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Hardy & Harper Inc - FY2017-026-02 AMENDMENT NO 2 TO AGREEMENT FOR CONTRACTUAL SERVICES THIS AMENDMENT TO THE AGREEMENT FOR CONTRACTUAL SERVICES ("Amendment No 2") by and between the CITY OF RANCHO PALOS VERDES, a California municipal corporation ( City"), and HARDY & HARPER, INC , a California corporation (`Contractor"), is effective as of the 15' - day of Sly , 2021 RECITALS A City and Contractor entered into that certain Agreement for Contractual Services dated September 6, 2016 ("Agreement") whereby Contractor agreed to provide Roadway Maintenance Services for the project entitled Roadway Maintenance Contract FY 2016-2017 Through FY 2020-2021 B The Term of the Agreement is from September 6, 2016 to June 30, 2021 The total not-to-exceed Contract Sum for the Agreement is $1,225,000 The Agreement also provides for three (3) one-year options to extend the Term of the Agreement based on Contractor performance and mutual consent C On May 2, 2017, the City and Contractor entered into Amendment No 1 to the Agreement to increase the not-to-exceed amount for Fiscal Year 2016-2017 from $245,000 to $382,000, thereby increasing the Contract Sum to $1,362,000 D City and Contractor now desire to amend the Agreement to exercise all three one- year options to extend, extending the term of the Agreement to June 30, 2024 and increasing the Contract Sum for the Agreement to$2,097,000,with an annual not-to-exceed amount of$245,000 TERMS 1 Contract Changes The-Agreement-is-amended as-provided-herein—Deleted text is -- indicated in stfikethfeugli and added text in bold italics a Section 2 1, Contract Sum, is hereby amended to read as follows "Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference The total compensation, including reimbursement for actual expenses shall not exceed e •• . . . .• -- - . . . . . _ . . . Dollars ($1,362,000)$2,097,000 (Two Million Ninety Seven Thousand Dollars) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1 10 " 01203 0006/713971 1 b Section I of Exhibit"D", Schedule of Performance, is hereby amended to read as follows "I Unless earlier terminated in accordance with Article 7 of this Agreement, the term of this Agreement shall be September 6, 2016 to June 30,202-1-2024 The City may extend 2 Continuing Effect of Agreement Except as amended by this Amendment No 2, all provisions of the Agreement shall remain unchanged and in full force and effect From and after the date of this Amendment No 2,whenever the term"Agreement"appears in the Agreement, it shall mean the Agreement, as amended by this Amendment No 3 to the Agreement 3 Affirmation of Agreement, Warranty Re Absence of Defaults City and Contractor each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement Each party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided herein Each party represents and warrants to the other that the Agreement is currently an effective,valid,and binding obligation Contractor represents and warrants to City that, as of the date of this Amendment No 2, City is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement City represents and warrants to Contractor that, as of the date of this Amendment No 2, Contractor is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement 4 Adequate Consideration The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No 2 5 Authority The persons executing this Amendment No 2 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 Amendment No 2 on behalf of said party, (iii) by so executing this Amendment No 2 , such party is formally bound to the provisions of this Amendment No 2, and (iv)the entering into this Amendment No 2 does not violate any provision of any other agreement to which said party is bound [SIGNATURES ON FOLLOWING PAGE] 01203 0006/713971 I -2- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written CITY CITY OF RANCHO PALOS VERDES, a munici.al corporation 1PP APP ,..4.11.....L111011111:41111111 . / I ric Alegria, Mayor ATTEST eresa Ta aoka, City Clerk APPROVED AS TO FORM ALESHIRE& WYNDER, LLP Ze)111.0i^#1 4"—\ William W Wynder, City Attorney CONTRACTOR HARDY & HARPER, INC , a/ aliforma corporation By �� J Name M c•:el y itle V elP� %� �� flame Kri 1-n Paulino Title Corporate Secretary Address 32 Rancho Circle Lake Forest, CA 92630 Two corporate officer signatures required when Contractor is a corporation,with one signature required from each of the following groups 1)Chairman of the Board,President or any Vice President,and 2)Secretary,any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer CONTRACTOR'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY 01203 0006(713971 1 -3- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document STATE OF CALIFORNIA COUNTY OF LOS ANGELES On ,2021 before me, ,personally appeared ,proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument i certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal Signature OPTIONAL [hough the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIMED BY SiGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL El CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) El LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT El TRUSTEE(S) El GUARDIAN/CONSERVATOR El OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203 0006/713971 1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document STATE OF CALIFORNIA COUNTY OF LOS ANGELES On ,2021 before me, ,personally appeared ,proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authonzed capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal Signature OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this Conn CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 012030006/7i3971 1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 Ccc:P,c,arx>,t" 56E tek^. ^.care:�or(W'a:ctt-Y•,<_ f.i.t-'c,C .=CoN.. c,.rl`,M,c:A.c'A,r<"A^C..s4-C.M.cx`,c_P.crc�,ct^,c_rc:cYc(:cAc:ttrOc C4 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document State of California ) County of Orange ) On June 1.2021 before me, Ashlie Blanchard, Notary Public , Date Here Insert Name and Title of the Officer personally appeared Michael Murray and Kristen Paulino Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that Ile/sKe/they executed the same in I-ps/hoer/their authorized capacity(ies), and that by h>s/hear/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct _ WITNESS my hand and official seal :-".;-.11 im;��, ASHLIE BLANCHARD ��}} COMM #2279550 ,,, ' 1 � a Notary Public California LL Signature l 111 VIM/ i%tand/1/006 ORANGE COUNTY g 2023 Signature of NotaryPublic � =����My Comm EaPires March g Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document Document Date Number of Pages Signer(s) Other Than Named Above Capacity(ies) Claimed by Signer(s) Signer's Name Signer's Name ❑Corporate Officer — Title(s) ❑Corporate Officer — Title(s) ❑Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑General ❑Individual ❑Attorney in Fact ❑Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other ❑ Other Signer Is Representing Signer Is Representing ±•-r-a,'±^✓_✓_r,✓.✓fir_✓'✓'✓'✓•a„t JV.;t-G`CUci.A. 4`4i.111`cstJt%t.` , -4.`t S.A.-4.:c-t.`--kx--K.`.G-Vg<X%(JL%UC%CX%t.x-Vc-4`C%G'-4,`{-..`-4,1 ©2014 National Notary Association • www NationalNotary org • 1-800-US NOTARY(1-800-876-6827) Item #5907 AMENDMENT NO. 1 TO AGREEMENT FOR CONTRACTUAL SERVICES THIS AMENDMENT TO THE AGREEMENT FOR CONTRACTUAL SERVICES ("Amendment")by and between the CITY OF RANCHO PALOS VERDES("City")and Hardy & Harper Inc. ("Contractor") is effective as of the 2nd day of May, 2017. RECITALS A. City and Contractor entered into that certain Agreement for Contractual Services dated September 6, 2016 ("Agreement") whereby Contractor agreed to provide Roadway Maintenance Services for the project entitled Roadway Maintenance Contract FY 2016-2017 Through FY 2020-2021. B. City and Contractor now desire to amend the Agreement to increase the not-to-exceed amount for Fiscal Year 2016-2017 to $382,000, and thereby increase the Contract Sum to $1,362,000. TERMS 1. Contract Changes. The Agreement is amended as provided herein (new text is identified in bold italics, deleted text in stril ough). (a) Section 2.1,Contract Sum,is hereby amended to read as follows: "Subject to any limitations set forth in this Agreement,City agrees to pay Contractor the amounts specified in the"Schedule of Compensation"attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses shall not exceed • ! • - ! ! ! One Million Three Hundred and Sixty-Two Thousand Dollars($1,362,000)(the"Contract Sum"),unless additional compensation is approved pursuant to Section 1.10." (b) Section VI. of Exhibit "C", Schedule of Compensation, is hereby amended to read as follows: "VI. The total compensation for fiscal year 2016-2017,ending June 30,2017,shall not exceed $2453000 $382,000. The total compensation for the full term of the Agreement shall not exceed$1,200$1,362,000,as provided in Section 2.1 of the Agreement." 2. Continuing Effect of Agreement. Except as amended by this Agreement, all provisions of the Agreement shall remain unchanged and in full force and effect.From and after the date of this Amendment,whenever the term"Agreement"appears in the Agreement, it shall mean the Agreement, as amended by this Amendment to the Agreement. 3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and Contractor each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement.Each party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided herein.Each party represents and warrants to the other that the Agreement is currently an effective,valid,and binding obligation. Contractor represents and warrants to City that,as of the date of this Amendment,City is not in default of any material term of the Agreement and that there have been no events that,with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. City represents and warrants to Contractor that,as of the date of this Amendment,Contractor is not in default of any material term of the Agreement and that there have been no events that,with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. 4. Adequate Consideration.The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment. 5. 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. [SIGNATURES ON FOLLOWING PAGE] 01203.0006/368768.1 -2- IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date and year first-above written. CITY: CITY OF RANCHO PALOS VERDES, a municipal corporatio• Irv! Atii ian Campbell, Ayth AT litti Ala 111111rAllaL' f o lborn, City Clerk APPR I • TO FORM: ALESHIRE&WYNDER, LLP Dave A - hire, City Attorney CONTRACTOR: HARDY&A,. RPER INC. /Air, # By: Y Name: Steve irschner Title: Vi _ resident By: A") /101) Name: Kristen Paulin() Title: Corporate Secretary Address: 1312 E. Warner Ave Santa Ana, CA 92705 Two corporate officer signatures required when Contractor is a corporation,with one signature required from each of the following groups:1)Chairman of the Board,President or any Vice President;and 2)Secretary,any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR'S SIGNATURES SHALL BE DULY NOTARIZED,AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY. 01203.0006/368768.1 -3- • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 C a�C_siC�.-.��:�..ca..aC.w�:aC.c.'a¢�•�C_a,.•_a.�•_�C.a��v���.,�C.AS�C:s�:.w�._c.C.c�t�a��.!s:•��•�•��`��v.�'�•_ A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of Orange On May 2. 2017 before me, Vanessa Garcia, Notary Public Date Here Insert Name and Title of the Officer personally appeared Steve Kirschner and Kristen Paulino Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) b/are subscribed to the within instrument and acknowledged to me that Ile/sNe/they executed the same in his/hoer/their authorized capacity(ies),and that by his/bar/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. VANESSA GARCIA Signature V 1 `•f y.G.,�• i,• COMM.#2151902 M Signature of Notary Public 4• ` Notary Public-California r rx �• ORANGE COUNTY LI- 4 4 .,.,.• My Comm`Expires May 3,2020 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Amendment#1 To Agreement Fcb Document Date: May 2. 2017 Number of Pages: 1 Signer(s) Other Than Named Above: None Capacity(ies) Claimed by Signer(s) Signer's Name: Steve Kirschner Signer's Name: Kristen Paulino ©Corporate Officer — Title(s): vir:P PrPairipnt ©Corporate Officer — Title(s): Corporate Secretary ❑ Partner — ❑Limited ❑General ❑ Partner — D Limited ❑General ❑Individual ❑Attorney in Fact ❑ Individual El Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: Hardy&Harper, Inc. Hardy&Harper. Inc. tr0a � _\.'-.'-.\_.\ • \. '..., \.. -"._-. `ate \_..' .\.4 .'.C_. ..'.. \:. ',.\ • ©2014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) COUNTY OF XXXX ) On before me, Date Here Insert Name and Title of Officer personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public Place Notary Seal Above 01203.0006/368768.1 PUBLIC WORKS AGREEMENT By and Between CITY OF RANCHO PALOS VERDES and HARDY & HARPER INC. 01203.0006/308762.1 AGREEMENT FOR PUBLIC WORKS SERVICES BETWEEN THE CITY OF RANCHO PALOS VERDES AND HARDY & HARPER,INC. THIS AGREEMENT FOR PUBLIC WORKS SERVICES(herein"Agreement")is made and entered into this 6th day of September, 2016 by and between the City of Rancho Palos Verdes, a California municipal corporation ("City") and Hardy & Harper Inc. ("Contractor"). City and Contractor are sometimes hereinafter individually referred to as"Party"and hereinafter collectively referred to as the"Parties". RECITALS A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement. B. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement,was selected by the City to perform those services. C. Pursuant to the City of Rancho Palos Verdes Municipal Code, City has authority to enter into and execute this Agreement. D. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein. OPERATIVE PROVISIONS NOW,THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged,the parties agree as follows: ARTICLE 1. WORK OF CONTRACTOR 1.1 Scope of Work. In compliance with all terms and conditions of this Agreement,the Contractor shall provide those services specified in the "Scope of Work" attached hereto as Exhibit "A" and incorporated herein by this reference, which 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 it has the qualifications,experience, and facilities necessary to properly perform the work required under this Agreement in a thorough,competent,and professional manner,and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement,the phrase"highest -1- 01203.0006/308762.1 professional standards"shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Bid Documents. The Scope of Work shall include the"General Provisions"and"Special Provisions" in the bid documents for the project entitled Roadway Maintenance Contract FY 2016-2017 Through FY 2020-2021, including any documents or exhibits referenced therein (collectively, "bid documents"), all of which are incorporated herein by this reference. In the event of any inconsistency between the terms of the bid documents and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. Contractor shall keep itself informed concerning, and shall render all services hereunder in accordance with,all ordinances,resolutions,statutes,rules,and regulations of the City and any Federal,State or local governmental entity having jurisdiction in effect at the time service is rendered. 1.4 Compliance with California Labor Law. (a) Public Work. The Parties acknowledge that the work to be performed under this Agreement is a"public work"as defined in Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720)of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations ("DIR") implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by regulation. (b) Prevailing Wages. Contractor shall pay prevailing wages to the extent required by Labor Code Section 1771. Pursuant to Labor code Section 1773.2; copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request. By initiating any work under this Agreement,Contractor acknowledges receipt of a copy of the Department of Industrial Relations(DIR)determination of the prevailing rate of per diem wages,and Contractor shall post a copy of the same at each job site where work is performed under this Agreement. (c) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall,as a penalty to the City,forfeit two hundred dollars($200)for each calendar day,or portion thereof,for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (d) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776,which requires Contractor and each subcontractor to:keep accurate payroll records and verify such records in writing under penalty of perjury,as specified in -2- 01203.0006/308762.1 Section 1776;certify and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6,and 1777.7 and California Code of Regulations Title 8,Section 200 et seq. concerning the employment of apprentices on public works projects.Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement,Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day. Contractor acknowledges that eight(8)hours labor constitutes a legal day's work. Contractor shall comply with and be bound by Labor Code Section 1810. (g) Penalties for Excess Hours. Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight(8)hours in any one calendar day and forty(40)hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half(1'/2)times the basic rate of pay. (h) Workers' Compensation. California Labor Code Sections 1860 and 3700 provide that every employer will be req tired:u s.;cu:e the pa .:.,..,;;f compensation to ii employees if it has employees. In accordance with the provisions of California Labor Code Section 1861, Contractor certifies as follows: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code,and I will comply with such provisions before commencing the performanc o the work of this contract." Contractor's Authorized Initial (i) Contractor's Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, Contractor shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code,and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement.Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, -3- 01203.0006/308762.1 conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages.Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor. 1.5 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits, registrations,and approvals as may be required by law for the performance of the services required by this Agreement. 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,its officers,employees or agents of City,against any such fees, assessments,taxes,penalties or interest levied, assessed or imposed against City hereunder. 1.6 Familiarity with Work. (a) By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of work to be performed, (ii) has carefully considered how the services should be performed, and (iii) 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. (b) Contractor shall promptly,and before the following conditions are disturbed, notify the City, in writing, of any: (i) material Contractor believes may be hazardous waste as defined in Section 25117 of the Health&Safety Code required to be removed to a Class I,II,or III disposal site in accordance with existing law; (ii) subsurface, unknown or latent conditions, materially different from those indicated; or (iii) unknown physical conditions at the site of any :v.SUnesa?'claic, • •"i: �•i.,:7r enc•�1.ir:•:redand atw-• y recog,ized 3S'mhCtirit-t'• work of the character provided for in this Agreement,and will materially affect the performance of the services hereunder. (c) City shall promptly investigate the conditions, and if it finds that the conditions do materially differ,or do involve hazardous waste,and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work, shall issue a change order per Section 1.10 of this Agreement. (d) In the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of,or time required for,performance of any part of the work,Contractor shall not be excused from any scheduled completion date set,but shall proceed with all work to be performed under the Agreement. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting parties. (e) City will compensate Contractor to the extent required by Government Code Section 4215 by issuing a change order per Section 1.10 of this Agreement. -4- 01203.0006/308762.1 1.7 Protection and Care of Work and Materials. The Contractor shall adopt reasonable methods,including providing and maintaining storage facilities,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 caused by City's own negligence. Stored materials shall be reasonably accessible for inspection. Contractor shall not, without City's consent,assign,sell,mortgage,hypothecate,or remove equipment or materials which have been installed or delivered and which may be necessary for the completion of the work. 1.8 Warranty. Contractor warrants all work under the Agreement(which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year(or the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work,whichever is later)after the date of final acceptance, Contractor shall within ten(10) days after being notified in writing by the City of any defect in the work or non-conformance of the work to the Agreement,commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act as soon as requested by the City in response to an emergency. In addition, Contractor shall,at its sole cost and expense,repair,remove and replace any portions of the work(or work of other contractors)damaged by its defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor's obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work.Contractor shall perform such tests as the City may require to verify that any corrective actions,including,without limitation,redesign, repairs,and replacements comply with the requirements of the Agreement. All costs associated with such corrective actions iiid Lesiilg, including the remo ai, iepiaceineni, and leinstitution of equipment and materials necessary to gain access,shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand. 1.9 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, -5- 01203.0006/308762.1 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. 1.10 Additional Work and Change Orders. (a) 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 Work 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("Change Order"). All Change Orders must be signed by the Contractor and Contract Officer prior to commencing the extra work thereunder. (b) Any increase in compensation of up to ten percent(10%)of the Contract Sum or $25,000, whichever is less; or any increase in the time to perform of up to one hundred eighty (180)days;and does not materially affect the Work and which are not detrimental to the Work or to the interest of the City,may be approved by the Contract Officer. Any greater increases,taken either separately or cumulatively, must be approved by the City Council. (c) Any adjustment in the Contract Sum for a Change Order must be in accordance with the rates set forth in the Schedule of Compensation in Exhibit"C". If the rates in the Schedule of Compensation do not cover the type of work in the Change Order,the cost of such work shall not exceed an amount agreed upon in writing and signed by Contractor and Contract Officer. If the cost of the Change Order cannot be agreed upon,the City will pay for actual work of the Change Order completed, to the satisfaction of the City, as follows: (i) Labor: the cost of labor shall be the actual cost for wages of workers and subcontractors performing the work for the Change Order at the time such work is done. The Esc �f labor e1_c:, s; cati... that;sc:: increase the cost of such work shall z__ . be -sitter_':. f:.- (ii) Materials and Equipment: the cost of materials and equipment shall be at cost to Contractor or lowest current price which such materials and equipment are reasonably available at the time the work is done, whichever is lower. (iii) If the cost of the extra work cannot be agreed upon, the Contractor must provide a daily report that includes invoices for labor, materials and equipment costs for the work under the Change Order. The daily report must include: list of names of workers, classifications, and hours worked; description and list of quantities of materials used; type of equipment,size,identification number,and hours of operation,including loading and transportation, if applicable;description of other City authorized services and expenditures in such detail as the City may require. Failure to submit a daily report by the close of the next working day may,at the City's sole and absolute discretion, waive the Contractor's rights for that day. (d) It is expressly understood by Contractor that the provisions of this Section 1.10 shall not apply to services specifically set forth in the Scope of Work. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Work -6- 01203.0006/308762.1 may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. (e) No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed. 1.11 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. In 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. ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT. 2.1 Contract Sum. Subject to any limitations set forth in this Agreement,City agrees to pay Contractor the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed One Million Two Hundred and Twenty-Five Thousand Dollars ($1,225,000)(the"Contract Sum"),unless additional compensation is approved pursuant to Section 1.10. 2.2 Method of Compensation. The method of compensation may include: (i)a lump sum payment upon completion; (ii)payment in accordance with specified tasks or the percentage of completion of the services less the contract retention; (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained and (c) the Contract Sum is not exceeded; or(iv) such other methods as may be specified in the Schedule of Compensation. 2.3 Reimbursable Expenses. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance,or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical component of the services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings. -7- 01203.0006/308762.1 2.4 Invoices. Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance. By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of the Agreement.The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment,supplies,and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Contractor shall not invoice City for any duplicate services performed by more than one person. City shall,as soon as practicable,independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City,or as provided in Section 7.3,City will cause Contractor to be paid within thirty(30)days of receipt of Contractor's correct and undisputed invoice;however, Contractor acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event that City does not cause Contractor to be paid within thirty (30) days of receipt of an undisputed and properly submitted invoice, Contractor shall be entitled to the payment of interest to the extent allowed under Public Contract Code Section 20104.50. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor,not later than seven(7)days after receipt by the City,for correction and resubmission. Returned invoices shall be accompanied by a document setting forth in writing the reasons why the payment request was rejected.Review and payment by the City of any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law. 2.5 Waiver. Payment to Contractor for work performed pursuant to this Agreement shall not be deemed aive any defects in work performed by Contractor. ARTICLE 3. PERFORMANCE SCHEDULE 3.1 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"attached hereto as Exhibit"D"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 but not exceeding one hundred eighty(180) days cumulatively. -8- 01203.0006/308762.1 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 of 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. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Inspection and Final Acceptance. City may inspect and accept or reject any of Contractor's work under this Agreement, either during performance or when completed. City shall reject or finally accept Contractor's work within forty-five (45) days after submitted to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City's acceptance shall be conclusive as to such work except with respect to latent defects,fraud and such gross mistakes as to amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including,but not limited to,Articles 1 and 5,pertaining to warranty and indemnification and insurance, respectively. 3.5 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in Null `:;:cc and effect until cornp!cilon :rte::s vi:;es Liit not exceeding one (1) years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit"D"). ARTICLE 4. COORDINATION OF WORK 4.1 Representatives and Personnel of Contractor. The following principals of Contractor("Principals")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: Steve Kirschner Vice President (Name) (Title) (Name) (Title) -9- 01203.0006/308762.1 (Name) (Title) 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 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. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement,the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally,Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Contractor shall notify City of any changes in Contractor's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. 4.2 Status of Contractor. Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor's officers, employees or agents, shall obtain any rights to retirement,health care or any other benefits which may otherwise accrue to City's employees. Contractor expressly waives any claim Contractor may have to any such rights. 4.3 Contract Officer. The Contract Officer shall' :[ Steve Kirschner or]such person as may be designated by the City Manager.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, if specified in writing by the City Manager,to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 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 agents or employees,perform 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,servants,representatives or agents,or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent -10- 01203.0006/308762.1 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 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 venturer or a member of any joint enterprise with Contractor. 4.5 Prohibition Against Subcontracting or 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. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. All subcontractors shall obtain, at its or Contractor's expense,such licenses,permits,registrations and approvals(including from the City)as may be required by law for the performance of any services or work under this Agreement. In addition,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. ARTICLE 5. INSURANCE,INDEMNIFICATION AND BONDS 5.1 Insurance Coverages. The Contractor shall procure and maintain,at its sole cost and 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 which shall cover all elected and appointed officers, employees an.• agents of City: (a) Commercial General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit. (b) Workers Compensation Insurance. A policy of workers compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Contractor against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance(Form CA 0001 (Ed 1/87) including "any auto" and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than -11- 01203.0006/308762.1 $1,000,000. Said policy shall include coverage for owned,non-owned, leased, hired cars and any automobile. (d) Professional Liability. Professional liability insurance appropriate to the Contractor's profession. This coverage may be written on a"claims made"basis,and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Contractor's services or the termination of this Agreement. During this additional 5-year period, Contractor shall annually and upon request of the City submit written evidence of this continuous coverage. (e) Additional Insurance. Policies of such other insurance,as may be required in the Special Requirements in Exhibit"B". (f) Subcontractors.Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 5.2 General Insurance Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Contractor's insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention,any additional insured may satisfy the self-insured retention. Al! of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty(30)days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled,the Contractor shall,prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete,certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following"cancellation"notice: CANCELLATION: -12- 01203.0006/308762.1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER NAMED HEREIN. [to be initialed] Agent's Initials City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Contractor performs;products and completed operations of Contractor;premises owned, occupied or used by Contractor;or any automobiles owned,leased,hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration,defense expenses and claims. The Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or persons for which the Contractor is otherwise responsible nor shall it limit the Contractor's indemnification liabilities as provided in Section 5.3. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.5 of this Agree....,at, the contract beiween the Contru„wr and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to Section 5.1,and such certificates and endorsements shall be provided to City. 5.3 Indemnification. To the full extent permitted by law,Contractor agrees to indemnify,defend and hold harmless the City, its officers,employees and agents("Indemnified Parties")against,and will hold and save them and each of them harmless from, any and all actions,either judicial,administrative, arbitration or regulatory claims,damages to persons or property,losses,costs,penalties,obligations, errors,omissions or liabilities whether actual or threatened(herein"claims or liabilities")that may be asserted or claimed by any person,firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable ("indemnitors"), or arising from Contractor's or indemnitors' reckless or willful misconduct, or arising from Contractor's or indemnitors' negligent performance of or failure to perform any term,provision,covenant or condition of this Agreement,and in connection therewith: -13- 01203.0006/308762.1 (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 out of or in connection with the negligent performance of or failure to perform such work,operations or activities of Contractor 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 out of or in connection with the negligent performance of or failure to perform the work,operation or activities of Contractor hereunder, Contractor agrees to 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. In addition, Contractor agrees to indemnify, defend and hold harmless the Indemnified Parties from, any and all claims and liabilities for any infringement of patent rights, copyrights or trademark on any person or persons in consequence of the use by the Indemnified Parties of articles to be supplied by Contractor under this Agreement,and of which the Contractor is not the patentee or assignee or has not the lawful right to sell the same. Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission,or reckless or willful misconduct of Contractor in the performance of professional services and work hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City's sole negligence or willful acts or omissions,but,to the fullest extent permitted by law, shall apply to claim,arid iiabilitie resulting hi part from City's negligence,except that;csign professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence,recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Contractor and shall survive termination of this Agreement. 5.4 Notification of Third-Party Claims. City shall timely notify Contractor of the receipt of any third-party claim relating to the work under this Agreement. City shall be entitled to recover from Contractor its reasonable costs incurred in providing such notification. 5.5 Performance and Labor Bonds. Concurrently with execution of this Agreement Contractor shall deliver to the City, the following: -14- 01203.0006/308762.1 (a) A performance bond in the amount of the Contract Sum of this Agreement,in the form provided by the City Clerk, which secures the faithful performance of this Agreement. (b) A labor and materials bond in the amount of the Contract Sum of this Agreement, in the form provided by the City Clerk, which secures the payment of all persons furnishing labor and/or materials in connection with the work under this Agreement. Both the performance and labor bonds required under this Section 5.5 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 bond 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 and pays all labor and materials for work and services under this Agreement. 5.6 Sufficiency of Insurer or Surety. Insurance and 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's Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better,unless such requirements are waived by the Risk Manager of the City("Risk Manager")due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by Section 5.5 may be changed accordingly upon receipt of written notice from the Risk Manager. 5.7 Substitution of Securities. Pursuant to Public Contract Code Section 22300, substitution of eligible equivalent securities for any funds withheld t:1 ensure Performance under this A_^'reement may be permitted at the request and sole expense of the Contractor. Alternatively, the Contractor may, pursuant to an escrow agreement in a form prescribed by Public Contract Code Section 22300,request payment of retentions funds earned directly to the escrow agent at the sole expense of the Contractor. 5.8 Release of Securities. City shall release the Performance and Labor Bonds when the following have occurred: (a) Contractor has made a written request for release and provided evidence of satisfaction of all other requirements under Article 5 of this Agreement; (b) the Work has been accepted; and (c) after passage of the time within which lien claims are required to be made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the Labor Bond until such claims have been resolved, Contractor has provided statutory bond, or otherwise as required by applicable law. -1.5- 01203.0006/308762.1 ARTICLE 6. RECORDS, REPORTS,AND RELEASE OF INFORMATION 6.1 Records. Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of payroll records in compliance with all applicable laws, or other documents relating to the disbursements charged to City and services performed hereunder(the"books and records"),as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. 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 3 years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Contractor's business,custody of the books and records may be given to City,and access shall be provided by Contractor's successor in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act. 6.2 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 Contrael Office! of 3aid fact, circumstance, technique or c,...311 and Lhe-c:iicnaied 1ncr a::ed u:' decreased cost related thereto and,if Contractor is providing design services,the estimated increased or decreased cost estimate for the project being designed. 6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the "documents and 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 use,reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor,and Contractor's guarantee and warranties shall not extend to such use,reuse or assignment. Contractor may retain copies of such documents for its own use. Contractor shall -16- 01203.0006/308762.1 have an>!rnrestricted 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. Moreover,Contractor with respect to any documents and materials that may qualify as"works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed"works made for hire"for the City. 6.4 Confidentiality and Release of Information. (a) information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential,unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer. (b) Contractor,its officers,employees,agents or subcontractors,shall not,without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents,declarations,letters of support,testimony at depositions,response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered"voluntary"provided Contractor gives City notice of such court order or subpoena. (c) If Contractor,or any officer,employee,agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorneys' fees, caused by or incurred as a result of Contractor's conduct. (d) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons,complaint, subpoena, notice of deposition,request for documents,interrogatories,request for admissions or other discovery request, coli rt order or subpoerr, frcm any party regarding this Ayrecmcoit and the work i. o.TnCd_there under. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION 7.1 California Law. This Agreement shall be interpreted,construed and governed 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 Los Angeles, 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. In the event of litigation in a U.S. District -17- 01203.0006/308762.1 Court,venue shall lie exclusively in the Central District of California,in the County of Los Angeles, State of California. 7.2 Disputes. (a) Default;Cure. In the event that Contractor is in default under the terms of this Agreement,the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead,the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty(30)days,but may be extended,though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall proceed with payment on the invoices only when the default is cured. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default,the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Contractor's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. (b) Dispute Resolution. This contract is subject to the provisions of Article 1.5 (commencing at Section 20104) of Division 2, Part 3 of the California Public Contract Code regarding the resolution of public works claims of less than$375,000. Article 1.5 mandates certain procedures for the filing of claims and supporting documentation by the Contractor,for the response to such claims by the City, for a mandatory meet and confer conference upon the request of the Contractor, for mandatory non-binding mediation in the event litigation is commenced, and for mandatory judicial arbitration upon the failure to resolve the dispute through mediation. This Agreement hereby incorporates the provisions of Article 1.5 as though fully set forth herein. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or hot arising out of this Agreement){i) any am=ounts the payment •-,f which ma) be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party,the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien,City may withhold from any payment due,without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not,however,affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. -18- 01203.0006/308762.1 Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. 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,in 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. Notwithstanding any contrary provision herein,Contractor shall file a claim pursuant to Government Code Sections 905 et seq.and 910 et seq., in order to pursue a legal action under 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 Dollars($ 0 )as liquidated damages for each working day of delay in the performance of any service required hereunder,as specified in the Schedule of Performance(Exhibit"D"). The City may withhold from any monies payable on account of services r erformed by the Contractor any accrued.,liquidated damage. Pursuant to Government Code Section 4215, Contractor shall not be assessed liquidated damages for delay in completion of the project when such delay was caused by the failure of the public agency or owner of the utility to provide for removal or relocation of utility facilities. 7.8 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time,with or without cause,upon thirty(30)days' written notice to Contractor, except that where termination is due to the fault of the Contractor,the period of notice may be such shorter time as may be determined by the Contract Officer. In addition,the Contractor reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to City,except that where termination is due to the fault of the City,the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the -19- 01203.0006/308762.1 notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section,the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, 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 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 set-off or partial payment of the amounts owed the City as previously stated. 7.10 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. 7.11 Unfair Business Practices Claims. In entering into this Agreement,Contractor offers and agrees to assign to the City 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. § 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 related to this Agreement. This assignment shall be made and become effective at the time the City renders final payment to the Contractor without further acknowledgment of the Parties. ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 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. -20- 01203.0006/308762.1 8.2 Conflict of Interest. Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor's performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. No officer or employee of the City shall have any financial interest,direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is,directly or indirectly, interested, in violation of any State statute or regulation. 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,there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation,marital status,national origin, ancestry, or other protected class in the performance of this Agreement. 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, gender, sexual orientation, marital status, national origin, ancestry, or other protected class. 8.4 Unauthorized Aliens. Contractor hereby promises and agrees to comply with 211 of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith,shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed,together with any and all costs,including attorneys'fees,incurred by City. ARTICLE 9. MISCELLANEOUS PROVISIONS 9.1 Notices. 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 either served personally or sent by prepaid,first-class mail,in the case of the City,to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Rancho Palos Verdes,30940 Hawthorne Boulevard,Ranchos Palos Verdes,California 90275 and in the case of the -21- 01203.0006/308762.1 Contractor,to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72)hours from the time of mailing if mailed as provided in this Section. All correspondence relating to this Agreement shall be serialized consecutively. 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 Counterparts. This Agreement may be executed in counterparts,each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. 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. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. 9.5 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 unenforceability 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 Warranty & Representation of Non-Collusion. No official,officer,or employee of City has any financial interest,direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091.5. Contractor -22- 01203.0006/308762.1 warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee,any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Contractor further warrants and represents that(s)he/it has not engaged in any act(s),omission(s),or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including,but not limited to,any City official,officer,or employee, as a result of consequence of obtaining or being awarded any agreement. Contractor is aware of and understands that any such act(s),omission(s)or other conduct resulting in such payment of money, consideration, or other thing of value will render this e e void and of no force or effect. Contractor's Authorized Initials 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. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE] -23- 01203.0006/308762.1 IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date and year first-above written. CITY: CITY OF RANCHO PALOS VERDES, a municipal corporation ��'. e Dyda,Mayo' ATTEST: arla Morreale; City Cle APPROVED AS TO FORM: ALESHIRE & WYNDER,LLP V /e David J. A e ire, City Attorney CONTRACTOR: Hardy ,S";rper, nc By: ►.- Name: Steve Kirschner T t1e Vice President By: Name: Kristen Paulino Title: Corporate Secretary Address: 1312 E. Warner Ave. Santa Ana, CA 92705 Two corporate officer signatures required when Contractor is a corporation,with one signature required from each of the following groups: 1)Chairman of the Board,President or any Vice President;and 2)Secretary,any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR'S SIGNATURES SHALL BE DULY NOTARIZED,AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY. -24- 01203.0006/308762.1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 " .v.. a..-_ - _ c�e?1G. 'f;':`;oc=rc=t5::`^a=.dS6 `^ ^•t- FY.sL.fr:FT-'..y.C:c:.:cr.: ^.c- .r,�>,e�: s'�;Y�.r-.:tome'�':��.r,Y:�:-+ A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of Orange On September 8, 2016 before me, Tina Pham, Notary Public Date Here Insert Name and Title of the Officer personally appeared Steve Kirschner& Kristen Paulino Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Is/are subscribed to the within instrument and acknowledged to me that l /s6te/they executed the same in his/her/their authorized capacity(ies),and that by his/hvr/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. - I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ____ _ _ __ __ _ _ _ WITNESS my hand and official seal. NotarTINA PHAM o(J ' • COMM #21384ifor yPublic-C. 49alnia N Signature o.n ORANGE COUNTY a Signature of Notary Public _:__- My Comm.Expires Apr 17,2p20 • Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Agreement for Public Works Servii Document Date: September 8, 2016 Number of Pages: 24 Signer(s) Other Than Named Above: None Capacity(ies) Claimed by Signer(s) Signer's Name: Steve Kirschner Signer's Name: Kristen Paulino Corporate Officer — Title(s): vier.President D Corporate Officer — Title(s): Secretary ❑Partner — 0 Limited 0 General ❑ Partner — ❑ Limited 0 General ❑Individual ❑Attorney in Fact ❑Individual ❑Attorney in Fact 0 Trustee 0 Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: Hardy&Harper, Inc Hardy&Harper, Inc b'd:'Y{•bGA'. -dr:_ 'd'_„d6-t i'r „'vC.' x:7C,C' ,;c2_ ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES On ,2016 before me, ,personally appeared ,proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) El LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/308762.1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES On ,2016 before me, ,personally appeared ,proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/308762.1 EXHIBIT "A" SCOPE OF WORK Contractor shall perform all of the work and comply with all of the specifications and requirements in the "General Provisions" and "Special Provisions" included in the bid documents for the project entitled Roadway Maintenance Contract FY 2016-2017 Through FY 2020-2021, including any documents or exhibits referenced therein. II. Brief description of the work to be performed: Contractor will perform on-call road maintenance services according to the needs of the City. As part of these services, Contractor shall furnish all materials, equipment, tools, labor,and incidentals as required by the specifications and contract documents.The general items of work include removal and replacement of concrete curb and gutter,sidewalk/drive approach, and ADA ramp, removal and reconstruction of asphalt, AC cold mill, AC fill, skin patch, curb and house address painting, crack fill, catch basin repairs, removal and installation of guard rails, posts, and delineators, and traffic control, among other items included in the Bid Schedule in Exhibit C. III. Consultant will perform all on-call services in compliance with the following requirements: A. Each task or set of tasks shall be indicated by a written request produced by the Contract Officer with a description of the work to be performed, and the time desired for completion. B. Consultant will prepare a written description of the requested tasks including all components and subtasks;prepare a calculation of the costs to perform the task("Task Budget"): explain how the cost was determined;and prepare a schedule for completion of the task ("Task Completion Date"). This shall all be collectively referred to as the "Task Proposal". C. Contract Officer shall in writing approve,modify,or reject the Task Proposal,and may issue a Notice to Proceed. D. The task shall be performed at a cost not to exceed the Task Budget. E. Contractor shall complete the task and deliver all deliverables to Contract Officer by the Task Completion Date. IV. All work is subject to review and acceptance by the City, and must be revised by the Contractor without additional charge to the City until found satisfactory and accepted by City. 01203.0006/308762.1 A-1 EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) (new text is identified in bold italics, deleted text in strike through) I. Section 5.5,Performance and Labor Bonds, is hereby amended to read as follows: Concurrently with execution of this Agreement, and on each anniversary of such date thereafter,for the duration of the term of this Agreement,Contractor shall deliver to the City, the following: {a) A performance bond in the amount of the Contract Sum of this Agreement,in (b) A labor and materials bond in the amount of • - . _ . - Agreement $245,000, in the form provided by the City Clerk, which secures the payment of all persons furnishing labor and/or materials in connection with the work under this Agreement. - . - . •: The labor bonds required under this Section 5.5 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 bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor . .• - . -• . •-•- . . •: - •• - . pays all labor and materials for work and services under this Agreement. II. Section 5.8, Release of Securities, is hereby amended to read as follows: City shall release the Performance a~d Labor Bonds when the following have occurred: (a) Contractor has made a written request for release and provided evidence of satisfaction of all other requirements under Article 5 of this Agreement; (b) the Work has been accepted; and after passage of the time within which lien claims are required to be made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the Labor Bond until such claims have been resolved,Contractor has provided statutory bond,or otherwise as required by applicable law. 01203.0006/308762.1 B-1 EXHIBIT "C" SCHEDULE OF COMPENSATION Contractor shall perform all work at the rates on the Bid Schedule submitted as part of Contractor's Proposal, and attached as Exhibit C-1. Estimated Quantities in the Bid Schedule are for the purpose of estimation only. Actual quantities will depend on the needs of the City. II. On or before July 1 of each year, Contractor may request an adjustment of the prices on the Bid Schedule in accordance with the Producer Price Index for Finished Goods for Los Angeles for the most current 12 month period that is available.The decision whether to make such an adjustment will be in the sole discretion of the City. In the event of an adjustment, the Contract Sum, as provided in Section 2.1 of this Agreement, will remain the same. III. City will not withhold a regular retention from payments to Contractor except pursuant to Section 7.3 of this Agreement. IV. Within the budgeted amounts for each item on the Bid Sheet, and with the approval of the Contract Officer, funds may be shifted from one item's subbudget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Work is approved per Section 1.10. V. The City will compensate Contractor for the Services performed upon submission of a valid invoice. Each invoice is to include: A. Line items for all personnel describing the work performed,the number of hours worked, and the hourly rate. B. Line items for all materials and equipment properly charged to the Services. C. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. VI. The total compensation for fiscal year 2016-2017, ending June 30, 2017, shall not exceed $245,000. The total compensation for the full term of the Agreement shall not exceed $1,225,000, as provided in Section 2.1 of the Agreement. 01203.0006/308762.1 C- EXHIBIT C-1 BID SCHEDULE CONCRETE ITEM ESTIMATE EXTENDED NO DESCRIPTION QUANTITY UNIT UNIT PRICE AMOUNT Remove and replace 8"concrete 1-1 curb and gutter per location 500 LF (CA 19 Z , c70 (1-50 LF) Remove and replace 8"concrete 5 $J' �' 1-2 curb and gutter per location 200 IF 000 (51-200LF) 1 Remove and replace 8"concrete 1-3 curb and gutter per location per 400 IF 1 g 0 0 O additional over 200 LF Remove and replace 4"concrete +�� 1-4 1,000 0 03 sidewalk(1-400 SQF) SF Remove and replace 4"concrete { C o0 1-5 sidewalk(401-800 SF) 1,000 SF t Remove and replace 4"concrete g1-6 sidewalk per location per additional 800 SF 0 o o O over800SF Remove and replace 6"concreteI 1-7 sidewalk/Drive Approach 1,200 SFIs- ( Qb O (1-400 SF) t Remove and replace 6"concrete 1-8 sidewalk/Drive Approach 1,200 SF C 3 1 c 6 00 (401-800 SF) Remove and.reronce r.,",-oncret{1-9 sidewalk/Drive Approach 1,600 SF \ I I/ (00D (801 SF and above) 1-10 ADA RAMP-Remove and Replace 8 EA a( poas 1 00 01203.0006/308762.1 C-2 ASPHALT CONCRETE(AC) ITEM ESTIMATE UNIT EXTENDED NO DESCRIPTION UNIT QUANTITY PRICE AMOUNT 4"Asphalt Remove and reconstruct per 4000 SF \ 000 location(1-500 SF) 1 Si 2-1 Per additional inch in depth of asphalt 500 SF p0 removal and replacement( 1-500 SF) 1 4"Asphalt Remove and reconstruct per 3000 SF ( r„ I)location(501 to 1,500 SF) �� l tS-00 2-2 Per additional inch in depth of asphalt removal and replacement 500 SF 3 k ` c'60 (501 to 1,500 SF) I 4"Asphalt Remove and reconstruct per 1 t " .1 - to location(1,501 SF and above) .,,000 SF 2-3 Per additional inch in depth of asphalt removal and replacement 3,000 SF .g I, O?0 (1,500 SF and above) 2"AC Cold mill(1-500 SF) 1,000 SF a. 0 0 i 1 I 2-4 -- 2"AC fill-(1-500 SF) 1,000 SF t'"J ' � Q 2"AC Cold mill(501-1,000 SF) 1,000 SF 1 .S-6 1 !�jo 2-5 2"AC fill-(501-1,000 SF) 1,000 Sr F' 60 2"AC Cold mill(1001-5,000 SF) 3,000 SF ( R 10 3 3 ©0 2-6 2"AC fill ( 1001-5,000 SF) 3,000 SF t . 3D , 2"AC Cold mill(5,001-10,000 SF) 6,000 SF A g s7I0b 2-7 ff 2"AC fill (5,001-10,000 SF) 6,000 SF I. /0 (Q� L/p,U Each 1"over 2"additional cold mill 1,500 SF • 7S"' 10-S-- 2-8 --, ----4 Each 1"over 2"additional AC fill 1,500 SF I Is' i 1 j 71 r* 01203.0006/308762.1 C-3 ASPHALT CONCRETE(AC) ITEM ESTIMATE EXTENDED NO DESCRIPTION QUANTITY UNIT UNIT PRICE AMOUNT 2"AHRM Cold mill(1-500 SF) 1,500 SF a 3 000 2-9 _..._ 2"AHRM Cap(1 500 SF) 1,500 SF ` CO 0 QO 2"AHRM Cold mill(501 1,500 SF) 1,500 SF v 0 i (0 So 2-10 2"AHRM Cap 1,500 SF t .3o t {cp Skin patch with "Sheet mix"0.5"to � t ! !� b 2-11 1"in thickness( 1 100 SF) 200 SF f t t 2 12 Skin patch with"Sheet mix"0.5"to 1,000 SF ,3 3,pb O 1"in thickness( 101 to 500 SF) 2 13 i Skin patch with"Sheet mix"0.5"to 2,000 SF 11 t 1"in thickness(501 to 1,000 SF) - 0 012 2-14 Skin patch with"Sheet mix"0.5"to 3,000 SF I . )® goo 1 1"in thickness(1,001 to 2,000 SF) Skin patch with"Sheet mix"0.5"to 2-15 1"in thickness(Each additional SF 2,000 SF 0 0 above 2,000) Id._, CURB PAINTING AND HOUSE ADDRESS PAINTING 3-1 Curb Painting( 1-100 LF ) 500 IF L kg X a t° 3-2 Curb Painting (100-500 LF) 500 LF 5t} a( � Q 3-3 Curb painting-(Above 500 LF) 500 LF , 10 Li�b 3 4 House Address number painting 200 EA3:2., V/ /OD (50-200EA) 3-5 House Address number painting 1,000 EA ,3 a1000 (201-1,000 EA) 3-5 House Address number painting 3,000 EA V (9c9, 00 d (2,000 to 3,000 EA) 01203.0006/308762.1 C-4 CRACK FILL ITEM ESTIMATE EXTENDED NO DESCRIPTION QUANTITY UNIT UNIT PRICE AMOUNT Residential street-Half day crack 4-1 fill-Fill cracks from 1/8"to 1" 2 EA 3'acto �/ OD 4 2 Residential street-Full day crack fill 9 EA 11 Fill cracks from 7./8"to 1" €0 1 3 pa Oa Arterial street-Half day crack fill 4-3 3 r 600 -7 a Q O Fill cracks from 1/8"to 1" f 2 EA jt 4-4 Arterial street Full day crack fill 2 EA S. �� 11,' 000 Fill cracks from 1/8"to 1" ' STORM DRAIN 5 1 SPPWC Detail 300-3-Curb opening 3 EA catch basin; W=3.5'and V=6' t c�a� 0Uo SPPWC Detail 301-3-Curb opening 5 2 catch basin with grating(s)and 3 EA d ' Bd debris skimmer ��t W=7'and V=4' SPPWC Detail 302-3-Curb opening jj� 5-3 catch basin with grating(s) 3 EA Opp° C)-J ©,0 G 2 grates and V=4' SPPWC Detail 303-3 Curbside 5-4 grating catch basin; 2 grates and 3 EA tai 660 fj or OOp V=4' SPPWC Detail 313-3 - W„=7' Local 1 A� 5-5 Depression at Catch Basins 3 EA ) CJe GUARD RAILING I Remove existing and install full 6-1 round guardrail including wood 100 LF ' 0 0 10 0 0(} posts and blocks(Straight railing) I Remove existing and install full 6-2 round guardrail including wood 300 LF I 033, 000 posts and blocks(Curved railing) Remove existing and install full 6-3 5 EA (� r_ 1 0 3/ S-0 round guardrail end treatment 6 4 Remove and install wooden posts 5 EA 1 { icoo 7 t��Cia and blocks ------ i 6-5 Install new guardrail delineators 100 EA 3 dj 3 0� p 01203.0006/308762.1 C-5 TRAFFIC CONTROL ITEM ESTIMATE UNIT EXTENDED NO DESCRIPTION UNIT QUANTITY PRICE AMOUNT 7 1 Half day one-lane closure on arterial 2 EA ''' Co /collector road. a © �}� Full Day one {ane closure on arterial I LI S-0 . ' 11 S-0 JS-0 2 collector road 3 EA J 7 3 Half day flagging operations for 3 EA 1 ` 10 0 '3' ,t� , arterial/collector road 7 4 Full day flagging operations for 2 EA 1 'ih V 3 s'fyGl arterial/collector road LL 7-5 I ke (900Half day traffic control on residential3 EAroad 7 6 Full day traffic control on residential 1 • 6 EA C7�� road (� coo Half day flagging operations for 7-7 t (0 0 (,/! /iJJ��residential roadway 4 EA ` { I 7 8 Full day flagging operations for 4 EA )„,i 1,Q I /Q g i "JQc, residential roadway Engineered traffic control plan per 7-9 sheet for work/staging on City right- 4 EA cb 3/ 00 0 of-way on arterial or collector roads A 7-10 Changeable message board- 4 EA Delivered and set up �� ) D.L)` LABOR AND EQUIPMENT 8-1 Forman 50 HR I a S b/1 (2.. c 8-2 Laborer 100 HR 1 / 0 I 1 000 8-3 Vacuum sweeper 20 HR I b 3/ 00t) o 8-4 Pickup truck 1,7�_ 20 HR o 00 8-5 Crew truck 20 HR 110 CO Q 8-6 Compressor with 90 LB jack hammer 20 HR -0 yi7t7 01203.0006/308762.1 C-6 LABOR AND EQUIPMENT ITEM ESTIMATE EXTENDED NO DESCRIPTION QUANTITY UNIT UNIT PRICE AMOUNT 8-7 Backhoe with Operator 50 HR 160 g�--DO a_ 8-8 Roller with Operator 20 HR i �s /6t/ 8-9 Skip Loader with Operator 100 HR ) `�►� 9 biV 8-10 Laborer with Dump truck 100 HR .O ` -.10 t 7 8-11 Sidewalk grinding crew(1 Man) 100 HR ( -b 1 al Q©a 8-12 Bob cat with operator 50 HR cb 1 Sap 8-13 Bob cat with operator and grinder 25 HR � 1 p 8-14 Saw cut truck with operator 50 HR (0/ AOuuu TOTAL BASE BID SCHEDULE IN NUMBERS: • TOTAL BASE BID SCHEDULE IN WORDS: f j j44 Hvi oIt J l?"A r 17 Y 4✓,d 61x - . .�o (Iq(s. 4/0 ce,45 The contract shall be awarded to the lowest responsible bidder based on the TOTAL BASE BID. Note: Some items may be adjusted or deleted. Any changes to the quantities for these items sha:: •.ut classify as a s'jbstanfial .;hange as stipulate in _cc' .n 3-2.2.1 or the StaHdi,-,F.ci Specifications. Therefore, regardless of total actual amount (percentage) compared to estimated quantities, the unit prices provided above by the Bidder shall be applied to the final quantity when payment is calculated for these items. No adjustment in the unit prices will be allowed. The City reserves the right to not use any of the estimated quantities, and if this right is exercised, the Contractor will not be entitled to any additional compensation. Cost of all export of material shall be included in the above unit costs; no additional compensation will be granted for such expenses. The Contract shall be awarded to the lowest responsible Bidder based on the total Bid price. This proposal shall include provision for at-risk youth employment per specification and grant requirements. 01203.0006/308762.1 C-7 EXHIBIT "D" SCHEDULE OF PERFORMANCE I. Unless earlier terminated in accordance with Article 7 of this Agreement, the term of this Agreement shall be September 6,2016,to June 30,2021.The City may extend the term of this Agreement by up to three years, by exercising up to three one-year options, based on Contractor performance and mutual consent. II. Contractor shall perform all work timely in accordance with the following schedule: Contractor shall complete all work by the Task Completion Date set in the Task Proposal. If no Task Completion Date is set, work shall be completed not more than 15 working days after Contract Officer issues a Notice to Proceed for the Task Proposal,or,in the absence of a Notice to Proceed, 15 working days after the Contract Officer approves the Task Proposal. III. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2. 01203.0006/308762.1 D-I u ' THE FINAL PREMIUM IS Bond No. 7650790 This bond was executed in two(2) PREDICATED ON THE Premium: $1,491.00 identical counterparts. FINAL CONTRACT PRICE PAYMENT BOND (Labor and Material Bond) WHEREAS, the CITY OF RANCHO PALOS VERDES, ("City"), has awarded to Hardy&Harper,Inc. ,as Contractor("Principal"),a Contract for the work entitled and described as follows:Roadway Maintenance Contract Fiscal Years 2016-2017 Through 2020-2021 ; WHEREAS, said Contractor is required to furnish a bond in conjunction with said Contract, to secure the payment of claims of laborers, mechanics, material men, and other persons as provided by law; NOW, THEREFORE, we the undersigned Contractor and Surety, are held and firmly bound unto the City in the sum of Two Hundred Forty Five Thousand and 00/200 ($245,000.00 ), this amount being not less than one hundred percent(100%)of the total Contract price, lawful money of the United States of America, for payment of which sum well and truly be made we bind ourselves,our heirs,executors,administrators,and successors,jointly and severally, firmly by these presents. In case suit is brought upon this bond,the Surety will pay a reasonable attorney's fee to the City in an amount to be fixed by the court. THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if said Contractor, its heirs, executors,administrators, successors, assigns, or subcontractor fails to pay: (1) for any work,materials,services,provisions,provender,or other supplies,or for the use of implements of machinery, used in, upon, for,or about the performance of the work to be done,or for any work or labor thereon of any kind;(2)for work performed by any of the persons named in Civil Code Section 9100; (3) for any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract;and/or(4)for any amounts required to be deducted,withheld,and paid over to the Employment Development Department from the wages of employees of the Contractor and/or its subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor,then the Surety herein will pay for the same in an amount not exceeding the sum specified in this bond,otherwise the above obligation shall be void. This bond shall inure to the benefit of any of the persons named in Civil Code Section 9100 so as to give a right of action to such persons or their assigns in any suit brought upon the bond.Moreover,if the City or any entity or person entitled to file stop payment notices is required to engage the services of an attorney in connection with the enforcement of this bond,each shall be liable for the reasonable attorney's fees incurred,with or without suit,in addition to the above sum. Said Surety,for value received,hereby stipulates and agrees that no change,extension of time, alteration, or modification of the Contract Documents or of the work to be performed thereunder shall in any way affect its obligations on this bond,and it does hereby waive notice of such change,extension of time,alteration,or modification of the Contract Documents or of the work to be performed thereunder. C-33 Executed on September 8,2016 . PRS • Hari &H er,Inc. '4111r7 (Seal if Corporation) By 4 Steve Kirschner Title Vice President (Attach Acknowledgment of Authorized Representative of Principal) Any claims under this bond may be addressed to: Fidelity and Deposit Company of Maryland (name and address of Surety) 777 South Figueroa Street, Suite 3900 Los Angeles,CA 90017 Commercial Surety Bond Agency (name and address of Surety's agent for service of process in California, if different from above) 1411 N. Batavia St., Suite 201 Orange,CA 92867 (213)270-0600 Surety (714) 516-1232 Agent (telephone number of Surety's agent in California) (Attach Acknowledgment) Fidelity and Deposit Company of Maryland SURETY - By (Attorney-in-Fact) Dwight Reilly APPROVED: (Attorney for CITY) NOTICE: No substitution or revision to this bond form will be accepted. Sureties must be authorized to do business in and have an agent for service of process in California. Certified copy of Power of Attorney must be attached. C-34 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 -P. ....N.Va-.W ANkAh. -sok v..- .A � ``x;,,:%c/2.5 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of Orange On September 8. 2016 before me, Tina Pham. Notary Public Date Here Insert Name and Title of the Officer personally appeared Steve Kirschner Name of Signer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(X) is/aye subscribed to the within instrument and acknowledged to me that he/ske/they executed the same in his/her/their authorized capacity(itt), and that by his/her/their signature(s)on the instrument the person(x), or the entity upon behalf of which the person(x) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. I OP TINA PHAM 49 WITNESS my hand and official seal. `•••' ;' COMM.#2149384 a y Notary Public-California C Y ' ,e, ORANGE COUNTY LL X.• My Comm.Expires Apr 17,2020, Signature Sign ture of Notary Public Place Notary Seal Above OPTIONAL • Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Payment Bond Document Date: September 8.2016 Number of Pages: 2 Signer(s) Other Than Named Above: Dwight Reilly Capacity(ies) Claimed by Signer(s) Signer's Name: Steve Kirschner Signer's Name: ©Corporate Officer — Title(s): vire Prpsidpnt ❑Corporate Officer — Title(s): ❑ Partner — ❑Limited ❑General ❑ Partner — El Limited ❑General ❑Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other: El Other: Signer Is Representing: Signer Is Representing: Hardy&Harper, Inc L d ems.-.vc. ..c..,v._.c-c-cam.'a.Q=<3 1' %Fly �..,_'_•"t,`€-`.,Q:'' ;V=s� �0�%�vG�>Y-7,}'7J ff?` ..yn.-y..e,.a,,__ -s•.e.. ©2014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On September 8,2016 _ before me, Susan Pugh, Notary Public (insert name and title of the officer) personally appeared Dwight Reilly , who proved to me on the basis of satisfactory evidence to be the person(s)whose names) is/suet subscribed to the within instrument and acknowledged to me that he%I;ep( m executed the same in hishberIbbeixauthorized capacity*s), and that by his/bectbeixsignature(2)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS myhand and official seal. SUSAN PUGH - COMM.#2105405 N =,(71.f—t-..„ .S .� = Notary Public-California z '= ORANGE COUNTY a �--T. My Co'mm Expires Apr 29,2019 Signature .1,134,,!9 -i-d7 (Seal) Susan Pugh Bond No. 7650790 ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS:That the ZURICH AMERICAN INSURANCE COMPANY,a corporation of the State of New York,the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY,a corporation of the State of Maryland,and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by MICHAEL BOND,Vice President,in pursuance of authority granted by Article V, Section 8,of the By-Laws of said Companies,which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute,and appoint Daniel HUCKABAY,Dwight REILLY,Andrew WATERBURY,Arturo AYALA,Shaunna BURCHFIEL and Michael CASTANEDA, all of Orange, California, EACH its true and lawful agent and Attorney-in-Fact, to make, execute, seal and deliver,for,and on its behalf as surety, and as its act and deed: any and all bonds and undertakings,and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies,as fully and amply,to all intents and purposes,as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York,New York.,the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills,Maryland.,and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland.,in their own proper persons. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V,Section 8,of the By-Laws of said Companies,and is now in force. IN WITNESS WHEREOF,the said Vice-President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND,this 9th day of May,A.D.2016. ATTEST: ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND onoSWON AO vw k, ,,(e�ms,!w' �' SEAL ` < -- a' i ins lJ� i CIF to tea gx,-",, /), // — i .2.0 D BY Secretary Vice President Eric D.Barnes Michael Bond State of Maryland County of Baltimore On this 9th day of May,A.D. 2016,before the subscriber,a Notary Public of the State of Maryland,duly commissioned and qualified,MICHAEL BOND,Vice President,and ERIC D.BARNES,Secretary,of the Companies,to me personally known to be the individuals and officers described in and who executed the preceding instrument,and acknowledged the execution of same,and being by me duly sworn,deposeth and saith,that he/she is the said officer of the Company aforesaid,and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies,and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed my Official Seal the day and year first above written. 4..., 0:17':.% ':(4Z: Constance A.Dunn,Notary Public My Commission Expires:July 9,2019 POA-F 012-0079B EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V,Section 8,Attorneys-in-Fact. The Chief Executive Officer,the President,or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attorneys-in-fact with authority to execute bonds, policies, recognizances, stipulations,undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney-in-fact to affix the corporate seal thereto;and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND,do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate;and I do further certify that Article V,Section 8,of the By-Laws of the Companies is still in force. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President,Secretary,or Assistant Secretary of the Company,whether made heretofore or hereafter,wherever appearing upon a certified copy of any power of attorney issued by the Company,shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF,I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this 8th day of September ,20 16 . is,ecioj, secfrIr'.„.2,7.,,, �•� k.Vs. taae 1 VEAL ) Q. Gerald F.Haley,Vice President