01-0905_VALLEY COAST LANDSCAPE, INC._Construction ContractCONSTRUCTION CONTRACT
THIS CONTRACT is made and entered into, to be effective, this 5th day of
Septmeber, 2001, by and between the CITY OF SAN JUAN CAPISTRANO,
hereinafter referred to as "City," and Valley Coast Landscape, Inc., hereinafter
referred to as "Contractor."
City and Contractor mutually agree as follows:
Section 1. General Conditions.
Contractor certifies and agrees that all the terms, conditions and
obligations of the Contract Documents as hereinafter defined, the location of the
job site, and the conditions under which the work is to be performed have been
thoroughly reviewed, and enters into this Contract based upon Contractor's
investigation of all such matters and is in no way relying upon any opinions or
representations of City. It is agreed that this Contract represents the entire
agreement between the parties. It is further agreed that the Contract Documents
including the Notice Inviting Bids, Special Instructions to Bidders, if any, and
Contractor's Proposal, are incorporated in this Contract by reference, with the
same force and effect as if the same were set forth at length herein, and that
Contractor and its subcontractors, if any, will be and are bound by any and all of
said Contract Documents insofar as they relate in any part or in any way, directly
or indirectly, to the work covered by this Contract.
"Project" as used herein defines the entire scope of the work covered by
all the Contract Documents. Anything mentioned in the Specifications and not
indicated in the Plans, or indicated in the Plans and not mentioned in the
Specifications, shall be of like effect as if indicated and mentioned in both. In
case of discrepancy in the Plans or Specifications, the matter shall be
immediately submitted to City s Engineer, without whose decision Contractor
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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shall not adjust said discrepancy save only at Contractor's own risk and expense.
The decision of the Engineer shall be final.
Section 2. Materials and Labor.
Contractor shall furnish, under the conditions expressed in the Plans and
Specifications, at Contractor's own expense, all labor and materials necessary,
except such as are mentioned in the Specifications to be furnished by the City, to
construct and complete the Project, in good workmanlike and substantial order.
If Contractor fails to pay for labor or materials when due, City may settle such
claims by making demand upon the surety to this Contract. In the event of the
failure or refusal of the surety to satisfy said claims, City may settle them directly
and deduct the amount of payments from the Contract price and any amounts
due to Contractor. In the event City receives a stop notice from any laborer or
material supplier alleging non-payment by Contractor, City shall be entitled to
deduct all of its costs and expenses incurred relating thereto, including but not
limited to administrative and legal fees.
Section 3. Description of Project.
The Project is described as:
The La Ronda Storm Drain Channel Repair Project. Work includes
Clearing , Grubbing, Demolition, Export Debris, Install Geotextile Fabric,
Construct Rip Rap, Remove and Reconstruct Channel Sidewall, Hydroseed with
Native Aquatic Plants.
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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Section 4. Plans and Specifications.
The work to be done is shown in a set of detailed Plans and Specifications
entitled:
LA RONDA STORM DRAIN CHANNEL REPAIR PROJECT
Said Plans and Specifications and any revisions, amendments or addenda
thereto are attached hereto and incorporated herein as part of this Contract and
referred to by reference.
Section 5. Time of Commencement and Completion.
Contractor agrees to commence the Project within ten (10) calendar days
from the date set forth in the "Notice to Proceed" sent by City and shall diligently
prosecute the work to completion within Sixty (60) calendar days from the date of
the "Notice to Proceed" issued by the City excluding delays caused or authorized
by the City as set forth in Sections 7, 8 and 9 hereof.
Section 6. Time is of the Essence.
Time is of the essence of this Contract. As required by the Contract
Documents, Contractor shall prepare and obtain approval of all shop drawings,
details and samples, and do all other things necessary and incidental to the
prosecution of Contractor's work in conformance with an approved construction
progress schedule. Contractor shall coordinate the work covered by this
Contract with that of all other Contractors, subcontractors and of the City, in a
manner that will facilitate the efficient completion of the entire work in accordance
with Section 5 herein. City shall have complete control of the premises on which
the work is to be performed and shall have the right to decide the time or order in
which the various portions of the work shall be installed or the priority of the work
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of other subcontractors, and, in general, all matters representing the timely and
orderly conduct of the work of Contractor on the premises.
Section 7. Excusable Delays.
Contractor shall be excused for any delay in the prosecution or completion
of the Project caused by acts of God; inclement weather which exceeds the
number of calendar days estimated by the City and set forth in Section 5 hereof;
damages caused by fire or other casualty for which Contractor is not responsible;
any act, neglect or default of City; failure of City to make timely payments to
Contractor; late delivery of materials required by this Contract to be furnished by
City; combined action of the workers in no way caused by or resulting from
default or collusion on the part of Contractor; a lockout by City; or any other
delays unforeseen by Contractor and beyond Contractor's reasonable control.
City shall extend the time fixed in Section 5 for completion of the Project
by the number of days Contractor has thus been delayed, provided that
Contractor presents a written request to City for such time extension within fifteen
(15) days of the commencement of such delay and City finds that the delay is
justified. City's decision will be conclusive on the parties to this Contract. Failure
to file such request within the time allowed shall be deemed a waiver of the claim
by Contractor.
No claims by Contractor for additional compensation or damages for
delays will be allowed unless Contractor satisfies City that such delays were
unavoidable and not the result of any action or inaction of Contractor and that
Contractor took all available measures to mitigate such damages. Extensions of
time and extra compensation as a result of incurring undisclosed utilities will be
determined in accordance with Section C -9(f) of the General Provisions. The
City's decision will be conclusive on all parties to this Contract.
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Section 8. Extra Work.
The Contract price includes compensation for all work performed by
Contractor, unless Contractor obtains a written change order signed by a
designated representative of City specifying the exact nature of the extra work
and the amount of extra compensation to be paid all as more particularly set forth
in Section 9 hereof.
City shall extend the time fixed in Section 5 for completion of the Project
by the number of days reasonably required for Contractor to perform the extra
work, as determined by Citys Engineer. The decision of the Engineer shall be
final.
Section 9. Changes in Project.
A. City may at any time, without notice to any surety, by written order
designated or indicated to be a change order, make any change in the work
within the general scope of the Contract, including but not limited to changes:
1) in the Specifications (including drawings and designs);
2) in the time, method or manner of performance of the work;
3) in the City -furnished facilities, equipment, materials, services
or site; or
4) directing acceleration in the performance of the work.
B. A change order shall also be any other written order (including
direction, instruction, interpretation or determination) from the City
which causes any change, provided Contractor gives the City
written notice stating the date, circumstances and source of the
order and that Contractor regards the order as a change order.
C. Except as provided in this Section 9, no order, statement or
conduct of the City or its representatives shall be treated as a change under this
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Section 9 or entitle Contractor to an equitable adjustment.
D. If any change under this Section 9 causes an increase or decrease
in Contractor's actual, direct cost or the time required to perform any part of the
work under this Contract, whether or not changed by any order, the City shall
make an equitable adjustment and modify the Contract in writing. Except for
claims based on defective specifications, no claim for any change under
paragraph (B) above shall be allowed for any costs incurred more than twenty
(20) days before the Contractor gives written notice as required in paragraph (B).
In the case of defective specifications for which the City is responsible, the
equitable adjustment shall include any increased direct cost Contractor
reasonably incurred in attempting to comply with those defective specifications.
E. If Contractor intends to assert a claim for an equitable adjustment
under this Section 9, it must, within thirty (30) days after receipt of a
written change order under paragraph (A) or the furnishing of a written
notice under paragraph (B), submit a written statement to the City
setting forth the general nature and monetary extent of such claim.
The City may extend the thirty (30) day period. Contractor may include
the statement of claim in the notice under paragraph (B) of this Section
43
F. No claim by Contractor for an equitable adjustment shall be allowed
if made after final payment under this Agreement.
G. Contractor hereby agrees to make any and all changes, furnish the
materials and perform the work that City may require without nullifying this
Contract. Contractor shall adhere strictly to the Plans and Specifications unless
a change therefrom is authorized in writing by the City. Under no condition shall
Contractor make any changes to the Project, either in additions or deductions,
without the written order of the City and the City shall not pay for any extra
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charges made by Contractor that have not been agreed upon in advance in
writing by the City. Contractor shall submit immediately to the City written copies
of its firm's cost or credit proposal for change in the work. Disputed work shall be
performed as ordered in writing by the City and the proper cost or credit
breakdowns therefore shall be submitted without delay by Contractor to City.
Section 10. Liquidated Damages for Delay.
The parties agree that if the total work called for under this Contract, in all
parts and requirements, is not completed within the time specified in Section 5
plus the allowance made for delays or extensions authorized under Sections 7, 8
and 9, the City will sustain damage which would be extremely difficult and
impracticable to ascertain. The parties therefore agree that Contractor will pay to
City the sum of Two Hundred and Fifty Dollars and No Cents ($250.00) per day,
as liquidated damages, and not as a penalty, for each and every calendar day
during which completion of the Project is so delayed.
Contractor agrees to pay such liquidated damages and further agrees that
City may offset the amount of liquidated damages from any monies due or that
may become due Contractor under this Contract.
Section 11. Contract Price and Method of Payment.
City agrees to pay and Contractor agrees to accept as full consideration
for the faithful performance of this Contract, subject to any subsequent additions
or deductions as provided in approved change orders, the sum of $77,646.00 as
itemized on the Contractor's Proposal, dated August 23, 2001.
Within thirty (30) days from the commencement of work, there shall be
paid to the Contractor a sum equal to ninety percent (90%) of the value of the
actual work completed plus a like percentage of the value of material suitably
stored at the worksite, treatment plant or approved storage yards subject to or
under the control of the City, since the commencement of the work as
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determined by the City. Thereafter, on a schedule issued by the City at the
commencement of the job which shows a minimum of one payment made to the
Contractor per month for each successive month as the work progresses and the
request for payment due dates from the Contractor to meet the payment
schedule, the Contractor shall be paid such sum as will bring the total payments
received since the commencement of the work up to ninety percent (90%) of the
value of the work completed since the commencement of work as determined by
the City, less all previous payments, provided that the Contractor submits the
request for payment prior to the end of the day required to meet the payment
schedule. The City will retain ten percent (10%) of the amount of each such
progress estimate and material cost until the Final Payment.
Payments shall be made on demands drawn in the manner required by
law, accompanied by a certificate signed by the City's Engineer, stating that the
work for which payment is demanded has been performed in accordance with the
terms of the Contract, and that the amount stated in the certificate is due under
the terms of the Contract. Partial payments on the Contract price shall not be
considered as an acceptance of any part of the work.
Section 12. Substitution of Securities in Lieu of Retention of Funds.
Pursuant to Public Contract Code Section 22300 et seq., the Contractor
will be entitled to post approved securities with the City or an approved financial
institution in order to have the City release funds retained by the City to insure
performance of the Contract. Contractor shall be required to execute an
addendum to this Contract together with escrow instructions and any other
documents in order to effect this substitution.
Section 13. Completion.
Within ten (10) days after the contract completion date of the Project,
Contractor shall file with the City's Engineer its affidavit stating that all workers
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and persons employed, all firms supplying materials, and all subcontractors upon
the Project have been paid in full, and that there are no claims outstanding
against the Project for either labor or material, except those certain items, if any,
to be set forth in an affidavit covering disputed claims, or items in connection with
Stop Notices which have been filed under the provisions of the statutes of the
State of California. City may require affidavits or certificates of payment and/or
releases from any subcontractor, laborer or material supplier.
Section 14. Contractor's Employees' Compensation.
A. Davis -Bacon Act:
Contractor will pay and will require all subcontractors to pay all employees
on said Project a salary or wage at least equal to the prevailing rate of per diem
wages as determined by the Secretary of Labor in accordance with the Davis -
Bacon Act for each craft or type of worker needed to perform the Contract
The provisions of the Davis -Bacon Act shall apply only if the Contract is in
excess of Two Thousand Dollars ($2,000.00) or when twenty-five percent (25%)
or more of the
Contract is funded by federal assistance. If the aforesaid conditions are met, a
copy of the provisions of the Davis -Bacon Act to be complied with are
incorporated herein as a part of this Contract and referred to by reference.
B. General Prevailing Rate:
City has ascertained from the State of California Director of Industrial
Relations the general prevailing rate of per diem wages and the general
prevailing rate for legal holiday and overtime work in the locality in which the
work is to be performed for each craft or type of work needed to execute this
Contract, and copies of the same are on file in the Office of the Engineer of City.
The Contractor agrees that not less than said prevailing rates shall be paid to
workers employed on this public works contract as required by Labor Code
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Section 1774 of the State of California.
C. Forfeiture For Violation:
Contractor shall, as a penalty to the City, forfeit Fifty Dollars ($50.00) for
each calendar day or portion thereof for each worker paid (either by the
Contractor or any subcontractor under it) less than the prevailing rate of per diem
wages as set by the Director of Industrial Relations, in accordance with Sections
1770-1780 of the California Labor Code for the work provided for in this Contract,
all in accordance with Section 1775 of the Labor Code of the State of California.
D. Travel and Subsistence Pay:
Section 1773.8 of the Labor Code of the State of California, regarding the
payment of travel and subsistence payments, is applicable to this Contract and
Contractor shall comply therewith.
E. Apprentices:
Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of
California, regarding the employment of apprentices, is applicable to this
Contract and the Contractor shall comply therewith if the prime contract involves
Thirty Thousand Dollars ($30,000.00) or more or twenty (20) working days, or
more; or if contracts of specialty Contractors not bidding for work through the
general or prime Contractor are Two Thousand Dollars ($2,000.00) or more or
five (5) working days or more.
F. Workday:
In the performance of this Contract, not more than eight (8) hours shall
constitute a day's work, and Contractor shall not require more than eight (8)
hours of labor in a day from any person employed by him hereunder except as
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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provided in paragraph (B) above. Contractor shall conform to Article 3, Chapter
1, Part 7 (Sections 1810 et se of the Labor Code of the State of California and
shall forfeit to the City as a penalty, the sum of Twenty-five Dollars ($25.00) for
each worker employed in the execution of this Contract by Contractor or any
subcontractor for each calendar day during which any worker is required or
permitted to labor more than eight (8) hours in any one calendar day and forty
(40) hours in any one week in violation of said Article. Contractor shall keep an
accurate record showing the name and actual hours worked each calendar day
and each calendar week by each worker employed by Contractor in connection
with the Project.
G. Record of Wages: Inspection:
Contractor agrees to maintain accurate payroll records showing the name,
address, social security number, work classification, straight -time and overtime
hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker or other employee employed by it in connection
with the Project and agrees to require that each of its subcontractors does the
same. All payroll records shall be certified as accurate by the applicable
Contractor or subcontractor or its agent having authority over such matters.
Contractor further agrees that its payroll records and those of its subcontractors
shall be available to the employee or employee's representative, the Division of
Labor Standards Enforcement, and the Division of Apprenticeship Standards and
shall comply with all of the provisions of Labor Code Section 1776, in general.
Section 15. Surety Bonds.
Contractor shall, before entering upon the performance of this Contract,
furnish bonds approved by the City Counsel -- one in the amount of one hundred
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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percent (100%) of the Contract price bid, to guarantee the faithful performance of
the work, and the other in the amount of one hundred percent (100%) of the
Contract price bid to guarantee payment of all claims for labor and materials
furnished. This Contract shall not become effective until such bonds are supplied
to and approved by the City.
Section 16. Insurance.
A. Contractor is also aware of the provisions of Section 3700 of the
Labor Code which requires every employer to be insured against
liability for Workers' Compensation or undertake self-insurance in
accordance with the provisions of that Code and will comply with
such provisions before commencing the performance of the work of
this Contract.
B. Contractor and all subcontractors will carry workers' compensation
insurance for the protection of its employees during the progress of
the work. The insurer shall waive its rights of subrogation against
City, its officers, agents and employees and shall issue a certificate
to the policy evidencing same. `
C. Contractor shall at all times carry, on all operations hereunder,
bodily injury, including death, and property damage liability insurance, including
automotive operations, bodily injury and property damage coverage. All
insurance coverage shall be in amounts specified by City in the Insurance
Requirements and shall be evidenced by the issuance of a certificate in a form
prescribed by the City and shall be underwritten by insurance companies
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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satisfactory to City for all operations, subcontract work, contractual obligations,
product or completed operations, all owned vehicles and non -owned vehicles.
Said insurance coverage obtained by the Contractor, excepting workers'
compensation coverage, shall name the City, its Directors, Officers, Agents,
Employees, Engineers, and Consultants for this contract, and all public agencies
from whom permits will be obtained and their Directors, Officers, Agents and
Employees, as determined by the City, as additional insureds on said policies.
Before Contractor performs any work at, or prepares or delivers materials
to, the site of construction, Contractor shall furnish certificates of insurance
evidencing the foregoing insurance coverages and such certificates shall provide
the name and policy number of each carrier and policy and that the insurance is
in force and will not be canceled without thirty (30) days' written notice to City.
Contractor shall maintain all of the foregoing insurance coverages in force
until the work under this Contract is fully completed. The requirement for
carrying the foregoing insurance shall not derogate from the provisions for
indemnification of City by Contractor under Section 17 of this Contract.
Notwithstanding nor diminishing the obligations of Contractor with respect to the
foregoing, Contractor shall subscribe for and maintain in full force and effect
during the life of this Contract, the following insurance in amounts not less than
the amounts specified and issued by a company admitted in California and
having a Best's Guide Rating of A -Class VII or better:
Worker's Compensation In accordance with the Workers'
Compensation Act of the State of
California -- Minimum of
$1,000,000
Public Liability, in the form of
either Comprehensive General $1,000,000, per occurrence, or
alternatively,
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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Liability or Commercial General
Liability written on a per -occurrence
Basis
Automobile liability, including
non -owned and hired vehicles
$2,000,000 aggregate, separate
for this project.
$1,000,000 per occurrence
City or its representatives shall at all times have the right to inspect and
receive the original or a certified copy of all said policies of insurance, including
certificates. Contractor shall pay the premiums on the insurance hereinabove
required.
Section 17. Risk and Indemnification.
All work covered by this Contract done at the site of construction or in
preparing or delivering materials to the site shall be at the risk of Contractor
alone. Contractor agrees to save, indemnify and keep City, its Directors,
Officers, Agents, Employees, Engineers, and Consultants for this Contract, and
all public agencies from whom permits will be obtained and their Directors,
Officers, Agents and Employees harmless against any and all liability, claims,
judgments, costs and demands, including demands arising from injuries or death
of persons (Contractors' employees included) and damage to property, arising
directly or indirectly out of the obligations herein undertaken or out of the
operations conducted by Contractor, save and except claims or litigation arising
through the sole negligence or sole willful misconduct of City, and will make good
to and reimburse City for any expenditures, including reasonable attorneys' fees
City may incur by reason of such matters, and if requested by City, will defend
any such suits at the sole cost and expense of Contractor.
Section 18. Stop Notice Administration.
City reserves the right to charge Contractor for City's actual administrative
time (including attorney's time) to administer and process stop notices filed by
Contractor's subcontractors, materialmen, or any other claimant or lienholder.
Section 19. Termination.
A. This Contract may be terminated in whole or in part in writing by
either party in the event of substantial failure by the other party to fulfill its
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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obligations under this Contract through no fault of the terminating party, provided
that no termination may be effected unless the other party is given: (1) not less
than ten (10) calendar days' written notice (delivered by certified mail, return
receipt requested) of intent to terminate, and (2) an opportunity for consultation
with the terminating party prior to termination.
B. This Contract may be terminated in whole or in part in writing by the
City for its convenience, provided that the Contractor is given (1) not less than
ten (10) calendar days' written notice (delivered by certified mail, return receipt
requested) of intent to terminate, and (2) an opportunity for consultation with the
terminating party prior to termination.
C. If termination for default or convenience is effected by the City, an
equitable adjustment in the price provided for in this Contract shall be made, but
(1) no amount shall be allowed for anticipated profit on unperformed services or
other work, and (2) any payment due to the Contractor at the time of termination
may be adjusted to cover any additional costs to the City because of the
Contractor's default. If termination for default is effected by the Contractor, the
equitable adjustment shall include a reasonable profit for services or other work
performed, but no adjustment will be allowed for anticipated profits. The
equitable adjustment for any termination shall provide for payment to the
Contractor for services rendered and expenses incurred prior to the termination,
in addition to termination settlement costs reasonably incurred by the Contractor
relating to commitments which had become firm prior to the termination.
Upon receipt of a termination action under paragraphs (A) or (B) above,
the Contractor shall (1) promptly discontinue all affected work (unless the notice
directs otherwise), and (2) deliver or otherwise make available to the City all
data, drawings, specifications, reports, estimates, summaries and such other
information and materials as may have been accumulated by the Contractor in
performing this Contract whether completed or in process.
CITY OF SAN JUAN CAPISTRANO AGREEMENT
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E. Upon termination under paragraphs (A) or (B) above, the City may
take over the work and may award another party an agreement to complete the
work under this Contract.
Contractor agrees to perform all work under this Contract in accordance with the
City's designs, drawings and specifications. The Contractor guarantees for a
period of at least one (1) year from the date of substantial completion of the work
that the completed work is free from all defects due to faulty materials, equipment
or workmanship and that he shall promptly make whatever adjustments or
corrections which may be necessary to cure any defects, including repairs of any
damage to other parts of the system resulting from such defects. The City shall
promptly give notice to the Contractor of observed defects. In the event that the
Contractor fails to make adjustments, repairs, corrections or other work made
necessary by such defects, the City may do so and charge the Contractor the
cost incurred. The performance bond shall remain in full force and effect through
the guarantee period.
The Contractor's obligations under this clause are in addition to the
Contractor's other express or implied assurances under this Contract or state law
and in no way diminish any other rights that the City may have against the
Contractor for faulty materials, equipment or work.
Section 20. Assignment.
No assignment by the Contractor of this Contract or any part hereof, or of
funds to be received hereunder, will be recognized by the City unless such
assignment has had prior written approval and consent of the City and the surety.
Section 21. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the
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terms of this Contract, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other relief
to which it may be entitled. If any action is brought against the Contractor or any
subcontractor to enforce a Stop Notice or Notice to Withhold, which names the
City as a party to said action, the City shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements arising out of the defense of such
action by the City. The City shall be entitled to deduct its costs for any Stop
Notice filed, whether court action is involved or not.
Section 22. Resolution of Disputes.
The City and the Contractor shall comply with the revisions of California
Public Contracts Code Section 20104, et seq., regarding resolution of
construction claims for any claims which arise between the Contractor and the
City.
Section 23. Notices.
Any notice required or permitted under this Contract may be given by
ordinary mail at the address set forth below. Any party whose address changes
shall notify the other party in writing.
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Director of Public Works
To Contractor: Valley Coast Landscape, Inc.
3388 Channel Way
San Diego, CA 92110
CITY OF SAN JUAN CAPISTRANO AGREEMENT
LA RONDA STORM DRAIN CHANNEL REPAIRS B-17
IN WITNESS WHEREOF, the parties hereto have executed this
Construction Contract as
of the date first hereinabove written.
CITY OF SAN JUAN CAPIST��.
By:
Wyatt Hart, ayor
ATTEST: /f
Ma et R. Monqhan, City Clerk
APPROVED AS TO FORM:
By:" w4va� bq Z�
John R. Shaw, City Counsel
Valley Coast Landscape, Inc.
CITY OF SAN JUAN CAPISTRANO AGREEMENT
LA RONDA STORM DRAIN CHANNEL REPAIRS B-18