETY Section 14.1-Safety Orders. The Contractor shall be solely and completely responsible for conditions on the job site, including safety of all persons (including employees) and property during performance of the work. This requirement shall apply continuously and is not limited to normal working hours. Safety provisions shall conform to U.S. Department of Labor, the California Occupational Safety and Health Act (OSHA), and all other applicable Federal, State, County, and City laws, ordinances, codes, the requirements set forth below, and any regulations that may be detailed in other parts of these documents. Where any of these are in conflict, the more stringent requirement shall be followed. The Contractor's failure to thoroughly familiarize himself with the aforementioned safety provisions shall not relieve him from compliance with the obligations and penalties set forth herein. The Contractor shall develop and maintain for the duration of this contract, a safety program that will effectively incorporate and implement all required safety provisions. The Contractor shall appoint an employee who is qualified and authorized to supervise and enforce compliance with the safety program. The duty of the City and its consultants is to conduct construction review of the Contractor's performance and shall not include a review or approval of adequacy of the Contractor's safety supervisor, the safety program, or any safety measures taken in, on, or near the construction site. If death or serious injuries or serious damages are caused, the accident shall be reported immediately by telephone or messenger to the City's inspector or other representative. In addition, the Contractor must promptly report in writing to the City all accidents whatsoever arising out of or in connection with, the performance of the work whether on, or adjacent to the site, giving full details and statements of witnesses. 14.2 Public Safety During Non -Working Hours. Notwithstanding the Contractor's primary responsibility for safety on the job site when the Contractor is not present, the Engineer, at his option after attempting to contact the Contractor, may direct City forces to perform any functions he may deem necessary to ensure public safety at or in the vicinity of the job site. If such procedure is implemented, the Contractor will bear all expenses incurred by the City. In all cases the judgment of the Engineer shall be final in determining whether or not an unsafe situation exists however this does not alleviate the contractor's responsibility and liability to maintain a safe worksite at all times. Initials Attachment No. 2 SECTION 15- PROJECT CLOSEOUT 15.1 Cleanup. In addition to the requirement that the job site be kept clean during the progress of the work, the contractor is similarly obligated to thoroughly clean up the construction site at the end of the job before the work can be accepted. Final acceptance of work will be withheld until the contractor has satisfactorily complied with all of the requirements for final cleanup of the project site. Disposal of all waste and refuse shall be at the contractor's expense. No waste or rubbish of any nature is allowed to be disposed of at the site except upon receipt of written approval by the City. 15.2 Final Inspection. When the work is completed satisfactorily, and in accordance with the terms of the contract, the contractor shall submit a written request to the Engineer and Building Department for the final inspection. Upon receiving such notification from the contractor, the City will arrange for the final inspection of the work. The representative of the contractor and the subcontractors should participate in the inspection tour to respond to any questions that may be raised by the representative of the City. Prior to, but in no case later than, the pre -final inspection period, dates should be established for equipment testing, systems validation, acceptance periods, warranty dates, and instructional requirements that may be required by the contract. Following the pre -final inspection of the work, the City's representative will prepare a Punch List setting forth in accurate detail any items of work that have been found to be not in accordance with the requirements of the contract documents. When notified by the contractor that all of the pre -final Punch List items have been completed, the Engineer and his/her representative accompanied by the representatives of the other City Departments with the presence of the Contractor will conduct the final inspection of the work. Then, if all punch list items have been completed satisfactorily, and if no new items are discovered, the final inspection date will be considered as the completion date for the project. If, following the final inspection of any portion of the work, there remains a question as to whether one or more Punch List items have not been properly completed, but otherwise the overall project is substantially complete, the Engineer may issue an updated Punch List and consider the final inspection date as the completion date if the contractor completes the updated punch list items within a specified period of time. 15.3 Contract Final Balance. Upon the completion of work, the Engineer will prepare the Contract Final Balance and will submit it to the contractor for their approval. 15.4 Acceptance. The project will be scheduled for the City Council's acceptance if the following items are satisfactorily met: a. The work has been completed satisfactorily, and in accordance with the terms of the contract. b. All of the punch list items have been completed and the project is accepted by the Engineer and signed off as complete and acceptable by the City Building Department. Initials Attachment No. 2 c. Record (As -built) drawings have been submitted and accepted by the Engineer. d. All of the payroll records (contractor and subcontractors) have been submitted and accepted. e. Operating manuals and instructions for equipment items, keying schedule, maintenance stock items, certifications of inspection, and systems validation have been submitted. f. Guarantee Agreement is submitted to and accepted by the Engineer. g. Contractor's Certificate of Completion, Affidavit of Disposal, Affidavit of Payment, Consent of Surety for Final Payment have been signed and submitted to the Engineer. h. Contract Final Balance has been approved or conditionally approved by the Contractor and submitted to the Engineer. i. Notice of Completion will be filed with the County Recorder once all of the above listed items are complete. SECTION 16 - MEASUREMENT AND PAYMENT 16.1 Partial and Final Payment. Invoices shall be submitted in a form satisfactory to the City. As a minimum, the invoice shall include: bid item numbers, unit or lump sum prices bid, the quantities of each bid item for the current and past invoices, the dollar amount of each bid item and a total amount. From each progress estimate, five percent (5%) will be deducted and retained by the City, and the remainder, less the amount of all previous payment, will be paid to the Contractor. The five percent (5%) retention shall apply to all work done. The last Friday of the month is established as the closure date for the purpose of making monthly progress payment. Undisputed payments will be paid within thirty (30) working days. Pursuant to California Government Code Section 4590, securities may be substituted for money that would be withheld, in which case the City will make payment of the normal retention. Use of this option shall be at the Contractor's request and expense, subject to the following conditions: 1. Securities shall be those eligible for investment of State funds under Government Code Section 16430 or bank certificates of deposit acceptable to the City; and shall have a value of at least one hundred and ten percent (110%) of the amount of retention to be paid to the Contractor in accordance with this subsection. 2. Securities or certificates of deposit shall be placed in an escrow account with the City Treasurer or a bank acceptable to the City. 3. Contractor shall bear all expenses involved, including that of the City and the escrow agent in connection with escrow deposits. 4. Contractor shall enter into an escrow agreement satisfactory to the City, which agreement shall include provisions governing inter alia: a. The amount of securities to be deposited. b. Providing Powers of Attorney or other documents necessary for transfer of securities to be deposited. Initials Attachment No. 2 c. Conversion to cash to provide funds to meet defaults by the Contractor including, but not limited to, termination of the Contractor's control over the work, stop notices filed pursuant to law, assessment of liquidated damages or other amounts to be kept or retained under provisions of the contract. d. Decrease in value of securities on deposit. e. Termination of the escrow upon completion of the contract. 5. Contractor shall obtain the written consent of the Surety to such an agreement. Pursuant to California Public Contract Code § 20114.50, the City shall make all progress payments no later than thirty (30) days after receipt of an undisputed and properly submitted progress payment request from the Contractor. Upon receipt of a progress payment request, the City shall review, as soon as practicable, the progress payment request to determine if the progress payment request is proper and accurate. If the City determines that the progress payment request is not proper or accurate or both, the City shall return the progress payment request to the Contractor no later than seven (7) days after receipt If the City returns a progress payment request to the Contractor pursuant to this paragraph, the City shall include a writing setting forth the reasons why the progress payment request is not proper or accurate. If the City fails to make a progress payment no later than thirty (30) days after receipt of an undisputed and properly submitted progress payment request from the Contractor, the City shall pay interest to the Contractor equivalent to the legal rate set forth in Code of Civil Procedure § 685.011(a). Initials Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. PERFORMANCE BOND (Attachment B) WHEREAS, the City of National City has awarded Whillock Contracting, Inc., hereinafter designated as the "Principal", the CITY OF NATIONAL CITY CONSTRUCTION CONTRACT BY AND BETWEEN THE CITY OF NATIONAL CITY AND WHILLOCK CONTRACTING, INC. WHEREAS, said Principal is required under the terms of said contract to furnish a bond for the faithful performance of said contract. NOW, THEREFORE, we, the Principal and as surety, are held and firmly bound unto the City Council of the City of National City, hereinafter called the "Council", in the penal sum of ($ lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH THAT if the above bounden Principal, his/her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the said contract any alteration thereof made as therein provides, on his or their part, to be kept and performed at the time and in the amount therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City of National City, the City Council, their officers, agents, and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and virtue. And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed herein or the specifications accompanying the same shall in any wise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or additions to the terms of the contract or to the work or to the specifications. Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. In the event suit is brought upon this bond by the City of National City and judgment is recovered, the surety shall pay all costs incurred by the Council in such suit, including a reasonable attorney's fee to be fixed by the Court. IN WITNESS WHEREOF three identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the day of , 2016. (SEAL) (SEAL) (SEAL) (SEAL) (SEAL) (SEAL) Surety Principal Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. PERFORMANCE BOND (continued) ATTORNEY -IN -FACT ACKNOWLEDGEMENT OF SURETY STATE OF ) ) ss COUNTY OF ) On this day of , 2016, before me, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person whose name is subscribed to the within instrument as the attorney -in -fact of the , the corporation named as Surety in said instrument, and acknowledged to me that he subscribed the name of said corporation thereto as Surety, and his own name as attorney -in -fact. NOTE: Signature of those executing for Surety must be properly acknowledged. NOTE: The Attorney -in -fact must attach a certified copy of the Power of Attorney. Signature: Name (Type or Print): Notary Public in and for said County and State My Commission expires: Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. PAYMENT BOND (Attachment C) WHEREAS, the City of National City has awarded Whillock Contracting, Inc., hereinafter designated as the "Principal", the CITY OF NATIONAL CITY CONSTRUCTION CONTRACT BY AND BETWEEN THE CITY OF NATIONAL CITY AND WHILLOCK CONTRACTING, INC. WHEREAS, said Principal is required by Chapter 5 (commencing at Section 3225) and Chapter 7 (commencing at Section 3247), Title 15, Part 4, Division 3 of the California Civil Code to furnish a bond in connection with said contract; NOW, THEREFORE, we, the Principal and as surety, are held and firmly bound unto the City Council of the City of National City, hereinafter called the "Council", in the penal sum of lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his/her or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay any of the persons named in Section 3181 of the California Civil Code, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Franchise Tax Board from the wages of employees of the Contractor and his subcontractors pursuant to Section 18806 of the Revenue and Taxation Code, with respect to such work and labor the Surety will pay for the same in an amount not exceeding the sum hereinafter specified, and also, in case suit is brought upon this bond, a reasonable attorney's fee, to be fixed by the Court. This Bond shall inure to the benefit of any of the persons named in Section 3181 of the California Civil Code, so as to give a right of action to such persons or their assigns in any suit brought upon this bond. Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. PAYMENT BOND (continued) It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement hereinabove described or pertaining or relating to the furnishing of labor, materials, or equipment therefore, not by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement hereinabove described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner of Public Entity and original contractor or on the part of any obliges named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 3110 or 3112 of the California Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned. IN WITNESS WHEREOF three identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the day of , 2016. (SEAL) (SEAL) (SEAL) (SEAL) (SEAL) (SEAL) Surety Principal Removal and disposal of building materials at 500 E. Plaza Blvd. Attachment No. 2 PAYMENT BOND (continued) ATTORNEY -IN -FACT ACKNOWLEDGEMENT OF SURETY STATE OF ) COUNTY OF ) ) ss On this day of , 2016, before me, the undersigned, a Notary Public in and for said County and State, personally appeared known to me to be the person whose name is subscribed to the within instrument as the attorney -in -fact of the , the corporation named as Surety in said instrument, and acknowledged to me that he subscribed the name of said corporation thereto as Surety, and his own name as attorney -in -fact. NOTE: Signature of those executing for Surety must be properly acknowledged. NOTE: The Attorney -in -fact must attach a certified copy of the Power of Attorney. Signature: Name (Type or Print): (Notary Public in and for said County and State) My Commission expires: Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. CERTIFICATE REGARDING CONTRACTOR'S LICENSE (Attachment D) 1. Contractor is required to possess one of the following State Contractor's License: State of California Class "A or B" Contractor's License, contractor doing asbestos abatement must have a C22 license and ASB certification 2. A failure to possess the required license, a failure to truthfully set forth the following information, or a failure to execute this Certificate renders the proposal nonresponsive and requires the City to reject the proposal. (Business and Professions Code Section 7028.15) 3. Contractor declares, under penalty of perjury, that he possesses the required Contractor's license(s) which: a. Bears the license number(s): 572217 b. Expires on: 06/30/2017 Signature of Prime Contractor Date Signature of Prime Contractor Date Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) This required license determination has been made by the City of National City. Any Contractor holding a different license who feels he is qualified to bid on this work must so advise the City Engineer at least seven (7) days prior to the bid opening. A review of the contemplated work will be made and the City's decision as to the required license will be final. 1-1 Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. DESIGNATION OF SUBCONTRACTORS (Attachment E) In compliance with the provisions of the Subletting and Subcontracting Fair Practices Act (Section 4100 et sec of the Government Code of the State of California) the undersigned Bidder has set forth below the full name and the location of the place of business of each Subcontractor who will perform work or labor or render service to the Prime Contractor in or about the construction of the work or improvement, or a Subcontractor licensed by the State of California who, under subcontract to the Prime Contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications to which the attached bid is responsive, and the portion of the work which will be done by each Subcontractor for each subcontract in excess of one-half of one percent of the Prime Contractor's total bid. The Bidder understands that if he fails to specify a subcontractor for any portion of the work to be performed under the contract in excess of one-half of one percent of his bid, he shall be deemed to have agreed to perform such portion of the work with contractor's own forces. Substitution shall not be allowed, except in cases of public emergency or necessity, and then only after a finding, reduced to writing as a public record of the City, setting forth the facts constituting the emergency or necessity. If no subcontractors are to be employed on the project, enter the word "NONE". Item # Subcontractor Description of Work % of Item Use an additional sheet and attach if necessary. Number of sheets attached for listed subcontractors Percentage (%) of total contract amount that is subcontracted % (Do not include specialty items in the calculation.) Signed this day of , 2016. Signature of Prime Contractor Date Signature of Prime Contractor Date Print name and title Print name and title 1-2 Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. CONTRACTOR'S CERTIFICATE OF WORKER'S COMPENSATION INSURANCE (Attachment F) Section 3700 of the Labor Code provides in part as follows: "Every employer except the state shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation to one or more insurers duly authorized to write compensation insurance in this state. (b) By securing from the Director of Industrial Relations a certificate of consent to self -insure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his employees. I am aware of the provisions of Section 3700 of the Labor Code, which require every employer to be insured against liability for worker's compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract. I further certify that if I should contract or subcontract with any person, including firm or company, to do all or any part of the work for which this proposal covers, I shall assure compliance by that contractor or subcontractor with the provisions of Section 3700 of the Labor Code. (Legal Name of Bidder) By: Title: (In accordance with Article 5, commencing at Section 1860, Chapter 1, Part 7, Division 2, of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any work under this contract.) 1-3 Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. EMERGENCY NOTIFICATION LIST (Attachment G) In reference to Section 7-6 of the Standard Specifications my/our representatives at the construction site for the above subject project will be: On -site Project Superintendent: Name CeII number/Office number Other 24-hour available person with authority to order work: Name CeII number/Office number Other 24-hour available person with authority to order work: Name CeII number/Office number I am aware that one of the named representative(s) shall be present at the work site whenever work is in progress. Further, each of these responsible persons can be contacted in an emergency situation and have complete authority to act on the Contractor's behalf. Signature of Prime Contractor Signature of Prime Contractor Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) 1-4 Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. GUARANTEE AGREEMENT (Attachment H) We hereby guarantee that removal and disposal of building materials at 500 E. Plaza Blvd., Specification No. 16.06 has been installed in accordance with the drawings and specifications and that the work as installed will fulfill the requirements included in the specifications. The undersigned agrees to promptly repair or replace, in a manner satisfactory to the Engineer, any or all of such work, together with any other adjacent work which may be displaced in connection with such repair or replacement, that may prove to be defective in workmanship or material within a period of one (1) year from the date of acceptance of the above referenced project by the CITY, ordinary wear and tear and unusual abuse or neglect excepted. The Contractor also agrees to hold the CITY harmless from claims of any kind arising from damage due to said defects in the work constructed under the Contract. In the event that the undersigned fails to comply with the abovementioned conditions within a reasonable period of time, as determined by the CITY, the undersigned hereby authorizes the CITY to proceed with the repair of said defects and the Contractor and his/her surety shall be liable to the City for the cost thereof. Firm name Address Signature of Prime Contractor or Sub -Contractor Signature of Prime Contractor or Sub -Contractor Print name and title Print name and title Countersigned (required by Prime Contractor if this Guarantee Agreement is for a Sub -Contractor): Firm name Address Signature of Prime Contractor Signature of Prime Contractor Print name and title Print name and title Contact for Service: Name Address Telephone number and email address Removal and disposal of building materials at 500 E. Plaza Blvd. Attachment No. 2 CONTRACTOR'S CERTIFICATION OF COMPLETION (Attachment I) DATE: TO: City Engineer City of National City Engineering Department 1243 National City Boulevard National City, CA 91950 FROM: (Firm or Corporation) This is to certify that I, acting as an authorized official of the above stated firm or corporation, have been properly authorized by said firm or corporation to sign the following statements pertaining to the subject contract: know, of my own personal knowledge, and do hereby certify, that the work of the contract described above has been performed, and materials used and installed in every particular, in accordance with, and in conformity to, the contract drawings and specifications. The contract work is now complete in all parts and requirements, and ready for your final inspection. I understand that neither the determination by the Engineer that the work is complete, nor the acceptance thereof by the Owner, shall operate as a bar to claim against the Contractor under the terms of the guarantee provisions of the contract documents. Signature of Prime Contractor Signature of Prime Contractor Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. CONTRACTOR'S AFFIDAVIT OF PAYMENT (Attachment J) To All Whom It May Concern: WHEREAS, the undersigned has been contracted by the City of National City to furnish labor and materials for removal and disposal of building materials at 500 E. Plaza Blvd., Specification No. 16-06, under a contract dated the day of , 2016, in the City of National City, County of San Diego, State of California, of which City of National City is the Owner. NOW, THEREFORE, this day of , 2016 the undersigned, as the Contractor for the above -named Contract pursuant to the Conditions of the Contract hereby certifies that, except as listed below, he has paid in full or has otherwise satisfied all obligations for all materials and equipment furnished, for all work, labor, and services performed, and for all known indebtedness and claims against the Contractor for damages arising in any manner in connection with the performance of the Contract referenced above for which the Owner or his property might in anyway be held responsible. EXCEPTIONS: (If none, write "None". If required by the Owner, the Contractor shall furnish bond satisfactory to the Owner for each exception.) Signature of Prime Contractor Date Signature of Prime Contractor Date Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. CONSENT OF SURETY FOR FINAL PAYMENT (Attachment K) In accordance with the provisions of the contract between the City and the Contractor, and the following named Surety: on the Payment Bond in the amount of Dollars, of the following named Contractor: hereby approves of final payment to the Contractor, and further agrees that said final payment to the Contractor shall not relieve the Surety named herein of any of its obligations to the City of National City, California, as set forth in said Surety company's bond. IN WITNESS WHEREOF, the Surety Company has hereunto set its hand and seal this day of , 2016. Signature of Authorized Surety Representative Title (CORPORATE SEAL) Attachment No. 2 Removal and disposal of building materials at 500 E. Plaza Blvd. CONTRACTOR'S AFFIDAVIT OF DISPOSAL (Attachment L) WHEREAS, on the day of , 2016, the undersigned entered into and executed a contract with the City of National City, a municipal corporation, for removal and disposal of building materials at 500 E. Plaza Blvd., as particularly described in said contract and identified as Specification No. 16.06 and WHEREAS, the specifications of said contract requires the Contractor to affirm that "all brush, trash, debris, and surplus materials resulting from this project have been disposed of in a legal manner" and that all designated recyclable materials are properly recycled in compliance with the City of National City Municipal Code, Chapter 15.80, Construction and Demolition Debris (Ordinance No. 2009-2309). WHEREAS, said contract has been completed, all surplus materials disposed of, and proof of compliance with the City of National City Municipal Code has been furnished. NOW, THEREFORE, in consideration of the final payment by the City of National City to said Contractor under the terms of said contract, the undersigned Contractor, hereby certifies and affirms under penalty of perjury that all surplus materials as described in said contract have been disposed of at the following location(s): Type of material disposed of Type of material disposed of Name of disposal site Name of disposal site Address of disposal site Address of disposal site Type of material disposed of Type of material disposed of Name of disposal site Name of disposal site Address of disposal site Address of disposal site By signing and submitting this form to the City of National City on this day of , 2016, I (we) hereby certified and swear under penalty of perjury under the laws of the State of California that the aforementioned information is true and correct without omission, error or misrepresentation. Signature of Prime Contractor Date Signature of Prime Contractor Date Print name and title Print name and title (If the Prime Contractor is a corporation two signatures of corporate officers are required.) Attachment No. 2 Exhibit B Playhouse on Plaza Demolition Project- Background and Explanation The property originally was a Christian Science Church building. In 1976, a small non-profit theater production company, Lamb's Players Incorporated, purchased, renovated, and used the facility as a venue for 119 productions until 1994, when Lamb's opened a new theater in Coronado. The old arena - style theater, which some compared to a slightly Tess plush version of The Old Globe Theatre's Cassius Carter Centre Stage, accommodated a maximum occupancy of 172 people. Its backstage rooms and cubicles doubled as Lamb's administrative offices during the day. On April 28, 2005, the Community Development Commission of the City of National City purchased the Playhouse from Lamb's Players Incorporated (closed escrow on May 26, 2005) and has held it as a vacant property since. There is no public record of any improvements being made on this property. A resolution adopted on December 13, 2005 states that environmental studies under CEQA are not applicable to the construction management of the Playhouse on Plaza. The document also states that after inspection by Fire and Building Safety Staff, the property was not suitable for use. Proposals to renovate by non -profits to keep the building operational have been made, yet improvements were deemed too costly. At that time renovation estimates ranged from $1,000,000 to $3,000,000. The property was appraised on 3/20/2016. The value of the property, as is, with the building intact is $400,000. The value of the property, vacant, with the building removed is $495,000. The value is in the land, not the building. The clearing of the building improves the value of the parcel and removes any ongoing health and safety issues. The building and property were previously owned by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency. Ownership was transferred to the City of National City on May 17, 2016, through Council Resolution 2017-70 and Successor Agency Resolution 2017-77. Unsafe Conditions of Building The building was damaged in a fire on May 22, 2015 leaving a hole in the roof of the conference room area of the building. The opening created by the fire has exposed the interior of the building to the elements. It also provided an access point for homeless people to enter the building. There has been a constant homeless issue at this location for several years now. The city has received complaints from area residents about the homeless congregating at the playhouse. The police department and code enforcement have had to clean people out of the unsafe building several times. The City Housing Inspector has deemed the building Unsafe to Occupy. Investigations made by the Fire Marshal and the Building Official in April of 2016 revealed structural deterioration in the basement at the south entryway and that fire damage compromised windows, doors, interior, and exterior walls, and flooring. Due to the outstanding conditions that are out of compliance with the California Fire Code, Life Safety Code, and California Code of Regulations staff recommends that the City Council declare the demolition and remediation an emergency and waive the public advertising for the contract bid process as typically required due to the adverse and hazardous conditions of the building. Attachment No. 2 Exhibit B Controlled Burn Exercise and Demolition As part of the removal, the National City Fire Department would like to conduct a controlled burn exercise. A contractor is needed to prepare the building for the exercise and remove the debris after the burn. The City contacted three contractors requesting proposals for the work. After reviewing the proposals, Whillock Contracting Inc. was selected as the lowest responsible bidder. The work will be conducted in the following phases: 1. Contractor will obtain all required permits, provide proper signage (if required) and take all preparatory steps for the removal of hazardous and asbestos containing materials; and, remove and properly dispose of all hazardous materials from existing building prior to the burn exercise. 2. National City Fire Department will conduct a controlled burn sometime during the late summer / early fall. 3. Contractor will remove and dispose structure rubble, burn ash, and building remains; demolish and dispose of all block and concrete walls, slabs, and foundation; import and place fill soil materials and compact to 90% relative compaction and fill any excavation to within 2" of finish grade; and, clean site of all remaining debris, loose soil, and dust. After the building burn, demolition, and removal of debris, the City of National City will continue to maintain the vacant lot. RESOLUTION NO. 2016 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE FORMAL BID PROCESS AS ALLOWED IN NATIONAL CITY MUNICIPAL CODE SECTION 2.60.230 (A) AND (C), AUTHORIZING THE MAYOR TO EXECUTE A DEMOLITION CONTRACT WITH WHILLOCK CONTRACTING, INC., IN THE NOT TO EXCEED AMOUNT OF $132,715, WHICH INCLUDES A 25% CONTINGENCY, FOR THE PLAYHOUSE ON PLAZA DEMOLITION PROJECT LOCATED AT 500 EAST PLAZA BOULEVARD, AND ESTABLISHING A PROJECT APPROPRIATION TOTALING $253,001 TO ACCOUNT FOR SAID DEMOLITION CONTRACT AND OTHER COSTS RELATED TO PROJECT MANAGEMENT, ENGINEERING, ENVIRONMENTAL TESTING, AND A CONTROLLED FIRE TO BE CONDUCTED BY THE NATIONAL CITY FIRE DEPARTMENT WHEREAS, on May 22, 2015, the Playhouse on Plaza ("Playhouse") located at 500 East Plaza Boulevard was severely damaged in a fire leaving a hole in the roof of the conference room area of the building that has provided an access point for homeless people to enter the building; and WHEREAS, further investigation by the National City Fire Marshal and Building Official in April 2016 revealed structural deterioration in the basement at the south entryway and that the fire damage compromised windows, doors, interior, exterior walls, and flooring; and WHEREAS, on May 25, 2016, the National City Housing Inspector determined that the building was unsafe to occupy; and WHEREAS, the California Fire Code, Life Safety Code, and California Code of Regulations all require prompt correction of the adverse and hazardous conditions found at the Playhouse; and WHEREAS, due to special circumstances caused by the adverse and hazardous conditions of the building, it is recommended that the City Council declare the demolition and remediation of the Playhouse an emergency and waive the formal bid process pursuant to National City Municipal Code Section 2.60.230 (A) and (C); and WHEREAS, the City contacted three contractors for proposals for the work and after review staff recommends contracting with the lowest, responsive responsible bidder, Whitlock Contracting, Inc., to complete the demolition and remediation work for the not to exceed amount of $132,715. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the demolition of the deteriorated structure and remediation of outstanding environmental and safety hazards at the Playhouse on Playhouse located at 500 East Plaza Boulevard constitutes an emergency permitting waiving the formal bid process pursuant to National City Municipal Code Section 2.60.230 (A) and (C). BE IT FURTHER RESOLVED that the City Council authorizes the Mayor to execute a demolition contract with Whitlock Contracting, Inc., in the not to exceed amount of $132,715, which includes a 25% contingency, for the Playhouse on Plaza Demolition Project. Resolution No. 2016 — Page Two BE IT FURTHER RESOLVED that the City Council authorizes the establishment of a project appropriation totaling $253,001 to account for the demolition contract and other costs related to project management, engineering, environmental testing, and a controlled fire that will be conducted by the National City Fire Department. PASSED and ADOPTED this 7th day of June, 2016. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk WHILLOCK CONTRACTING Playhouse on Plaza Demolition Project Judy Hernandez (Engineering/PW) Forwarded Copy of Agreement to Whillock Contracting