Attachment 5 - Tucker Construction, Inc. - Construction Agreement 2023 - with bondsPage 1 of 10
Construction Agreement
Tucker Construction
CONSTRUCTION AGREEMENT
This Agreement is dated for identification this 20th of June 2023 and is made by and
between the TOWN OF LOS GATOS, a California municipal corporation, whose address is 110 East
Main Street, Los Gatos, California 95030 (hereinafter "TOWN"), and Tucker Construction, Inc.,
identified as an () and whose address is 1725 Little Orchard St. Suite D, San Jose, CA 95125
(hereinafter "CONTRACTOR").
NOW, THEREFORE, the parties agree:
ARTICLE I: WORK TO BE DONE AND DOCUMENTS FORMING THE CONTRACT.
That for and in consideration of the payments and agreements hereinafter mentioned, to
be made and performed by the said TOWN, and under the conditions expressed in the two bonds
hereunto annexed, the said CONTRACTOR agrees with the said TOWN, at his own proper cost
and expense, to do all the work and furnish all the materials and equipment necessary to
construct and complete, in accordance with the plans and specifications hereinafter mentioned,
in a good, workmanlike and substantial manner, under the supervision of the Town Engineer, or
his, of the TOWN OF LOS GATOS, California, all the works and improvements described,
mentioned and set forth in those plans and specifications on file in the Office of the Parks and
Public Works of said TOWN, entitled:
“Plans and Specifications for
Project #421-821-2601-82303 FY 2022/23 Adult Recreation Center ADA Compliant Public
Restroom”
which said plans and specifications and all the documents therein contained, including the TOWN
OF LOS GATOS's Standard Provisions, are hereby specially referred to and by such reference
made part of this contract.
ARTICLE II: CONTRACTOR'S ACCEPTANCE
CONTRACTOR agrees to receive and accept the prices shown on Exhibit “A” $249,490 and
up to $24,949 in change orders, which is attached hereto and incorporated by reference
herewith, as full compensation for furnishing all materials and equipment and for doing all the
work described in the contract documents; also for all loss or damage as provided in the contract
documents in the prosecution of the work until its acceptance by the Town Council of the TOWN
OF LOS GATOS, and for well and faithfully completing the work, and the whole thereof, in the
manner and according to the contract documents, plans and specifications, and the requirements
of the Town Engineer.
ATTACHMENT 5
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ARTICLE III: ACCEPTANCE BY TOWN
The said TOWN hereby promises and agrees with the said CONTRACTOR to employ, and
does hereby employ the said CONTRACTOR to provide the materials and to do the work according
to the terms and conditions herein contained and referred to, for the prices aforesaid, and hereby
contracts to pay the same at the time, in the manner and upon the conditions above set forth;
and the said parties for themselves their heirs, executors, administrators, successors and assigns,
do hereby agree to the full performance of the covenants herein contained.
ARTICLE IV: COMPLETION OF AGREEMENT
Reference is made to Part I – Page 1 of the TOWN's Project Specifications Notice to
Contractors which are hereby made a part of this contract. Inasmuch as the work called for under
this contract concerns a needed public improvement, the time of performance and completion
of this work is of the essence of this contract. It is expressly understood and agreed by the parties
hereto that all the work called for under this contract, in all its parts and requirements, shall be
completed ninety (90) working days from Notice to Proceed.
ARTICLE V: HOURS OF LABOR
The CONTRACTOR shall forfeit, as a penalty, to the TOWN, Twenty-Five Dollars ($25) for
each workman employed in the execution of the contract by him or by any subcontractor for
each calendar day during which any workman is required or permitted to labor more than eight
(8) hours in violation of the provisions of Sections 1810-1815 inclusive of the Labor Code and all
amendments thereto.
ARTICLE VI: APPRENTICES
Attention is directed to the provisions in Sections 1777.5, 1777.6 and 1777.7 of the Labor
Code governing the employment of apprentices by the CONTRACTOR or any subcontractor under
him. CONTRACTOR and any of his subcontractors shall comply with the requirements of said
sections of the Labor Code; CONTRACTOR shall have full responsibility for compliance with the
said sections regardless of any other contractual or employment relationships alleged to exist.
Information relative to apprenticeship standards and other requirements may be
obtained from the Director of Industrial Relations ex officio the Administrator of Apprenticeship,
San Francisco, California or from the Division of Apprenticeship Standards at its branch offices.
ARTICLE VII: NONDISCRIMINATION
The CONTRACTOR sub recipient or subcontractor shall not discriminate on the basis of
race, color, national origin or sex in the performance of this contract. CONTRACTOR shall carry
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out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted
contracts.
Failure by CONTRACTOR to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy as recipient
deems appropriate.
ARTICLE VIII: INDEPENDENT CONTRACTOR
It is agreed that CONTRACTOR is an independent contractor, and all persons working for
or under the direction of CONTRACTOR are CONTRACTOR's agents, servants and employees, and
said persons shall not be deemed agents, servants or employees of TOWN.
ARTICLE IX: OWNERSHIP OF DATA AND DOCUMENTS
CONTRACTOR agrees that all records, specifications, data, maps, designs, graphics,
writings, recordings and other tangible materials regardless of form or format, including, without
limitation, electronically transmitted documents and ACAD files, and other collateral materials
collected, compiled, drafted, prepared, produced and/or generated in the performance of this
Agreement shall be the property of TOWN. CONTRACTOR shall regularly provide such documents
to TOWN upon TOWN's request. In the event that this Agreement is terminated prior to
completion of the scope of work, CONTRACTOR shall provide all such data and documents to
TOWN forthwith.
ARTICLE X: INDEMNIFICATION
To the fullest extent permitted by law, CONTRACTOR shall defend, indemnify, and hold harmless
the TOWN, its elected and appointed officials, employees, and agents (“Indemnified Parties”),
from and against any claims, allegations, damages, awards, judgments, and expenses of every
kind or character, including, but not limited to, attorney fees and expert costs, which may arise
out of or result from in whole or in part CONTRACTOR’s performance of the work, except to the
extent caused by the sole negligence or willful misconduct of Indemnified Parties.
CONTRACTOR’s obligation to defend Indemnified Parties shall be immediate upon written notice
by TOWN to CONTRACTOR and CONTRACTOR shall, if requested by TOWN, defend Indemnified
Parties using counsel approved by TOWN in its sole discretion.
ARTICLE XI: INSURANCE
a. Commercial General Liability/Automobile Liability Insurance:
CONTRACTOR shall obtain and maintain Commercial General Liability insurance in
the amount of Two Million Dollars ($2,000,000) and Automobile Liability insurance in the amount
of One Million Dollars ($1,000,000) per occurrence. If a general aggregate limit is used, either
the general aggregate limit shall apply separately to this contract or the general aggregate limit
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shall be twice the required occurrence limit. CONTRACTOR's insurance coverage shall be written
on an occurrence basis.
b. Workers' Compensation Insurance:
CONTRACTOR shall obtain and maintain statutory Workers' Compensation
insurance and Employer's Liability insurance in the amount of One Million Dollars ($1,000,000)
per accident.
CONTRACTOR is familiar with the Workers' Compensation laws of California
(generally contained in Section 3700 of the Labor Code), including those provisions which provide
for specific exemptions from the requirement that all employers must carry Workers'
Compensation insurance, and CONTRACTOR maintains they are exempted under the law from
the requirement to maintain Workers' Compensation insurance coverage.
In addition, during the term of any work for TOWN under said agreement:
(1) CONTRACTOR will not employ any person in any manner so as to become subject to the
Workers' Compensation laws of California, or (2) should CONTRACTOR become subject to the
Workers' Compensation provisions of Section 3700 of the Labor Code for any reason,
CONTRACTOR shall forthwith comply with those provisions and send evidence of financial
compliance to TOWN.
c. Acceptability of Insurers: Insurance is to be placed with insurers with a current
Best Rating of A:VII unless otherwise acceptable to TOWN.
d. Verification of Coverage: Insurance, deductibles or self-insurance retentions shall
be subject to TOWN's approval. Original Certificates of Insurance with endorsements shall be
received and approved by TOWN before work commences, and insurance must be in effect for
the duration of the contract. The absence of insurance or a reduction of stated limits shall cause
all work on the project to cease. Any delays shall not increase costs to TOWN or increase the
duration of the project.
e. Other Insurance Provisions:
(1) The TOWN OF LOS GATOS, its elected and appointed officials, employees,
and agents are to be covered as additional insured by Endorsement CG 20 10 11 85 or other
endorsement approved by Town Attorney for Commercial General and Automobile Liability
coverage.
(2) For any claims related to this project, CONTRACTOR's insurance coverage
shall be primary and any insurance or self-insurance maintained by TOWN, its elected and
appointed, officials, employees, and agents shall not contribute to it.
(3) Each insurance policy required shall be endorsed that a thirty (30) day
notice be given to TOWN in the event of cancellation or modification to the stipulated insurance
coverage.
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(4) In the event CONTRACTOR employs subcontractors as part of the work
covered by this Agreement, it shall be the responsibility of CONTRACTOR to ensure that all
subcontractors comply with the same insurance requirements that are stated in this Agreement.
(5) Approval of the insurance by TOWN or acceptance of the Certificate of
Insurance by TOWN shall not relieve or decrease the extent to which CONTRACTOR may be held
responsible for payment of damages resulting from CONTRACTOR's services or operation
pursuant to this Agreement, nor shall it be deemed a waiver of TOWN's rights to insurance
coverage hereunder.
(6) If, for any reason, CONTRACTOR fails to maintain insurance coverage that
is required pursuant to this contract, the same shall be deemed a material breach of contract.
TOWN, at its sole option, may terminate this contract and obtain damages from CONTRACTOR
resulting from said breach. Alternately, TOWN may purchase such required insurance coverage,
and without further notice to CONTRACTOR, TOWN may deduct from sums due to CONTRACTOR
any premium costs advanced by TOWN for such insurance.
ARTICLE XII: BONDING REQUIREMENT
CONTRACTOR agrees to post a Faithful Performance Bond and a payment bond for Labor
and Materials, or other guarantees, in the required $249,490 upon bond forms provided by the
TOWN, guarantying the performance of the terms of this Agreement. Surety issuing bonds for
CONTRACTOR shall be approved by the U.S. Department of Treasury's Financial Management
Service and shall be listed on the most current Treasury Circular 570 as contained in the Federal
Register.
Contractor agrees to allow five percent of the faithful performance bond to remain in effect for
a period of two years following Town Council project acceptance as guarantee for any needed
repair or replacement caused by defective materials and workmanship.
ARTICLE XIII: MAINTENANCE AND GUARANTY
CONTRACTOR shall promptly repair, replace, restore, or rebuild, as the TOWN may
determine, any finished product in which defects of materials or workmanship may appear or to
which damage may occur because of such defects, during a two (2) year period subsequent to
the date of final acceptance.
This article does not in any way limit the guaranty on any items for which a longer
guaranty is specified or on any items which a manufacturer gives a guaranty for a longer period,
nor does it limit the other remedies of the TOWN in respect to a latent defect, fraud or implied
warranties. CONTRACTOR shall furnish the TOWN all appropriate guaranties or warranty
certificates upon completion of the project.
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ARTICLE XIV: SHORING FOR TRENCHES
If the contract specifies an expenditure of Twenty-Five Thousand Dollars ($25,000) or
greater for trenching, and if the depth of the trench is five feet (5') or more, then Section 6705
of the Labor Code shall also be applicable.
ARTICLE XV: APPLICABLE LAWS AND ATTORNEY'S FEES
This Agreement shall be construed and enforced pursuant to the laws of the State of
California. Should any legal action be brought by a party for breach of this Agreement or to
enforce any provision herein, the prevailing party of such action shall be entitled to reasonable
attorneys' fees, court costs, and such other costs as may be fixed by the court. Reasonable
attorneys' fees of the TOWN Attorney's Office, if private counsel is not used, shall be based on
comparable fees of private attorneys practicing in Santa Clara County.
ARTICLE XVI: LIQUIDATED DAMAGES
It is mutually agreed by CONTRACTOR and TOWN that in the event that completion of the
construction by CONTRACTOR under this Agreement is delayed beyond ninety (90) working days
from Notice to Proceed, TOWN will suffer damages and will incur other costs and expenses of a
nature and amount which is difficult or impractical to determine. The Parties agree that by way
of ascertaining and fixing the amount of damages, costs and expenses, and not by way of penalty,
CONTRACTOR shall pay to TOWN the sum of Five Hundred Dollars ($500.00) per day in liquidated
damages for each and every calendar day such delay in completion of the services under this
Agreement continues beyond ninety (90) working days from Notice to Proceed. In the event that
the liquidated damages are not paid, CONTRACTOR agrees that TOWN may deduct the amount
of unpaid damages from any money due or that may become due to CONTRACTOR under this
Agreement.
ARTICLE XVII: INTERPRETATION OF CONTRACT
It is further expressly agreed by and between the parties hereto that should there be any
conflict between the terms of this instrument and the bid or proposal of said CONTRACTOR, then
this instrument shall control and nothing herein shall be considered as an acceptance of the said
terms of said proposal conflicting herewith.
ARTICLE XVIII: AMENDMENTS AND CHANGE ORDERS
This Agreement may be amended from time to time as necessary by formal and written
amendment or authorized change order executed by the Town Manager or designee and
principal acting on behalf of the CONTRACTOR.
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ARTICLE XIX: DBE RESPONSIBILITIES
For projects that are State or Federal funding; With respect to Disadvantaged Business
Enterprises, CONTRACTOR shall do the following:
(1) Pay each subcontractor under this prime contract for satisfactory performance of
its contract no later than ten (10) days from the receipt of each payment the prime contractor
receives from TOWN. Any delay or postponement of payment from the above-referenced time
frame may occur only for good cause following written approval of TOWN. This clause applies to
both DBE and non-DBE subcontractors.
(2) Release all retainage owed to a subcontractor for satisfactory completion of the
accepted work within thirty (30) days after TOWN's payment to CONTRACTOR. Any delay or
postponement of payment from the above-referenced time frame may occur only for good cause
following written approval of TOWN. This clause applies to both DBE and non-DBE
subcontractors.
ARTICLE XX: PREVAILING WAGES
Prevailing Wage. This project is subject to the requirements of Section 1720 et seq.
of the California Labor Code requiring the payment of prevailing wages, the training of
apprentices and compliance with other applicable requirements. Contractors and all
subcontractors who perform work on the project are required to comply with these
requirements. Prevailing wages apply to all projects over $1,000 which are defined as a
“public work” by the State of California. This includes: construction, demolition, repair,
alteration, maintenance and the installation of photovoltaic systems under a Power
Purchase Agreement when certain conditions are met under Labor Code Section 1720.6.
This include service and warranty work on public buildings and structures.
1. The applicable California prevailing wage rate can be found at www.dir.ca.gov and are
on file with the Town of Los Gatos Parks and Public Works Department, which shall be
available to any interested party upon request. The contractor is also required to have
a copy of the applicable wage determination posted and/or available at each jobsite.
2. Specifically, contractors are reminded of the need for compliance with Labor Code
Section 1774-1775 (the payment of prevailing wages and documentation of such),
Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in
the employment of apprentices on public works projects. Further, overtime, weekend
and holiday pay, and shift pay must be paid pursuant to applicable Labor Code section.
3. The public entity for which work is being performed or the California Department of
Industrial Relations may impose penalties upon contractors and subcontractors for
failure to comply with prevailing wage requirements. These penalties are up to $200 per
day per worker for each wage violations identified; $100 per day per worker for failure
to provide the required paperwork and documentation requested within a 10-day
window; and $25 per day per worker for any overtime violation.
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4. As a condition to receiving progress payments, final payment and payment of retention
on any and all projects on which the payment of prevailing wages is required, the
contractor agrees to present to the TOWN, along with its request for payment, all
applicable and necessary certified payrolls (for itself and all applicable subcontractors)
for the time period covering such payment request. The term “certified payroll” shall
include all required documentation to comply with the mandates set forth in Labor Code
Section 1720 et seq, as well as any additional documentation requested by the Agency
or its designee including, but not limited to: certified payroll, fringe benefit statements
and backup documentation such as monthly benefit statements, employee timecards,
copies of wage statements and cancelled checks, proof of training contributions (CAC2
if applicable), and apprenticeship forms such as DAS-140 and DAS-142.
5. In addition to submitting the certified payrolls and related documentation to the TOWN,
the contractor and all subcontractors shall be required to submit certified payroll and
related documents electronically to the California Department of Industrial Relations.
Failure to submit payrolls to the DIR when mandated by the project parameters shall
also result in the withholding of progress, retention and final payment.
6. No contractor or subcontractor may be listed on a bid proposal for a public works project
unless registered with the Department of Industrial Relations pursuant to Labor Code
section 1725.5 [with limited exceptions from this requirement for bid purposes only
under Labor Code section 1771.1(a)].
7. No contractor or subcontractor may be awarded a contract for public work on a public
works project, unless registered with the Department of Industrial Relations pursuant to
Labor Code section 1725.5. Contractors MUST be a registered “public works contractor”
with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for
maintenance work or less than $25,000 for construction alternation, demolition or repair
work, registration is not required.
8. Should any contractor or subcontractors not be a registered public works contractor and
perform work on the project, Contractor agrees to fully indemnify the TOWN for any
fines assessed by the California Department of Industrial Relations against the TOWN for
such violation, including all staff costs and attorney’s fee relating to such fine.
9. The TOWN shall withhold any portion of a payment; including the entire payment
amount, until certified payroll forms and related documentation are properly submitted,
reviewed and found to be in full compliance. In the event that certified payroll forms
do not comply with the requirements of Labor Code Section 1720 et seq., the TOWN
may continue to hold sufficient funds to cover estimated wages and penalties under the
contract.
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ARTICLE XXI: ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties with respect to
the subject matter herein. There are no representations, agreements or understandings
(whether oral or written) between or among the parties relating to the subject matter of this
Agreement which are not fully expressed herein.
ARTICLE XXII: PUBLIC RECORDS
The parties recognize and acknowledge that TOWN is subject to the California Public
Records Act, California Government Code Section 6250 and following. Public records are subject
to disclosure.
ARTICLE XXIII: NOTICES
Any notice required to be given to CONTRACTOR shall be deemed to be duly and properly
given if mailed to CONTRACTOR, postage prepaid, addressed to:
Tucker Construction, Inc.
1725 Little Orchard St. Suite D
San Jose, CA 95125
or personally delivered to CONTRACTOR at such address or at such other addresses as
CONTRACTOR may designate in writing to TOWN.
Any notice required to be given TOWN shall be deemed to be duly and properly given if
mailed to TOWN, postage prepaid, addressed to:
Nicolle Burnham
Parks and Public Works Director
TOWN OF LOS GATOS
41 Miles Avenue
Los Gatos, California 95030
or personally delivered to TOWN at such address or at such other addresses as TOWN may
designate in writing to CONTRACTOR.
ARTICLE XXIV: SECTION 7106 FORM
Attached to the Agreement is a fully executed and sworn non-collusion affidavit as
required by Section 7106 of the California Public Contracts Code. Said affidavit is incorporated
herein by this reference.
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IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands the year and
date first written above.
APPROVED AS TO CONTENT:
Nicolle Burnham
Director of Parks and Public Works
APPROVED AS TO FORM:
Gabrielle Whelan, Town Attorney
"TOWN":
TOWN OF LOS GATOS
By:
Laurel Prevetti
Town Manager
Attest:
______________________________
Wendy Wood, CMC, Town Clerk
CONTRACTOR:
Name:
Tucker Construction, Inc.______________
Address: ___________________________
___________________________________
Tax ID No. or SSAN:
By: Mark Tucker
Title: President__________________________
By:
Title: