Resolution 11251CITY OF ALAMEDA RESOLUTION NO. 11251
RESOLUTION RATIFYING SURETY AGREEMENT BETWEEN JOHN
MITCHEOM AS PRINCIPAL, ANDREW GETZ CONSTRUCTION AS
PAYEE AND CITY OF ALAMEDA AS SURETY
WHEREAS, the Community Development Department entered
into a Loan Agreement with John Mitcheom on August 17, 1984 for
$140,000 to rehab four units for the Section 8 program. This
contract was signed by the appropriate authority.
WHEREAS, a member of the staff with no authority to do so
signed a cost plus construction agreement on August 13, 1984
wherein John Mitcheom agreed to "pay" the contractor and
City agreed to be "liable ".
WHEREAS, the City Attorney has advised the City Council
that if the staff member had had authority to sign that agreement
it would have created a principal - surety relationship between
City and Mitcheom wherein City would only be required to pay
Contractor if Mitcheom did not and City could then recover the
money from Mitcheom.
WHEREAS, the sum of $356,150 has been paid to contractor
by City and not repaid by Mitcheom. Said sum was advanced to
insure the construction of low income housing units. Neither
the City Council nor the City Manager has approved grants. The
program is a loan program.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City
of Alameda that said Council hereby ratifies the signature of
Peter Ekstein on that contract attached hereto as Exhibit A to
the extent that said contract creates a principal- surety
relationship between Mitcheom and City under Article 1 of Title
13 of Part 4 of the Third Division of the California Civil Code.
City has not and does not agree to assume Mitcheom's debt to the
contractor. The City does not by this action ratify any oral
agreements or amendments to any of said documents or provide
authority therefor.
* * *
CONSTRUCTION AGREEMENT
(with GENERAL CONDITIONS)
THIS AGREEMENT made and entere.d into this ? 7 day of v, � v
19 .11 by and between JOHN MITCHEOM ( "OWNER "), GETZ CONSTRUCTION
COMPANY ( "CONTRACTOR "), and HOUSING REHABILITATION OFFICE OF THE
CITY OF ALAMEDA ( "HRO ") states:
The Owner, the Contractor and HRO agree to the terms and conditions
as set forth below:
1.0 GENERAL
1.01 The Work:
Contractor shall furnish all material, equipment, tools
labor and services necessary and perform all work for
the rehabilitation of property, hereinafter called
Work, known as 1023 Taylor Avenue, Alameda.
1.02 Contract Time:
1.02.1 The Work to be perfoLuled under this Contract
shall be commenced within seven (7) calendar
days of the date of execution.
1.02.2 Contractor has been advised of an urgency
to complete this project by September 30,
1984. Contractor has the objective of
providing a Certificate of Occupancy by
that date. It is expressly understood, however,
that there shall be no penalty of charge
made against the Contractor for failure to
complete the project by that date, nor shall
said failure excuse any payment obligation
on the part of—amer or HRO.
If the project is completed and ready for
occupancy, .and has passed all final inspections,
by that date, the Contractor shall receive
a bonus payment of $15,000. This payment
shall be made no later than October 5, 1984.
1.03 Contract Sum:
1.03.1 The Owner shall pay the Contractor for the
performance of the work the Cost of the Work
plus a 10% fee for Contractor's profit and
overhead (combined); there is no guaranteed
maximum.cost or fixed bid by Contractor for
the completion of the work.
1 03.2 The term "Cost of the Work" shall include
costs set forth below incurred in the proper
performance of the Work and paid or incurred
by the Contractor:
(a) Wages paid for labor in the direct employ
of the Contractor in the performance of the
Work including welfare, unemployment compen-
sation, social security and other benefits,
according to the schedule attached as Addendum 1
(b) Costs of all materials, supplies and
equipment incorporated in the Work including
costs of transportation thereof. All discounts
for cash or prompt payment shall accrue to the
Contractor.
(c) Payments made by the Contractor to
Subcontractors for Work performed pursuant
to subcontracts under Agreement.
(d) All expenses associated with employment
of or contracting with an architect or drafts-
man in connection with completion of the
project; if employed by contractor, expenses
are described in Addendum 1.
(e) Cost of all materials, supplies, equipment,
temporary facilities and hand tools not owned by
the workers, which are consumed in the performanc
of the Work.
(f) Reasonable rental costs of all necessary
machinery and equipment, exclusive of hand
tools, used at the site of the Work, whether
rented from the Contractor or others.
(g) Cost of premiums for all bonds and insur-
ance, permit fees, and sales, use or similar
taxes related to the Work.
(h) Losses and expenses, not compensated by
insurance or otherwise, sustained by the
Contractor in connection with the Work,.pro-
vided they have resulted from causes other
than the fault or neglect of the Contractor.
(i) Costs incurred due to an emergency
affecting the safety of persons and property.
(k) Other costs incurred in the performance of
the Work if and to the extent Approved in
advance in writing by the Owner.
/
1.03., HRO and Owner recognize that Contractor's
efforts to complete the contract by September
30, 1984, will necessitate expenditures and
costs substantially higher than would be the
case were the project to proceed on a normal
schedule; HRO and Owner authorize Contractor
to take such steps as Contractor reasonably
determines to be advisable in light of the
time pressures involved, including the selection
and compensation of subcontractors.
2.0 HRO'S RESPONSBILITIES AND WARRANTIES
2.01 HRO is liable for all contract payments which become
due under this contract, and shall make direct payments
to Contractor under the payment Schedule hereinafter
described.
2.0 HRO warrants that execution by Peter A. Ekstein, Housing
Rehabilitation Coordinator, is sufficient under the
City Charter and HRO rules and regulations to bind
HRO and the City of Alameda to make payments due under
this contract; that funds are available for such payment
that HRO is aware of no federal limitation, rule,
regulation or the like which precludes execution of
this contract by HRO or timely payments under this
contract.
3.0 CONTRACTOR'S RESPONSIBILITIES
3.01 Contractor shall perfoLffl work in accordance with the
general plans provided by Owner to Contractor in the
form of rough drawings and oral descriptions.
3.02 Immediately upon execution of this contract, Contractor
shall employ or otherwise obtain the services of a
draftsman or architect to work with the owner and the
contractor to develop drawings and specifications as
necessary to properly define the details -of construction.
Owner agrees to cooperate with draftsman/architect,
making himself available to answer questions and choose
finish materials and colors as promptly as possible in
order to avoid undue delays.
3.03 Insurance:
The Contractor shall purchase and maintain Workmen's
Compensation Insurance as required by the State of
California and Public Liability and Property Insurance
in the following minimum amounts:
COVEGE
Workmen's Compensation
Comprehensive General.
Liability including:
Products and completed
operations, personal
injury, Broadform
Contractual and General
Liability
r
Owner's or Contractor's
Protective
Liability
Automobile Liability,
including: Owned, hired &
non -onwer
Broadform Property
Builder's Risk
LII'MITS OF LIABILITY
As required by the State
of California
Ea. Person / Ea. Occurenc
$300,000.00 / $300,000.00
$300,000.00 / $300,000.00
$100,000.00 / $300,000.00
Replacement Cost of the
Insured Property, but
not more than:
$50,000.00
$50,000.00
All such insurance shall name the Owner, the City of
Alameda, its officers, agents and employees as additiona
insureds and shall be evidenced by Certificates of
Insurance which shall be given by the Contractor to
the HRO. Ten days advance notice shall be given to
HRO prior to cancellation of any policy.
3.04 Manufacturer's Directions:
All manufactured items shall be applied, installed,
connected, cleaned and conditioned according to
manufacturer's instructions.
3.05 Cleaning:
The Contractor shall keep the premises free from
rubbish, and at the completion of the work, shall
remove all waste material from land and building,
and leave construction areas "broom clean."
3.06 Equal Employment:
The Contractor shall follow all applicable local, state
and federal equal employment opportunity and /or
affirmative action requirements.
3.07 Guar :
3.06.1 The Contractor shall guarantee their work
for a period of one (1) year after the date
of the filing of the Notice of Completion.
3.06.2 The Contractor shall secure all certificates of
warranty, guarantee, etc. on every manufactured
item and deliver them to the HRO for distributio
to the Owner, prior to the filing of the Notice
of Completion.
3.08 Equipment:
The Contractor shall instruct the Owner in the proper
use and operation of equipment installed.
3.09 Finish Selection:
The Contractor shall not provide nor install any
finish material when there is a choice of color,
pattern, etc., without the Owner's prior approval.
The Contractor shall supply samples for this choice.
No Lead Based Paint shall be used under any circumstance;
3.10 Quality of Work:
The work shall be done in a workmanlike manner and shall
be done in accordance with the best practice known to
the trade.
3.11 Protection of Persons and Property:
The Contractor shall take all reasonable precautions
to prevent damage, injury, or loss to all employees
or other persons, material and equipment, other property
at the site or adjacent thereto. All damages resulting
from negligence or improper discharge of the afore-
mentioned duties shall be paid by the Contractor;
the Contractor agrees to hold the Owner and the HRO
harmless from any damages levied against the Owner
or HRO by third parties so injured in their person or
property.
3.12 Correction of Work:
Contractor shall re- execute any work that fails to
conform to the requirements of the Contract and which
appears during the progress of the work. The Contractor
further warrants the work for one (1) year from the
date of completion of the Contract. Any defects due
to faulty materials or workmanship which appear within
that period shall be promptly remedied by the Contractor
upon notice by the Owner or HRO. Failure by the
Contractor to make a good faith effort to correct
defects within ten (10) days after being so notified
shall be construed as authorization for the Owner to
remec the defects by whatever .sonable means
necc ary, costs of remedy to L borne in full by
Contractor. "Work" defined in this Section shall
include the work done by subcontractors as well as
work done by the Contractor.
3.13 Option to Terminate by Contractor:
Should the performance of the contract be stopped
by Public Authority, or should timely payment not be
made as described in paragraph 5.0, Contractor may
immediately upon written notice to HRO terminate the
Contract and recover payment for all work completed
to the termination date.
3.14: Option to Mutually Terminate:
Should Owner, the Contractor and HRO mutually decide
to terminate the Contract, the HRO will issue a Stop
Work Notice which will be signed by the Owner and the
Contractor. The Contractor shall receive payment for al
completed work. The Owner shall be responsible for
the cost to complete the work.
4 0 THE OWNER'S RESPONSIBILITIES
4.01 Surveys and Instructions:
4.01.1 The Owner shall furnish all surveys when they
are required, unless otherwise specified.
4.01.2 The Owner shall secure and pay for easements
for permanent structures or permanent changes
in existing facilities.
4.01.3 The Owner shall issue all instructions to the
Contractor in writing.
4.02 Owner Cooperation:
During the performance of the work, the Owner will
cooperate with the Contractor to facilitate performance
of the Work, including removal and replacement of
moveable floor coverings and furniture and any other
personal possessions as may be necessary.
4.03 Utilities:
The Owner shall permit the Contractor, at no cost, to
use existing utilities situated on the premises,
including heat, power, light, water, and non -toll
telephone calls necessary in the performance of the Work.
4.04 Insurance:
The Owner shall carry fire.insurance and extended
coverage upon the entire work at the site to the full
insurable value as the work progresses covering the
interests of the Owner, the Contractor and if
financed under a Housing Rehabilitation Loan, the
City of Alameda.
4.05 Ownership of Materials and Equipment:
Existing building materials and equipment which are
removed and /or replaced as part of the Work shall be
the property of the Contractor, except as noted in
the Specifications.
4.06 Option to Terminate by the Owner:
If the Contractor fails to carry out the Work, in
accordance with the Contract Documents, the Owner
may, after seven days' written notice, terminate
the Contract and finish the Work by other 'means.
5.0 PAYMENT SCHEDULE
Contractor may submit periodic claims for payment to HRO,
no more frequently than once per calendar week. Upon receipt
by HRO, HRO shall within three working days inspect the
documents and the work completed, and issue a payment draft
to Contractor.
6.0 REQUIRED NOTICES
6.1
"NOTICE TO OWNER"
Section 7018 California Business and Professions Code:
Under the Mechanic's Lien Law any contractor, subcontractor,
laborer, supplier or other person who helps to improve your property
but is not paid for his work or supplies, has a right to enforce
a claim against your property. This means that, after a court
hearing, your property could be sold by a court officer and the
proceeds of the sale used to satisfy the indebtednes$. This can
happen even if you have paid your own contractor in full, if the
subcontractor, laborer, or supplier remains unpaid.
6.2
"NOTICE"
Section 7030 California Business and Professions Code:
Contractors are required by law to be licensed and regulated
by the Contractor's State License Board. Any questions concerning
a contractor may be referred to the registrar of the board, whose
address is:
Contractor's State License Board
1020 N. Street, Sacramento, Calif. 95814
6.3
"NOTICE°"
Due to the requirements of Calif. Mechanic's Lien Law,
may be receiving documents entitled "NOTICE OF •INTENTION TO FILE
LIEN" or "PRELIMINARY NOTICE ". This is a requirement of law and
in no way reflects the reliability or financial status of your
contractor.
This Agreement executed the day and year first written
above.
JOHN MITCHEOM
Orner(s)
Housing Rehabilitation Office
By
Peter A. Ekstein
Housing Rehabilitation Coordinator
GETZ CONSTRUCTION COMPANY
Contractor
2915 Deakin Street, Berke
CA 94705
Address
CA State License No.
By
5.1 RETENTION PAYMENT:
All progress payments and the Completion payment will be
minus 10% retention. This retention amount withheld from
each payment will be paid 35 days after the filing of the
Notice of Completion by the Owner and will also be contingent
on a satisfactory title search, at that time, by the HRO.
ADDENDUM 1
Labor Hourly Wage Scale to be used on this project
Contractor and one foreman
JouLlley-man Carpenter
Carpenter
Carpenter Apprentice
Laborer
Draftsman /Architect
Plumber
Electrician
Heating /Sheet Metal Contractor
Tile Setter
Painter
$25.00+
18.00+
12.00+
10.00+
6.00+
34.50-;
All reimbursement for wages shall be increased by the
following, which, together, shall be called the
"labor benefit package:"
employment training tax 0.1%
State Disability Insurance (employer's contribution) 4.5%
State Unemployment Insurance 3.9%
Social Security (FICA) 6.857
Federal Unemployment Tax 0.8%
Worker's Compensation Insurance (varies by occupation>
Compensation for mileage on the job shall be as follows:
automobile
$.20 /mi1E
pick -up truck $.30 /milE
+ These employees shall be paid time- and -a -half for all
work in excess of 8 hr /day or 40 hr /week.
* These rates, as paid to non - employees, do not include the
"labor benefit package ".
DATE:
TO:
to procee
August 15, 1984
NAME OF OWNER(S) John lAitcheom
PROPERTY ADDRESS 1023 Taylor Avenue
You are hereby notified to commence and proceed with the rehabilitation
work on my property located at
1023 Taylor Avenue
dated August 15, 1984
as per the Owner /Contractor Agreement
Your attention is called to the fact that work shall begin within
calendar days after the Starting Date and that work shall be
completed in accordance with the time limit referred to in the
Owner /Contractor Agreement.
Getz Construction Company
The Starting Date shall be August 16, 1984.
Contractor's Firm Name
Owner's Signature
Date
CITY OF ALAMEDA
housing rehahiiitati>n program
SANTA CLARA AT OAK STREET, ALAMEDA CA 94501
1415) 522 -4100 EXT 296
Owner
Address
Date Page
Dist. Owner Master
Contractor
John Mitcheom
t . m
of l
1.0 GENERAL:
ilS pile iCp 3 for payr e
The Progress Payment system`is a method of disbursement whereby
the HRO assists the Owner in making payments to the Contractor.
In this system, a number of intermediate payments are made as
the construction progresses. At the completion of the work,
the Completion Payment is made and 35 days after the Notice of
Completion is filed, the Retention Payment is made to the
contractor. The total number of payments will vary according
to the size and scope of the construction to be done.
2.0 PAYMENT SCHEDULE:
The Payment Schedule divides the work into portions for which
a corresponding number of progress payments are made. The
Payment Schedule is approved by both the Contractor and the
Owner. The approved Payment Schedule can be revised, when
,necessary, by means of a Change Order.
3.0 INITIATION OF PAYMENTS:
The payment process for each progress payment is initiated by
the Contractor. When the Contractor feels he has completed
the work required in the Payment Schedule for a payment, he will
then contact the HRO and request payment. Each Payment is
authorized by means of a Certificate for Payment. The Certifi-
cate for Payment is the document on which the Contractor, the
Owner, and the HRO certify that the work has been completed in
accordance with the Payment Schedule and the other Contract
Documents. The portion of the work required to be completed
for each payment is noted on the Payment Schedule and must equal
or exceed the dollar value which that payment represents.
4.0 PAYMENT FOR CHANGES IN THE WORK:
Payment for a change in the work (not specified in the original
Contract) covered by an approved Change Order will be made as
described in the Change Order.
5.0 COMPLETION PAYMENT:
The Completion payment is made contingent upon the completion
of the Work; completion of the final inspection by the build-
ing inspector; receipt of satisfactory lien waivers; satis-
factory completion of.the Punch List; and the filing of the
Notice of Completion by the Owner. This payment will be
shown on the Payment Schedule as the "Completion" payment.
(continued on reverse side)
CITY OF ALAMEDA
housing rehabilitation program
SANTA CLARA AT OAK STREET, ALAMEDA CA 94501
(415) 522 -4100 EXT 296
owr,e� John Mitcheom -
Address 1023 Taylor Avenue
Date Aug. 15 , 1984 page 1 0
Dist Owner Master
Contractor
par. tent schedul
Payment No. % of Contract
One per week (Submit on Monday -paid on Wednesday)
REVIEWED BY:
APPROVED:
Gross Value
/Housing Rehabilitation
Specialist
Date
Contractor
Date /
Date
CITY OF ALAMEDA
housing rehabilitation program
SANTA CLARA AT OAK STREET, ALAMEDA CA 94501
(415) 522 -4100 EXT 296
owner ,tnhtn Mi trhenm
Address 1023 'Taylor Avenue
Data 'Aug 15, 1984 page l of .
Dist Contractor Financial
Owner Master
I, the undersigned, hereby certify that the foregoing
Resolution was duly and regularly adopted and passed by
the Council of the City of Alameda in regular meeting
assembled on the 21st of July, 1987,
by the following vote to wit:
AYES: Councilmembers Camicia, Haugner, Monsef, Thomas
and President Corica - 5.
NOES: None.
ABSENT: None.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of said City this 22nd day of
July, 1987.
City C lek of the City of Alameda