CC SR 20180515 G - Coastal Bluff Fencing Phase II ProjectRANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 05/15/2018
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to award a construction agreement to FenceCorp,
Inc., for the construction of Coastal Bluff Fencing Phase II project, and to enter into an
agreement for professional services with Sunbeam Consulting for inspection services.
RECOMMENDED COUNCIL ACTION:
(1) Approve the project specifications on file in the Public Works Department for the
Coastal Bluff Fencing Phase II project;
(2) Award a Public Works Agreement for Construction to FenceCorp, Inc. in the
amount of $218,249.60 for construction services related to the Coastal Bluff
Fencing Phase II project; award a Professional Services Agreement to Sunbeam
Consulting, Inc. for Inspection services in the not-to-exceed amount of
$18,300.00; authorize Staff to use up to an additional $45,000.00 (approximately
20%) for a construction contingency; and,
(3) Authorize the Mayor and City Clerk to execute the Construction Agreement and
Professional Services Agreement, subject to approval as to form by the City
Attorney.
FISCAL IMPACT: Funding the project including all construction, a construction
contingency and inspection services will not exceed the budget of $400,000.
Amount Budgeted: $400,000
Additional Appropriation: N/A
Account Number(s): 330-400-8404-8404
ORIGINATED BY: Ron Dragoo, PE, Principal Engineer
REVIEWED BY: Elias Sassoon, PE, Director of Public Works
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Project Locations Map (page A-1)
B. Public Works Agreement – FenceCorp, Inc.(page B-1)
C. Professional Services Agreement – Sunbeam Consulting (page C-1)
D. Proposal – Sunbeam Consulting (page D-1)
BACKGROUND AND DISCUSSION:
This project proposes to replace the existing wood and steel fencing along the coastal
bluff at Abalone Cove Shoreline Park, Inspiration Point and along Portuguese Point
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(Attachment A). The existing fencing is in need of replacement due to the nature of the
materials with which the fence was constructed with, and its increased proximity to the
bluff as a result of erosion. Wood and steel are not ideal materials in a marine
environment as they are susceptible to wood rot, insect infestation and oxidation. The
proximity of the fence to the top of the bluff is also an issue, due to natural erosion of
the bluff, which has led to an inadequate safety margin between the bluff edge and the
current fence line.
This project is the second phase in a long-term coastal bluff fence replacement program
and is designed to mitigate some of the issues with the current fencing. The project
specifies fencing materials that are more appropriate to the environment, while
maintaining an aesthetically-pleasing wood-look finish. The material selected for the
project is pre-cast concrete, reinforced with epoxy-coated rebar. The components are
molded with a wood-like finish and are colored to approximate natural wood. The fence
line will be re-routed to re-establish a minimum 5-foot setback from the back of the
fence to the edge of the bluff.
Funds for the construction of this project have been set aside in the City’s Capital
Improvement Program (CIP) for FY17-18. The Engineers Estimate for the project was
$250,000. The City formally advertised the project in April 2018 and, on May 2, 2018,
received eight sealed bids from the following contractors:
BID SUMMARY
CONTRACTOR BID AMOUNT
FenceCorp. Inc. $ 218,249.60
Dash Construction Company, Inc. $ 229,240.00
Harris Steel Fence Co., Inc. $ 248,500.00
Izurieta Fence Co., Inc. $ 256,000.00
Green Giant Landscape, Inc. $ 293,440.00
Red Hawk Services $321,824.83
California Landscape & Design, Inc. $ 327,950.00
Yakar $ 391,000.00
Staff reviewed the bids received, and recommends awarding the contract to the lowest
responsible/responsive bidder, FenceCorp, Inc., based on the bid proposal received.
Staff determined that the bid proposal was responsive, and verified references and
confirmed that the contractor was in possession of current contractor’s license at the
time the bid was submitted, which is required by the State’s Public Work’s Contracting
Code. Accordingly, Staff recommends awarding this project in the amount of
$218,249.60 to FenceCorp, Inc. (Attachment B).
To ensure construction activities are conducted appropriately, to aid in the protection of
the traveling public and of residents’ property, Staff asked Sunbeam Consulting
(Sunbeam) to provide a proposal for inspection services. Sunbeam’s rates are on file
and are the most competitive of providers with whom the City does business with.
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Accordingly, Staff recommends awarding a Professional Services contract to Sunbeam
in the amount of $18,300.00 (Attachments C & D).
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative actions are available
for the City Council’s consideration:
1. Reject all bids and re-bid the project.
2. Discuss other options that may be appropriate.
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ATTACHMENT A
Project Locations Map
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PUBLIC WORKS AGREEMENT
By and Between
CITY OF RANCHO PALOS VERDES
and
FENCECORP, INC.
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AGREEMENT FOR PUBLIC WORKS SERVICES
BETWEEN THE CITY OF RANCHO PALOS VERDES AND
FENCECORP, INC.
THIS AGREEMENT FOR PUBLIC WORKS SERVICES (herein “Agreement”) is made
and entered into this 15th day of May, 2017 by and between the City of Rancho Palos Verdes, a
general law city & municipal corporation (“City”) and FenceCorp, Inc., a California corporation
(“Contractor”). City and Contractor may be referred to, individually or collectively, as “Party” or
“Parties.”
RECITALS
A. City has sought, by issuance of an Invitation for Bids, the performance of the
services defined and described particularly in Article 1 of this Agreement.
B. Contractor, following submission of a 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 professional standards” shall mean those
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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 Coastal Bluff Fencing Phase II,
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
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specified in 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 (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and
3700 provide that every employer will be required to secure the payment of compensation to its
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 performance of the work of
this contract.”
Contractor’s Authorized Initials ________
(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
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take all actions necessary to enforce such contractual provisions and ensure subcontractor's
compliance, including without limitation, 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 unusual nature, different from those ordinarily encountered and generally recognized
as inherent in 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
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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.
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 and
testing, including the removal, replacement, and reinstitution 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
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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, 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 use of labor classifications that would increase the cost of such work shall not be
permitted.
(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
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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 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 Two Hundred Eighteen Two Hundred Forty-Nine
Dollars and Sixty Cents ($218,249.60) (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.
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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.
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 to waive any defects in work performed by Contractor.
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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.
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 full force and effect until completion of the services but not
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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:
Robert McPherson ________ Vice President ____________
(Name) (Title)
Brandon Acrey ___________ Project Manager __________
(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 be the City’s Principal/City Engineer or such person as
may be designated by the City Manager. It shall be the Contractor’s responsibility to assure that
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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 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.
Without limiting Contractor’s indemnification of City, and prior to commencement of
any services under this Agreement, Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and amounts
described below and in a form satisfactory to City.
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(a) General liability insurance. Contractor shall maintain commercial
general liability insurance with coverage at least as broad as Insurance Services Office form CG
00 01, in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for
bodily injury, personal injury, and property damage. The policy must include contractual liability
that has not been amended. Any endorsement restricting standard ISO “insured contract”
language will not be accepted.
(b) Automobile liability insurance. Contractor shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering
bodily injury and property damage for all activities of the Contractor arising out of or in
connection with Services to be performed under this Agreement, including coverage for any
owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined
single limit for each accident.
(c) Professional liability (errors & omissions) insurance. Contractor
shall maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the
aggregate. Any policy inception date, continuity date, or retroactive date must be before the
effective date of this Agreement and Contractor agrees to maintain continuous coverage through
a period no less than three (3) years after completion of the services required by this Agreement.
(d) Workers’ compensation insurance. Contractor shall maintain
Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with
limits of at least $1,000,000).
(e) 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 include all of the requirements stated
herein.
(f) Additional Insurance. Policies of such other insurance, as may be
required in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance. Contractor shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers’ compensation. Insurance certificates and endorsements
must be approved by City’s Risk Manager prior to commencement of performance. Current
certification of insurance shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
(b) Duration of coverage. Contractor shall procure and maintain for
the duration of this Agreement insurance against claims for injuries to persons or damages to
property, which may arise from or in connection with the performance of the Services hereunder
by Contractor, its agents, representatives, employees or subcontractors.
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(c) Primary/noncontributing. Coverage provided by Contractor shall
be primary and any insurance or self-insurance procured or maintained by City shall not be
required to contribute with it. The limits of insurance required herein may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of City before the City’s own insurance or
self-insurance shall be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance
required under this Agreement does not comply with these specifications or is canceled and not
replaced, City has the right but not the duty to obtain the insurance it deems necessary and any
premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts
sufficient to pay premium from Contractor payments. In the alternative, City may cancel this
Agreement.
(e) Acceptable insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact business of
insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with
an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or
larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise
approved by the City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive subrogation against City, its
elected or appointed officers, agents, officials, employees and volunteers or shall specifically
allow Contractor or others providing insurance evidence in compliance with these specifications
to waive their right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers and insurance clauses
from each of its subcontractors.
(g) Enforcement of contract provisions (non-estoppel). Contractor
acknowledges and agrees that any actual or alleged failure on the part of the City to inform
Contractor of non-compliance with any requirement imposes no additional obligations on the
City nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage
features or limits contained in this section are not intended as a limitation on coverage, limits or
other requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to a given
issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for the higher limits maintained
by the Contractor. Any available insurance proceeds in excess of the specified minimum limits
of insurance and coverage shall be available to the City.
(i) Notice of cancellation. Contractor agrees to oblige its insurance
agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation
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(except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage
for each required coverage.
(j) Additional insured status. General liability policies shall provide or
be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers
shall be additional insureds under such policies. This provision shall also apply to any
excess/umbrella liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the
coverages required herein will be in compliance with these requirements if they include any
limiting endorsement of any kind that has not been first submitted to City and approved of in
writing.
(l) Separation of insureds. A severability of interests provision must
apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to
each insured against whom claim is made or suit is brought, except with respect to the insurer’s
limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass through clause. Contractor agrees to ensure that its
subconsultants, subcontractors, and any other party involved with the project who is brought
onto or involved in the project by Contractor, provide the same minimum insurance coverage
and endorsements required of Contractor. Contractor agrees to monitor and review all such
coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Contractor agrees that upon request, all
agreements with consultants, subcontractors, and others engaged in the project will be submitted
to City for review.
(n) Agency’s right to revise specifications. The City reserves the right
at any time during the term of the contract to change the amounts and types of insurance required
by giving the Contractor ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Contractor, the City and Contractor may renegotiate
Contractor’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be
declared to and approved by City. City reserves the right to require that self-insured retentions be
eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply
with these specifications unless approved by City.
(p) Timely notice of claims. Contractor shall give City prompt and
timely notice of claims made or suits instituted that arise out of or result from Contractor’s
performance under this Agreement, and that involve or may involve coverage under any of the
required liability policies.
(q) Additional insurance. Contractor shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance, which in its own judgment may
be necessary for its proper protection and prosecution of the work.
5.3 Indemnification.
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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:
(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 claims and liabilities resulting in part from
City’s negligence, except that design professionals’ indemnity hereunder shall be limited to
claims and liabilities arising out of the negligence, recklessness or willful misconduct of the
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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:
(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 labors 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 to ensure performance under this Agreement 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,
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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.
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
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designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance,
technique or event and the estimated increased or 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 have an unrestricted 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.
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(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, court order or subpoena from any party regarding this Agreement and the
work performed 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 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
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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 not arising out of this Agreement) (i) any amounts the payment of which
may 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.
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.
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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 Eight Hundred Dollars ($800.00) 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
performed by the Contractor any accrued liquidated damages. 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 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.
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01203.0006/471642.4
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.
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
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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 all of the provisions of the
Federal Immigration and Nationality Act, 8 U.S.C. § 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 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.
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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 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 Agreement void and of no force or effect.
Contractor’s Authorized Initials _______
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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]
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01203.0006/471642.4
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
____________________________________
Susan Brooks, Mayor
ATTEST:
Emily Colborn , City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
William W. Wynder, City Attorney
CONTRACTOR:
FENCECORP, INC., a California
corporation
By: _______________________________
Name:
Title:
By: _________________________________
Name:
Title:
Address:
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.
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01203.0006/471642.4
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2018 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(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
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.
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01203.0006/471642.4
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2018 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(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
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.
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01203.0006/471642.4 A-1
EXHIBIT “A”
SCOPE OF WORK
I. 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 Coastal Bluff Fencing Phase II, including any
documents or exhibits referenced therein.
Brief description of the work to be performed: Demolition and disposal of existing
fencing and footings, installation of new three rail, colored, precast concrete ranch rail
fencing, miscellaneous grading and appurtenant items not mentioned that are required to
complete the work. Location Summary: generally along the coastal bluff as depicted on
the construction location map to be finally determined in the field with the Contractor,
approved in writing by City, in three locations, at Abalone Cove Park, Inspiration Point
& Portuguese Point.
II. In addition to the requirements of Section 6.2, during performance of the work,
Contractor will keep the City appraised of the status of performance by delivering the
following status reports:
A. A weekly planed work schedule with 2 week look ahead schedule.
III. 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.
IV. Contractor shall provide safe and continuous passage for pedestrian and vehicular traffic
in accordance with the Work Area Traffic Control Handbook (WATCH), latest edition.
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01203.0006/471642.4 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. Subsection (b) of Section 1.10, Additional Work and Change Orders, is amended to
read:
(b) Any increase in compensation of up to ten percent (10%) of the Contract
Sum or $25,000$45,000, 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 is 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.
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01203.0006/471642.4 C-1
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Contractor shall perform all work at the rates on the Bid Sheet submitted as part of
Contractor’s Proposal, and listed below:
Item
No. Description Estimated
Quantity
Unit
Meas.*
Unit
Price
Extended
Amount
1 Mobilization 1 LS $2,000 $2,000.00
2 Traffic Control 1 LS $2,000 $2,000.00
3 BMPs 1 LS $1,000 $1,000.00
4 Unclassified Excavation 60 CY $33.66 $2,019.60
5 Relocations for rocks, irrigation, signs and posts 1 LS $3,030.0
0 $3,030.00
6 Demolition, disposal and backfill of postholes of
existing fence 4000 LF $6.80 $27,200.00
7
Construct Three Rail Precast Colored Concrete
Ranch Fence, with epoxy-coated rebar, 4500 Psi
concrete fence components and 3000 Psi footings.
Fence component color Omaha Tan #5084,
footings un-colored.
4000 LF $45.25 $181,000.00
TOTAL BID SCHEDULE $218,249.60
*Unit Measures: LS=Lump Sum; CY=Cubic Yard; LF=Linear Feet.
II. A retention of five percent (5%) shall be held from each payment as a contract retention
to be paid as part of the final payment upon satisfactory completion of services.
III. 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.
IV. The City will compensate Contractor for the Services performed upon submission of a
valid invoice. Each invoice shall 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.
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01203.0006/471642.4 C-2
C. Line items for all other approved reimbursable expenses claimed, with supporting
documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and
travel properly charged to the Services.
V. The total compensation for the Services shall not exceed $218,249.60 as provided in
Section 2.1 of this Agreement.
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01203.0006/471642.4 D-1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Contractor shall perform all work timely in accordance with the following schedule:
Days to Perform Deadline Date
A. Executed Agreement and
all required bonds
10 May 29, 2018
B. All required construction
submittals, as outlined in
the Project Specifications
5 June 5, 2018
C. Complete construction
including punch list work
100 Oct. 31, 2018
II. Contractor shall deliver the following tangible work products to the City by the following
dates.
NOT APPLICABLE.
III. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
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01203.0006/471643.4 1
CITY OF RANCHO PALOS VERDES
CONTRACT SERVICES AGREEMENT FOR
INSPECTION SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT (herein “Agreement”) is made and
entered into this 15th day of May, 2018, by and between the CITY OF RANCHO PALOS
VERDES, a general law city & municipal corporation (“City”) and Sunbeam, Consulting, Inc., a
California corporation d/b/a Sunbeam Consulting (herein “Consultant”).
NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all of the terms and conditions of
this Agreement, the Consultant shall perform the work or services set forth in the “Scope of
Services” attached hereto as Exhibit “A” and incorporated herein by reference. Consultant
warrants that it has the experience and ability to perform all work and services required
hereunder and that it shall diligently perform such work and services in a professional and
satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall
be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the
City and any Federal, State or local governmental agency of competent jurisdiction.
1.3 California Labor Law. If the Scope of Services includes any “public
work” or “maintenance work,” as those terms are defined in California Labor Code section 1720
et seq. and California Code of Regulations, Title 8, Section 16000 et seq., and if the total
compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and
comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq.,
and all other applicable laws, including the following requirements:
(a) Public Work. The Parties acknowledge that some or all of 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.
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01203.0006/471643.4
(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 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 (1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700
provide that every employer will be required to secure the payment of compensation to its
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
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01203.0006/471643.4
undertake 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.”
Contractor’s Authorized Initials ________
(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, 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.
1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain at its
sole cost and expense such licenses, permits, and approvals as may be required by law for the
performance of the services required by the Agreement.
1.5 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.
2. COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,
Consultant shall be compensated in accordance with the “Schedule of Compensation” attached
hereto as Exhibit “C” and incorporated herein by this reference, but not exceeding the maximum
contract amount of Eighteen Thousand Three Hundred Dollars ($18,300.00) (“Contract
Sum”).
2.2 Invoices. Each month Consultant 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,
Consultant 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. Consultant shall not invoice City for any
duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Consultant 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 Consultant
which are disputed by City, City will use its best efforts to cause Consultant to be paid within
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01203.0006/471643.4
forty five (45) days of receipt of Consultant’s correct and undisputed invoice; however,
Consultant 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 any charges or expenses
are disputed by City, the original invoice shall be returned by City to Consultant for correction
and resubmission. Review and payment by the City of any invoice provided by the Consultant
shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.3 Additional Services. 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 Services or make changes by altering, adding to or deducting from
said work. No such extra work may be undertaken unless a written order is first given by the
Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum
for the actual cost of the extra work, and/or (ii) the time to perform this Agreement, which said
adjustments are subject to the written approval of the Consultant. Any increase in compensation
of up to ten percent (10%) of the Contract Sum but not exceeding a total contract amount of Five
Thousand Dollars ($5,000) or in the time to perform of up to ninety (90) days may be approved
by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be
approved by the City Council. 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.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Consultant 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 Consultant,
extensions to the time period(s) specified in the Schedule of Performance may be approved in
writing by the Contract Officer but not exceeding thirty (30) days cumulatively.
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 Consultant, 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 Consultant 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 Consultant be entitled to recover damages against the City for
any delay in the performance of this Agreement, however caused, Consultant’s sole remedy
being extension of the Agreement pursuant to this Section.
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3.4 Term. Unless earlier terminated in accordance with Article 7 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services
but not exceeding one (1) year from the date hereof, except as otherwise provided in the
Schedule of Performance (Exhibit “D”).
4. COORDINATION OF WORK
4.1 Representative of Consultant. Jim Pugh is hereby designated as being
the representative of Consultant authorized to act on its behalf with respect to the work and
services specified herein and make all decisions in connection therewith. All personnel of
Consultant and any authorized agents shall be under the exclusive direction of the representative
of Consultant. Consultant shall utilize only competent personnel to perform services pursuant to
this Agreement. Consultant shall make every reasonable effort to maintain the stability and
continuity of Consultant’s staff and subcontractors, and shall keep City informed of any changes.
4.2 Contract Officer. Ron Dragoo, Principal/City Engineer is hereby
designated as being the representative the City authorized to act in its behalf with respect to the
work and services specified herein and to make all decisions in connection therewith (“Contract
Officer”).
4.3 Prohibition Against Subcontracting or Assignment. Consultant shall not
contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the City. Neither this Agreement nor any interest herein
may be assigned or transferred, voluntarily or by operation of law, without the prior written
approval of City. Any such prohibited assignment or transfer shall be void.
4.4 Independent Consultant. Neither the City nor any of its employees shall
have any control over the manner, mode or means by which Consultant, its agents or employees,
perform the services required herein, except as otherwise set forth. Consultant shall perform all
services required herein as an independent contractor of City with only such obligations as are
consistent with that role. Consultant 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, or that it is a member of a joint
enterprise with City.
5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages. Without limiting Consultant’s indemnification of
City, and prior to commencement of any services under this Agreement, Consultant shall obtain,
provide and maintain at its own expense during the term of this Agreement, policies of insurance
of the type and amounts described below and in a form satisfactory to City.
(a) General liability insurance. Consultant shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01,
in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily
injury, personal injury, and property damage. The policy must include contractual liability that
has not been amended. Any endorsement restricting standard ISO “insured contract” language
will not be accepted.
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(b) Automobile liability insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury
and property damage for all activities of the Consultant arising out of or in connection with
Services to be performed under this Agreement, including coverage for any owned, hired, non-
owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each
accident.
(c) Professional liability (errors & omissions) insurance. Consultant shall
maintain professional liability insurance that covers the Services to be performed in connection
with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any
policy inception date, continuity date, or retroactive date must be before the effective date of this
Agreement and Consultant agrees to maintain continuous coverage through a period no less than
three (3) years after completion of the services required by this Agreement.
(d) Workers’ compensation insurance. Consultant shall maintain Workers’
Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at
least $1,000,000).
(e) Subcontractors. Consultant 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 include all of the requirements stated
herein.
(f) Additional Insurance. Policies of such other insurance, as may be required
in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers’ compensation. Insurance certificates and endorsements must be
approved by City’s Risk Manager prior to commencement of performance. Current certification
of insurance shall be kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required insurance policies, at any
time.
(b) Duration of coverage. Consultant shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to persons or damages to
property, which may arise from or in connection with the performance of the Services hereunder
by Consultant, its agents, representatives, employees or subconsultants.
(c) Primary/noncontributing. Coverage provided by Consultant shall be
primary and any insurance or self-insurance procured or maintained by City shall not be required
to contribute with it. The limits of insurance required herein may be satisfied by a combination
of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or
be endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of City before the City’s own insurance or self-insurance shall
be called upon to protect it as a named insured.
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(d) City’s rights of enforcement. In the event any policy of insurance required
under this Agreement does not comply with these specifications or is canceled and not replaced,
City has the right but not the duty to obtain the insurance it deems necessary and any premium
paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient
to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(e) Acceptable insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance
or that is on the List of Approved Surplus Line Insurers in the State of California, with an
assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger)
in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by
the City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents, officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each of
its subconsultants.
(g) Enforcement of contract provisions (non-estoppel). Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to inform
Consultant of non-compliance with any requirement imposes no additional obligations on the
City nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or
limits contained in this section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to a given
issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for the higher limits maintained
by the Consultant. Any available insurance proceeds in excess of the specified minimum limits
of insurance and coverage shall be available to the City.
(i) Notice of cancellation. Consultant agrees to oblige its insurance agent or
broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for
nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each
required coverage.
(j) Additional insured status. General liability policies shall provide or be
endorsed to provide that City and its officers, officials, employees, and agents, and volunteers
shall be additional insureds under such policies. This provision shall also apply to any
excess/umbrella liability policies.
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(k) Prohibition of undisclosed coverage limitations. None of the coverages
required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in writing.
(l) Separation of insureds. A severability of interests provision must apply for
all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the insurer’s limits of
liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass through clause. Consultant agrees to ensure that its subconsultants,
subcontractors, and any other party involved with the project who is brought onto or involved in
the project by Consultant, provide the same minimum insurance coverage and endorsements
required of Consultant. Consultant agrees to monitor and review all such coverage and assumes
all responsibility for ensuring that such coverage is provided in conformity with the requirements
of this section. Consultant agrees that upon request, all agreements with consultants,
subcontractors, and others engaged in the project will be submitted to City for review.
(n) Agency’s right to revise specifications. The City reserves the right at any
time during the term of the contract to change the amounts and types of insurance required by
giving the Consultant ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Consultant, the City and Consultant may renegotiate
Consultant’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by City.
(p) Timely notice of claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant’s performance
under this Agreement, and that involve or may involve coverage under any of the required
liability policies.
(q) Additional insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own judgment may be
necessary for its proper protection and prosecution of the work.
5.3 Indemnification. To the full extent permitted by law, Consultant 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 Consultant, its officers, employees, agents, subcontractors, invitees,
or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from
Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or
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indemnitors’ negligent performance of or failure to perform any term, provision, covenant or
condition of this Agreement, except claims or liabilities occurring as a result of City’s sole
negligence or willful acts or omissions. The indemnity obligation shall be binding on successors
and assigns of Consultant and shall survive termination of this Agreement.
6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors to keep, such
ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies 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 and shall keep such
records for a period of three years following completion of the services hereunder. 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.
6.2 Reports. Consultant shall periodically prepare and submit to the Contract
Officer such reports concerning the performance of the services required by this Agreement or as
the Contract Officer shall require.
6.3 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in
performance of this Agreement shall be considered confidential, unless such information is in the
public domain or already known to Consultant. Consultant shall not release or disclose any such
information or work product to persons or entities other than the City without prior written
authorization from the Contract Officer.
(b) Consultant 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 Consultant gives the City notice of such court order
or subpoena.
(c) If Consultant provides any information or work product in violation of this
Agreement, then the City shall have the right to reimbursement and indemnity from Consultant
for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of
Consultant’s conduct.
(d) Consultant shall promptly notify the City should Consultant be served
with any summons, complaint, subpoena, notice of deposition, request for documents,
interrogatories, request for admissions or other discovery request, court order or subpoena from
any party regarding this Agreement and the work performed thereunder. The City retains the
right, but has no obligation, to represent Consultant or be present at any deposition, hearing or
similar proceeding. Consultant agrees to cooperate fully with the City and to provide the City
with the opportunity to review any response to discovery requests provided by Consultant.
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6.4 Ownership of Documents. All studies, surveys, data, notes, computer
files, reports, records, drawings, specifications, maps, designs, photographs, documents and other
materials (the “documents and materials”) prepared by Consultant in the performance of this
Agreement shall be the property of the City and shall be delivered to the City upon request of the
Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim
for further employment or additional compensation as a result of the exercise by the City of its
full rights of ownership use, reuse, or assignment of the documents and materials hereunder.
Moreover, Consultant 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.
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. In the event of litigation in a U.S. District Court, venue shall lie exclusively
in the Central District of California, in the County of Los Angeles, State of California.
7.2 Disputes; Default. In the event that Consultant is in default under the
terms of this Agreement, the City shall not have any obligation or duty to continue compensating
Consultant for any work performed after the date of default. Instead, the City may give notice to
Consultant of the default and the reasons for the default. The notice shall include the timeframe
in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but
may be extended, if circumstances warrant. During the period of time that Consultant is in
default, the City shall hold all invoices and shall, when the default is cured, proceed with
payment on the invoices. If Consultant does not cure the default, the City may take necessary
steps to terminate this Agreement under this Article.
7.3 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, Consultant shall file a statutory
claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue any
legal action under this Agreement.
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.
7.4 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
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shall pay to the City the sum of Two Hundred Fifty Dollars ($250.00) as liquidated damages for
each working day of delay in the performance of any service required hereunder. The City may
withhold from any monies payable on account of services performed by the Contractor any
accrued liquidated damages.
7.5 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 Consultant, except that where termination
is due to the fault of the Consultant, the period of notice may be such shorter time as may be
determined by the Contract Officer. In addition, the Consultant 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 Consultant may determine. Upon receipt of any notice of termination,
Consultant shall immediately cease all services hereunder except such as may be specifically
approved by the Contract Officer. Except where the Consultant has initiated termination, the
Consultant shall be entitled to compensation for all services rendered prior to the effective date
of the 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. In the event the Consultant has initiated termination, the Consultant shall be entitled to
compensation only for the reasonable value of the work product actually produced hereunder, but
not exceeding the compensation provided therefore in the Schedule of Compensation Exhibit
“C”. 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.
7.6 Termination for Default of Consultant. If termination is due to the
failure of the Consultant 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 Consultant 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 Consultant for the purpose of set-off or partial payment of the
amounts owed the City as previously stated.
8. MISCELLANEOUS
8.1 Covenant Against Discrimination. Consultant covenants that, by and for
itself, its heirs, executors, assigns and all persons claiming under or through them, that 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. Consultant shall take
affirmative action to ensure 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
8.2 Non-liability of City Officers and Employees. No officer or employee of
the City shall be personally liable to the Consultant, or any successor in interest, in the event of
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any default or breach by the City or for any amount, which may become due to the Consultant or
to its successor, or for breach of any obligation of the terms of this Agreement.
8.3 Notice. 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 Blvd., California 90275 and in the
case of the Consultant, to the person(s) 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.
8.4 Integration; Amendment. 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. This Agreement
may be amended at any time by the mutual consent of the parties by an instrument in writing.
8.5 Severability. In the event that part of 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 portions 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.
8.6 Waiver. No delay or omission in the exercise of any right or remedy by
non-defaulting party on any default shall impair such right or remedy or be construed as a
waiver. A party’s consent to or approval of any act by the other party requiring the party’s
consent or approval shall not be deemed to waive or render unnecessary the other party’s consent
to or approval of any subsequent act. 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.
8.7 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 any be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees,
whether or not the matter proceeds to judgment.
8.8 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.
8.9 Counterparts.
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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.
8.10 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. Consultant 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. Consultant 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. Consultant 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 Agreement void and of no force or
effect.
Consultant’s Authorized Initials _______
8.11 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 The Following Page]
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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
Doug Willmore, City Manager
ATTEST:
Emily Colborn, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
William W. Wynder, City Attorney
CONSULTANT:
Sunbeam Consulting, Inc., a California
corporation
By:
Name: Alan Braatvedt
Title: President
By:
Name: Chuck Stephens
Title: Secretary
Address: 1817 Josie Avenue
Long Beach, CA 90815
Two corporate officer signatures required when Consultant 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. CONSULTANT’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 CONSULTANT’S BUSINESS ENTITY.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2018 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(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
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.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2018 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(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
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.
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01203.0006/471643.4 A-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following Services:
A. Construction inspection of that certain Costal Bluff Fencing Phase II project, which is
generally defined as the demolition and disposal of existing fencing and footings,
installation of new three rail, colored, precast concrete ranch rail fencing, to be
located along the coastal bluff as depicted on the construction location map to be
finally determined in the field with the Constractor in three locations, at Abalone
Cove Park, Inspiration Point & Portuguese Point, (the “Project”) to ensure that the
scope of services to be performed by FenceCorp, Inc., a California corporation
(“Contractor”), is performed and installed in compliance with Project Plans &
Specifications.
II. As part of the Services, Consultant will prepare and deliver the following tangible
work products to the City:
A. Daily inspection reports, including photographs, of scope of work performed by
Contractor.
B. Summary reports of construction activities of Contractor.
C. Summary of Contractor’s performance based on the Contractor’s weekly
schedule.
III. In addition to the requirements of Section 6.2, during performance of the Services,
Consultant will keep the City updated of the status of performance by delivering the
following status reports:
A. Summary of weekly construction activities of Contractor.
B. Report of weekly Project schedule including 2 week look ahead schedule.
IV. All work product is subject to review and acceptance by the City, and must be
revised by the Consultant without additional charge to the City until found
satisfactory and accepted by City.
V. Consultant will utilize the following personnel to accomplish the Services:
A. Jim Pugh, Public Works Inspector
C-17
01203.0006/471643.4 B-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
[INTENTIONALLY LEFT BLANK]
.
C-18
C-1
01203.0006/471643.4
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following Services at the following rates:
RATE TIME TOTAL
BUDGET
A. Inspection
services
$122/hour* 150 hours
(approx. 5
hours/week)
$18,300
*The $122/hour rate shall be inclusive of mileage, equipment, and other incidentals. No
overtime is authorized by this Agreement.
II. A retention of ten percent (10%) shall be held from each payment as a contract
retention to be paid as a part of the final payment upon satisfactory completion of
services.
NOT APPLICABLE
III. Within the budgeted amounts for each Task, and with the approval of the Contract
Officer, funds may be shifted from one Task subbudget to another so long as the
Contract Sum is not exceeded per Section 2.1, unless Additional Services are
approved per Section 2.3.
NOT APPLICABLE
IV. The City will compensate Consultant for the Services performed upon submission of
valid monthly invoices. Each invoice is to include:
A. Line items for all 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 other approved reimbursable expenses claimed, with supporting
documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials,
and travel properly charged to the Services.
V. The total compensation for the Services shall not exceed the Contract Sum as
provided in Section 2.1 of this Agreement of $18,300.00.
VI. Consultant’s billing rates for all personnel are attached as Exhibit C-1. NOT
APPLICABLE
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D-1
01203.0006/471643.4
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services timely in accordance with the following
schedule:
Days to Perform Hours/week
(approx.)
Deadline Date
A. Inspection
services
100** 5 Oct 31, 2018
**Consultant’s schedule will track Contractor’s construction schedule.
II. Consultant shall deliver the following tangible work products to the City by the
following dates.
A. Daily inspection reports including photographs of work performed, weekly during
construction on Monday’s.
B. Summary reports of construction activities, weekly during construction on
Monday’s.
C. Summary of Contractor’s performance based on the Contractor’s weekly
schedule, weekly during construction on Monday’s
III. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
C-20
Sunbeam Consulting
1817 Josie Avenue
Long Beach, California 90815
May 2, 2018
City of Rancho Palos Verdes
Department of Public Works
30940 Hawthorne Blvd
Rancho Palos Verdes, CA 90275
Attention: Ron Dragoo
RE: Inspection Services for the City of Rancho Palos Verdes
Coastal Bluff Fencing Phase 2 Project
Dear Mr. Dragoo:
The City of Rancho Palos Verdes plans to begin construction on the Coastal Bluff Fencing Phase 2 Project
commencing this summer. The City is requesting a professional services firm to provide part-time
Inspection Services for this project. The project will include the layout and installation of railing and
fence posts along the coastal bluff area in Palos Verdes.
The principals of Sunbeam Consulting have decades of experience in civil engineering design, program
management, project management, construction management, and inspection of Capital Improvement
projects. We are able to assist the City of Rancho Palos Verdes in the required capacity, and draw upon
additional resources if needed during the course of the assignment.
Sunbeam proposes Jim Pugh as the Inspector for this project. Jim’s scope of work will include inspecting
the installation of the fence and daily inspection of all aspects of the fencing installation, removal of
existing fencing, installation of new fencing, coordinating with the open space management regarding
placement of the new fencing and general oversight of the work area. He has provided similar services
to the City on a number of other capital improvement projects throughout the City. We propose Mr.
Pugh at a rate of $122.00 per hour ($183 for overtime, and $244 for double time).
Sunbeam proposes to provide the requested part-time Inspection Services for this project for a not to
exceed total number of 150-hours. This not to exceed amount of $18,300 (150-hours x $122/hour) is
inclusive of mileage, equipment, and other incidentals.
Thank you for this opportunity to offer our services to the City of Rancho Palos Verdes. Should you have
questions during the selection process, please contact me at 310.525.0684.
Sincerely,
Alan Braatvedt
President
Sunbeam Consulting
Project Management • Construction Management • Civil Engineering Design
Tel: 866.714.BEAM • Fax: 310.329.1021 • www.sunbeamtech.net D-1
City of Rancho Palos Verdes
Construction Oversight Services for the
Coastal Bluff Fencing Phase 1 Project
Sunbeam Technologies, Inc., doing business as Sunbeam
Consulting, provides civil engineering, capital improvement project
management, construction management and inspection services
to public agencies and private sectors in addition to our founding
energy related services. Sunbeam Technologies, Inc. was
established in 2008 to provide engineering design, management,
and contracting services to public agencies, business, and private
clients. Sunbeam’s senior management offers decades of
experience on public infrastructure and building projects with
Southern California agencies.
Sunbeam Consulting
1817 Josie Avenue
Long Beach CA 90815
Tel:866.714.BEAM
www.sunbeamtech.net
E-mail:
chuck@sunbeamtech.net
Direct: 310.525.0678
Contractor License No.
915894 (A & B)
LEED Accredited Professionals
California Registered Engineers
Qualified SWPPP Staff
• Civil Engineering
• Project Management
• Construction Management & Observation
• Staff Assistance
• NPDES Program Implementation
• ADA Assessment & Improvements
• Plan Checking
• Highway & Infrastructure Design
• Storm Drainage & Design
• Signing and Striping Plans
• Parking Design & Analysis
P
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City of Rancho Palos Verdes
Construction Oversight Services for the
Coastal Bluff Fencing Phase 1 Project
KEY PERSONNEL
JIM PUGH
Public Works Inspector
Jim has twenty-five years of experience in inspection and
maintenance on all phases Public Works projects. Typical work
has included the following assignments:
• Inspect new curb, gutter and sidewalks
• Inspect conventional and AHRM asphalt and overlay
• Inspect City wide slurry seal / micro surface
• Inspect City wide ARAM (Asphalt Rubberized Aggregate
Membrane)
• Inspect new storm drain and sewer pipeline installations
and outfall structures
• Inspect large diameter steel mortar lined and coated water pipe
• Inspect CIPP and fold and form pipe from 6” to 30” on Sewer and storm drain pipelines.
• View and approve pre-lining video and assess point repairs. View post video to assure quality and
to approve job quantities.
• Inspect gabion baskets and barrier walls
• Inspect slope improvement and stabilization projects
• Communicate and work with surrounding Utilities, local agencies and Contractors to insure
compliance with City Standards.
• Update job specifications and standard detail requirements.
• Communicate with City staff on a daily basis, summarize all work performed daily
• Prepare job status reports, agendas, approve unit prices from contractors, issue noncompliance
and correction notices.
• Measure and approve job quantities and pay estimates
• Create pavement management and striping data bases and evaluate inventory
• Prepare material submittals and transmittals.
• Prepare cost proposals
• Attend progress meetings with engineers and contractors
Principals of hot mix asphalt • Asphalt Institute
Utility Inspection Course • Ventura County • 2007
Traffic Control • San Diego, Ca • 2005
Competent Person Training/Trench Shoring • Anaheim, Ca • 2003
Water Distribution 2 • Thousand Oaks, Ca • 2000
Water Technology Training • Alta Loma, Ca • 2000
Tunnel Construction Safety/Confined Space • Woodland Hills, Ca • 1997
Welding and Technology • Simi Valley, Ca • 1993
Entered Profession
1989
Professional Affiliations
American Water Works
Association (AWWA)
The National Utility Contractors
Association (NUCA)
California Emergency Response
Technologies, Inc
Slurry seal association
Chip Seal association
P
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D-3
City of Rancho Palos Verdes
Construction Oversight Services for the
Coastal Bluff Fencing Phase 1 Project
REFERENCES
City of Anaheim
200 S. Anaheim Blvd.
Anaheim, CA 92805
Joann Wu, Principal Civil Engineer
(714) 765-5157
City of Signal Hill
2175 Cherry Ave
Signal Hill, CA 90755
Kelli Tunnicliff, Public Works Director
(562) 989-7351
City of Hawthorne
4455 W. 126th St.
Hawthorne, CA 90250
Arnie Shadbehr, Public Works Director
(310) 349-2985
(562) 989-7351
City of Hermosa Beach
1315 Valley Drive
Hermosa Beach, CA 90254-3885
Frank Senteno, Public Works Director
(310) 318-0238
City of La Habra
201 E. La Habra Blvd
La Habra CA 90633-0337
Christine Kaskara, Civil Engineer
(562) 905-9720
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D-4
City of Rancho Palos Verdes
Construction Oversight Services for the
Coastal Bluff Fencing Phase 1 Project
Sunbeam Consulting
City of Rancho Palos Verdes
Request for Proposal for Inspection Services
Coastal Bluff Fencing Phase 2 Project
Fee Proposal
Item Amount
Item 1 – Inspection Services (Part time)
(Prevailing Wage) $18,300.00
150 hours @ $122/hour
TOTAL
$18,300.00
Amount shown is the proposed budget, not to exceed without prior approval. Payment will be made
monthly as project progresses.
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