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RPVCCA_CC_SR_2014_05_06_E_Salvation_Army_Trail_Improvement_Project_ContractCity of RANCHO PALOS VERDES MEMORANDUM TO: FROM: DATE: HONORABLE MAYOR AND CITY COUNCIL MEMBERS MICHAEL THRONE, P.E., DIRECTOR OF PUBLIC WORKS /JJ) MAY 6, 2014 SUBJECT: AWARD OF CONTRACT FOR SALVATION ARMY TRAIL IMPROVEMENT PROJECT (SUPPORTS 2014 CITY COUNCIL GOAL NO. 2, PUBLIC INFRASTRUCTURE) REVIEWED: CAROLYNN PETRU, ACTING CITY MANAGE~ Staff Coordinat~ucho Rodriguez, Associate Engineer RECOMMENDATIONS: 1. Approve Plans and Specifications for the Salvation Army Trail Improvement Project. 2. Award a construction contract for the Salvation Army Trail Improvement project to Bennett Enterprises dba Bennett Landscape in the amount not to exceed $189,934 and authorize staff to spend an additional 10% contingency in the amount of $18,993 for unforeseen conditions for a total authorization of $208,927. 3. Authorize the Mayor and City Clerk to execute the construction contract with Bennett Landscape. 4. Adopt Resolution No. 2014-__ , a Resolution of the City Council of the City of Rancho Palos Verdes, amending Resolution 2013-43, the budget E-1 appropriation for Fiscal Year 2013-14, for a budget adjustment to the City's Parks, Trails and Open Space Improvements Program in the Capital Improvement Projects Fund, in the amount of $14,985 and authorizing expenditure of this amount for the Salvation Army improvement project. BACKGROUND The City's Conceptual Trails Plan (CTP) identifies a continuous trail along Palos Verdes Drive South (PVDS), beginning at the City Hall property and extending eastward along PVDS through the Salvation Army property and the adjacent Peninsula Pointe residential development, ending at the City's Nature Preserve. The Salvation Army Trail will close the gap that exists between the existing trail on the City's Upper Point Vicente property and the trail to the east of the Salvation Army property along the Peninsula Pointe residential tract. The proposed trail is designed to allow trail users to traverse from the City Hall trails to the core area of the RPV Nature Preserve, as identified in the CTP. In addition, this will allow guests staying at the Terranea Resort to traverse from the coastal trails on the resort to the preserve areas around City Hall to the northwest; or to the preserve areas around Portuguese Bend to the northeast. The location of the public trail along PVDS will allow the trail users a view of the Rancho Palos Verdes coastline and of Catalina Island. On a previous Council action on October 16, 2012, City Council adopted Resolution No. 2012-77, for the execution of an easement agreement dedicating to the City a public access and recreation easement over a portion of the Salvation Army properly. DISCUSSION The project was advertised and sealed bids were received and opened at 11 :00 a.m. on April 10, 2014. Bennett Landscape was determined to be the lowest responsive bidder with a bid in the amount of $189,934. The low bid is $66 under the engineer's cost estimate of $190,000. The following table summarizes the bids received: E-2 Salvation Army Trail Improvement Project Bid Opening Results April 10, 2014 Bidder Bid Bennett Landscape $189,934 STL Landscape, Inc. $225,175 Aramexx Construction $229,425 Kasa Construction $266,580 Staff has checked the references for Bennett Landscape and found that they have performed satisfactory work on their previous jobs. They possess the required current Contractors' Class C-27, Landscaping Contractor license. ALTERNATIVE An alternative to awarding the construction contract tonight is to reject all construction bids and re-advertise the construction project. This alternative may delay the construction of the project up to 3 months and may not result in obtaining lower bids. CONCLUSION Construction of the Salvation Army Trail is considered a high priority project for the public's benefit as reflected in the Council-adopted Capital Improvement Program (CIP). Council's action will move the project toward completion, making the trail available for public use and enjoyment. Completion of the project is expected to be by the end of summer of 2014. FISCAL IMPACT With the contract amount of $189,934 and a 10% contingency of $18,993, the total construction budget needs to be $208,927. The total cost of the project including engineering is $247,985. A budget of $233,000 is appropriated in the FY 13-14 CIP budget for the Salvation Army Trail Improvement project (account number 330-3033- 461-73-00). The City Council's adoption of the attached budget adjustment Resolution will cover the budget shortage of $14,985. E-3 The table below summarizes the project's budget status: Salvation Army Trail Improvement Budget Spread Sheet Description Budget Expenditures Appropriation Salvation Army Trail $233,000 Improvement Budget Additional Appropriation $14,985 Requested Engineer/Architect, Design $26,900 Review & Bid Documents Surveying $7,158 Interpretive Panel $5,000 Construction $189,934 Construction Contingency $18,993 10% Total $247,985 $247,985 Annual Maintenance and Utility Costs Since this trail includes a limited amount of landscaping with no irrigation system, the cost of maintenance services and occasional repairs to the decomposed granite (DG) trail surface is expected to be absorbed by the current maintenance budget and an increase to the City's Parks, Trails & Open Space Maintenance Program will not be necessary. Attachments: 1-Resolution 2014- 2-Construction Contract with Bennett Landscape E-4 RESOLUTION NO. 2014- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES, AMENDING RESOLUTION 2013-43, THE BUDGET APPROPRIATION FOR FISCAL YEAR 2013-14, FOR A BUDGET ADJUSTMENT TO THE CITY'S PARKS, TRAILS AND OPEN SPACE IMPROVEMENTS PROGRAM IN THE CAPITAL IMPROVEMENT PROJECTS FUND WHEREAS, Section 3.32 of the Rancho Palos Verdes Municipal Code provides that all expenditures in excess of budgeted allocations must be by supplemental appropriation of the City Council; and . WHEREAS, on June 18, 2013, the City Council of the City of Rancho Palos Verdes adopted Resolution 2013-43, approving a spending plan and authorizing a budget appropriation for the 2013-14 fiscal year; and WHEREAS, the Salvation Army Trail Improvement project is considered a high priority project for the public's benefit as reflected in the Council-adopted Capital Improvement Program (GIP); and WHEREAS, the total cost of the Salvation Army Trail Improvement project, including construction and engineering is $247,985; and WHEREAS, the city has appropriated a budget of $233,000 in the FY 13-14 GIP budget for the Salvation Army Improvement project; and, WHEREAS, a budget increase of $14,985 in the Parks, Trails & Open Space Improvements fund is therefore necessary to authorize the expenditure for this work; and WHEREAS, the revised estimate of Capital Improvement Fund balance at June 30, will be $7,889,691 and BE IT, THEREFORE, RESOLVED BY THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES: The following adjustment(s) be made to the following fund(s): Resolution No. 2014- Page 1of2 E-5 Parks, Trails & Open Space Improvements Program in the Capital Improvement Projects Fund: Parks, Trails & Open Space Improvements 330-3033-461-73-00 $14,985 Verified by Finance: (IA/J PASSED, APPROVED, AND ADOPTED THIS 6h DAY OF MAY 2014. MAYOR ATTEST: CITY CLERK State of California ) County of Los Angeles )ss City of Rancho Palos Verdes ) I, CARLA MORREALE, City Clerk of The City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2014-was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on May ath, 2014. CITY CLERK CITY OF RANCHO PALOS VERDES Resolution No. 2014- Page 2 of 2 E-6 CITY OF RANCHO PALOS VERDES PUBLIC WORKS AGREEMENT THIS AGREEMENT ("Agreement") is made and entered this 6th day of May, 2014, by and between the CITY OF RANCHO PALOS VERDES, a California municipal corporation ("City") and Bennett Enterprises dba Bennett Landscape ("Contractor''). Contractor's license number is 479003. In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. Scope of Services. Contractor shall perform the work and provide all labor, materials, equipment and services in a good and workmanlike manner for the project identified as Salvation Army Trail Improvement Project ("Project"), as described in this Agreement and in the Bid Documents (including the Notice Inviting Sealed Bids, the Instructions to Bidders, the Proposal, the General Provisions, the Special Provisions, the Technical Provisions, and all addenda as prepared prior to the date of bid opening setting forth any modifications or interpretations of any said documents), which are attached hereto as Exhibit "A" and incorporated herein by this reference, including miscellaneous appurtenant work. All work shall be performed in accordance with the latest edition of the Standard Specifications for Public Works Construction (commonly known as the "Greenbook"), including supplements, prepared and promulgated by the Southern California Chapter of the American Public Works Association and the Associated General Contractors of California (collectively "Standard Specifications"), which is incorporated herein by this reference. In the event of any conflict between the terms of this Agreement and incorporated documents, the terms of this Agreement shall control. 2. Extra Work. Extra work, when ordered in writing by the Director of Public Works and accepted by the Contractor, shall be paid for under written work order in accordance with the terms therein provided. Payment for extra work will be made at the unit price or lump sum previously agreed upon in writing between the Contractor and the Director of Public Works. All extra work shall be adjusted daily upon report sheet furnished by the Contractor, prepared by the Director of Public Works, and signed by both parties, and said daily report shall be considered thereafter the true records of extra work done. 3. Effective Date. This Agreement is effective as of the date listed above, and shall remain in full force and effect until Contractor has rendered the services required by this Agreement. 4. Time. Time is of the essence in this Agreement. 5. Force Majeure. Neither the City nor Contractor shall be responsible for delays in performance under this Agreement due to causes beyond its control, including but not limited to acts of God, acts of the public enemy, acts of the Government, fires, floods or other casualty, epidemics, earthquakes, labor stoppages or slowdowns, freight embargoes, unusually severe weather, and supplier delays due to such causes. Neither economic nor market conditions nor the financial condition of either party shall be considered a cause to excuse delay pursuant to this Section. Each party shall notify the other promptly in writing of each such excusable delay, its cause and its expected delay, and shall upon request update such notice. C-1 E-7 6. Compensation. In consideration of the services rendered hereunder, City shall pay Contractor a not to exceed amount of One Hundred Eighty Nine Thousand Nine Hundred Eighty Four Dollars and Twenty Four Cents ($189,984.24) in accordance with the prices as submitted in Contractor's Proposal, attached hereto as Exhibit "B" and incorporated herein by this reference. 7. Payments. City shall make payments within thirty (30) days after receipt of an undisputed and properly submitted payment request from Contractor. City shall return to Contractor any payment request determined not to be a proper payment request as soon as practicable, but not later than seven (7) days after receipt, and shall explain in writing the reasons why the payment request is not proper. A payment shall be made as the City Council of the City prescribes upon estimates approved by the City Council. However, progress payments shall not be made in excess of ninety-five percent (95%) of the percentage of actual work completed plus a like percentage of the value of material delivered on the ground or stored subject to, or under the control of, the City, and unused. The City shall withhold not less than five percent (5%) of the Agreement price until final completion and acceptance of the Project. However, at any time after fifty percent (50%) of the work has been completed, if the City Council of the City finds that satisfactory progress is being made, it may, at its discretion, make any of the remaining progress payments in full for actual work completed. 8. Substitute Security. a. At the written request and expense of Contractor, securities equivalent to any moneys withheld by the City to ensure performance under this Agreement shall be deposited with the City, or with a state or federally chartered bank in the State of California as the escrow agent, that shall then pay those moneys to Contractor. Upon satisfactory completion of the Agreement, the securities shall be returned to Contractor. b. Alternatively, Contractor may request that the City shall make payment of retentions earned directly to the escrow agent at the expense of Contractor. At the expense of Contractor, Contractor may direct the investment of the payments into securities, and Contractor shall receive the interest earned on the investments upon the same terms provided for securities deposited by Contractor. Upon satisfactory completion of the Agreement, Contractor shall receive from the escrow agent all securities, interest, and payments received by the escrow agent from the City, pursuant to the terms of this Section. c. Securities eligible for investment shall include those listed in California Government Code Section 16430, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit, or any other security to which Contractor and the City mutually agree in writing. Contractor shall be the beneficial owner of any securities substituted for moneys withheld and shall receive any interest thereon. d. If Contractor elects to receive interest on moneys withheld in retention by the City, it shall, at the request of any subcontractor performing more than five percent (5%) of Contractor's total bid, make that option available to the subcontractor regarding any moneys withheld in retention by Contractor from the subcontractor. Further C-2 E-8 mandatory details are provided in Public Contract Code Section 22300(d), which is incorporated herein by this reference. e. The escrow agreement for security deposits in lieu of retention shall be substantially similar to the form provided in Public Contract Code Section 22300(f), which is incorporated herein by this reference. 9. Taxes. Contractor shall calculate payment for all sales, unemployment, old age pension and other taxes imposed by local, State of California and federal law. These payments are included in the total amounts in Exhibit "B." 10. Audit. The City or its representative shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its billings to the City as a condition precedent to any payment to Contractor. Contractor will promptly furnish documents requested by the City. Additionally, Contractor shall be subject to State Auditor examination and audit at the request of the City or as part of any audit of the City, for a period of three (3) years after final payment under this Agreement. 11. Unresolved Disputes. In the event that a dispute arises between the City and Contractor regarding whether the conditions materially differ, 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 provided for by the Agreement, but shall proceed with all work to be performed under the Agreement. Contractor shall retain any and all rights provided that pertain to the resolution of disputes and protests between the parties. In the event of any dispute or controversy with the City over any matter whatsoever, Contractor shall not cause any delay or cessation in or of work, but shall proceed with the performance of the work in dispute. This includes disputed time extension requests and prices for changes. The disputed work will be categorized as an "unresolved dispute" and payment, if any, shall be as later determined by mutual agreement or a court of law. Contractor shall keep accurate, detailed records of all disputed work, claims and other disputed matters. Public Contract Code Sections 20104 et seq. and Rancho Palos Verdes Municipal Code chapter 3.24 ("Claims Against the City") shall govern the procedures of the claim process, and these provisions are incorporated herein by this reference. 12. Termination. This Agreement may be canceled by the City at any time with or without cause without penalty upon thirty (30) days' written notice. In the event of termination without fault of Contractor, City shall pay Contractor for all services satisfactorily rendered prior to date of termination as determined by the City, and such payment shall be in full satisfaction of all services rendered hereunder. 13. Indemnity. a. Contractor's Duty. To the maximum extent permitted by law, Contractor shall defend, indemnify, and hold harmless the City, its elected officials, officers, employees, volunteers, agents, successors, assigns, and those City agents serving as independent contractors in the role of City officials (collectively "lndemnitees") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, proceedings, suits, losses, bid protests, stop notices, judgments, fines, liens, penalties, liabilities, costs and expenses of every C-3 E-9 kind and nature whatsoever, in any manner arising out of or incident to any act, failure to act, error or omission of Contractor or any of its officers, agents, servants, employees, subcontractors, materialmen, suppliers or their officers, agents, servants or employees, arising out of the Agreement, including without limitation, the payment of all consequential damages, attorneys' fees, experts' fees, and other related costs and expenses (individually, a "Claim," or collectively, "Claims"). Further, Contractor shall appoint competent defense counsel approved by the City Attorney at Contractor's own cost, expense and risk, to defend any and all such Claims that may be brought or instituted against lndemnitees. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against lndemnitees in any such Claim. Contractor shall reimburse lndemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Contractor or lndemnitees. This indemnity shall apply to all Claims regardless of whether any insurance policies are applicable. b. Bid Protests. In addition to its obligations pursuant to Section 13(a), Contractor shall reimburse the City for all attorneys' fees and costs incurred by City in connection with, arising out of or incident to any bid protest. c. Civil Code Exception. Nothing in Section 13(a) shall be construed to encompass lndemnitees' sole negligence or willful misconduct to the limited extent that the underlying Agreement is subject to Civil Code section 2782(a) or the City's active negligence to the limited extent that the underlying Agreement is subject to Civil Code section 2782(b). d. Nonwaiver of Rights. lndemnitees do not and shall not waive any rights that they may possess against Contractor because the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. This indemnity provision is effective regardless of any prior, concurrent, or subsequent active or passive negligence by lndemnitees and shall operate to fully indemnify lndemnitees against any such negligence. e. Waiver of Right of Subrogation. Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the lndemnitees, while acting within the scope of their duties, from all Claims arising out of or incident to the activities or operations performed by or on behalf of the Contractor regardless of any prior, concurrent or subsequent active or passive negligence by lndemnitees. f. Survival. The provisions of this Section 13 shall survive the termination of this Agreement and are in addition to any other rights or remedies that lndemnitees may have under the law. Payment is not required as a condition precedent to an lndemnitee's right to recover under this indemnity provision, and an entry of judgment against a Contractor shall be conclusive in favor of the lndemnitee's right to recover under this indemnity provision. 14. Incorporation by Reference. All of the following documents are attached hereto and incorporated herein by this reference: City of Rancho Palos Verdes Instructions for Execution of Instruments; Insurance Requirements for the City of Rancho Palos Verdes C-4 E-10 Public Works Contract; Workers' Compensation Certificate of Insurance; Additional Insured Endorsement (Comprehensive General Liability); Additional Insured Endorsement (Automobile Liability); and Additional Insured Endorsement (Excess Liability). 15. Antitrust 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. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the California Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Agreement. This assignment shall be made and become effective at the time the City tenders final payment to Contractor without further acknowledgment by the parties. 16. Trenching and Excavations. If the project involves trenching more than four (4) feet deep, Contractor shall promptly and before the following conditions are disturbed notify the City in writing of any: material that Contractor believes may be material that is hazardous waste, as defined in California Health and Safety Code Section 25117, that is required to be·removed to a Class I, Class II, or Class Ill disposal site in accordance with provisions of existing law; subsurface or latent physical conditions at the site differing from those indicated; or unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Agreement. The City shall promptly investigate the conditions, and if the City 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, the City shall issue a change order. 17. Utilities. The City acknowledges its responsibilities under Government Code section 4215 and incorporates that section herein by this reference. 18. Location of Existing Elements. The methods used and costs involved to locate existing elements, points of connection and all construction methods are Contractor's sole responsibility. Accuracy of information furnished, as to existing conditions, is not guaranteed by the City. Contractor, at its sole expense, must make all investigations necessary to determine locations of existing elements, which may include, without limitation, contacting U.S.A. Alert and other private underground locating firm(s), utilizing specialized locating equipment and/or hand trenching. 19. Independent Contractor. Contractor is and shall at all times remain, as to the City, a wholly independent contractor. Neither the City nor any of its agents shall have control over the conduct of Contractor or any of the Contractor's employees, except as herein set forth, and Contractor is free to dispose of all portions of its time and activities which it is not obligated to devote to the City in such a manner and to such persons, firms, or corporations at the Contractor wishes except as expressly provided in this Agreement. Contractor shall have no power to incur any debt, obligation, or liability on behalf of the City, bind the City in any manner, or otherwise act on behalf of the City as an agent. Contractor shall not, at any time or in any manner, represent that it or any of its agents, servants or employees, are in any manner agents, servants or employees of City. Contractor agrees to pay all required taxes on amounts paid to Contractor under this Agreement, and to indemnify and hold the City harmless from any and all taxes, assessments, penalties, and interest asserted against the City by reason of the independent contractor relationship created by this Agreement. Contractor shall fully comply with the workers' compensation law regarding Contractor and its employees. C-5 E-11 Contractor further agrees to indemnify and hold the City harmless from any failure of Contractor to comply with applicable workers' compensation laws. The City shall have the right to offset against the amount of any compensation due to Contractor under this Agreement any amount due to the City from Contractor as a result of its failure to promptly pay to the City any reimbursement or indemnification arising under this Section. 20. Prevailing Wages. City and Contractor acknowledge that this project is a public work to which prevailing wages apply. The Agreement to Comply with California Labor Law Requirements is attached hereto and incorporated herein by this reference. Eight hours of labor constitutes a legal day's work. 21. Workers' Compensation. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, the Contractor hereby 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 under., take self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract." 22. Subcontracting. Contractor shall adhere to all provisions of the Subletting and Subcontracting Fair Practices Act, Public Contract Code Section 4100 et seq., which is incorporated herein by this reference. 23. Nondiscriminatory Employment. Contractor shall not unlawfully discriminate against any individual based on race, color, religion, nationality, gender, sex, sexual orientation, age or condition of disability. Contractor understands and agrees that it is bound by and will comply with the nondiscrimination mandates of all statutes and local ordinances and regulations. 24. Debarred, Suspended or Ineligible Contractors. Contractor shall not be debarred throughout the duration of this Agreement. Contractor shall not perform work with debarred subcontractor pursuant to California Labor Code Section 1777.1 or 1777.7. 25. Compliance with Laws. Contractor shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Contractor performs pursuant to this Agreement. 26. Bonds. Contractor shall obtain faithful performance and payment bonds, each in an amount that is not less than the total compensation amount of this Agreement, and nothing in this Agreement shall be read to excuse this requirement. The required forms entitled Payment Bond (Labor and Materials) and Performance Bond are attached hereto and incorporated herein by this reference. 27. Contractor's Representations. Contractor represents, covenants and agrees that: a) Contractor is licensed, qualified, and capable of furnishing the labor, materials, and expertise necessary to perform the services in accordance with the terms and conditions set forth in this Agreement; b) there are no obligations, commitments, or impediments of any kind that will limit or prevent its full performance under this Agreement; c) there is no C-6 E-12 litigation pending against Contractor, and Contractor is not the subject of any criminal investigation or proceeding; and d) to Contractor's actual knowledge, neither Contractor nor its personnel have been convicted of a felony. 28. Conflicts of Interest. Contractor agrees not to accept any employment or representation during the term of this Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make Contractor "financially interested," as provided in Government Code Section 1090 and 87100, in any decisions made by City on any matter in connection with which Contractor has been retained pursuant to this Agreement. 29. Third Party Claims. City shall have full authority to compromise or otherwise settle any claim relating to the Agreement at any time. City shall timely notify Contractor of the receipt of any third-party claim relating to the Agreement. City shall be entitled to recover its reasonable costs incurred in providing this notice. 30. Non-Assignability; Subcontracting. Contractor shall not assign or transfer any interest in this Agreement nor any part thereof, whether by assignment or novation, without the City's prior written consent. Any purported assignment without written consent shall be null, void, and of no effect, and Contractor shall hold harmless, defend and indemnify the City and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from or relating to any unauthorized assignment. 31. Applicable Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, excluding California's choice of law rules. Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court. 32. Titles. The titles used in this Agreement are for convenience only and shall in no way define, limit or describe the scope or intent of this Agreement or any part of it. 33. Authority. The person executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder. 34. Entire Agreement. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties which expressly refers to this Agreement. 35. Construction. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 36. Non-waiver of Terms. Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other C-7 E-13 condition of performance under this Agreement. In no event shall the making by the City of any payment to Contractor constitute or be construed as a waiver by the City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by the City shall in no way impair or prejudice any right or remedy available to the City with regard to such breach or default. 37. Notice. Except as otherwise required by law, any notice or other communication authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Contractor's or City's regular business hours or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses listed below, or at such other address as one party may notify the other: To CITY: Michael Throne, Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 To CONTRACTOR: The address listed in Exhibit "B." 38. Counterparts. This Agreement may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes. 39. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. [signatures on next page] C-8 E-14 IN WITNESS WHEREOF, the parties hereto have executed the within Agreement the day and year first above written. ATTEST: City Clerk Dated:. __________ _ C-9 CITY OF RANCHO PALOS VERDES By:_'"""----~---~--~ Mayor APPROVED AS TO FORM: City Attorney Bennett Enterprises dba Bennett Landscape ("CONTRACTOR") By: _____ ~---~-- Printed Name:-------- Title:----------- By: ___________ _ Printed Name: _ ___, _____ _ Title:----------- E-15