CC 2021-06-22_08j Agreement_Corp Yard Roof RepairsMEMORANDUM
TO: CITY COUNCIL
FROM: BILL ROBESON, ASSISTANT CITY MANAGER/PUBLIC WORKS
DIRECTOR
BY: JILL MCPEEK, CAPITAL IMPROVEMENT PROJECT MANAGER
SUBJECT: CONSIDERATION OF AN AGREEMENT FOR CONTRACTOR
SERVICES WITH WICKS ROOFING, INC. AND ENVIRONMENTAL
EXEMPTION FOR ROOF REPAIRS TO CORPORATION YARD
BUILDINGS A AND B, PW 2021-03
DATE: JUNE 22, 2021
SUMMARY OF ACTION:
Approve an Agreement for Contractor Services with Wicks Roofing, Inc. for roof repairs
to Buildings A and B at the City’s Corporation Yard.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The FY 2020-21 Capital Improvement Program (CIP) budget includes $50,000 for
renovations at the City’s Corporation Yard, and an additional $50,000 is included in the
approved FY 2021-22 CIP budget. Staff time will be necessary to provide inspection
services for the project.
RECOMMENDATION:
It is recommended the City Council: 1) Approve an Agreement for Contractor Services for
roof repairs to Corporation Yard Buildings A and B with Wicks Roofing, Inc. in the amount
of $66,477 ($41,867 and $24,610 respectively); 2) Authorize the City Manager to approve
change orders for 10% of the contract amount, $6,648 for unanticipated costs during the
construction phase of the project (total maximum construction costs = $66,477 + $6,648
= $73,125); and 3) find that the project is categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301(d) and
direct the City Clerk to file a Notice of Exemption.
BACKGROUND:
The metal roofs on Buildings A and B at the Corporation Yard have received no
maintenance in over 30 years and are in need of repair. In January 2021, staff contacted
several local roofing companies inviting them to meet with City staff and provide a scope
of work and estimate to repair the roofs. Two of the contractors that were contacted met
with staff. The other contractors either do not perform work on metal roofs or were unable
to attend a meeting due to work load and other commitments.
Item 8.j. - Page 1
CITY COUNCIL
CONSIDERATION OF AN AGREEMENT FOR CONTRACTOR SERVICES WITH
WICKS ROOFING, INC. AND ENVIRONMENTAL EXEMPTION FOR ROOF REPAIRS
TO CORPORATION YARD BUILDINGS A AND B, PW 2021-03
JUNE 22, 2021
PAGE 2
ANALYSIS OF ISSUES:
Staff has reviewed the two quotes received and has determined that the scope of work
and estimate provided by Wicks Roofing, Inc. best describes the work necessary to
perform the repairs and is qualified to perform the repairs. In addition, it was subsequently
determined that the other contractor was not set up to perform work in compliance with
Public Contract Code requirements.
The scope of work involves cleaning the existing roofs, installing new membrane systems
over the entire roofs, and installing new metal edging around the roof perimeters. The
work will meet current Title 24 energy requirements. It is anticipated work will be
accomplished during Summer 2021.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Approve the recommended actions as proposed;
2. Approve an Agreement for Contractor Services for only Building A;
3. Approve an Agreement for Contractor Services for only Building B;
4. Do not award a construction contract for the project and direct staff to solicit
additional estimates; or
5. Provide direction to staff
ADVANTAGES:
The project will reduce the potential for leaks during the rainy months and will help prevent
damage and degradation to the buildings.
DISADVANTAGES:
There will be some noise interruption during the clean-up of the existing roofs and during
the application process, but this will be minimized as much as possible by performing the
work during normal weekday working hours.
ENVIRONMENTAL REVIEW:
The project is categorically exempt from the California Environmental Quality Act (CEQA)
pursuant to Guideline Section 15301(d) for rehabilitation of deteriorated structures.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
Attachments:
1. Agreement for Contractor Services
2. Notice of Exemption
Item 8.j. - Page 2
Page 1
AGREEMENT FOR CONTRACTOR SERVICES
THIS AGREEMENT (“Agreement”), is made and effective as of June 22 , 2021,
between Wicks Roofing, Inc. (“Contractor”), and the CITY OF ARROYO GRANDE, a
Municipal Corporation (“City”). In consideration of the mutual covenants and conditions
set forth herein, the parties agree as follows:
1.TERM
This Agreement shall commence on June 22 , 2021 and shall remain and
continue in effect until December 31 , 2021, unless sooner terminated pursuant to the
provisions of this Agreement.
2.SERVICES
Contractor shall perform the tasks described and comply with all terms and
provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this
reference.
3.PERFORMANCE
Contractor shall at all times faithfully, competently and to the best of his/her
ability, experience and talent, perform all tasks described herein. Contractor shall
employ, at a minimum generally accepted standards and practices utilized by persons
engaged in providing similar services as are required of Contractor hereunder in
meeting its obligations under this Agreement.
4.AGREEMENT ADMINISTRATION
City’s Assistant City Manager/Public Works Director shall represent City in all
matters pertaining to the administration of this Agreement. Frank Del Rio shall
represent Contractor in all matters pertaining to the administration of this Agreement.
5.PAYMENT
The City agrees to pay the Contractor in accordance with the payment rates and
terms set forth in Exhibit “A”, attached hereto and incorporated herein by this reference.
6.SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Contractor at
least ten (10) days prior written notice. Upon receipt of said notice, the Contractor shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Contractor the actual value of the work performed up to the time of
$WWDFKPHQW
Item 8.j. - Page 3
Page 2
termination, provided that the work performed is of value to the City. Upon termination
of the Agreement pursuant to this Section, the Contractor will submit an invoice to the
City pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Contractor’s business; or
(c) Assignment of this Agreement by Contractor without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONTRACTOR
(a) The Contractor’s failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Contractor is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Contractor for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Contractor. If such failure by the
Contractor to make progress in the performance of work hereunder arises out of causes
beyond the Contractor’s control, and without fault or negligence of the Contractor, it
shall not be considered a default.
(b) If the City Manager or his/her delegate determines that the Contractor is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Contractor a written notice of the default. The
Contractor shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Contractor
fails to cure its default within such period of time, the City shall have the right,
notwithstanding any other provision of this Agreement to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equity or under this Agreement.
9. LAWS TO BE OBSERVED. Contractor shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Contractor under this Agreement;
(b) Keep itself fully informed of all existing and proposed federal, state and
local laws, ordinances, regulations, orders, and decrees which may affect those
engaged or employed under this Agreement, any materials used in Contractor’s
performance under this Agreement, or the conduct of the services under this
Agreement;
Item 8.j. - Page 4
Page 3
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Contractor to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Contractor shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts, and other such information required by City that relate
to the performance of services under this Agreement. Contractor shall maintain
adequate records of services provided in sufficient detail to permit an evaluation of
services. All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible. Contractor
shall provide free access to the representatives of City or its designees at reasonable
times to such books and records; shall give City the right to examine and audit said
books and records; shall permit City to make transcripts therefrom as necessary; and
shall allow inspection of all work, data, documents, proceedings, and activities related to
this Agreement. Such records, together with supporting documents, shall be maintained
for a period of three (3) years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Contractor. With respect to computer files, Contractor shall make available to the City,
at the Contractor’s office and upon reasonable written request by the City, the
necessary computer software and hardware for purposes of accessing, compiling,
transferring, and printing computer files.
11. INDEMNIFICATION
(a) Contractor shall indemnify, defend with legal counsel approved by the
City, and hold harmless City, its officers, officials, employees and volunteers from and
against all liability, loss, damage, expense, cost (including without limitation reasonable
legal counsel fees, expert fees and all other costs and fees of litigation) of every nature
arising out of or in connection with Contractor's negligence, recklessness or willful
misconduct in the performance of work hereunder or its failure to comply with any of its
obligations contained in this Agreement, except such loss or damage which is caused
by the sole or active negligence or willful misconduct of the City. Should conflict of
interest principles preclude a single legal counsel from representing both City and
Contractor, or should City otherwise find Contractor’s legal counsel unacceptable, then
Item 8.j. - Page 5
Page 4
Contractor shall reimburse the City its costs of defense, including without limitation
reasonable legal counsels fees, expert fees and all other costs and fees of litigation.
The Contractor shall promptly pay any final judgment rendered against the City (and its
officers, officials, employees and volunteers) with respect to claims determined by a trier
of fact to have been the result of the Contractor’s negligent, reckless or wrongful
performance. It is expressly understood and agreed that the foregoing provisions are
intended to be as broad and inclusive as is permitted by the law of the State of
California and will survive termination of this Agreement.
(b) Contractor’s obligations under this section apply regardless of whether or
not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost,
expense, judgment, civil fine or penalty, or liability was caused in part or contributed to
by an Indemnitee. However, without affecting the rights of City under any provision of
this agreement, Contractor shall not be required to indemnify and hold harmless City for
liability attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent and where
City’s active negligence accounts for only a percentage of the liability involved, the
obligation of Contractor will be for that entire portion or percentage of liability not
attributable to the active negligence of City.
(c) General Indemnification Provisions. Contractor agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section
from each and every subContractor or any other person or entity involved by, for, with or
on behalf of Contractor in the performance of this agreement. In the event Contractor
fails to obtain such indemnity obligations from others as required here, Contractor
agrees to be fully responsible according to the terms of this section. Failure of City to
monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defend City as set forth here is binding on the successors, assigns or heirs of
Contractor and shall survive the termination of this agreement or this section.
12. INSURANCE AND BONDS
Contractor shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit “B” attached hereto and
incorporated herein as though set forth in full.
13. INDEPENDENT CONTRACTOR
(a) Contractor is and shall at all times remain as to the City a wholly
independent Contractor. The personnel performing the services under this Agreement
on behalf of Contractor shall at all times be under Contractor’s exclusive direction and
control. Neither City nor any of its officers, employees, or agents shall have control over
the conduct of Contractor or any of Contractor’s officers, employees, or agents, except
as set forth in this Agreement. Contractor shall not at any time or in any manner
represent that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the City. Contractor shall not incur or have the power to incur
any debt, obligation, or liability whatever against City, or bind City in any manner.
Item 8.j. - Page 6
Page 5
(b) No employee benefits shall be available to Contractor in connection with
performance of this Agreement. Except for the fees paid to Contractor as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Contractor
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to Contractor for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Contractor declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No
officer or employee of the City of Arroyo Grande will receive compensation, directly or
indirectly, from Contractor, or from any officer, employee or agent of Contractor, in
connection with the award of this Agreement or any work to be conducted as a result of
this Agreement. Violation of this Section shall be a material breach of this Agreement
entitling the City to any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed
in connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Contractor in performance of this Agreement
shall be considered confidential and shall not be released by Contractor without City’s
prior written authorization. Contractor, its officers, employees, agents, or
subContractors, shall not without written authorization from the City Manager or unless
requested by the City Attorney, voluntarily provide declarations, letters of support,
testimony at depositions, response to interrogatories, or other information concerning
the work performed under this Agreement or relating to any project or property located
within the City. Response to a subpoena or court order shall not be considered
“voluntary” provided Contractor gives City notice of such court order or subpoena.
(b) Contractor shall promptly notify City should Contractor, its officers,
employees, agents, or subContractors be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, request for
admissions, or other discovery request, court order, or subpoena from any person or
party regarding this Agreement and the work performed thereunder or with respect to
any project or property located within the City. City retains the right, but has no
obligation, to represent Contractor and/or be present at any deposition, hearing, or
similar proceeding. Contractor agrees to cooperate fully with City and to provide the
opportunity to review any response to discovery requests provided by Contractor.
Item 8.j. - Page 7
Page 6
However, City’s right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii)
delivery by a reputable document delivery service, such as but not limited to, Federal
Express, which provides a receipt showing date and time of delivery, or (iii) mailing in
the United States Mail, certified mail, postage prepaid, return receipt requested,
addressed to the address of the party as set forth below or at any other address as that
party may later designate by notice:
To City: City of Arroyo Grande
Assistant City Manager/Public Works Director
300 East Branch Street
Arroyo Grande, CA 93420
To Contractor: Wicks Roofing, Inc.
Frank Del Rio
917 Buckley Road
San Luis Obispo, CA 93401
18. ASSIGNMENT
The Contractor shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Contractor understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation
concerning this Agreement shall take place in the superior or federal district court with
jurisdiction over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Contractor agree that time is of the essence in this Agreement.
Item 8.j. - Page 8
Page 7
22. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of 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 amendments or exhibits thereto. The captions of the sections are for
convenience and reference only, and are not intended to be construed to define or limit
the provisions to which they relate.
23. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with
the mutual written consent of all of the parties to this Agreement.
24. CONTRACTORS LICENSE
In accordance with the provisions of California Public Contract Code Section
3300, the Owner has determined that the contractor shall possess a valid Class C39
license at the time of bid issuance.
25. PROVISIONS REQUIRED BY LAW.
Each and every provision of law and clause required by law to be inserted in this
Contract, including but not limited to the following statutorily required provisions, shall
be deemed to be inserted herein and the Contract shall be read and enforced as though
it were included herein, and if through mistake or otherwise any such provision is not
inserted, or is not currently inserted, then upon application of either party the Contract
shall forthwith be physically amended to make such insertion or correction.
The following statutorily required provisions hereby apply to this contract:
Record Audit. In accordance with Government Code, Section 8546.7, records of both
the City and the Contractor shall be subject to examination and audit by the Auditor
General for a period of three (3) years after final payment.
Retention of Securities. Public Contract Code Section 22300 permits the substitution
of securities for any monies withheld by a public agency to ensure performance under a
contract, at the request and expense of the Contractor.
Claims. In accordance with the requirements of Public Contract Code Section 9204(e),
a copy of Public Contract Code Section 9204 is attached hereto and made a part
hereof.
Prevailing Wages and DIR Registration. In accordance with California Labor Code
Section 1725.5, Contractors and Subcontractors (as defined by California Labor Code
Section 1722.1) bidding on or engaging in the performance of any Public Works
contracts in California shall be registered with the Department of Industrial Relation.
Item 8.j. - Page 9
Page 8
In accordance with California Labor Code Section 1770 and 1773, the City has
determined that prevailing wage rates apply to this project. Copies of the prevailing
rates of per diem wages applicable to this Contract are available from the California
Division of Labor Statistics and Research at www.dir.ca.gov/dslr/PWP/index.htm or 455
Golden Gate Ave. 9th Floor, San Francisco, CA 94102. Any employee whose type of
work is not covered by any of the classified wage rates shall be paid not less than the
rate of wage listed for the classification which most nearly corresponds to the type of
work performed.
Pursuant to California Labor Code Section 1775, the Contractor shall forfeit no more
than $200 per calendar day, or portion of a day, for each worker paid less than the
prevailing rates for such work or craft, and the penalty shall be imposed and distributed
pursuant to Section 1775.
The following Labor Code sections are hereby referenced and made a part of this
Agreement:
1. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates
2. Section 1777.5 - Apprenticeship Requirements
3. Section 1813 - Penalty for Failure to Pay Overtime
4. Sections 1810 and 1811 - Working Hour Restrictions
5. Section 1776 - Payroll Records
6. Section 1773.8 - Travel and Subsistence Pay
The City will not recognize any claims for additional compensation because of the
payment of the wages set forth in the Contract.
In accordance with the requirements of Labor Code Section 1771.4(a)(1), this project is
subject to compliance monitoring and enforcement by the Department of Industrial
Relations
In accordance with the provisions of the California Labor Code, contractors or
subcontractors may not perform work on a public works project with a subcontractor
who is ineligible to perform work on a public project pursuant to Section 1777.1 or
Section 1777.17 of the California Labor Code. Any contract on a public works project
entered into between a contractor and a debarred subcontractor is void as a matter of
law. A debarred subcontractor may not receive any public money for performing work
as a subcontractor on a public works contract. Any public money that is paid or may
have been paid to a debarred subcontractor by a contractor on the Project shall be
returned to the Agency. The Contractor shall be responsible for the payment of wages
to workers of a debarred subcontractor who has been allowed to work on the Project.
26. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Contractor
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Contractor and has the authority to bind Contractor to the performance of
its obligations hereunder.
Item 8.j. - Page 10
Page 9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF ARROYO GRANDE CONTRACTOR
By: By:
Caren Ray Russom, Mayor
Its:
(Title)
Attest:
Jessica Matson, City Clerk
Approved As To Form:
Timothy J. Carmel, City Attorney
Item 8.j. - Page 11
Page 10
Attachment: Public Contract Code Section 9204
9204.
(a) The Legislature finds and declares that it is in the best interests of the state and its
citizens to ensure that all construction business performed on a public works
project in the state that is complete and not in dispute is paid in full and in a timely
manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1
(commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10
(commencing with Section 19100) of Part 2, and Article 1.5 (commencing with
Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a
contractor in connection with a public works project.
(c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail
or certified mail with return receipt requested, for one or more of the
following:
(A) A time extension, including, without limitation, for relief from
damages or penalties for delay assessed by a public entity under a
contract for a public works project.
(B) Payment by the public entity of money or damages arising from work
done by, or on behalf of, the contractor pursuant to the contract for a
public works project and payment for which is not otherwise
expressly provided or to which the claimant is not otherwise entitled.
(C) Payment of an amount that is disputed by the public entity.
(2) “Contractor” means any type of contractor within the meaning of Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code who has entered into a direct contract with a public entity
for a public works project.
(3) (A) “Public entity” means, without limitation, except as provided in
subparagraph (B), a state agency, department, office, division,
bureau, board, or commission, the California State University, the
University of California, a city, including a charter city, county,
including a charter county, city and county, including a charter city
and county, district, special district, public authority, political
subdivision, public corporation, or nonprofit transit corporation wholly
owned by a public agency and formed to carry out the purposes of
the public agency.
Item 8.j. - Page 12
Page 11
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under
the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the
jurisdiction of that department.
(iii) The Department of Parks and Recreation as to any project
under the jurisdiction of that department.
(iv) The Department of Corrections and Rehabilitation with
respect to any project under its jurisdiction pursuant to
Chapter 11 (commencing with Section 7000) of Title 7 of Part
3 of the Penal Code.
(v) The Military Department as to any project under the
jurisdiction of that department.
(vi) The Department of General Services as to all other projects.
(vii) The High-Speed Rail Authority.
(4) “Public works project” means the erection, construction, alteration, repair, or
improvement of any public structure, building, road, or other public
improvement of any kind.
(5) “Subcontractor” means any type of contractor within the meaning of
Chapter 9 (commencing with Section 7000) of Division 3 of the Business
and Professions Code who either is in direct contract with a contractor or is
a lower tier subcontractor.
(d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to
which the claim applies shall conduct a reasonable review of the
claim and, within a period not to exceed 45 days, shall provide the
claimant a written statement identifying what portion of the claim is
disputed and what portion is undisputed. Upon receipt of a claim, a
public entity and a contractor may, by mutual agreement, extend the
time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the
claim.
(C) If the public entity needs approval from its governing body to provide
the claimant a written statement identifying the disputed portion and
the undisputed portion of the claim, and the governing body does not
meet within the 45 days or within the mutually agreed to extension of
time following receipt of a claim sent by registered mail or certified
mail, return receipt requested, the public entity shall have up to three
Item 8.j. - Page 13
Page 12
days following the next duly publicly noticed meeting of the
governing body after the 45-day period, or extension, expires to
provide the claimant a written statement identifying the disputed
portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be
processed and made within 60 days after the public entity issues its
written statement. If the public entity fails to issue a written
statement, paragraph (3) shall apply.
(2) (A) If the claimant disputes the public entity’s written response, or if the
public entity fails to respond to a claim issued pursuant to this
section within the time prescribed, the claimant may demand in
writing an informal conference to meet and confer for settlement of
the issues in dispute. Upon receipt of a demand in writing sent by
registered mail or certified mail, return receipt requested, the public
entity shall schedule a meet and confer conference within 30 days
for settlement of the dispute.
(B) Within 10 business days following the conclusion of the meet and
confer conference, if the claim or any portion of the claim remains in
dispute, the public entity shall provide the claimant a written
statement identifying the portion of the claim that remains in dispute
and the portion that is undisputed. Any payment due on an
undisputed portion of the claim shall be processed and made within
60 days after the public entity issues its written statement. Any
disputed portion of the claim, as identified by the contractor in
writing, shall be submitted to nonbinding mediation, with the public
entity and the claimant sharing the associated costs equally. The
public entity and claimant shall mutually agree to a mediator within
10 business days after the disputed portion of the claim has been
identified in writing. If the parties cannot agree upon a mediator,
each party shall select a mediator and those mediators shall select a
qualified neutral third party to mediate with regard to the disputed
portion of the claim. Each party shall bear the fees and costs
charged by its respective mediator in connection with the selection of
the neutral mediator. If mediation is unsuccessful, the parts of the
claim remaining in dispute shall be subject to applicable procedures
outside this section.
(C) For purposes of this section, mediation includes any nonbinding
process, including, but not limited to, neutral evaluation or a dispute
review board, in which an independent third party or board assists
the parties in dispute resolution through negotiation or by issuance of
an evaluation. Any mediation utilized shall conform to the timeframes
in this section.
Item 8.j. - Page 14
Page 13
(D) Unless otherwise agreed to by the public entity and the contractor in
writing, the mediation conducted pursuant to this section shall
excuse any further obligation under Section 20104.4 to mediate after
litigation has been commenced.
(E) This section does not preclude a public entity from requiring
arbitration of disputes under private arbitration or the Public Works
Contract Arbitration Program, if mediation under this section does
not resolve the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within
the time periods described in this subdivision or to otherwise meet the time
requirements of this section shall result in the claim being deemed rejected
in its entirety. A claim that is denied by reason of the public entity’s failure to
have responded to a claim, or its failure to otherwise meet the time
requirements of this section, shall not constitute an adverse finding with
regard to the merits of the claim or the responsibility or qualifications of the
claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear
interest at 7 percent per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert
a claim against a public entity because privity of contract does not exist, the
contractor may present to the public entity a claim on behalf of a
subcontractor or lower tier subcontractor. A subcontractor may request in
writing, either on his or her own behalf or on behalf of a lower tier
subcontractor, that the contractor present a claim for work which was
performed by the subcontractor or by a lower tier subcontractor on behalf of
the subcontractor. The subcontractor requesting that the claim be
presented to the public entity shall furnish reasonable documentation to
support the claim. Within 45 days of receipt of this written request, the
contractor shall notify the subcontractor in writing as to whether the
contractor presented the claim to the public entity and, if the original
contractor did not present the claim, provide the subcontractor with a
statement of the reasons for not having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or
specifications for any public works project that may give rise to a claim under this
section.
(f) A waiver of the rights granted by this section is void and contrary to public policy,
provided, however, that (1) upon receipt of a claim, the parties may mutually agree
to waive, in writing, mediation and proceed directly to the commencement of a civil
action or binding arbitration, as applicable; and (2) a public entity may prescribe
reasonable change order, claim, and dispute resolution procedures and
requirements in addition to the provisions of this section, so long as the contractual
provisions do not conflict with or otherwise impair the timeframes and procedures
set forth in this section.
Item 8.j. - Page 15
Page 14
(g) This section applies to contracts entered into on or after January 1, 2017.
(h) Nothing in this section shall impose liability upon a public entity that makes loans
or grants available through a competitive application process, for the failure of an
awardee to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2027, and as of that date is
repealed, unless a later enacted statute, that is enacted before January 1, 2027,
deletes or extends that date.
Item 8.j. - Page 16
Page 15
EXHIBIT A
SCOPE OF WORK AND PAYMENT SCHEDULE
Item 8.j. - Page 17
Page 16
EXHIBIT B
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Contractor will
maintain insurance in conformance with the requirements set forth below. Contractor
will use existing coverage to comply with these requirements. If that existing coverage
does not meet the requirements set forth here, Contractor agrees to amend,
supplement or endorse the existing coverage to do so. Contractor acknowledges that
the insurance coverage and policy limits set forth in this section constitute the minimum
amount of coverage required. Any insurance proceeds available to City in excess of the
limits and coverage required in this agreement and which is applicable to a given loss,
will be available to City.
Contractor shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial
General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident. If Contractor owns no vehicles, this
requirement may be satisfied by a non-owned auto endorsement to the general liability
policy described above. If Contractor or Contractor’s employees will use personal autos
in any way on this project, Contractor shall provide evidence of personal auto liability
coverage for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Contractor and “Covered Professional Services” as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay
on behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
Item 8.j. - Page 18
Page 17
General conditions pertaining to provision of insurance coverage by Contractor.
Contractor and City agree to the following with respect to insurance provided by
Contractor:
1. Contractor agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials
employees and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Contractor also agrees to require all Contractors, and subContractors to
do likewise.
2. No liability insurance coverage provided to comply with this Agreement
shall prohibit Contractor, or Contractor’s employees, or agents, from waiving the right of
subrogation prior to a loss. Contractor agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Contractors
and subContractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or
applicable to this agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or its
operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called “third party action over” claims, including any exclusion for bodily
injury to an employee of the insured or of any Contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Contractor shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Contractor’s general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Contractor or deducted from sums due Contractor, at City option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to
City of any cancellation of coverage. Contractor agrees to require its insurer to modify
such certificates to delete any exculpatory wording stating that failure of the insurer to
mail written notice of cancellation imposes no obligation, or that any party will
Item 8.j. - Page 19
Page 18
“endeavor” (as opposed to being required) to comply with the requirements of the
certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Contractor or any subContractor, is intended to
apply first and on a primary, noncontributing basis in relation to any other insurance or
self insurance available to City.
10. Contractor agrees to ensure that subContractors, and any other party
involved with the project who is brought onto or involved in the project by Contractor,
provide the same minimum insurance coverage required of Contractor. Contractor
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Contractor agrees that upon request, all agreements with subContractors and
others engaged in the project will be submitted to City for review.
11. Contractor agrees not to self-insure or to use any self-insured retentions
or deductibles on any portion of the insurance required herein and further agrees that it
will not allow any Contractor, subContractor, Architect, Engineer or other entity or
person in any way involved in the performance of work on the project contemplated by
this agreement to self-insure its obligations to City. If Contractor’s existing coverage
includes a deductible or self-insured retention, the deductible or self-insured retention
must be declared to the City. At the time the City shall review options with the
Contractor, which may include reduction or elimination of the deductible or self-insured
retention, substitution of other coverage, or other solutions.
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Contractor ninety
(90) days advance written notice of such change. If such change results in substantial
additional cost to the Contractor, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps
that can be deemed to be in furtherance of or towards performance of this Agreement.
14. Contractor acknowledges and agrees that any actual or alleged failure on
the part of City to inform Contractor of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
15. Contractor will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City
executes a written statement to that effect.
16. Contractor shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
Item 8.j. - Page 20
Page 19
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Contractor’s insurance agent to this effect is acceptable. A certificate of insurance
and/or additional insured endorsement as required in these specifications applicable to
the renewing or new coverage must be provided to City within five days of the expiration
of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit
the obligations of Contractor under this agreement. Contractor expressly agrees not to
use any statutory immunity defenses under such laws with respect to City, its
employees, officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as
a waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct
from any other provision in this agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts
with or impairs the provisions of this Section.
21. Contractor agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Contractor for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Contractor agrees to provide immediate notice to City of any claim or loss
against Contractor arising out of the work performed under this agreement. City
assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve City.
Item 8.j. - Page 21
Notice of Exemption Appendix E
To: Office of Planning and Research From: City of Arroyo Grande
P. O. Box 3044, Room 113 300 East Branch Street
Sacramento, CA 95812-3044 Arroyo Grande, CA 93420
(805) 473-5400
County Clerk
County of: San Luis Obispo
1055 Monterey Street
San Luis Obispo, CA 93408
Project Title and Number:
Project Applicant:
Name ĚĚƌĞƐƐ
Wroject Location – Specific:
Project Location – City: Arroyo Grande Project Location – County: San Luis Obispo
Name of Public Agency Approving Project:
Name of Person or Agency Carrying Out Project:
Exempt Status:
Ministerial (Sec. 21080(b)(1); 15268);
Declared Emergency (Sec. 21080(b)(3); 15269(a));
Emergency Project (Sec. 21080(b)(4); 15269(b)(c));
Categorical Exemption, State type and section number:
Statutory Exemptions. State code number:
Reasons why project is exempt:
Lead Agency
Contact Person: Area Code/Telephone/Extension:
Email:
If filed by applicant:
1. Attach certified document of exemption finding.
2. Has a Notice of Exemption been filed by the public agency approving the project? Yes No
Signature: Date: Title:
Signed by Lead Agency Signed by Applicant
Authority cited: Sections 21083 and 21110, Public Resources Code. Date Received for filing at OPR:
Reference: Sections 21108, 21152, and 21152.1, Public Resources Code.
ĞƐĐƌŝƉƚŝŽŶŽĨEĂƚƵƌĞ͕WƵƌƉŽƐĞĂŶĚĞŶĞĨŝĐŝĂƌŝĞƐŽĨWƌŽũĞĐƚ͗
ŵĂŝů͗WŚŽŶĞ͗
ĚĚƌĞƐƐ͗
$WWDFKPHQW
Corporation Yard Roof Repairs, PW 2021-03
Jill McPeek 300 East Branch Street, Arroyo Grande, CA 93420
jmcpeek@arroyogrande.org (805) 473-5444
City of Arroyo Grande Corporation Yard, 1375 Ash Street, Arroyo Grande, CA 93420
Roof repairs to Buildings A and B.
City of Arroyo Grande
Jill McPeek, CIP Manager
✔15301(d)
Rehabilitation of deteriorated or structures to meet current standards of public health and safety.
Andrew Perez (850) 473-5425
aperez@arroyo@arroyogrande.org
300 East Branch Street, Arroyo Grande, CA 93420
06/23/2021 Associate Planner
✔
Item 8.j. - Page 22