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FenceCorp Inc RECORDING REQUESTED BY. City of Rancho Palos Verdes IIIIIIIllIihIIIIII111iIillhIIflIflflh//I AIL TO amk 2019Q292821. Street City of Rancho Palos Verdes Address 30940 Hawthorne Blvd. cry Rancho Palos Verdes Slate CA 24) 90275 I. J Space above this line for recorder's use WOLCOTTS FORMS INC. SiecE 1893 NOTICE OF COMPLETION Notice pursuant to Civil Code Section 3093,must be filed within 10 days after completion. (See reverse side for complete requirements.) Notice is hereby given that: 1: The undersigned is owner or corporate officer of the owner of the interest or estate stated below in the property hereinafter described. 2. The full name of the owner is The City of Rancho Palos Verdes • 3. The full address of the owner is 30940 Hawthorne Blvd., Rancho Palos Verdes,CA 90275 4. The nature of the interest or estate of the owner is: In fee. el other than Fee strike in lee'and insert.for etarmie.'purchaser under contract or purchase.'or'Lessee') 5. The full names and full addresses of all persons,if any,who hold title with the undersigned as joint tenants or as tenants in common are- NAMES ADDRESSES 6. The full names and full addresses of the predecessors in interest of the undersigned, if the property was transferred subsequent to the commencement of the work or improvements herein referred to: NAMES ADDRESSES 7. A work of improvement on the property hereinafter described was completed on_February 13,2018 The work done was. Coastal Bluff Fencing Phase II 8. The names of the contractor,if any,for such work of improvement was FenceCorp, Inc. (II no contractor for work of improvement as a whole,insert'None') (Date o1 Contract) 9. The properly on which said work of improvement was completed is in the City of _Rancho Palos Verdes County of Los Angeles ,State of CA ,and is described as follows:Coastal bluff fence removal and replacement. at Abalone Cove,Portuguese Point and Inspiration Point,Rancho Palos Verdes,CA 90275 10. The street address of said property is Palos Verdes Dr.South,,Rancho Palos Verdes,CA 90275(APN 7572-019-900&7572-018-900) el no street address has been officially assigned.insen'rene'.I Dated it L z b q- -- - - - (Signature of Owner or corporals oMrcer o1 Owner named in paragraph 2.or his spent) City of Rancho Palos Verdes VERIFICATION I,the undersigned,say:I am the City Clerk _ _,the Deciarant of the foregoing Notice of Completion; (President of,Manager ot,Partner ol,Owner or.etc.I I have read said Notice of Completion and know the contents thereof,the same is!rJa to my own knowledge. I declare under penalty of perjury that the foregoing is true and correct. Executed on !g 20.19 at Rarcbo Palos Verdes , CA _ j) al signatu wduar who Is s'weannoltr,at the inn ants Or oii(e or Conplebon are true) Before you use this form, fill in all blanks, and make whatever changes are apropriate and necessary IIIWIIuII�I�IIIIINI) to your particular transaction Consult a lawyer if you doubt the form s fitness tor your purpose and use. u N Wolcotts makes no representation or warranty, express or implied,with respect to the merchantability 7 67775 01114 or fitness of this form for an intended use or purpose. ©2005 WOLCOTTS FORMS,INC. FORM 1114 Rev to-0 —1 DO NOT RECORD THIS PAGE REQUIREMENTS AS TO NOTICE OF COMPLETION Notice of completion must be filed for record WITHIN 10 DAYS after the completion of the work of improvement (to be computed exclusive of the day of completion) as provided in Civil Code Section 3093. The "owner" who must file for record a notice of completion of a building or other work of improvement means the owner (or his successor in interest at the date the notice is filed) on whose behalf the work was done, though his ownership is less than the fee title. For example, if A is the owner in fee, and B, lessee under a lease, causes a building to be constructed, then B, or whoever has succeeded to his interest at the date the notice is filed, must file the notice. If the ownership is in two or more persons as joint tenants or tenants in common, the notice may be signed by any one of the co-owners (in fact, the foregoing form is designed for giving of the notice by only one co-tenant), but the names and addresses of the other co- owners must be stated in paragraph 5 of the form. Note that any Notice of Completion signed by a successor in interest shall recite the names and addresses of his transferor or transferors. In paragraphs 3, 5 and 6, the full address called for should include street number, city; county, and state. As to paragraphs 7 and 8, this form should be used only where the notice of completion covers the work of improvement as a whole. If the notice is to be given only of completion of a particular contract, where the work of improvement is made pursuant to two or more original contracts, then this form must be modified as follows: (1) Strike the words "A work of improvement" from paragraph 7 and insert a general statement of the kind of work done or materials furnished pursuant to such contract (e.g., "The foundation for the improvements"); (2) Insert the name of the contractor under the particular contract in paragraph 8. In paragraph 8 of the notice, insert the name of the contractor for the work of improvement as a whole. No contractor's name need to given if there is no general contractor, e.g. on so- called "owner-builder jobs." In paragraph 9, insert the full, legal description, not merely a street address or tax description. Refer to deed or policy of title insurance. If the space provided for description is not sufficient, a rider may be attached. In paragraph 10, show the street address, if any, assigned to the property by any competent public or governmental authority. A-2 � 201902p92yry821p This i'A page is part of your document- DO NOT DISCARD A C -';414 Recorded/Filed in Official Records II I��I pII �R1I111YI 1I �� I �� `EBBS' rte it.' Recorders°C-1:11`r7aAngeles Coun ' FEES: 0.00 TAXES: 0.00 OTHER: 0.00 PAID: 0.00 A A III I I III I III1I I I II I I ILII I I fill I I III I VISI II IIY II I III LEADSH ET 111111 III fill I Ilifi IIU IIM liii III II lI II H UH 0 AI 201904043300 03 00016454156 111011101101Eiii3u SEQ: 11111110m�uinmiryMiiiinuimI 11110- IdIIWIIMhINWllllllll�lltl� A RECEIVED JUN - 8 2018 PUBLIC WORKS AGREEMENT By and Between CITY OF RANCHO PALOS VERDES and FENCECORP,INC. 01203.0006/471642.4 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, 2018 by and between the City of Rancho Palos Verdes, a California 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 a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement. B. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement,was selected by the City to perform those services. C. Pursuant to the City of Rancho Palos Verdes Municipal Code, City has authority to enter into and execute this Agreement. D. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein. OPERATIVE PROVISIONS NOW,THEREFORE,in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows: ARTICLE 1. WORK OF CONTRACTOR 1.1 Scope of Work. In compliance with all terms and conditions of this Agreement,the Contractor shall provide those services specified in the "Scope of Work" attached hereto as Exhibit "A" and incorporated herein by this reference, which may be referred to herein as the"services"or"work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the work required under this Agreement in a thorough, competent, and professional manner,and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this -1- 01203.0006/300347.1 Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Bid Documents. The Scope of Work shall include the"General Provisions"and"Special Provisions" in the bid documents for the project entitled 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 Depaitrnent of Industrial Relations ("DIR") implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by regulation. (b) Prevailing Wages. Contractor shall pay prevailing wages to the extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request.By initiating any work under this Agreement,Contractor acknowledges receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where work is performed under this Agreement. (c) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (d) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776,which requires Contractor and each subcontractor to:keep accurate payroll records and verify such records in writing under penalty of perjury, as specified -2- 01203.0006/471642.4 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 (11/2)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 \ l I (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 -3- 01203.0006/471642.4 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 provided -4- 01203.0006/471642.4 4- 01203.0006/471642.4 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 defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor's sole expense. -5- 01203.0006/471642 4 5- 01203.0006/471642.4 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 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 -6- 01203.0006/471642.4 6- 01203.0006/471642.4 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 Thousand 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. 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, -7- 01203.0006/471642.4 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. 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 -8- 01203.0006/471642.4 8- 01203.0006/471642.4 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 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: -9- 01203.0006/471642.4 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 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 -10- 01203.0006/471642.4 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. (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- -11- 01203.0006/471642.4 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. (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 -12- 01203.0006/471642.4 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(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 -13- 01203.0006/471642.4 limiting endorsement of any kind that has not been first submitted to City and approved of in writing. (1) 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. 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 -14- 01203.0006/471642.4 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 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. -15- 01203.0006/471642.4 15- 01203.0006/471642.4 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, 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; -16- 01203.0006/471642.4 (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 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 -17- 01203.0006/471642.4 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. (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. -18- 01203.0006/471642.4 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 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 -19- 01203.0006/471642.4 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. 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. -20- 01203.0006/471642.4 20- 01203.0006/471642.4 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. 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. -21- 01203.0006/471642.4 21- 01203.0006/471642.4 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 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. -22- 01203.0006/471642.4 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. 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. -23- 01203.0006/471642.4 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 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] -24- 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 rooks, Mayor ATTEST: -¢lr� a' A,r �. , City Clerk APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP itc_h William W. Wynder, City Attorney CONTRACTOR: FENCECORP, INC., a California corporation By: Name: PerrY Massie Title: President ,f _14.29Y-10 ame: Robert McPherson Title: Vice President Address: 18440 Van Guren Blvd. Riverside, CA 92508 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. -25- 01203.0006/471642.4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES On ,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 OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED 0 GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT El TRUSTEE(S) El GUARDIAN/CONSERVATOR El OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/471642.4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES On ,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 OR TYPE OF DOCUMENT TITLE(S) El PARTNER(S) ❑ LIMITED El GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT El TRUSTEE(S) El GUARDIAN/CONSERVATOR El OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/471642.4 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. 01203.0006/471642.4 A-1 EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) [INTENTIONALLY LEFT BLANK] 01203.0006/471642.4 B-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 Estimated Unit Unit Extended No. Description Quantity Meas.* Price 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 $3,0030.0 $3,030.00 6 Demolition, disposal and backfill of postholes of 4000 LF $6.80 $27,200.00 existing fence Construct Three Rail Precast Colored Concrete Ranch Fence, with epoxy-coated rebar, 4500 Psi 7 concrete fence components and 3000 Psi footings. 4000 LF $45.25 $181,000.00 Fence component color Omaha Tan#5084, footings un-colored. 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. 01203.0006/471642.4 C-1 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. 01203.0006/471642.4 C-2 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 10 May 29, 2018 all required bonds B. All required construction 5 June 5, 2018 submittals, as outlined in the Project Specifications C. Complete construction 100 Oct. 31, 2018 including punch list work 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. 01203.0006/471642.4 D-1 INDEMNIFICATION AND HOLD HARMLESS AGREEMENT AND WAIVER OF SUBROGATION AND CONTRIBUTION Contract/Agreement/License/Permit No. or description: Indemnitor(s) (list all names): To the fullest extent permitted by law, Indemnitor hereby agrees, at its sole cost and expense, to defend, protect, indemnify, and hold harmless the City of Rancho Palos Verdes and its elected officials, officers, attorneys, agents, employees, volunteers, successors, and assigns (collectively"Indemnitees") from and against any and all damages, costs,expenses,liabilities,claims,demands,causes of action,proceedings,expenses,judgments,penalties,liens,and losses of any nature whatsoever,including fees of accountants,attorneys,or other professionals and all costs associated therewith (collectively "Liabilities"), arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to any act, failure to act, error, or omission of Indemnitor or any of its officers, agents, servants, employees, subcontractors, materialmen, suppliers or their officers, agents, servants or employees, arising or claimed to arise,directly or indirectly,out of,in connection with,resulting from,or related to the above-referenced contract, agreement, license, or permit (the "Agreement") or the performance or failure to perform any term, provision,covenant,or condition of the Agreement,including this indemnity provision. This indemnity provision is effective regardless of any prior, concurrent, or subsequent active or passive negligence by Indemnitees and shall operate to fully indemnify Indemnitees against any such negligence. This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies which Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against an Indemnitee shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. Indemnitor shall pay Indemnitees for any attorney's fees and costs incurred in enforcing this indemnification provision. Notwithstanding the foregoing, nothing in this instrument shall be construed to encompass(a)Indemnitees'sole negligence or willful misconduct to the limited extent that the underlying Agreement is subject to Civil Code 2782(a) or (b) the contracting public agency's active negligence to the limited extent that the underlying Agreement is subject to Civil Code 2782(b). This indemnity is effective without reference to the existence or applicability of any insurance coverages which may have been required under the Agreement or any additional insured endorsements which may extend to Indemnitees. Indemnitor,on behalf of itself and all parties claiming under or through it,hereby waives all rights of subrogation and contribution against the Indemnitees,while acting within the scope of their duties,from all claims,losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnitor regardless of any prior,concurrent,or subsequent active or passive negligence by the Indemnitees. In the event there is more than one person or entity named in the Agreement as an Indemnitor,then all obligations, liabilities,covenants and conditions under this instrument shall be joint and several. "Indemnitor" _ i Name NQI_ Yl Na I - ,d - –rte-p ,, eD lu6I1 e5611 By: 16.4 X53 6�2 By: Its 1 Qr-S 1 Ol,.frk Its y?- AGREEMENT TO COMPLY WITH CALIFORNIA LABOR LAW REQUIREMENTS 1. Contractor acknowledges that the project as defined in this Agreement between Contractor and the City, to which this Agreement to Comply with California Labor Law Requirements is attached and incorporated by reference, is a "public work" as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code ("Chapter 1"), and that this Agreement is subject to (a) Chapter 1, including without limitation Labor Code Section 1771 and (b) the rules and regulations established by the Director of Industrial Relations ("DIR") implementing such statutes. Contractor shall perform all work on the project as a public work. Contractor shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein. 2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 above. 3. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Contractor acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages,and Contractor shall post such rates at each job site covered by this Agreement. 4. 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. 5. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to (1) keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776, (2) certify and make such payroll records available for inspection as provided by Section 1776, and(3) inform the City of the location of the records. 6. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code 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. 7. 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. 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 (1) 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 8 hours per day, and 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 11/2 times the basic rate of pay. 8. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Contractor hereby certifies as follows: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to 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." 9. For every subcontractor who will perform work on the project, Contractor shall be responsible for such subcontractor's compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Contractor shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a periodic review of the certified payroll records of the subcontractor and 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 failure. 10. To the maximum extent permitted by law, Contractor shall indemnify, hold harmless and defend (at Contractor's expense with counsel reasonably acceptable to the City)the City,its officials,officers,employees,agents and independent contractors serving in the role of City officials, and volunteers from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above by any person or entity (including Contractor, its subcontractors, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agreement, including without limitation the payment of all consequential damages,attorneys' fees,and other related costs and expenses. All duties of Contractor under this Section shall survive termination of the Agreement. Date G- 10- re. Signature 1: \r"r\adJ-41-t-or Date 61/20// X Si at Signat . ORIGINAL ISSUED IN TWO ORIGI AL COU TERPARTS COUNTERPART NO. I OF Bond No. 30032914 PREMIUM:$1,965.00 PERFORMANCE BOND THE PREMIUM IS PREDICATED ON PRICE KNOW ALL PERSONS BY THESE PRESENTS that: THE IS SUBBJEECC JCONTRACTT TO ADJUSTMENT. AND WHEREAS the City of Rancho Palos Verdes ("Public Agency"), has awarded to FenceCorp.,Inc., 18440 Van Buren Blvd.,Riverside,CA 92508 (Name and address of Contractor) ("Principal"), a contract (the "Contract"), which is incorporated herein by this reference, for the work described as follows: Coastal Bluff Fencing Phase II WHEREAS, Principal is required under the terms of the Contract to file a good and sufficient performance bond with the Public Agency for the faithful performance of the Contract. NOW, THEREFORE, we, the undersigned Principal, and Western Surety Company 4150 N.Drinkwater Blvd.,Suite 105,Scottsdale,AZ 85251 (Name and address of Surety) ("Surety") a duly admitted surety insurer under the laws of the State of California, as Surety, are held and firmly bound unto the Public Agency in the penal sum of TWO HUNDRED EIGHTEEN THOUSAND TWO HUNDRED FORTY NINE DOLLARS AND SIXTY CENTS Dollars ($218,249.60) (the "Penal Sum"), this amount being not less than one hundred percent (100%) of the total Contract price, in lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns,jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bounded Principal, his, her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform all the undertakings, terms, covenants, conditions and provisions in the Contract and any alteration thereof made as therein provided, on the Principal's part to be kept and performed, all within the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and hold harmless the Public Agency, its officers, agents, employees, and others as therein provided, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect. In case suit is brought upon this bond, Surety further agrees to pay, in addition to the Penal Sum, all costs and reasonable expenses and fees, including reasonable attorneys' fees, incurred by the Public Agency in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. FURTHER, the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, addition or modification to the terms of the Contract, or of the work to be performed thereunder, or the specifications for the same, shall in any way affect its obligations under this bond, and it does hereby waive notice of any such change, extension of time, alteration, addition or modification to the terms of the Contract or to the work or to the specifications thereunder. Surety hereby waives the provisions of California Civil Code sections 2845 and 2849. The City is the principal beneficiary of this bond and has all rights of a party hereto. • d IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety, on the date set forth below,the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. Dated: June 19,2018 "Principal" "Surety" FenceCorp.,Inc. Western Surety Company I� c_ v•' BY. Its S J is B.Bales,Attorney-In-Fact By: QU-4-`5 ri'1LA-1 A)14 a 2S'e�� By: Its Its (Seal) (Seal) APPROVED AS TO SURETY AND PRINCIPAL APPROVED AS TO FORM: AMOUNT ALESHIRE &WYNDER, LLP Zat;s/a11- ___ A Professional Corporation ‹Wditi2t. By: By: , ac,"..) ic4Gc%x.' Insurance Administrator Public Agency Attorney Note: This bond must be executed in duplicate and dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT • Know All Men By These Presents,That WESTERN SURETY COMPANY,a South Dakota corporation,is a duly organized and existing corporation having its principal office in the City of Sioux Falls,and State of South Dakota,and that it does by virtue of the signature and seal herein affixed hereby rnake,constitute and appoint Kenneth A Coate,Julia B Bales,Monica M Keehfuss,Individually of Riverside,-CA,its true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign,seal and execute for and on its bAhaif bonds, undertakings and other obligatory instruments of similar nature - • -In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney,pursuant to the authority hereby given,are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof,duly adopted,as indicated,by the shareholders of the corporation. • In Witness Whereof,WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 12th day of July,2016: • ,,,�,� WESTERN SURETY COMPANY as �ygjj4 �{Z� • *iisSEAVJQi; ! °p _ ', aul T.Braflat,Vice President State of South Dakota ss • County of Minnehaha On this 12th day of July,2016,before me personally came Paul T.Bruflat,to me known,who,being by.me duly sworn,did depose and say: that he resides in the City of Sioux Falls,State of South Dakota;that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument;that he knows the seal of said corporation;that the seal affixed to the said instrument is such corporate seal;that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to hire authority,and acknowledges same to be the act and deed of said corporation. My commission expires • J.MPHR NODRYPUBLIC (:)"..*\ 712" ilifl/L') June 23,2021 • J.Mohr,Notary Public ChRTIFICATE I,L.Nelson,Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorneyhereinabove set forth is still in force,and further certify that the By-Law of the corporation printed on the reverse hereof is still in force.Thr testimony whereof I have hereunto subscribed my name and of xed the seal of the said corporation this day of JUN 1 9 2018 , . _ �'" ' WESTERN SURETY COMPANY 174;;40,_ slt If;*i`SSA pY` `brN oaK°~ • L Nelson,Assistant Secretary Form F4280-7-2012 • Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WES'1'ERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company. Section 7. All bonds,policies,undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President,or by such other officers as the Board of Directors may authorize. The President,any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds,policies,or undertakings in the name of the Company. The corporate seal isnot necessary for the validity of any bonds,policies,undertakings,Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of Rigerside JUN 19 2018 On before me, Stephanie D. Fisher, Notary Public Date Here Insert Name and Title of the Officer personally appeared Julia B. Bales Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose names)-is/are- subscribed to the within instrument and acknowledged to me that tie/she/they-executed the same in I'is/herftheir authorized capacity(ies),and that by I'is/her/thcir signature(s)on the instrument the persons)-, or the entity upon behalf of which the persons)-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 offici- -J << STEPHANIE D. FISHER � ? COMM. #2198544 „ Signature ; Public NOTARY PUBLIC-CALIFORNIA m Signa e of N. RIVERSIDE COUNTY My Comm.Expires June 18,2021 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies)Claimed by Signer(s) Signer's Name: Julia B. Bales Signer's Name: no other signers ❑Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Partner — El Limited ❑General ❑ Partner — ❑ Limited ❑General ❑Individual El Attorney in Fact ❑Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee El Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: G4 4N✓.4v✓.GN✓.G•Uv.,�✓, 4�✓,4'✓4�✓4(✓,G�✓,4�✓,4�✓,L�.L�.L�.L�.L�.L�.L�.L�.L�.L�.L�.L�.SVGS.G�.4`.4�.4�. 4�.4`.G'✓4`.4`.G�.4`,4�. 4�.G"✓ ©2014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of i�� J erSlcle, On Sane. RD , 2D1Z before me,-hcs1r1CaaL. .Mkr V43, Inotxrl.k Date ,, Here Insert Name and Title of the dTicer D personally appeared O rYin± 1 Y 'P1�,ex-s \ rnQSSiQ, Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)'islare subscribed to the within instrument and acknowledged to me that tie/she/they executed the same in-#tis/+ter/their authorized capacity(ies), and that bybisfiicr/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 RHONDA I.MARKS paragraph is true and correct. >i'>>. Commission#2111366 6. 1. Notary Public-California n WITNESS myhand and official seal. Z �,x'<149 Riverside County My Comm.Expires Jun 10,2019 ,^, 11 � Signature (5\4-0... CLJA' Place Notary Seal and/or Stamp Above Signature of Notary ublic OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): 0 Corporate Officer— Title(s): ❑ Partner— 0 Limited 0 General 0 Partner— 0 Limited 0 General ❑ Individual 0 Attorney in Fact ❑ Individual 0 Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Trustee ❑ Guardian of Conservator ❑ Other: 0 Other: Signer is Representing: Signer is Representing: ©2017 National Notary Association ORIGINAL ISSUED IN TWO ORIGINAL COUNTERPARTS COUNTERPART NO. OF_2 PREMIUM:INCLUDED IN THE PREMIUM Bond No. 30032914 CHARGED FOR THE PERFORMANCE BOND PAYMENT BOND THE PREMIUM IS PREDICATED ON (LABOR AND MATERIALS) THE FINAL CONTRACT PRICE AND IS SUBJECT TO ADJUSTMENT. KNOW ALL PERSONS BY THESE PRESENTS that: WHEREAS the City of Rancho Palos Verdes, California("Public Agency"),has awarded to FenceCorp.,Inc.,18440 Van Buren Blvd.,Riverside,CA 92508 (Name and address of Contractor) ("Principal"), a contract (the "Contract"), which is incorporated herein by this reference, for the work described as follows: COASTAL BLUFF FENCING PHASE II WHEREAS,Principal is required under the terms of the Contract and the California Civil Code to file a good and sufficient payment bond with the Public Agency to secure the payment of claims of laborers,mechanics,material persons, and other persons as provided by law. NOW, THEREFORE,we,the undersigned Principal, and Western Surety Company 4150 N.Drinkwater Blvd.,Suite 105,Scottsdale,AZ 85251 (Name and address of Surety) ("Surety") a duly admitted surety insurer under the laws of the State of California, as Surety, are • held and firmly bound unto the Public Agency and all subcontractors, laborers, material persons, and other persons employed in the performance of the Contract in the penal sum of TWO HUNDRED EIGHTEEN THOUSAND TWO HUNDRED FORTY NINE DOLLARS AND SIXTY CENTS Dollars ($218,249.60) (the "Penal Sum"), this amount being not less than one hundred percent (100%) of the total Contract price, in lawful money of the United States of America, for thepayment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns,jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bounded Principal, his,her or its heirs, executors, administrators, successors or assigns,or subcontractors shall fail to pay any of the persons named in Section 9100 of the California Civil Code, or any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract,or for any amounts required to be deducted,withheld, and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, with respect to work or labor performed under the Contract, the Surety will pay for the same in an amount not exceeding the Penal Sum specified in this bond; otherwise,this obligation shall become null and void. This bond shall inure to the benefit of any of the persons named in Section 9100 of the California Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon the bond. In case suit is brought upon this bond, Surety further agrees to pay, in addition to the Penal Sum, all costs and reasonable expenses and fees, including reasonable attorneys' fees, incurred by the Public Agency in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. Further, the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, addition or modification to the terms of the Contract, or of the work to be performed there under, or the specifications for the same, shall in any way affect its obligations under this bond, and it does hereby waive notice of any such change,extension of time,alteration, addition, or modification to the terms of the Contract or to the work or to the specifications there under. Surety hereby waives the provisions of California Civil Code sections 2845 and 2849. IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety, on the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. Dated: June 19,2018 "Principal" "Surety" FenceCorp.,Inc. Western Surety Company : !A, q Its RS Julia B.Bales,Attorney-In-Fact By:QITV,Ad-j iQ keS set'> By: Its Its (Seal) (Seal) APPROVED AS TO SURETY AND PRINCIPAL APPROVED AS TO FORM: AMOUNT ALESHIRE &WYNDER, LLP A Professional Corporation /� ' By: By: Insuran,e Administrator Public Agency Attorney Note: This bond must be executed in duplicate and dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-1N-FACT Know All Men By These Presents,That WESTERN SURETY COMPANY,a South Dakota corporation,is a duly organized and existing corporation having its principal office in the City of Sioux Falls,and State of South Dakota,and that it does by virtue of the signature and seal herein affixed hereby make,constitute and appoint Kenneth A Coate,Julia B Bales,Monica M Keehfuss,Individually of Riverside,•CA,its true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign,seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - • • -In Unlimited Amounts- and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney,pursuant to the authority hereby given,are hereby ratified and confirmed. This Power of Attorney is made andexecutedpursuant to and by authority of the By-Law printed on the reverse hereof,duly adopted,as indicated,by the shareholders of the corporation. In Witness Whereof,WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 12th day of July,2016: • ,,,.,w WESTERN SURETY COMPANY orrN *true _ and T.BruHat,Vice President State of South Dalmta ss • County of Minnehaha On this 12th day of July,2016,before me personally came Paul T.Bruflat,to me known,who,being by.me duly sworn,did depose and say: that he resides in the City of Sioux Falls,State of South Dakota;that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument;that he knows the seal of said corporation;that the seal affixed to the said instrument is such corporate seal;that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority,and acknowledges same to be the act and deed of said corporation. My commission expires • J.MPHR June23,2021 • oumoaira�S H-(::;14 --79/7- J.Mohr,Notary Public CERTIFICATE I L Nelson,Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorneyhereinabove set forth is still in force,and further certify that the By-Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this day of JUN 1 9 2018 , • * "6'� WESTERN SURETY COMPANY 40,06)..„,„,c1„ f;s7?4 =W r1 eorm Do"' (:)T. 24 • L Nelson,Assistant Secr, ry Form F4280-7-2012 • Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY • This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company. Section 7. All bonds,policies,undertakings,Powers of Attorney, or other obligations of the corporation shalt be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary,Treasurer,or any Vice President, or by such other officers as the Board of Directors may authorize. The President,any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds,policies, or undertakings in the name of the Company. The corporate seal isnot necessary for the validity of any bonds,policies,undertakings,Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of Riverside On JUN 19 2Q18 before me, Stephanie D. Fisher, Notary Public Date Here Insert Name and Title of the Officer personally appeared Julia B. Bales Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s)- whose name(s)-is/are- subscribed to the within instrument and acknowledged to me that be/she/they-executed the same in #is/her/thcir authorized capacity(iec),and that by his/her/thcir signature(s)on the instrument the person(st, or the entity upon behalf of which the person(-4 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 officia .ea ;•0'4-'--c,-4 STEPHANIE D. FISHER COMM. #2198544 o�c ��• ; NOTARY PUBLIC-CALIFORNIA m Signature `aT RIVERSIDE COUNTY n My Comm.Expires June 18,2021Signal re of ,. at)/Public s n Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Julia B. Bales Signer's Name: no other signers ❑Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑General El Individual 111 Attorney in Fact ❑Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee El Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: ©2014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of OrIMVC R., ZD, 20 I$ before me,1-.1riordt3:I.ft\o rK5, n -kxiruubl,I G , Date Here Insert Name and Title of th icer personally appeared d D 1 PK-P‘NersaY\ t MISSISL. Name(s)of Signers)-.1 who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)'is/are subscribed to the within instrument and acknowledged to me that a/they executed the same inrisAher/their authorized capacity(ies), and that by hic/hcr/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 �:... RHONDA I.MARKS paragraph is true and correct. �CommF Commission#2111366 ;rte: .- z i i" � i Notary Public-California v WITNESS my hand and official seal. zt T r► Riverside County My Comm.Expires Jun 10,2019 Signature Place Notary Seal and/or Stamp Above Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): 0 Corporate Officer—Title(s): ❑ Partner— 0 Limited 0 General 0 Partner— 0 Limited 0 General ❑ Individual 0 Attorney in Fact 0 Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian of Conservator 0 Trustee 0 Guardian of Conservator ❑ Other: 0 Other: Signer is Representing: Signer is Representing: ©2017 National Notary Association t j ORIGINAL ISSUED IN TWO ORIGINAL COUN ERPARTS Bond No. 30032914 COUNTERPART NO. OF ` WARRANTY BOND PREMIUM: INCLUDED IN THE PREMIUM CHARGED FOR THE PERFORMANCE BOND KNOW ALL PERSONS BY THESE PRESENTS that: WHEREAS the City of Rancho Palos Verdes ("Public Agency"), has awarded to FenceCorp., Inc., 18440 Van Buren Blvd., Riverside, CA 92508 (Name and address of Contractor) ("Principal"), a contract (the "Contract"), which is incorporated herein by this reference, for the work described as follows: Coastal Bluff Fencing Phase II WHEREAS, Principal is required under the terms of the Contract to file a good and sufficient warranty bond with the Public Agency before final completion of the work and its acceptance by the Public Agency. NOW, THEREFORE, we, the undersigned Principal, and Western Surety Company, 4150 N. Drinkwater Blvd., Suite 105, Scottsdale, CA 85251 (Name and address of Surety) ("Surety") a duly admitted surety insurer under the laws of the State of California, as Surety, are held and firmly bound unto the Public Agency in the penal sum of One Hundred Ninety Nine Thousand Four Hundred Eighteen and 50/100's Dollars ($199,418.50- ) lawful money of the United States of America, for the payment of which sum well and truly to be made,we bind ourselves, our heirs, executors,administrators, successors, and assigns,jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bounded Principal, his, her or its heirs,executors,administrators,successors or assigns,shall remedy,without cost to the Public Agency,any defects which may develop during a period of ONE (1) YEAR from the date of completion and acceptance of the work performed under the Agreement, caused by defective or inferior materials or workmanship, and shall indemnify, defend and hold harmless the Public Agency, its officers, agents, and employees for any and all claims,demands, causes of action,damages, injuries, liabilities, losses,costs or expenses, including attorneys' fees and costs of defense, which arise out of, pertain to, or relate to such defects or to the Principal's actions or inactions in remedying such defects,then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. In case suit is brought upon this bond, Surety further agrees to pay, in addition to the Penal Sum, all costs and reasonable expenses and fees, including reasonable attorneys'fees, incurred by the Public Agency in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. FURTHER, Surety hereby waives the provisions of California Civil Code sections 2845 and 2849. The Public Agency is the principal beneficiary of this bond and has all rights of a party hereto. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications. IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety,on the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. Dated: April 9,2019 "Principal" "Surety" FenceCorp., Inc. Western Surety Company B [�/_�i1� By: Julia B. Bales Its 4 1 ATTORNEY IN FACT By: By: Its Its (Seal) (Seal) APPROVED AS TO SURETY AND APPROVED AS TO FORM: PRINCIPAL AMOUNT By: By: Insurance Administrator Public Agency rney 'Note: This bond must be executed in duplicate and dated,all signatures must be notarized,and evidence of the authority of any person signing as attorney-in-fact must be attached • . Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT • Know All Men By These Presents,That WESTERN SURETY COMPANY,a South Dakota corporation,is a duly organized and existing corporation having its principal office in the City of Sioux Falls,and State of South Dakota,and that it does by virtue of the signature and seal herein affixed hereby make,constitute and appoint • Kenneth A Coate,Julia B Bales,Monica M Keehfuss,Individually • of Riverside,•CA,its tate and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign,seal and execute for and on its bs'hadf bonds, undertakings and other obligatory instruments of similar nature • • —In Unlimited Amounts — and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney,pursuant to the authority hereby given,are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof,duly adopted,as indicated,by the shareholders of the corporation. In Witness Whereof,WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 12th day of July,2016: • WESTERN SURETY COMPANY • Wt O�Qa�ll r * SCAMP !. aul T.Bmfiat,Vice President State of South Dakota County of Minnebaha On this 12th day of July,2016,before me personally came Paul T.Breflat,to me known,who,being by me duly sworn,did depose and say. that he • resides in the City of Sioux Falls,State of South Dakota;that he is the Vice President of WESTERN SURETY COMPANY described in.and which executed the above instrument;that he knows the seal of said corporation;that the seal affixed to the said instrument is such corporate seal;that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto puLsuaut to hike authority,and acknowledges same to be the act and deed of said corporation. My commission expires • J.MPHR June 23,2021 • `"'O"0QR1� I.Mohr,Notary Public • CERTIFICATE I,L.Nelson,Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force,and farther certify that Ate By-Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal ofthe said corporation this day of APR 0 9 2019 , a - WESTERN SURETY COMPANY _�7la� > $A Sv 14 Q • 24- -L I.Nelson,Assistant Secretary Form F4280-7-2012 • • Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is niade and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company. • Section 7. All bonds, policies, undertakings,Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President,Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President,any Vice President, Secretary,any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds,policies, or undertakings in the name of the Company. The corporate seal is.not necessary for the validity of any bonds,policies,undertakings,Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of Riverside On APR 0 9 2019 before me, Stephanie D. Fisher, Notary Public Date Here Insert Name and Title of the Officer personally appeared Julia B. Bales Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are- subscribed to the within instrument and acknowledged to me that he/she/they executed the same in 1 /her/thcir authorized capacity(ies),and that by his/her/thcir 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 offi seal. STEPHANIE D. FISHER r �fi COMM. #2198544 x g �, NOTARY PUBLIC-CALIFORNIA m Signature RIVERSIDE COUNTY %ignature . otary Public my Comm.Expires June 18,2021 Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies)Claimed by Signer(s) Signer's Name: Julia B. Bales Signer's Name: no other signers ❑Corporate Officer — Title(s): _ ❑Corporate Officer — Title(s): ❑ Partner — ❑Limited ❑General ❑ Partner — ❑ Limited ❑General ❑Individual ❑x Attorney in Fact ❑Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: «,-..�,.`.t�..�..�..�,.�..�..�..:�.:�.�.�.«..�..:�..:,.,,.�.«..�..:.....�..�..�..�,«..�..�.s�..�..�..�,.�,.�..�.«,.:mss`:<�..�.,.�.«..�..�._�.-._ ©2014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of 4t1)2rs idSl On P\?VII 12 2Oi before me-,-- (11,21&-VI tV1\G.V S i nota --pub11.C, , Date Here Insert Name and Title of the'dffvicer personally appeared �U�C� MCV f 1_keV Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the persons whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sithey executed the same in his/hec/#laeir authorized capacity(tes), and that by his/herf.their signature signatureN on the instrument the person(`s), or the entity upon behalf of which the personN acted, executed the instrument. I certify under PENALTY OF PERJURY under the RHONDA I. MARKS laws of the State of California that the foregoing ,ti Commission#2111366 Z paragraph is true and correct. 4-:1N Notary Public-California z Riverside County T. WITNESS my hand and official seal. • My Comm.Expires Jun 10,2019 Signature &-ANC\pCJL"'Place Notary Seal and/or Stamp Above Signature of Notaryublic OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer-Title(s): 0 Corporate Officer-Title(s): ❑ Partner- 0 Limited 0 General 0 Partner- 0 Limited 0 General ❑ Individual 0 Attorney in Fact 0 Individual 0 Attorney in Fact ❑ Trustee 0 Guardian of Conservator 0 Trustee 0 Guardian of Conservator ❑ Other: 0 Other: Signer is Representing: Signer is Representing: ©2017 National Notary Association