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HomeMy WebLinkAboutCDC/2008-39 1 2 3 4 5 6 7 8 > RESOLUTION NO. CDC/2008-39 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE A CONSTRUCTION CONTRACT BY AND BETWEEN THE AGENCY AND FRANCISCO CONSTRUCTION COMPANY FOR IMPROVEMENTS TO THE CALIFORNIA THEATRE OF THE PERFORMING ARTS (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) 9 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a 10 community redeveloprnent agency duly created, established and authorized to transact business and 11 exercise its powers, all under and pursuant to the California Cornrnunity Redevelopment Law (the 12 "CRL"), codified under Division 24, Part I of the California Health and Safety Code commencing at 13 Section 33000; and 14 WHEREAS, the Agency owns the California Theatre of the Performing Arts (the "Theatre") 15 and the Agency desires the front entrance doors of the Theatre to be repaired in accordance with the 16 plans and specifications ("Improvements") as approved by the City of San Bernardino Building and 17 Safety Division; and 18 WHEREAS, on August 14, 2008, construction bids were solicited from an active list of 19 general contractors approved by the Neighborhood Housing Services of the Inland Empire for their 20 Agency sponsored Neighborhood Beautification Program; and 21 WHEREAS, ajob walk was conducted on August 21,2008, at the Theatre that was attended 22 by three potential bidders; and 23 WHEREAS, on August 28, 2008, responses were received by the Agency wherein Francisco 24 Construction Company (the "Contractor") was determined to be the most qualified, responsive and 25 cost effective bidder; and 26 WHEREAS, the Agency desires to retain the services of the Contractor to repair the front 27 entrance doors of the Theatre, the terms and conditions of which are in accordance with the Contract 28 attached hereto and incorporated herein by this reference (the "Contract"). I P:\Agendu\Resolutions\Resolutions\2008\1O-20- 08 Francisco Construction - CA Theatre Wall Support CDC Reso,doc . , CDC/2008-39 1 WHEREAS, the Improvements to be constructed pursuant to the Contract are categorically 2 exempt per Article 19, Section 15302, Class 2 of the California Environment Quality Act 3 ("CEQA"). 4 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 5 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 6 FOLLOWS: 7 Section 1. The Community Development Commission of the City of San Bernardino 8 ("Commission") hereby approves the Contract between the Agency and the Contractor attached 9 hereto and incorporated herein by reference and hereby authorizes the Agency Interim Executive 10 Director to execute the Contract on behalf of the Agency together with such technical and 11 conforming changes as may be recommended by the Interim Executive Director of the Agency and 12 approved by the Agency Counsel. 13 Section 2. The Commission finds that the Improvements to be constructed under the 14 scope of the Contract are categorically exernpt pursuant to CEQA. 15 Section 3. This Resolution shall take effect from and after its date of adoption by this 16 Commission. 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III 2 P:\Agendas\Resolutions\Resolutions\2008\1()"20- 08 Francisco Construction - CA Theatre Wall Support CDC Reso.doc ; '. 1 2 3 4 5 6 7 CDC/2008-39 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE A CONSTRUCTION CONTRACT BY AND BETWEEN THE AGENCY AND FRANCISCO CONSTRUCTION COMPANY FOR IMPROVEMENTS TO THE CALIFORNIA THEATRE OF THE PERFORMING ARTS (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 8 Development Commission of the City of San Bernardino at a joint regular meeting day of October , 2008, by the following vote to wit: Aves Navs -L --X- X - x -L x - x Abstain Absent ~~ Secretary 20 The foregoing Resolution is hereby approved this ~ day of October 21 22 23 24 ,2008. ~on unity Development Commission of the City of San Bernardino Approved as to Form: 25 26 By, l~l 27 "Agenc l~ 28 3 P:\Agendas\Resolutions\Resolutions\2008\lo-20- 08 Francisco Construction. CA Theatre Wall Support CDC Reso_doc CDC/2008:-39 PROJECT CONTRACT REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO CALIFORNIA THEATRE PROJECT - 562 WEST 4TH STREET, SAN BERNARDINO THIS PUBLIC WORKS PROJECT CONTRACT for the wall structural supports system above the front doors for the City of San Bernardino California Theatre of the Performing Arts project (the "Contract"), is made and entered into this 20th day of October, 2008, by and between Redevelopment Agency of the City of San Bernardino (referred to herein as the "Owner" or the "Agency") and Francisco Construction (the "Contractor"). IN WITNESS HEREOF, THE UNDERSIGNED PARTIES HAVE MUTUALLY AGREED TO THE FOLLOWING: 1. THE CONTRACT DOCUMENTS. The complete contract is comprised of and includes: I) the Instructions to Bidders; 2) this Contract; 3) Contractor'slBidder's Bid, 4) Contractor'slBidder's Statement of Experience; 5) Contractor'slBidder's Certification Concerning Clean Air and Water Pollution Control; 6) Contractor'slBidder's Certification Concerning Designation of Subcontractors; 7) Non-Collusion Affidavit; 8) Contractor'slBidder's Certification Relating to Campaign Contributions; 9) Contractor' slBidder' s Certification Concerning Worker's Compensation Insurance; 10) Certification of Insurance Coverage; 11) Copies of State of California Contractor's Licenses, City of San Bernardino Business License, Worker's Compensation Insurance, Comprehensive General Liability Insurance per Contract; 12) Form of Labor & Material Bond; 13) the complete Project Construction Plans and Specifications and Provisions; 14) General Conditions (including without limitation, Part I, Sections 1-9 of "Standard Specifications for public Works Construction, 2000 editorial (the "Greenbook") as supplemented by the 2002 "Cwnulative Supplement to Greenbook"); 15) any Addenda issued under the Instructions to Bidders; 16) Any Regulations, Ordill8I1,ces, Codes, and Laws incorporated therein or herein by reference or otherwise applicable to the Project; 17) Any Agency approved Change Order(s) submitted during construction. All of the above docwnents are intended to cooperate as one (I) contract so that any work called for in one (I) and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said docwnents. The docwnents comprising the cornplete contract are hereinafter referred to collectively as the "Contract Docwnents". 2. THE WORK. Contractor agrees to furnish all tools, apparatus, facilities, equipment, labor and materials (except that specifically mentioned as being furnished by others) necessary to perform and complete the work in a good and worker like manner as called for, and in the manner designated in, and in strict conformity with the Project Construction Plans, Detail Specifications, and other Contract Docwnents which are identified by the signatures of the parties to this Contract and are, collectively, entitled: REDEVELOPMENT AGENCY OF THE CITY SAN BERNARDINO CALIFORNIA THEATRE PROJECT - 562 WEST 4TH STREET, SAN BERNARDINO 3. CONTRACT PRICE. The Agency agrees to pay and the Contractor agrees to accept, in full payment for the work above agreed to be done, the following compensation, to-wit: Amounts as I CDC/2008-39 determined by applying the information contained in the Contractor's bid for the 'wall structural support system above the front doors for the California Theatre' (the "Project"). The amount of this Contract for the Project is Forty One Thousand Eight Hundred Sixty Two Dollars and 50/100 ($41,862.50). 4. CONTRACT AMENDMENTS. The Interim Executive Director of the Agency is authorized to sign on his or her own authority amendments to this Contract which are of routine or technical nature, including minor adjustments to the Schedule of Performance unless otherwise specified in this Contract. All other amendments require the mutual agreement of both the Agency and the Contractor. 5. INCORPORATION BY REFERENCE OF PART 1, SECTIONS 1-9 OF THE GREENBOOK, 2000 EDITION, AS SUPPLEMENTED. The Greenbook, as supplemented by the publication entitled, "2002 Cumulative Supplement to Greenbook", is hereby incorporated by this reference into this Contract. The word "Project" means and refers to the "Project", as this term is defined in the Instruction to Bidders. To the extent that any provision of the printed text which appears in this Contract, is in conflict with the printed text of the provisions of the Greenbook as incorporated into this Contract by this reference, then in such event, the printed text of this Contract shall take precedence over such printed text in the Greenbook. 6. PAYMENT. Not later than the 20th day of each calendar month, the Contractor shall make a partial payment request to the Agency on the basis of an estimate approved by the Architect and Agency of the work performed since the last partial payment request during the preceding month by the Contractor with (10%) ten percent of the amount of each such estimate retained by the Agency, until completion of the Project and the recordation of a Notice of Completion of all work covered by this Contract. The Agency shall make any partial payments provided for in this contract to the Contractor within thirty (30) calendar days of the Agency's receipt of an undisputed and properly executed partial payment request from the Contractor. The Agency shall pay the Contractor interest on the amount of any portion of a partial payment, excluding retention amounts, not made to the Contractor within thirty (30) calendar days of the Agency's receipt of an undisputed and properly executed partial payment request frorn the Contractor at the legal rate set forth in California Code of Civil Procedure Section 685.010. Upon receipt of a partial payment request from the Contractor, the Agency shall review the partial payment request for the purpose of determining whether or not the partial payment request is a proper partial payment request. Any partial payment request determined by the Agency not to be a proper partial payment request suitable for payment shall be returned to the Contractor by the Agency within ten (10) working days of the Agency's receipt of such partial payment request. A partial payment request returned to the Contractor by the Agency under the provisions of this section shall be accompanied by a written document setting forth the reason(s) why the partial payment request is not proper. The number of days for the Agency to make a certain partial payment provided for in this Contract, without incurring interest pursuant to this section, shall be reduced by the number of days by which the Agency exceeds the ten (10) working days return period for such partial payment request, if determined to be improper, as set forth in this section. For the purposes of this section, a "partial payment" means all payments due to the Contractor under this contract, exclusive of that portion of the final payment designated as retention earnings. Also, for the purposes of this section, a partial payment request shall be considered 2 CDC/2008-39 properly executed by the Agency, if funds are available to pay the partial payment request and payment is not delayed due to an audit inquiry by the Agency's fmancial officer. The Agency will release Contractor's retention earnings within forty-five (45) days after recordation of Notice of Completion, as defmed in California Civil Code Section 3093. Recordation of a Notice of Completion for the Project by the Agency shall constitute the Agency's acceptance of the Project work. 7. STOP NOTICE. Contractor shall promptly pay all valid bills and charges for material, labor, equipment or otherwise in connection with or arising out of the performance of this Contract, and will hold the Agency free and harmless against all liens and/or claims of lien for material, labor or equipment filed against the Agency, and from and against all expenses and liability in connection therewith, including, but not limited to, court costs and attorney's fees resulting or arising therefrom. In the event any liens and/or clairns of lien are filed for record against the Agency or any property owned by the Agency, or the Agency receives notice of any unpaid bill or charge in connection with the performance of this Contract, Contractor shall forthwith either pay and discharge the liens and/ or clairns of lien and cause same to be released of record, or Contractor shall furnish the Agency with proper indemnity, either by satisfactory corporate Surety Bond or satisfactory title policy. Said indemnity shall also be subject to approval of Lien Holder. 8. TIME FOR COMPLETION. All work under this Contract shall be completed within a period of ninety (90) calendar days from the date of the Contractor's receipt of Notice to Proceed frorn the Agency which date may first occur; provided, however, that the Contractor shall have received its Notice to Proceed anticipated to be within fourteen (14) calendar days. 9. EXTENSION OF TIME. If the Contractor is delayed by acts of negligence of the Agency, or its employees or those under it by Contract or otherwise, or by changes ordered in the work, or by strikes, lockouts, fire, unavoidable casualties, or any causes beyond the Contractor's control, or by delay authorized by the Agency, or by any justifiable cause which the Architect and Agency shall authorize, then the Contractor shall make out a written claim addressed to the Agency setting forth the reason for the delay and the extension of the time requested and forward a copy of the claim to the Architect and Agency for approval. The Architect and Agency will evaluate the claim and if the claim is justifiable, will request the Agency's approval. No such extension will be allowed unless written claim therefore has been made within three (3) working days after the delay became apparent. 10. LIQUIDATED DAMAGES FOR DELAY. The provisions of Section 6.9 of the Greenbook are hereby modified to provide for a liquidated damages amount of Two Hundred Dollars ($200) per working day. 11. CHANGE ORDERS. No change in work, as described in the Contract Documents, shall be rnade except upon the approval of the Agency. The Contractor shall not be entitled to any compensation for any additional work unless such Project Change Order is written and entered into by the Contractor and the Agency. The Project Change Order shall describe the nature of the additional work in detail, the location of the work, the time for completion thereof, and terms of compensation to be paid to the Contractor for its performance in accordance with this Contract, as modified by the Project Change Order. 12. REAL PROPERTY LIENS. The Contractor shall promptly pay all valid bills and charges for material, labor or otherwise in connection with or arising out of the performance of this Contract, and will hold the Agency free and harmless against all liens and/or claims of lien for material and labor filed against the real property or any part thereof, and from and against all expense and liability in 3 CDC/2008-39 connection therewith, including, but not limited to, court costs and attorney's fees resulting or arising therefrom. In the event any liens and/or claims of lien are filed for record against the real property, or the Agency receives notices of any unpaid bill or charge in connection with the performance of this Contract, the Contractor shall forthwith either pay and discharge the liens and/or claims of lien and cause same to be released of record, or the Contractor shall furnish the Agency with proper indemnity, either by satisfactory corporate surety bond or satisfactory title policy. Said indemnity shall also be subject to approval of the lien holder. 13. INDEMNIFICATIONS AND HOLD HARMLESS. The Contractor shall defend, indemnifY, protect and hold free and hann1ess the Agency, its officers, employees, and agents from and against any and all actions, suits, proceedings, claims, demands, losses, costs, injuries to or death of any person or persons and expenses, including attorney's including attorney's fees, for injury or damage of any type claimed which is brought by any individual or entity, whether public or private, as a result of the acts, errors or omissions of the Contractor, its officers, employees, agents, and its Subcontractors arising from or related to performance of the work required hereunder to complete the Project. 14. 'INSURANCE.The provisions of Section 7-3 and Section 7-4 of the Greenbook are hereby amended to read as follows for the purposes of this Contract: The Contractor shall procure and maintain insurance policies rneeting the rninirnwu requirernents set forth below. Insurance shall be provided by insurers satisfactory to the Agency. Certificates evidencing insurance coverage shall be delivered to the Agency for each policy required herein prior to commencement of any work. All insurance certificates shall name the Agency as an additional insured and provide for thirty (30) days prior to written notice of cancellation to the Agency. a. Comorehensive General Liabilitv Insurance. The Contractor shall maintain comprehensive general liability insurance of not less the One Million Dollars ($1,000,000) combined single limit per occurrence. The Contractor must provide Comprehensive General Liability Insurance Policy with appropriate endorsement for builders course of construction and fire casualty loss. b. Automobile Insurance. The Contractor shall maintain comprehensive automobile liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence. c. Worker's Comoensation. The Contractor shall maintain adequate Worker's Compensation Insurance in accordance with Section 3700 of the California Labor Code for all workers under it employ and any Subcontractors performing the work required herein, or secure from the Director of Industrial Relations, a certification to self-insure such workers, when such workers comes within the protection of such Workers' Cornpensation Insurance Laws. 15. LABOR PROVISIONS. a. Prevailing Wages. The Project is a "public work" as this term is defmed under applicable State Law (See California Labor Code Section 1720, et seq. and California Administrative Code, Title 8, Section 16000, et seq.). 4 CDC/2008-39 (I) All laborers and mechanics employed or working upon the site of the Project will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Director of the Department of Industrial Relations (the "Director") regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in paragraph d. of this Section 14. Laborers or mechanics performing work in more than one (I) classification may be compensated at the rate specified for each classification for the time actually worked therein, provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination shall be posted at all times by the Contractor and its Subcontractors at the site of the Project in a prominent and accessible place where it can easily be seen by the workers. (2) Whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the bentlfit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (3) If the Contractor does not rnake payments to a trustee or other third person, the Contractor rnay consider as part of the wages of any laborer or mechanic, the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided that the Director has found, upon the written request of the Contractor, that the applicable standards of the Prevailing Wage Law have been met. The Director may require the Contractor to set aside, in a separate account, assets for the meeting of obligations under the plan or program. b. Withholding. The Agency shall, upon its own action or upon written request of an authorized representative of the Department of Industrial Relations, withhold or cause to be withheld from the Contractor under this Contract or any other contract with the same Contractor, or any other contract subject to prevailing wage requirements, which is held by the same Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the Project, all or part of the wages required by the Contract, the Agency may after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. c. Payrolls and Basic Records. (1) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three (3) years thereafter for all laborers and rnechanics working at the site of the Project. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid, daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Director has found under paragraph (3) of this clause that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under such plan or program, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been 5 CDC/2008-39 cornrnunicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. If the Contractor employs apprentices or trainees under approved programs, the Contractor shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (2) (i) The Contractor shall prepare weekly payrolls for each week in which any Contract work is performed. The payrolls shall set out accurately and completely all of the information required to be maintained under paragraph c.(I) above. This information may be prepared in any form desired. The Contractor is responsible for obtaining copies of the payrolls by all Subcontractors. (ii) Each payroll prepared shall be accompanied by a "Statement of Compliance," signed by the Contractor or Subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and shall certify the following: (A) That the payroll for the payroll period contains the information required to be maintained under paragraph c. (1) above and that such information is correct and complete; (B) That each laborer and mechanic (including each helper, apprentice and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions; (C) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Contract. (iii) Whenever a Contractor or Subcontractor is found by the Labor Cornrnissioner to be in violation of the Prevailing Wage Law with intent to defraud, the Contractor or Subcontractor shall be ineligible for a period of not less than one (I) year or more than three (3) years to bid or perform work on a public works contract. (3) The Contractor or Subcontractor shall make the records required under paragraph c.(l) of this section available for inspection, copying or transcription by authorized representatives of the Agency, any office of the Division of Labor Standards Enforcement or the Division of Apprenticeship Standards, and shall permit such representatives to interview employees during working hours on the job. If the Contractor or Subcontractor fails to submit the required records or to make them available, the Labor Commissioner may, after written notice to the Contractor or the Agency, take such action as rnay be necessary to cause the withholding of any further payment, advance, or guarantee of funds by the Agency, and determination ofa penalty as set forth in Labor Code Section 1775, et seq. d. Aoorentices and Trainees. (I) Aoorentices. Apprentices, as defmed in Labor Code Section 3077, will be permitted to work at less than the predetermined rate for the work they perform when they are in training under apprenticeship standards that have been approved by the Chief of the Apprenticeship Standards and who are parties to written apprentice agreements under Chapter 4 (cornrnencing with Section 3070) of Division 3 of the Labor Code. The allowable ratio of apprentices to journeymen on the Project site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire 6 CDC/2008-39 work force under the rules and regulations of the California Apprenticeship Council. Any worker listed on a payroll at an apprentice wage rate, who is not employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the apprenticeship standards and agreements shall be paid not less than the applicable wage rate on the wage determination of the work actually performed. Every apprentice must be paid at not less than the rate specified in the apprenticeship agreement for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of Apprentices determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination (2) Trainees. Trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered an "on-the-job training" program established pursuant to Labor Code Section 3093. The ratio of trainees to journeymen, on the Project site shall not be greater than permitted under the program pursuant to Section 3093 by the California Apprenticeship Council in cooperation with the Department of Education, the Employment Development Department, and the Board of Governors of the California Community Colleges. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of Apprentices so determines. Any employee listed on the payroll at a trainee rate who is not registered and participating in an "on-the-job training" program established pursuant to Section 3093 shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the Project site in excess of the ratio permitted under the "on-the-job training" program as established shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Administrator of Apprentices withdraws approval of an "on-the-job training" program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (3) Eaual Emolovrnent Oooortunitv. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the prohibitory discrimination provisions of California law as set forth in the California Constitution, Article 1, Section 8, Governrnent Code Section 12900, et seq. and Labor Code Sections 1735, 1777.6 and 3093. e. Subcontracts. The Contractor and each Subcontractor shall insert in any subcontracts the clauses contained in paragraphs a. through i. of Section 15. of this Contract and such other clauses as maybe required, and also a clause requiring the Subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for the compliance by any Subcontractor or lower tier Subcontractor with all the Contract clauses and all requirements of the Prevailing Wage Law. f. Contract Termination. A breach of the Contract clauses in paragraphs a. through i. of this Section 15 and a. through e. of Section 16 below are grounds for termination of this Contract, and for the withholding of payment by the Agency and notification to the Division of Labor Standards Enforcement or the Division of Apprenticeship Standards, as applicable. 7 CDC/2008-~9 g. Compliance with Prevailing Wage Law and Related Regulatory ReQuirements. All rulings and interpretations of the Prevailing Wage Law, and the related regulations promulgated thereWlder contained in Title 8 CCR Section 16000, et seq., are herein incorporated by reference in this Contract. h. Disputes Concerning Labor Standards. Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general disputes provision of this Contract. Such disputes shall be resolved in accordance with the procedures of the Department of Industrial Relations as set forth in Title 8 CCR section 16000, et seq. Disputes within the meaning of this clause include disputes between the Contractor (or any of its Subcontractors) and the Agency, the Department of Industrial Relations, or the employees or their representatives. 1. Certification of Eligibilitv. (I) By entering into this Contract, the Contractor certifies that neither it (nor he or she) nor is any person or firm who has an interest in the Contractor's firm a person or firm ineligible to be awarded a public works contract by virtue of Labor Code Section 1775, et seq. (2)' No part of this contract shall be subcontracted to any person or firm ineligible for award of a public works contract by virtue of Labor Code Section 1775, et seq. 16. CONTRACT WORK HOURS AND SAFETY STANDARDS REOUIREMENTS. As used in the following provision, the term "laborers" and "mechanics" include watchers and guards. a. Overtime Reouirernents. Neither the Contractor nor any Subcontractor contracting for any part of the Project which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workday in which he or she is employed on such work to work in excess of eight (8) hours per day, or in any workweek in which he or she is employed on such work to work in excess of forty (40) hours in such workweek, unless such laborer or mechanic receives compensation at a rate not less than one and one-half (1 \1,) times the basic rate of pay for all hours worked in excess of eight (8) hours in such workday or forty (40) hours in such workweek. b. Violation: Liabilitv for Unpaid Wages: Liouidated Damages. In the event of any violation of the clause set forth in paragraph a. above, the Contractor and any Subcontractor responsible therefore, shall be liable for the Wlpaid wages. In addition, the Contractor and Subcontractor shall be liable to the Agency for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchers and guards, employed in violation of the clause set forth in paragraph a. above, in the sum ofTen Dollars ($10) for each calendar day on which such individual was required or permitted to work in excess of the standard workday of eight (8) hours or workweek of forty (40) hours without payment of the overtime wages required by the clause set forth in paragraph a. above. c. Withholding for Unpaid Wages and Liouidated Damages. The Agency shall, upon its own action or upon written request of an authorized representative of the Department of Industrial Relations, withhold or cause to be withheld, from any monies payable on accoWlt of work performed by the Contractor or Subcontractor Wlder any such contract or any other contract with the same Contractor, or any other contract subject to the California work hours and safety standards requirements which is held by the same Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or Subcontractor for Wlpaid wages and liquidated damages as provided in the clause set forth in paragraph b. above. 8 CDC/2008-39 d. Working conditions. Neither the Contractor nor any Subcontractor may require any laborer or mechanic employed in the performance of any contract to work in surroundings or under working conditions that are unsanitary, hazardous or dangerous to his or her health or safety as determined under construction safety and health standards issued by the Department of Industrial Relations. e. Subcontracts. The Contractor and any Subcontractor shall insert in any subcontracts the clauses set forth in paragraphs a. through d. and also a clause requiring the Subcontractor to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any Subcontractor or lower tier Subcontractor with the clauses set forth in paragraphs a. through d. 17. NONDISCRIMINATION. The Contractor, with regard to the work performed by it during the Contract, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. The Contractor shall not participate either directly or indirectly in the discrirnination prohibited by Section 21.5 of the Regulations, including employment practices when the Contract covers a program set forth in Appendix B of the Regulations. 18. CIVIL RIGHTS. The Contractor assures that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This Provision binds the Contractor from the bid solicitation period through the completion of the Contract. This provision shall be inserted in all subcontracts, subleases and other agreements at all tiers. 19. SOLICITATIONS FOR SUBCONTRACTS, INCLUDING PROCUREMENTS OF MATERIALS AND EQUIPMENT. In all solicitations either by competitive bidding or negotiation rnade by the Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Contract and the Regulations relative to nondiscrimination on the grounds of race, color or national origin. 20. INFORMATION AND REPORTS. The Contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the Agency to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the Agency, as appropriate, and shall set forth what efforts it has made to obtain the information. 21. SANCTIONS FOR NONCOMPLIANCE. In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the Agency shall impose such contract sanctions as determine to be appropriate, including but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. 9 CDC/2008-39 22. INSPECTION OF RECORDS. The Contractor shall maintain an acceptable cost accounting system. The Agency, the Cornptroller General of the United States or any of their duly authorized representatives shall have access to any books, documents, paper, and records of the Contractor which are directly pertinent to this Contract or the Project for the purposes of making an audit, examination, excerpts, and transcriptions. The Contractor shall maintain all required records for three (3) years after the Agency makes final payment and all other pending matters are closed. 23. RIGHTS IN INVENTIONS. All rights to inventions and materials generated under this Contract are subject to regulations issued by the Agency. Information regarding these rights is available from the Agency. 24. BREACH OF CONTRACT TERMS. Any violation or breach of terms of this Contract on the part of the Contractor or its subcontractors may result in the suspension or termination of this Contract or such other action that may be necessary to enforce the rights of the Agency under this Contract. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. This Contract shall be interpreted under the laws of the State of California. The venue for any legal proceeding to interpret any provisions of this Contract shall be in the Superior Court of the County of San Bernardino. In the event that legal proceedings may be initiated by one (I) party to enforce its rights under this Contract, than the prevailing party in such legal proceedings shall be entitled to recover from the other party, its reasonable attorneys' fees either in such legal proceedings or in a separate action to recover such reasonable attorneys' fees. In the case of the Agency, the words "reasonable attorneys' fees" include the cost and expenses calculated on an hourly basis, of all lawyers retained by the Agency in connection with the legal representation of the Agency in any matter arising from this Contract, including, without limitation, attorneys in the Office of the City Attorney and Agency General Counsel. 25. TERMINATION OF CONTRACT BY AGENCY. a. The Agency rnay, by written notice, terminate this Contract in whole or in part at any time, either for the Agency's convenience or because of the Contractor's failure to fulfill its Contract obligations. Upon receipt of such notice, services shall be immediately discontinued (unless the notice directs otherwise) and all materials as may have been accumulated in performing this Contract, whether completed or in process, delivered to the Agency. b. If the termination is for the convenience of the Agency, an equitable adjustment in the Contract price shall be rnade, but no amount shall be allowed for anticipated profit on unperformed services. c. If the termination is due to failure to fulfill the Contractor's obligations, the Agency may take over the work and prosecute the same to completion by Contract or otherwise. In such case, the Contractor shall be liable to the Agency for any additional cost occasioned to the Agency thereby. d. If, after notice of termination for failure to fulfill Contract obligations, it is determined that the Contractor had not so failed, the termination shall be deemed to have been effected for the convenience of the Agency. In such event, adjustment in the contract price shall be made as provided in paragraph 2 of this clause. 10 CDC/2008-39 e. The rights and remedies of the Agency provided in this clause are in addition to any other rights and remedies provided by law or under this contract. 26. INCORPORATION OF PROVISIONS. The Contractor shall include the provisions of this Contract in every subcontract, including procurernents of materials and leases of equipment, unless exempt by the Regulations of directives issued pursuant thereto. The Contractor shall take such action with respect to any subcontract or procurement as the Agency may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the Agency to enter into such litigation to protect the interests of the Agency and, in addition, the Contractor may request the United States to enter into such litigation to protect the interests of the United States and the Department of Industrial Relations to protect the interests of the State of California. 27. CONTRACTOR CLAIMS OF $375,000 OR LESS. Claims by the Contractor relating to the Project for (a) a tirne extension, (b) rnoney or damages arising from work done by, or on behalf of, the Contractor on the Project for which payment is not expressly provided for or to which the Contractor is not otherwise entitled, or (c) an amount that is disputed by the Agency, with a value of $375,000 or less, are subject to the claims procedures set forth in California Public Contract Code Sections 20104, et seq., except as otherwise provided in this Contract and the incorporated documents, conditions and specifications. A copy of Cali fomi a Public Contract Code Sections 20104 through 20104.6 is attached to this Contract. 28. ASSIGNMENT OF CERTAIN RIGHTS TO THE AGENCY. In entering into this Contract or a subcontract to supply goods, services, or materials pursuant to this Contract, the Contractor and/or Subcontractor offers and agrees to assign to the Agency all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising frorn purchases of goods, services, or rnaterials pursuant to this Contract or the subcontract. This assignment shall be made and become effective at the time the Agency tenders final payment to the Contractor, without further acknowledgement by the parties. 29. ENERGY CONSERVATION REQUIREMENTS. The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (public Law 94- 163) 30. PROTECTION. The Contractor shall at all times provide protection against weather, rain, wind, storm and heat so as to maintain all work, rnaterials, apparatus and fixtures free from injury and damage. At the end of a day's work, all new work, and the premises, likely to be damaged by failure to provide protection as required above shall be replaced or repaired at Contractor's expense. 31. CONTRACTORS BEST SKILL. The Contractor shall supervise and direct the work using its best efforts, skill and attention to ensure the workmanship and materials are of good quality and that the work is completed in accordance with the Contract. Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures; safety on the work; and coordinating all portions on the Project to be performed by Contractor's Laborers, Employees, Vendors and Subcontractors, ifany. 11 CDC/2008-39 32. UTILITY SERVICES. The Contractor will be able to use existing utilities without charge,' including electric power and water. If Contractor must disconnect or otherwise interrupt such services, including plumbing fixtures, to effect repairs or replacement, the use or availability of such services shall not be deprive the Project's occupants, unless the Project's occupants has been relocated. Where disruptions or disconnections will occur other than during normal business hours, Contractor shall obtain approval of Project's occupant, at least twenty-four (24) hours prior to such interruption. 33. LEAD-BASED PAINT. The Contractor agrees that the use of any lead-based paints is strictly prohibited and shall not be used on this Project. Contractor agrees to submit to the Agency an Abatement Plan pursuant to the State of California Department of Health Services Regulations, and pursuant to the South Coast Air Quality Management District, prior to the cornrnencement of work on the Project, if applicable. The Agency assumes no liability for darnages for personal injury, illness, disability, or death to the Contractors, or to any Consultant or employees, agents, or invitees of the Contractor or any Consultant, or to any other person, including rnembers of the general public, arising frorn or incident to the Agency Investigation Work or other activity causing or leading to contact of any kind whatsoever with lead- based paint on the Agency Site, whether the Agency has properly warned, or failed to properly warn, any persons injured. The Contractor agrees to cause all removal, transportation and disposal of the lead-based paint removal pursuant to this Contract and the Contract Documents without any cost or liability to the Agency whatsoever. The Contractor shall execute all required documents and pay such fees, taxes and other charges and assessments as may be charged, levied or assessed as to the removal, transportation and disposal of the lead-based paint pursuant to this Contract. The Contractor represents and warrants that all such additional fees, taxes and other charges and assessments are included within the Contract price set forth in Section 3 hereof, if applicable. 34. ASBESTOS CONTAINING MATERIALS. The Contractor agrees to submit to the Agency an Abatement Plan pursuant to the State of California Department of Health Services Regulations, and pursuant to the South Coast Air Quality Management District, prior to the cornrnencement of work on the Project, if applicable. The Agency assumes no liability for darnages for personal injury, illness, disability, or death to the Contractors, or to any Consultant or employees, agents, or invitees of the Contractor or any Consultant, or to any other person, including members of the general public, arising from or incident to the Agency Investigation Work or other activity causing or leading to contact of any kind whatsoever with Asbestos on the Agency Site, whether the Agency has properly warned, or failed to properly warn, any persons injured. The Contractor agrees to cause all removal, transportation and disposal of the asbestos removal pursuant to this Contract and the Contract Documents without any cost or liability to the Agency whatsoever. The Contractor shall execute all required documents and pay such fees, taxes and other charges and assessments as may be charged, levied or assessed as to the removal, transportation and disposal of the asbestos pursuant to this Contract. The Contractor represents and warrants that all such additional fees, taxes and other charges and assessments are included within the Contract price set forth in Section 3 hereof, if applicable. 12 CDC/2008-39 35. HAZARDOUS WASTE NOTIFICATION. The Contractor shall promptly, and before the following conditions are disturbed, notify the Agency, in writing, of any of the following: (1) Material that the Contractor believes may be hazardous waste, as defined in Section 25117 of the California Health and Safety Code that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law. (2) Subsurface or latent physical conditions at the site differing from those indicated by information about the site made available to bidder prior to the deadline for submitting bids. (3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract. After promptly investigating the conditions of such rnaterial, if the Agency fmds that the conditions do materially differ from that indicated in the information about the site in the bid packet made available to bidders prior to the deadline for accepting bids, or if the Agency finds that the conditions do involve hazardous waste, the Agency shall cause a decrease or increase in the Contractor's cost of the Project, or time required for performance of any part of the work for the Project, and shall issue a written Project Change Order under the procedures described in Section II of this Contract. In the event that a dispute arises between the Contractor and the Agency regarding whether the conditions rnaterially differ, or whether the conditions involve hazardous waste, or whether such conditions cause a decrease or increase in the Contractor's cost of, or time required for, performance of any part of the work for the Project, the Contractor shall not be excused from any scheduled completion date provided for by this Contract, but shall proceed with all work to be performed under this Contract, retaining any and all rights provided by this Contract or law which pertain to the resolution of disputes under this Contract. 36. CLEANUP. The Contractor shall keep the subject Project clean and orderly during the course of the work. Upon cornpletion of the work contemplated by this Contract, the Contractor shall cause all debris resulting from such construction to be removed from the subject Project and shall leave the subject Project in a neat and "broom-clean" condition. 37. BUlSNESS REGISTRATION CERTIFICATION. The Contractor warrants that it possesses, or shall obtain immediately after the execution and delivery of this Contract, and maintain during the period of time that this Contract is in effect, a business registration certification pursuant to Title 5 of the City Municipal Code, together with any and all other licenses, contractor license, permits, qualification, insurance and approvals of whatever nature that are legally required to be maintained by the Contractor to conduct its business activities within the City. /11 11/ /11 II/ 13 CDC/2008-;39 IN WIlNESS WHEREOF, three identical counterparts of this Contract, each of which shall for all purposes be deemed an original thereof, have been duly executed by the parties hereinabove named, on the day and year fIrst herein written. REDELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO: a public body, corporate and politic ("Agency" or "Project Administrator") By: Emil A. Marzullo, ~ Approval as to Form and Legal Content: By: C,l~ Agency Co e CONTRACTOR: Francisco Construction By:1~ Zn...~~~ Felix ranC1SCO - Owner/Operator Dated: /{J- /0 -() &- T suK'1// =:L. ;)55 AJ /) $ Sat-! &nAQorJ,~r) CA 9:;'~[)1 Type or Print Contractor'slBidder's Business Address (City, State, and Zip Code) E3 7:;. 77 ~- 13 Contractor's License Contractor License ClassifIcation -, 7' -/t,,- /U 9Sc..':J.DI/;r Contractor's License Expimtion Date Bond Number 14