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2012/11/13 American Asphalt South, Inc. Slurry Seal Phase1/ CIP02-013 CONTRACT SERVICES AGREEMENT FOR 2012 SLURRY SEAL PROJECT,PHASE IJCIP02-013 THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 13th day of November, 2012 by and between the CITY OF MENIFEE, a municipal corporation, hereinafter "City" and American Asphalt South, Inc. hereinafter "Contractor". The parties hereto agree as follows: RECITALS A. City requires construction services. Contractor has represented to City that Contractor is qualified to perform said services and has submitted a proposal to City for some, B. City desires to have Contractor said services on the terms and conditions set forth herein. NOW, THEREFORE, based on the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, City and Contractor hereby agree as follows: 1. SERVICES OF CONTRACTOR 1.1 Scope of Services In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the Bid Documents and Plans and Specifications and incorporated herein by this reference,which services may be referred to herein as the "services" or "work" hereunder, As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. 1.2 Documents Included in Contract This contract consists of Noncollusion Affidavit, Certification of Principal, Supplemental Information, General and Special Specifications, plans, responsible bidding document, this Contract Services Agreement, Faithful Performance Bond, Labor and Materials Bond, Guarantee, Tax Identification Form, Workers' Compensation Certification, any Addenda issued by City, and any and all schedules and attaclunents to it which are incorporated as if fully set forth herein. In the event of an inconsistency,this Agreement shall govern. CONTRACTICIP02-013 CA-1 1.3 Compliance with Law All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement, including a City of Menifee business license. Contractor shall have the sole obligation to pay for any, fees, assessments and taxes,plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. Contractor shall be responsible for all subcontractors' compliance with this Section 1.4, 1.6 Familiarity with Work By executing this Contract, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer, 1.6 Care of Work The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents,plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence, 11 Further Responsibilities of Parties Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. Contractor shall require all subcontractors to comply with the provisions of this agreement. CONTRACT/CIP02-013 CA-2 1.8 Additional Services City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore, 1.9 Special Requirements Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit"B" and incorporated herein by this reference. hi the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit"B" shall govern. 1.10 Prevailing Wage laws In accordance with Labor Code Section 1770 et seq., the Director of the Department of Industrial Relations of the State of California has ascertained a general prevailing rate of wages which is the minimum amount which shall be paid to all workers employed to perform the work pursuant to this Agreement. A copy of the general prevailing wage rate determination is on file in the Office of the City Clerk and is hereby incorporated in this Agreement. In accordance with the provisions of Labor Code Section 1810 et seq., eight(8)hours is the legal working day. Contractor must forfeit to the City Twenty Five Dollars ($25.00) a day for each worker who works in excess of the minimum working hours when Contractor does not pay overtime. Contractor is required to post a copy of such wage rates at all times at the contract site. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced. Contractor also shall comply with State law requirements to maintain payroll records and shall provide for certified records and inspection of records as required by California Labor Code Section 1770 et seq., including Section 1776. Contractor shall comply with all statutory requirements relating to the employment of apprentices. 2. COMPENSATION 2.1 Contract Sum For the services rendered pursuant to this Agreement, the Contractor shall be compensated as specified herein, but not exceeding the maximum contract amount of S351,273.55 (herein "Contract Sum"), except as provided in Section 1.8. The Contract Sum shall include the attendance of Contractor at all project greetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. CONTRACTICIP02-013 CA-3 2.2 Progress Payments Prior to the first day of the month, during the progress of the work, commencing on the day and month specified in the Agreement, Contractor shall submit to the Contract Officer a complete itemized statement of all labor and materials incorporated into the work during the preceding month and the portion of the contract sum applicable thereto. Upon approval in writing by the Contract Officer,payment shall be made in thirty(30)days. City shall pay Contractor a sum based upon ninety five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security. Refer to Section 7.3 of this Agreement for retention of funds. 3. PERFORMANCE SCHEDULE 11 Time of Essence Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" which is part of the bid documents, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer. 3.3 Force Majeure The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes for the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.4 Term Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until final approval and acceptance of the project by the Contract Officer, 4. COORDINATION OF WORK CONTRACTiciP02-013 CAA 4.1 Representative of Contractor The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer The Contract Officer shall be such .person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions, which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 prohibition Against Assignment The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. 4.4 Independent Contractor Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its subcontractors, agents or employees, performs the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, subcontractors, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor CONTRACTICIP02-013 CA-6 shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its subcontractors, agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venture or a member of any joint enterprise with Contractor, 4.5 Identity of Persons Performing Work Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services set forth herein. Contractor represents that the tasks and services required herein will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services. 5. INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance The Contractor shall procure and maintain, at its sole cost acid expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof,the following policies of insurance: Coverage(Check if applicable) Minimum Limits (X) Comprehensive General Liability • Commercial General Liability no less Insurance(including premises and broad than ISO form CG 00 01. operations) . Coverage must be on a standard Occurrence form. Claims-made not acceptable. • Minimum limits: $1,000,000 per occurrence; $2,000,000 General Aggregate; $2,000,000 Products/ Completed Operations Aggregate. General Aggregate must apply separately to each project. • Prior written consent is required if the insurance has a deductible or SIR in excess of$25,000. • Coverage shall be continued for one (1)year after completion of the work. • City of Menifee must be an additional insured for liability arising out of ongoing and completed operations by or on behalf of the contractor. City of Menifee shall continue to be an CONTRACTICIP02-013 CA-6 additional insured for completed operations for(1)year after completion of the work, • The policy definition of"insured contract"must include assumptions of liability arising out of both ongoing operations and the products-completed operations hazard('£' definition of insured contract in ISO form CG 00 01, or equivalent. • The insurance provided to City of Menifee as an additional insured must apply on a primary and non- contributory basis with respect to any insurance of self-insurance program maintained by City of Menifee. • Contractor shall provide immediate written notice if(1) any of the required insurance policies is terminated;(2)the limits of any of the required policies are reduced; (3)or the deductible or self-insured retention isincreased. • The policy must cover inter-insured suits and include a"separation of Insureds" or"severability" clause which treats each insured separately. • Required Evidence of Coverage: o Copy of the additional insured endorsement or policy language granting additional insured status. o Copy of the endorsement or policy language indicating that coverage applicable to City of Ivlenifee is primary and non-contributory; and o Properly completed Certificate of Insurance. (X) Comprehensive Automobile Liability • $1,000,000 per occurrence combined Insurance (includes owned, non-owned, single limit per accident. and hired automobile hazards) • Coverage must apply to all owned, hired and non-owned vehicles. • City of Menifee must qualify as an insured. • Required Evidence of Coverage: CONTRACTIGIPOM13 CA-7 o Copy of the endorsement or policy language indicating that City of Menifee is an insured for its vicarious liability. o Properly completed Certificate of Insurance. (X) Workers' Compensation/Employers' • Statutory Limits as required by the Liability Insurance Labor Code of the State of California • Employers Liability Statutory with limits of$1,000,000 per Accident; $1.,000,000 Disease per employee; $1,000,000 Disease per policy. • Policy must include a written waiver of the insurer's right to subrogate against City of Menifee. • Required evidence of coverage: • Subrogation waiver endorsement • Properly completed Certificate of Insurance CONDITIONS In accordance with Public Code Section 20170, the insurance of surety companies who provide or issue the policy shall have been admitted to do business in the State of California with a credit rating of A- or better. Insurance policies must be issued by an insurer with an A.M. Best's rating of at least A:VII. This insurance shall not be canceled, limited in scope or coverage or non-renewed until after thirty(30)days prior written notice has been given to the City Clerk, City of Menifee, 29714 I-Iaun Rd, Menifee, CA 92586. Any insurance maintained by the City of Menifee shall apply in excess of and not combined with insurance provided by this policy. The City of Menifee, its officers, employees, representatives, attorneys, and authorized volunteers shall be named as additional named insureds. Prior to commencement of any work under this contract, Contractor shall deliver to the City insurance endorsements confirming the existence of the insurance required by this contract,and including the applicable clauses referenced above. Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signator's company affiliation and title. Should it be CONTRACTICIP02-013 CA-8 deemed necessary by the City, it shall be Contractor's responsibility to see that the City receives documentation, acceptable to the City, which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company. If the Contractor fails to maintain the aforementioned insurance, or secure and maintain the aforementioned endorsement, the City may obtain such insurance, and deduct and retain the amount of the premiums for such insurance frotn any sums due under the agreement. However, procuring of said insurance by the City is an alternative to other remedies the City may have, and is not the exclusive remedy for failure of Contractor to maintain said insurance or secure said endorsement. In addition to any other remedies the City may have upon Contractor's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Contractor to stop work hereunder, and/or withhold any payment(s) which became due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof. Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractor's performance of the work covered under this agreement. The name and address for Additional Insured endorsements, Certificates and Notice of Cancellation is: City Clerk, City of Menifee, 29714 Haun Road,Menifee, CA 92586. Current Evidence of Coverage must be provided for the entire required period of insurance. Upon written request, certified copies of required insurance policies must be provided within thirty(30) days. Certificate of Insurance must include the following reference: 2012 Slurry Seal Project, Phase I. Each contract between the Contractor and any subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 5.1. 5.2 Indemnification Except as arising from the sole negligence or willful misconduct of City, Contractor shall indemnify the City, its officers, agents, authorized volunteers and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising or alleged to arise out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising or alleged to arise from the negligent acts or omissions of Contractor hereunder, or arising or alleged to arise from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities or portion of such claims or liabilities arising or alleged to arise from the negligence or willful misconduct of the City, its officers, agents or employees, and in connection therewith: CONTRACTUP02-013 CA-9 (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising or alleged to arise out of or in connection with Contractor's (or its agents', employees', subcontractors' or invitees') negligent performance of or failure to perform such work, operations or activities hereunder; and Contractor agrees to save and hold the City,its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising or alleged to arise out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor shall pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees for counsel acceptable to City. (d) Contractor's duty to defend and indemnify as set out in this Section 5.2 shall include any claims, liabilities, obligations, losses, demands, actions, penalties, suits, costs, expenses or damages or injury to persons or property arising or alleged to arise from, in connection with, as a consequence of or pursuant to any state or federal law or regulation regarding hazardous substances, including but not limited to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),Resource Conservation and Recovery Act of 1976("RCRA"), the Hazardous and Solid Waste Amendments of 1984,the Hazardous Material Transportation Act, the Toxic Substances control Act, the Clean Air Act, the Clean Water Act, the California Hazardous Substance Account Act, the California Hazardous Waste Control Law or the Porter- Cologne Water Quality Control Act, as any of those statutes may be amended from time to time. The Contractor's indemnification obligations pursuant to this Section 5.2 shall survive the termination of this Agreement. Contractor shall require the same indemnification from all subcontractors. 5.3 Labor and Materials and Performance Bonds Concurrently with execution of this Agreement, Contractor shall deliver to City a labor and materials bond and a performance bond each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secures the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. CONTRACTOP0N13 CA-10 5A Sufficiency of Insurer or Surety Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VU or better, unless such requirements are waived by the Risk Manager of the City due to unique circumstances. In the event the Risk Manager of City ('Risk Manager") determines that the work or services to be performed under this Agreement creates an increased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section S may be changed accordingly upon receipt of written notice from the Risk Manager; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10)days of receipt of notice from the Risk Manager. 6.6 Substitution of Securities Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under the contract for the work to be performed will be permitted at the request and expense of the successful bidder. 6. RECORDS AND REPORTS 6.1 Reports Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason., Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost. estimate for the project being designed. 6.2 Records Contractor shall keep, and require subcontractors to keep, such books and records (including but not limited to payroll records as required herein) as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. CONTRACTICIPOM13 CA-11 6.3 Ownership of Documents All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes In the event either party fails to perform its obligations hereunder, the nondefaulting party shall provide the defaulting party written notice of such default. The defaulting party shall have ten (10) days to cure the default; provided that, if the default is not reasonably susceptible to being cured within said ten (10) day period, the defaulting party shall have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, so long as the defaulting party commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the defaulting party shall take such immediate action as may be necessary. Notwithstanding the foregoing, the nondefaulting party may, in its sole and absolute discretion, grant a longer cure period. Should the defaulting party fail to cure the default within the time period provided in this Section, the nondefaulting party shall have the right, in addition to any other rights the nondefaulting party may have at law or in equity, to terminate this Agreement. Compliance with the provisions of this Section 7.2 shall be a condition precedent to bringing any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 7.3 Retention of Funds Progress payments shall be made in accordance with the provisions of Section 2.2 of this agreement. In accordance with said section, City shall pay Contractor a sum based upon ninety percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining ten CONTRACTICIP02-013 CA,94 percent (5%) thereof shall be retained as performance security to be paid to the Contractor within sixty (60) days after final acceptance of the work by the City Council, after Contractor shall have furnished City with a release of all undisputed contract amounts if required by City. In the event there are any claims specifically excluded by Contractor from the operation of the release,the City may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount in dispute. City's failure to deduct or withhold shall not affect Contractor's obligations hereunder. 7.4 Waiver No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action In addition to any other rights or remedies, either party may take legal action, law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of two hundred dollars ($200.00) as liquidated damages for each working day of delay in the performance of arty service required hereunder, as specified in the Schedule of Performance (Exhibit "C"). In addition, liquidated damages may be assessed for failure to comply with the emergency call out requirements described in the scope of services (Exhibit "A"). The City may withhold from any moneys payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination for Default of Contractor If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, Contractor shall vacate any City owned property which Contractor is permitted to occupy hereunder and City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be CONTRACTOP02-013 CA-13 liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated(provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated. 7.9 Attorneys' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8. CITY OFFICERS AND EMPLOYEES, NONDISCRIMINATION 8.1 Non-liability of City Officers and Employees No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. To the extent required by law, contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status,national origin, or ancestry. 9. MISCELLANEOUS PROVISIONS 9.1 Notice Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the US Mail, prepaid, first-class mail,return receipt requested, addressed as follows: CONTRACTUP02-04 CA44 To City: City of Menifee 29714 Haun Road Menifee, CA 92586 Attn: Don Allison, P.E. To Contractor: American Asphalt South, Inc. 14436 Santa Ana Avenue Fontana, CA 92337 9.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration; Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforecability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.6 Hiring of Illegal Aliens Prohibited Contractor shall not hire or employ any person to perform work within the City of Menifee or allow any person to perform work required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States, 9.6 Unfair Business Practices Claims In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act(Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the CONTRACT/CIP02-013 CA-15 awarding body renders final payment to the contractor without further acknowledgment by the parties. (Sec. 7103.5, California Public Contract Code). 9.7 Corporate Authority The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii)by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above. ATTEST: CITY OF MENIFEE, A municipal corporation By: By : Kathy Bennett, City Clerk enve I APPRT;t-- Josep tcher, City Attorney CO By: LY/ cJJd�e- By: (Pyle Stone) (Print) Signature: Signature: Title: Secretary Title Address: �yy%p SwA/ -.44 Address: CONTRACTICIP02-013 CA-16 �ad�o�x le 9.?337 Page 1 of 1 (Use of City form is required) SUPPLEMENTAL INFORMATION TO BE COMPLETED BY PRINCIPAL If an individual, so state. If a firm or co-partnership, state the firm and give the names of all individual co-partners composing the partnership. If a Corporation, state legal name of corporation; state also the names of the president, secretary, treasurer and manager thereof. aH e 94 we e Business Address: 'CU0 ../ _�d✓�firyG_ C.-� 9,�339 Telephone Number: Date: Print Name: 4 1e J9d ie Principal Signature: �2%!� CONTRACTICIP02-013 CA-17 GUARANTEE TO THE CITY OF MENIFEE The undersigned guarantees the construction and installation of the following work included in this project: 2012 SLURRY SEAL PROJECT,PHASE 1. Should any of the materials or equipment prove defective or should the work as a whole prove defective, due to faulty workmanship, material furnished or methods of installation, or should the work or any part thereof fail to operate properly as originally intended and in accordance with the plans and specifications, due to any of the above causes, all within one year after date on which this contract is accepted by the City, the undersigned agrees to reimburse the City, upon demand, for its expenses, incurred in restoring the cost of any such equipment or materials replaced, the cost of removing and replacing any other work necessary to make such replacement or repairs, or, upon demand by the City to replace any such material and to repair said work completely without cost to the City so that said work will function successfully as originally contemplated. The City shall have the unqualified option to make any needed replacements or repairs itself or to have such replacements or repairs done by the undersigned. In the event the City elects to have said work performed by the undersigned, the undersigned agrees that the repairs shall be made and such materials as are necessary shall be furnished and installed within a reasonable time after the receipt of demand from the City. In the event that the City makes the replacement or repairs itself, the undersigned agrees to make reimbursement payment within thirty(30)days after the receipt of demand from the City. If the undersigned shall fail or refuse to comply with his obligations under this guaranty, the City shall be entitled to all cost and expenses, including attorneys fees, reasonably incurred by reason of the said failure or refusal. Sul f�HC , r h/ Date CONTRACTICIP02-013 CA-18 TAX IDENTIFICATION NUMBER The Tax Equity and Fiscal Responsibility Act of 1982 requires the payer (City of Menifee) to report to the Internal Revenue Service taxable payments to payees. You (as a payee) are required by law to provide us with your Taxpayer Identification Number (if an individual or partnership, your Social Security Number). If you do not provide us with your correct identification number, you may be subject to a penalty imposed by the Internal Revenue Service. The payments subject to withholdings may include, but are not limited to, interest, dividends, or other payments the City of Menifee made to you. Other payments may include rents, royalties,commissions and fees for service of non-employees. If you are exempt from income tax, we are still required, by law, to maintain a Tax Identification Number on file. PLEASE PROVIDE YOUR TAX IDENTIFICATION NUMBER next to the appropriate listing below,sign,date and return to: CITY OF MENIFEE Attn:Accounts Payable PO Box 1788 Menifee, CA 92202 Exempt: Yes No_ - Telephone(( CORPORATION: U.S.A. OR ANY AGENCIES THEREOF: IRS CODE 9501 TAX-EXEMPT ORGANIZATION: A NON-COMMISSIONED CITY OF W.C. EMPLOYEE: SOLE PROPRIETOR: A PARTNERSHIP: OTHER: cc� // (Explain) Signature/Title: JCCrY�� Date: 111a im6tr CONTRACTICIPo2-013 CA-19 EQUALS The undersigned desires to use the material, product, thing, or service described below, as "an equal'to such item as specified. In accordance with the provisions under General Conditions, entitled EQUALS, if the City shall find any item so described equal to the respective item specified,then the undersigned may furnish such item, together with all necessary labor, materials, equipment and incidentals required to perform and complete the work. Contractor's Name Date ' Address Phone No. Materials, apparatus or ) (Complete description of the materials, equipment specified for ) (apparatus or equipment the bidder desires which bidder proposes ) (to use as "an equal" and name of "an equal" ) (contractor if different Sped page number t. SA-l8 7TY-e kikr Xdb.!r /ft'l&- IV;14�41 2. 3. CONTRACTICIP02-013 CA-20