CC SR 20230221 H - Hardy Harper PVDS Maintenance Amendment No 1
CITY COUNCIL MEETING DATE: 02/21/2023
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA TITLE:
Consideration and possible action to approve Amendment No. 1 to the Agreement for
Public Works Services with Hardy & Harper for roadway repairs within the landslide.
RECOMMENDED COUNCIL ACTION:
(1) Approve Amendment No. 1 to the Agreement for Public Works Services with Hardy
& Harper, Inc,. to increase the contract sum by $250,000 during Fiscal Year 2022-
23, thereby increasing the not-to-exceed total Agreement amount from $3,300,500
to $3,550,500, to provide maintenance repairs on roads within landslide areas of
the City;
(2) Authorize the Mayor and City Clerk to execute Amendment No. 1 to the Public
Works Services Agreement, in a form approved by the City Attorney; and,
(3) Approve an additional appropriation of $143,000 in Fund 215, Proposition C
Landslide Area Resurfacing Program.
FISCAL IMPACT: Approval of Amendment No. 1 to the Agreement for Public Works
Services will result in expenditures by Hardy and Harper up to $910,100 for FY 2022-
23. An additional appropriation of $143,000 is needed in Fund 215 for the additional
work.
Amount Budgeted: $1,116,297
Additional Appropriation: $143,000
Account Number(s): 215-400-8302-8801 ($143,000)
Proposition C – Landslide Area Resurfacing Program)
ORIGINATED BY: Ron Dragoo, PE, Principal Engineer
REVIEWED BY: Ramzi Awwad, Director of Public Works
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Amendment No. 1 to the Public Works Service Agreement with Hardy &
Harper, Inc. (page A-1)
B. Public Works Service Agreement with Hardy & Harper, Inc. (page B-1)
C. August 20, 2019, staff report (page C-1)
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BACKGROUND AND DISCUSSION:
On August 20, 2019, the City Council awarded an Agreement for Public Works Service
(Agreement) to Hardy & Harper, Inc. for repairing the asphalt surface and associated
infrastructure on roads in the landslide areas in Rancho Palos Verdes (Attachments B
and C). The Agreement is valid for a five-year period and the term may be extended by
the City for three additional one-year periods. The Agreement authorizes Staff
expenditures not to exceed $660,100 in any single fiscal year. The expenditure limit was
based on estimates from 2019.
Hout Construction Services, Inc. (Hout), has been managing the roadway inspection and
repair activities to the landslide roads and has recommended innovative repair methods
that appear to be extending the time between repairs in the highest movement areas
along Palos Verdes Drive South in the Portuguese Bend Landslide area. However, over
the past few months, the City has experienced heavier than normal rain and the roadway
has been moving at a greater rate than usual. This has resulted in the need for wider-
ranging and more frequent repairs than anticipated when the Agreement was executed
in 2019.
As a result of the higher-than-normal land movement in the landslide areas, the
contractual limit for Fiscal Year 2022-23 of $660,100 is nearly exhausted. Staff and Hout
have estimated an additional $250,000 will be required to continue maintaining the
roadway through June 30, 2023, before the new budget year begins. This action will
require additional funding of $143,000 to be provided so estimated repair costs can be
funded and repairs to the roadway can be completed as needed.
The rain may continue to affect roadway movement into next year and additional repairs
may be needed next year as well. However, Staff recommends taking a wait and see
approach as next year may be dry, so the movement we are seeing now may slow to
normal rates by then.
A to-date project budget summary is provided below.
The proposed amendment (Attachment A) to the original Agreement will increase the
spending limit from $660,100 to $910,100 during this fiscal year and allow Hardy & Harper
to continue performing repairs, as directed by Staff in conjunction with Hout. The
Fund Budget Notes
215 186,297.00
FY22-23 Adopted Budget 215 900,000.00
FY22-23 Adopted Budget 330 30,000.00
Total Project Budget 1,116,297.00
Fund Budget Committed
Expenditures
as of 02/14/2023 Balance
8001 Professional/Technical Services 215 261,297.00 2,849.00 195,173.00 63,275.00
8005 Engineering Design 215 40,000.00 1,980.00 11,185.00 26,835.00
8006 Inspection 215 75,000.00 - - 75,000.00
8802 Other Improvemens 215 710,000.00 266,420.00 586,563.00 (142,983.00) pending CC 2/21/23 $220K
8802 Other Improvemens 330 30,000.00 30,000.00 - - pending CC 2/21/23 $30K
1,116,297.00 301,249.00 792,921.00 22,127.00
-$ 301,249.00$ 792,921.00$ 22,127.00$ Project Total
8302 - Annual Portuguese Bend Landslide Area Resurfacing
Description
FY21-22 Revised Budget
Project Costs:
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anticipated additional roadway work will continue to be performed at the rates quoted in
Hardy & Harper’s 2019 proposal to the City.
If the landslide movement is not as significant as anticipated, repairs will not be requested,
and all additional funds requested would not be spent.
CONCLUSION:
Staff recommends the City Council approve Amendment No. 1 to the Agreement for
Public Works Services with Hardy & Harper to preform repairs to roadways affected by
landslides, at an additional not-to-exceed cost of $250,000.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative actions are available for
the City Council’s consideration:
1. Do not approve the amendment.
2. Take other action, as deemed appropriate.
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AMENDMENT NO. 1
TO AGREEMENT FOR PUBLIC WORKS SERVICES
THIS AMENDMENT TO THE AGREEMENT FOR PUBLIC WORKS SERVICES
(“Amendment No. 1”) by and between the CITY OF RANCHO PALOS VERDES (“City”) and
HARDY & HARPER, INC., a California corporation (“Contractor”) is effective as of February
21, 2023.
RECITALS
A. City and Contractor entered into an Agreement for Public Works Services dated
August 20, 2019 (“Agreement”) whereby Contractor agreed to provide landslide related roadway
repair services for a term of 5 years through June 30, 2024 and a maximum contract sum of
$3,330,500, with an annual not-to-exceed amount of $660,100.
B. Ongoing work specific to Type One and Type Two work on landslide roads, as
further described in Exhibit “A” to the Agreement, is required beyond the original annual contract
amount for fiscal year 2022-2023 because of the high amount of rainfall in the 2022-2023 rainy
season.
D. Therefore, pursuant to Section 1.10 of the Agreement, City and Contractor now
desire to amend the Agreement to increase total compensation by $250,000, to cover the additional
anticipated costs of repairs to landslide roads through June 30, 2023, for a not-to-exceed total
Contract Sum of $3,550,500.
TERMS
1. Contract Changes. The Agreement is amended as provided herein. Deleted text is
indicated in strikethrough and added text in bold italics.
a. Section2.1, Contract Sum, is amended to read:
“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 annual compensation shall not exceed $660,100 (Six Hundred Sixty
Thousand One Hundred Dollars); provided that compensation for FY
2022-23 shall not exceed $910,100 (Nine Hundred Ten Thousand One
Hundred Dollars). The total Contract Sum, including reimbursement for
actual expenses, shall not exceed $3,300,500 (Three Million Three Hundred
Thousand Five Hundred Dollars)$3,550,500 (Three Million Five Hundred
Fifty Thousand Five Hundred Dollars) (the “Contract Sum”), unless
additional compensation is approved pursuant to Section 1.10.”
b. Task 3 of Exhibit “C”, Schedule of Compensation, is replaced in its entirety
with Exhibit “C” Amendment No. 1, Schedule of Compensation, attached hereto and
incorporated herein by reference.
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01203.0006/853410.1 -2-
2. Continuing Effect of Agreement. Except as amended by this Amendment No. 1,
all provisions of the Agreement shall remain unchanged and in full force and effect. From and
after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement,
it shall mean the Agreement, as amended by this Amendment No. 1 to the Agreement.
3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and
Contractor each ratify and reaffirm each and every one of the respective rights and obligations
arising under the Agreement. Each party represents and warrants to the other that there have been
no written or oral modifications to the Agreement other than as provided herein. Each party
represents and warrants to the other that the Agreement is currently an effective, valid, and binding
obligation.
Contractor represents and warrants to City that, as of the date of this Amendment No. 1,
City is not in default of any material term of the Agreement and that there have been no events
that, with the passing of time or the giving of notice, or both, would constitute a material default
under the Agreement.
City represents and warrants to Contractor that, as of the date of this Amendment No. 1,
Contractor is not in default of any material term of the Agreement and that there have been no
events that, with the passing of time or the giving of notice, or both, would constitute a material
default under the Agreement.
4. Adequate Consideration. The parties hereto irrevocably stipulate and agree that
they have each received adequate and independent consideration for the performance of the
obligations they have undertaken pursuant to this Amendment No. 1.
5. Authority. The persons executing this Amendment No. 1 on behalf of the parties
hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this
Amendment No. 1, such party is formally bound to the provisions of this Amendment No. 1, and
(iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement
to which said party is bound.
[SIGNATURES ON FOLLOWING PAGE]
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01203.0006/853410.1
EXHIBIT “C” AMENDMENT NO. 1
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:
A. Summary of compensation:
CONTRACT SUM THROUGH JUNE 30, 2024 $3,550,500
ANNUAL TOTAL (except FY 2022-23) $660,100
Subtotal Type One Work/Annual (except FY 2022-23) $493,320
Subtotal Type Two Work/Annual (except FY 2022-23) $166,870
TOTAL FOR FY 2022-23 $910,100
Subtotal Type One Work/FY 2022-23 $745,100
Subtotal Type Two Work/FY 2022-23 $165,000
B. Detailed breakdown of compensation:
Type One Work/Annual (see below for FY 2022-23):
Item Description Estimated
Quantity Unit Unit
Price
Extended
Amount
1-1
4” Asphalt remove and reconstruct
per location (1 – 500 SF) 5,500 SF $4.00 $22,000.00
Per additional inch in depth of
asphalt removal and replacement
(1 – 500 SF)
2,000 SF $1.00 $2,000.00
1-2
4” Asphalt remove and reconstruct
per location (501- 1000 SF) 5,000 SF $3.50 $17,500.00
Per additional inch in depth of
asphalt removal and replacement
(501 – 1,000 SF)
2,000 SF $1.00 $2,000.00
1-3
4” Asphalt remove and reconstruct
per location (1,001 - 2000 SF) 5,500 SF $3.00 $16,500.00
Per additional inch in depth of
asphalt removal and replacement
(1,001 – 2,000 SF)
2,000 SF $1.00 $2,000.00
1-4
4” Asphalt remove and reconstruct
per location (>2,000 SF) 5,500 SF $2.30 $12,650.00
Per additional inch in depth of
asphalt removal and replacement
(>2,000 SF)
2,000 SF $1.00 $2,000.00
1-5 AC Cold Milling less than 3” 5,000 SF $1.25 $6,250.00
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AC Fill less than 3” 5,000 SF $4.10 $20,500.00
1-6
AC Cold Milling greater than 3” to
6” 5,000 SF $1.35 $6,750.00
AC Fill greater than 3” to 6” 5,000 SF $4.20 $21,000.00
1-7
AC Cold Milling greater than 6” to
8” 3,500 SF $2.00 $7,000.00
AC Fill greater than 6” to 8” 3,500 SF $4.80 $16,800.00
1-8
AC Cold Milling greater than 8” to
10” 3,500 SF $2.90 $10,150.00
AC Fill greater than 8” to 10” 3,500 SF $6.00 $21,000.00
1-9
AC Cold Milling greater than 10” to
12” 3,500 SF $3.80 $13,300.00
AC Fill greater than 12” 3,500 SF $6.50 $22,750.00
1-10 Skin patching up to 2” 50,000 SF $3.15 $157,500.00
1-11 Traffic Striping, Markings, Raised
Pavement Markers 8 EA $3,000.00 $24,000.00
1-12 Full day flagging operation 15 DAY $4,300.00 $64,500.00
1-13 Half-day flagging operation 8 DAY $800.00 $6,400.00
1-14 Changeable message sign 25 DAY $60.00 $1,500.00
1-15 Class II base material 50 YD $90.00 $4,500.00
1-16 ¾” crushed rock 50 YD $140.00 $7,000.00
1-17 Portland Cement curb and gutter 200 LF $20,00 $4,000.00
1-18 Water truck 12 DAY $140.00 $1,680.00
Subtotal Type One Work
$493,230.00
Type One Work FY 2022-23
The same bid schedule above shall apply for FY 2022-23, except that all categories shall
be increased in amounts on a pro-rata basis, for a Subtotal Type One Work of $745,100.
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Type Two Work/Annual (see below for FY 2022-23):
Type Two Work/FY 2022-23
The same bid schedule above shall apply for FY 2022-23, except the category of Item 2-5,
Laborer with Dump Truck shall be reduced to 145 hours and shall not exceed an Extended
Amount of $18,130 all other categories shall remain the same for a Subtotal Type Two
Work of $165,000.
II. Within the budgeted amounts for Type One and Type Two Work, and with the approval of
the Contract Officer, funds may be shifted from one type of Work to another so long as the
Contract Sum is not exceeded per Section 2.1.
III. The total compensation for the Services shall not exceed the Contract Sum provided in
Section 2.1 of this Agreement.
Item Description Estimated
Quantity Unit Unit
Price
Extended
Amount
2-1 Laborer 200 Hours $95.00 $19,000.00
2-2 Backhoe with operator 100 Hours $132.00 $13,200.00
2-3 Roller with operator 40 Hours $138.00 $5,520.00
2-4 Skip loader with operator 200 Hours $140.00 $28,000.00
2-5 Laborer with Dump Truck 160 Hours $125.00 $20,000.00
2-6 Sidewalk Grinding Crew 200 Hours $65.00 $13,000.00
2-7 Bobcat with operator 75 Hours $180.00 $13,500.00
2-8 Bobcat with operator and grinder 50 Hours $215.00 $10,750.00
2-9 Sawcut Truck with operator 100 Hours $115.00 $11,500.00
2-10 Paving machine with operator 50 Hours $190.00 $9,500.00
2-11 Screed operator 50 Hours $97.00 $4,850.00
2-12 Forman 100 Hours $98.00 $9,800.00
2-13 Vacuum Sweeper 25 Day $150.00 $3,750.00
2-14 Pickup Truck 10 Day $200.00 $2,000.00
2-15 Crew Truck 10 Day $210.00 $2,100.00
2-16 Compressor with 90lb hammer 20 Hours $20.00 $400.00
Subtotal Type Two Work $166,870.00
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B-16
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B-19
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RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 08/20/2019
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to award a construction agreement to Hardy &
Harper, Inc. to perform maintenance on the landslide road, award an inspection
agreement to Sunbeam Consulting, Inc. to provide inspection services, and authorize
an additional appropriation for this project
RECOMMENDED COUNCIL ACTION:
(1) Approve the plans and specifications for the Palos Verdes Drive South Landslide
Road Maintenance project;
(2) Authorize an additional appropriation of $38,100 for this project ;
(3) Award a construction Agreement to Hardy & Harper, Inc. in the amount of
$660,100;
(4) Award a professional services agreement for inspection of the project to
Sunbeam Consulting, Inc. in the amount of $18,000; and
(5) Authorize the Mayor and City Clerk to execute the construction and inspection
agreements.
FISCAL IMPACT: $640,000 is included in the adopted Fiscal Year 2019-20 municipal
budget for this project. An additional appropriation of $38,100 is needed.
Amount Budgeted: $ 640,000
Additional Appropriation: $ 38,100
$20,100 in 215-400-8302-8802 (Prop C – Portuguese Bend/Other Improvements)
$18,000 in 215-400-8302-8006 (Prop C – Portuguese Bend/Inspection Services)
Account Number(s): $ 640,000 215-400-8302-8802
(Prop C – Portuguese Bend/Other Improvements)
ORIGINATED BY: Ron Dragoo, PE, City Engineer
REVIEWED BY: Elias Sassoon, PE, Director of Public Works
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Construction Agreement – Hardy & Harper, Inc. (page A-1)
B. Professional Services Agreement – Sunbeam Consulting, Inc. (page B-1)
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BACKGROUND AND DISCUSSION:
Palos Verdes Drive South traverses the Portuguese Bend Landslide for approximately
one mile. This stretch of roadway requires continuous review, evaluation and
maintenance. Methods used to repair the roadway change over time to facilitate
maintenance efficiencies. The City's current contract, under which repairs are made to
the roadway, did not have certain repair methods included as line items in the bid. As a
result, methods being used, such as the installation of small asphalt "skin" patches,
deep grinds, grouting, concrete curb repairs, etc. have been performed and payment
determined using the time and materials method to capture actual costs. This method of
payment is not as efficient as paying for work through a line item with established
parameters. Accordingly, Staff reviewed our work specifications, re-wrote these
specifications for this work, prepared a new set of bid documents, advertised the project
and received bids on July 31, 2019.
Construction Agreement
Competitive bids were opened for the project on July 31, 2019. One bid proposal was
received, which is shown in the table below along with the engineer’s estimate of
probable cost. The bid received from Hardy & Harper, Inc. was found to be a responsive
and responsible bid.
Palos Verdes Drive South Landslide Road Maintenance
Contractor Bid Amount
Hardy & Harper, Inc. $660,100
Engineer’s Estimate $622,100
The authorized budget for this project in FY 19-20 is $640,000. The bid submitted by
Hardy & Harper is $20,100 higher than the budgeted funds for this project and $38,000
higher than the engineer’s estimate for the work. The bid submitted was analyzed and
all bid amounts are accurate. The cost of labor and a minor increase in the cost of
asphalt were the causes associated with the increased prices submitted by the
contractor. Staff recommends awarding a construction agreement to Hardy & Harper.
The agreement is attached to this report (Attachment A).
Inspection Agreement
Staff has established a program to identify, quantify, record, and verify work that is
needed and work that has been completed in the field. This program is in place and
Sunbeam Consulting, Inc. is currently providing these services for this work in the
landslide area for the City. Accordingly, Staff recommends awarding a new professional
services agreement to Sunbeam Consulting for inspection services associated with this
project.
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Staff separately requested a proposal from a qualified consulting firm to c onduct
inspection of the work needed and installed by the contractor. From a total of 21
consultant firms that submitted statements of qualification for the FY 2018-19 through
FY 2020-21 Capital Improvement Program projects, Sunbeam Consulting exhibited the
experience, performance and expertise needed for this project. Its availability and
qualified staff was also key in the selection. The inspection agreement is attached to
this report (Attachment B).
The agreements with Hardy & Harper and Sunbeam Consulting will be in place for five
years through 2024, with the opportunity for three one-year extensions, if mutually
agreed to by the contractor and/or consultant and the City Council. In addition, Section
5 of the contract provides that the City may terminate the contract with 30 days’ notice
to the contractor. The project budget requires an additional appropriation of $38,100.
ALTERNATIVES:
In addition to the Staff recommendations, the following alternative actions are available
for the City Council’s consideration:
1. Take other action as deemed appropriate by the City Council
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PUBLIC WORKS AGREEMENT
By and Between
CITY OF RANCHO PALOS VERDES
and
HARDY & HARPER, INC.
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AGREEMENT FOR PUBLIC WORKS SERVICES
BETWEEN THE CITY OF RANCHO PALOS VERDES AND
HARDY & HARPER, INC.
THIS AGREEMENT FOR PUBLIC WORKS SERVICES (herein “Agreement”) is made
and entered into this 20th day of August, 2019 by and between the City of Rancho Palos Verdes,
a California municipal corporation (“City”) and HARDY & HARPER, INC. (“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
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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 Palos Verdes Drive South Landslide Road
Maintenance including any documents or exhibits referenced therein (collectively, “bid
documents”), all of which are incorporated herein by this reference. In the event of any
inconsistency between the terms of the bid documents and this Agreement, the terms of this
Agreement shall govern.
1.3 Compliance with Law.
Contractor shall keep itself informed concerning, and shall render all services
hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the
City and any Federal, State or local governmental entity having jurisdiction in effect at the time
service is rendered.
1.4 Compliance with California Labor Law.
(a) Public Work. The Parties acknowledge that the work to be
performed under this Agreement is a “public work” as defined in Labor Code Section 1720 and
that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1
(commencing with Section 1720) of the California Labor Code relating to public works contracts
and the rules and regulations established by the Department of Industrial Relations (“DIR”)
implementing such statutes. The work performed under this Agreement is subject to compliance
monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by
regulation.
(b) Prevailing Wages. Contractor shall pay prevailing wages to the
extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of
the prevailing rate of per diem wages are on file at City Hall and will be made available to any
interested party on request. By initiating any work under this Agreement, Contractor acknowledges
receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing
rate of per diem wages, and Contractor shall post a copy of the same at each job site where work
is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages. Contractor shall
comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning
the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing
wages. The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each
calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined
by the DIR for the work or craft in which the worker is employed for any public work done
pursuant to this Agreement by Contractor or by any subcontractor.
(d) Payroll Records. Contractor shall comply with and be bound by the
provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to: keep
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accurate payroll records and verify such records in writing under penalty of perjury, as specified
in Section 1776; certify and make such payroll records available for inspection as provided by
Section 1776; and inform the City of the location of the records.
(e) Apprentices. Contractor shall comply with and be bound by the
provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations
Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects.
Contractor shall be responsible for compliance with these aforementioned Sections for all
apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall
provide City with a copy of the information submitted to any applicable apprenticeship program.
Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of
its subcontractors shall submit to the City a verified statement of the journeyman and apprentice
hours performed under this Agreement.
(f) Eight-Hour Work Day. Contractor acknowledges that eight (8)
hours labor constitutes a legal day's work. Contractor shall comply with and be bound by Labor
Code Section 1810.
(g) Penalties for Excess Hours. Contractor shall comply with and be
bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work
excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for
each worker employed in the performance of this Agreement by the Contractor or by any
subcontractor for each calendar day during which such worker is required or permitted to work
more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week
in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant
to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8)
hours per day, and forty (40) hours during any one week shall be permitted upon public work upon
compensation for all hours worked in excess of 8 hours per day at not less than one and one-half
(1½) times the basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and
3700 provide that every employer will be required to secure the payment of compensation to its
employees if it has employees. In accordance with the provisions of California Labor Code Section
1861, Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require
every employer to be insured against liability for workers' compensation or to
undertake self-insurance in accordance with the provisions of that code, and I will
comply with such provisions before commencing the performance of the work of
this contract.”
Contractor’s Authorized Initials ________
(i) Contractor’s Responsibility for Subcontractors. For every
subcontractor who will perform work under this Agreement, Contractor shall be responsible for
such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section
1720) of the California Labor Code, and shall make such compliance a requirement in any contract
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with any subcontractor for work under this Agreement. Contractor shall be required to take all
actions necessary to enforce such contractual provisions and ensure subcontractor's compliance,
including without limitation, conducting a review of the certified payroll records of the
subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to
pay his or her workers the specified prevailing rate of wages. Contractor shall diligently take
corrective action to halt or rectify any such failure by any subcontractor.
1.5 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
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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.
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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
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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 annual compensation shall not exceed Six Hundred
Sixty Thousand One Hundred Dollars ($660,100.00). The total compensation, including
reimbursement for actual expenses, shall not exceed Three Million Three Hundred Thousand Five
Hundred Dollars ($3,300,500.00) (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
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in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
and only if specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Contractor at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If
Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall
not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Contractor shall furnish to City an original invoice for all work
performed and expenses incurred during the preceding month in a form approved by City’s
Director of Finance. By submitting an invoice for payment under this Agreement, Contractor is
certifying compliance with all provisions of the Agreement. The invoice shall contain all
information specified in Exhibit “C”, and 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.
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3.2 Schedule of Performance.
Contractor shall commence the services pursuant to this Agreement upon receipt of
a written notice to proceed and shall perform all services within the time period(s) established in
the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this
reference. When requested by the Contractor, extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the Contract Officer but not exceeding
one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the Contractor,
including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires,
earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars,
litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within
ten (10) days of the commencement of such delay notify the Contract Officer in writing of the
causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the services for the period of the enforced delay when and if in the
judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall
be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled
to recover damages against the City for any delay in the performance of this Agreement, however
caused, Contractor’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Inspection and Final Acceptance.
City may inspect and accept or reject any of Contractor’s work under this
Agreement, either during performance or when completed. City shall reject or finally accept
Contractor’s work within forty-five (45) days after submitted to City. City shall accept work by a
timely written acceptance, otherwise work shall be deemed to have been rejected. City’s
acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such
gross mistakes as to amount to fraud. Acceptance of any work by City shall not constitute a waiver
of any of the provisions of this Agreement including, but not limited to, Articles 1 and 5, pertaining
to warranty and indemnification and insurance, respectively.
3.5 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this
Agreement shall continue in full force and effect until completion of the services but not exceeding
one (1) years from the date hereof, except as otherwise provided in the Schedule of Performance
(Exhibit “D”).
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ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor.
The following principals of Contractor (“Principals”) are hereby designated as
being the principals and representatives of Contractor authorized to act in its behalf with respect
to the work specified herein and make all decisions in connection therewith:
Steve Kirschner ___________ Vice President
(Name) (Title)
Dennis Beyle _____________ Principal ________________
(Name) (Title)
Megan Manlove __________ Principal ________________
(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 Elias Sassoon, Director of Public Works, or Ron
Dragoo, 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
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the performance of the services and the Contractor shall refer any decisions which must be made
by City to the Contract Officer. Unless otherwise specified herein, any approval of City required
hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have
authority, if specified in writing by the City Manager, to sign all documents on behalf of the City
required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner,
mode or means by which Contractor, its agents or employees, perform the services required herein,
except as otherwise set forth herein. City shall have no voice in the selection, discharge,
supervision or control of Contractor’s employees, servants, representatives or agents, or in fixing
their number, compensation or hours of service. Contractor shall perform all services required
herein as an independent contractor of City and shall remain at all times as to City a wholly
independent contractor with only such obligations as are consistent with that role. Contractor shall
not at any time or in any manner represent that it or any of its agents or employees are agents or
employees of City. City shall not in any way or for any purpose become or be deemed to be a
partner of Contractor in its business or otherwise or a joint venturer or a member of any joint
enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Contractor, its principals
and employees were a substantial inducement for the City to enter into this Agreement. Therefore,
Contractor shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. All subcontractors shall
obtain, at its or Contractor’s expense, such licenses, permits, registrations and approvals (including
from the City) as may be required by law for the performance of any services or work under this
Agreement. In addition, neither this Agreement nor any interest herein may be transferred,
assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for
the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in concert of more
than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all
transfers into account on a cumulative basis. In the event of any such unapproved transfer,
including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall
release the Contractor or any surety of Contractor of any liability hereunder without the express
consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
Without limiting Contractor’s indemnification of City, and prior to commencement
of any services under this Agreement, Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and amounts described
below and in a form satisfactory to City.
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(a) General liability insurance. Contractor shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in
an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily
injury, personal injury, and property damage. The policy must include contractual liability that has
not been amended. Any endorsement restricting standard ISO “insured contract” language will not
be accepted.
(b) Automobile liability insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and
property damage for all activities of the Contractor arising out of or in connection with Services
to be performed under this Agreement, including coverage for any owned, hired, non-owned or
rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance. Contractor shall
maintain professional liability insurance that covers the Services to be performed in connection
with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any
policy inception date, continuity date, or retroactive date must be before the effective date of this
Agreement and Contractor agrees to maintain continuous coverage through a period no less than
three (3) years after completion of the services required by this Agreement.
(d) Workers’ compensation insurance. Contractor shall maintain Workers’
Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at
least $1,000,000).
(e) Subcontractors. Contractor shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required
in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance. Contractor shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers’ compensation. Insurance certificates and endorsements must be
approved by City’s Risk Manager prior to commencement of performance. Current certification
of insurance shall be kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required insurance policies, at any
time.
(b) Duration of coverage. Contractor shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Services hereunder by
Contractor, its agents, representatives, employees or subcontractors.
(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
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to contribute with it. The limits of insurance required herein may be satisfied by a combination of
primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be
endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of City before the City’s own insurance or self-insurance shall
be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required
under this Agreement does not comply with these specifications or is canceled and not replaced,
City has the right but not the duty to obtain the insurance it deems necessary and any premium
paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient
to pay premium from Contractor payments. In the alternative, City may cancel this Agreement.
(e) Acceptable insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance or
that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned
policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in
accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the
City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents, officials, employees and volunteers or shall specifically allow
Contractor or others providing insurance evidence in compliance with these specifications to waive
their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against
City, and shall require similar written express waivers and insurance clauses from each of its
subcontractors.
(g) Enforcement of contract provisions (non-estoppel). Contractor
acknowledges and agrees that any actual or alleged failure on the part of the City to inform
Contractor of non-compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or
limits contained in this section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a given issue and
is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or
a waiver of any type. If the Contractor maintains higher limits than the minimums shown above,
the City requires and shall be entitled to coverage for the higher limits maintained by the
Contractor. Any available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
(i) Notice of cancellation. Contractor agrees to oblige its insurance agent or
broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for
nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each
required coverage.
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(j) Additional insured status. General liability policies shall provide or be
endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall
be additional insureds under such policies. This provision shall also apply to any excess/umbrella
liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages
required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in writing.
(l) Separation of insureds. A severability of interests provision must apply for
all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the insurer’s limits of
liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass through clause. Contractor agrees to ensure that its subconsultants,
subcontractors, and any other party involved with the project who is brought onto or involved in
the project by Contractor, provide the same minimum insurance coverage and endorsements
required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the requirements of
this section. Contractor agrees that upon request, all agreements with consultants, subcontractors,
and others engaged in the project will be submitted to City for review.
(n) Agency’s right to revise specifications. The City reserves the right at any
time during the term of the contract to change the amounts and types of insurance required by
giving the Contractor ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Contractor, the City and Contractor may renegotiate
Contractor’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to and
approved by City. City reserves the right to require that self-insured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by City.
(p) Timely notice of claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Contractor’s performance
under this Agreement, and that involve or may involve coverage under any of the required liability
policies.
(q) Additional insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment may be necessary
for its proper protection and prosecution of the work.
5.3 Indemnification.
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,
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penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims
or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in
connection with the negligent performance of the work, operations or activities provided herein of
Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity
for which Contractor is legally liable (“indemnitors”), or arising from Contractor’s or indemnitors’
reckless or willful misconduct, or arising from Contractor’s or indemnitors’ negligent performance
of or failure to perform any term, provision, covenant or condition of this Agreement, and in
connection therewith:
(a) Contractor will defend any action or actions filed in connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys’ fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the
City, its officers, agents or employees for any such claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform such work, operations or
activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers,
agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a
party to any action or proceeding filed or prosecuted against Contractor for such damages or other
claims arising out of or in connection with the negligent performance of or failure to perform the
work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its
officers, agents or employees, any and all costs and expenses incurred by the City, its officers,
agents or employees in such action or proceeding, including but not limited to, legal costs and
attorneys’ fees.
In addition, Contractor agrees to indemnify, defend and hold harmless the
Indemnified Parties from, any and all claims and liabilities for any infringement of patent rights,
copyrights or trademark on any person or persons in consequence of the use by the Indemnified
Parties of articles to be supplied by Contractor under this Agreement, and of which the Contractor
is not the patentee or assignee or has not the lawful right to sell the same.
Contractor shall incorporate similar indemnity agreements with its subcontractors
and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore,
and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This
indemnification includes claims or liabilities arising from any negligent or wrongful act, error or
omission, or reckless or willful misconduct of Contractor in the performance of professional
services and work hereunder. The provisions of this Section do not apply to claims or liabilities
occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent
permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence,
except that design professionals’ indemnity hereunder shall be limited to claims and liabilities
arising out of the negligence, recklessness or willful misconduct of the design professional. The
indemnity obligation shall be binding on successors and assigns of Contractor and shall survive
termination of this Agreement.
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5.4 Notification of Third-Party Claims.
City shall timely notify Contractor of the receipt of any third-party claim relating
to the work under this Agreement. City shall be entitled to recover from Contractor its reasonable
costs incurred in providing such notification.
5.5 Performance and Labor Bonds.
Concurrently with execution of this Agreement Contractor shall deliver to the City,
the following:
(a) A performance bond in the amount of the Contract Sum of this
Agreement, in the form provided by the City Clerk, which secures the faithful performance of this
Agreement.
(b) A labor and materials bond in the amount of the Contract Sum of
this Agreement, in the form provided by the City Clerk, which secures the payment of all persons
furnishing labor and/or materials in connection with the work under this Agreement.
Both the performance and labors bonds required under this Section 5.5 shall contain
the original notarized signature of an authorized officer of the surety and affixed thereto shall be a
certified and current copy of his power of attorney. The bond shall be unconditional and remain in
force during the entire term of the Agreement and shall be null and void only if the Contractor
promptly and faithfully performs all terms and conditions of this Agreement and pays all labor and
materials for work and services under this Agreement.
5.6 Sufficiency of Insurer or Surety.
Insurance and bonds required by this Agreement shall be satisfactory only if issued
by companies qualified to do business in California, rated “A” or better in the most recent edition
of Best’s Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a
financial category Class VII or better, unless such requirements are waived by the Risk Manager
of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more
than 3 years duration, or in the event the Risk Manager determines that the work or services to be
performed under this Agreement creates an increased or decreased risk of loss to the City, the
Contractor agrees that the minimum limits of the insurance policies and the performance bond
required by Section 5.5 may be changed accordingly upon receipt of written notice from the Risk
Manager.
5.7 Substitution of Securities.
Pursuant to Public Contract Code Section 22300, substitution of eligible equivalent
securities for any funds withheld to ensure performance under this Agreement may be permitted
at the request and sole expense of the Contractor. Alternatively, the Contractor may, pursuant to
an escrow agreement in a form prescribed by Public Contract Code Section 22300, request
payment of retentions funds earned directly to the escrow agent at the sole expense of the
Contractor.
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5.8 Release of Securities.
City shall release the Performance and Labor Bonds when the following have occurred:
(a) Contractor has made a written request for release and provided
evidence of satisfaction of all other requirements under Article 5 of this Agreement;
(b) the Work has been accepted; and
(c) after passage of the time within which lien claims are required to be
made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the Labor
Bond until such claims have been resolved, Contractor has provided statutory bond, or otherwise
as required by applicable law.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Contractor shall keep, and require subcontractors to keep, such ledgers, books of
accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of
payroll records in compliance with all applicable laws, or other documents relating to the
disbursements charged to City and services performed hereunder (the “books and records”), as
shall be necessary to perform the services required by this Agreement and enable the Contract
Officer to evaluate the performance of such services. Any and all such documents shall be
maintained in accordance with generally accepted accounting principles and shall be complete and
detailed. The Contract Officer shall have full and free access to such books and records at all times
during normal business hours of City, including the right to inspect, copy, audit and make records
and transcripts from such records. Such records shall be maintained for a period of 3 years
following completion of the services hereunder, and the City shall have access to such records in
the event any audit is required. In the event of dissolution of Contractor’s business, custody of the
books and records may be given to City, and access shall be provided by Contractor’s successor
in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in
providing access to the books and records if a public records request is made and disclosure is
required by law including but not limited to the California Public Records Act.
6.2 Reports.
Contractor shall periodically prepare and submit to the Contract Officer such
reports concerning the performance of the services required by this Agreement as the Contract
Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the
cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor
agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that
may or will materially increase or decrease the cost of the work or services contemplated herein
or, if Contractor is providing design services, the cost of the project being 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.
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6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data,
notes, computer files, reports, records, documents and other materials (the “documents and
materials”) prepared by Contractor, its employees, subcontractors and agents in the performance
of this Agreement shall be the property of City and shall be delivered to City upon request of the
Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim
for further employment or additional compensation as a result of the exercise by City of its full
rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use,
reuse or assignment of such completed documents for other projects and/or use of uncompleted
documents without specific written authorization by the Contractor will be at the City’s sole risk
and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to
such use, reuse or assignment. Contractor may retain copies of such documents for its own use.
Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors
shall provide for assignment to City of any documents or materials prepared by them, and in the
event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages
resulting therefrom. Moreover, Contractor with respect to any documents and materials that may
qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are
hereby deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) information gained or work product produced by Contractor in
performance of this Agreement shall be considered confidential, unless such information is in the
public domain or already known to Contractor. Contractor shall not release or disclose any such
information or work product to persons or entities other than City without prior written
authorization from the Contract Officer.
(b) Contractor, its officers, employees, agents or subcontractors, shall
not, without prior written authorization from the Contract Officer or unless requested by the City
Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions,
response to interrogatories or other information concerning the work performed under this
Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided
Contractor gives City notice of such court order or subpoena.
(c) If Contractor, or any officer, employee, agent or subcontractor of
Contractor, provides any information or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity from Contractor for any damages, costs and
fees, including attorneys’ fees, caused by or incurred as a result of Contractor’s conduct.
(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
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Contractor. However, this right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and
to performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Los Angeles, State of California, or any other
appropriate court in such county, and Contractor covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District
Court, venue shall lie exclusively in the Central District of California, in the County of Los
Angeles, State of California.
7.2 Disputes.
(a) Default; Cure. In the event that Contractor is in default under the
terms of this Agreement, the City shall not have any obligation or duty to continue compensating
Contractor for any work performed after the date of default. Instead, the City may give notice to
Contractor of the default and the reasons for the default. The notice shall include the timeframe in
which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may
be extended, though not reduced, if circumstances warrant. During the period of time that
Contractor is in default, the City shall hold all invoices and shall proceed with payment on the
invoices only when the default is cured. In the alternative, the City may, in its sole discretion, elect
to pay some or all of the outstanding invoices during the period of default. If Contractor does not
cure the default, the City may take necessary steps to terminate this Agreement under this Article.
Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed
to result in a waiver of the City’s legal rights or any rights arising out of any provision of this
Agreement.
(b) Dispute Resolution. This contract is subject to the provisions of
Article 1.5 (commencing at Section 20104) of Division 2, Part 3 of the California Public Contract
Code regarding the resolution of public works claims of less than $375,000. Article 1.5 mandates
certain procedures for the filing of claims and supporting documentation by the Contractor, for the
response to such claims by the City, for a mandatory meet and confer conference upon the request
of the Contractor, for mandatory non-binding mediation in the event litigation is commenced, and
for mandatory judicial arbitration upon the failure to resolve the 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
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obligation under this Agreement. In the event that any claim is made by a third party, the amount
or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear
to be the basis for a claim of lien, City may withhold from any payment due, without liability for
interest because of such withholding, an amount sufficient to cover such claim. The failure of City
to exercise such right to deduct or to withhold shall not, however, affect the obligations of the
Contractor to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any
party of any breach of the provisions of this Agreement shall not constitute a waiver of any other
provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of
the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by
a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in
this Agreement, the rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in
law or in equity, to cure, correct or remedy any default, to recover damages for any default, to
compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any
contrary provision herein, Contractor shall file a claim pursuant to Government Code Sections 905
et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
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 TWO THOUSAND Dollars ($2,000) 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.
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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.
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
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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.
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
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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.
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
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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]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first-above written.
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
____________________________________
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
City Attorney
CONTRACTOR:
____________________________________
By: _______________________________
Name:
Title:
By: _________________________________
Name:
Title:
Address:
Two corporate officer signatures required when Contractor is a corporation, with one signature required from
each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any
Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR’S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONTRACTOR’S BUSINESS ENTITY.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2019 before me, ________________, personally appeared ________________, proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2019 before me, ________________, personally appeared ________________, proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
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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 Palos Verdes Drive South Landslide Road
Maintenance including any documents or exhibits referenced therein.
II. Brief description of the work to be performed:
Work to be performed includes on-call repairs to the asphalt roadway surface, replacement
of concrete curb, gutter, sidewalk, signing and striping, asphalt patching, and adjusting
storm drain pipe systems.
III. In addition to the requirements of Section 6.2, during performance of the work, Contractor
will keep the City apprised of the status of performance by delivering the following status
reports:
A. Daily reports of work accomplished.
B. Material delivery truck tickets at the end of each work day.
IV. All work is subject to review and acceptance by the City, and must be revised by the
Contractor without additional charge to the City until found satisfactory and accepted by
City.
V. Contractor shall provide safe and continuous passage for pedestrian, bicycle and vehicular
traffic in accordance with the Work Area Traffic Control Handbook (WATCH), latest
edition.
C-32
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. The following shall replace section 5.5, Performance and Labor Bonds:
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.
c. Both the performance and labors bonds The Payment (labor and
materials) bond 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.
II. The following shall replace section 3.5 Term:
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) 5
years from the date hereof, through June 30, 2024. A provision to extend this agreement beyond
June 30, 2024 at one year intervals is available providing both parties mutually agree to
amending this agreement, except as otherwise provided in the Schedule of Performance (Exhibit
“D”).
C-33
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 Description Estimated
Quantity Unit Unit
Price
Extended
Amount
1-1
4” Asphalt remove and reconstruct
per location (1 – 500 SF) 5,500 SF $4.00 $ 22,000.00
Per additional inch in depth of
asphalt removal and replacement
(1 – 500 SF)
2,000 SF $1.00 $ 2,000.00
1-2
4” Asphalt remove and reconstruct
per location (501- 1000 SF) 5,000 SF $3.50 $ 17,500.00
Per additional inch in depth of
asphalt removal and replacement
(501 – 1,000 SF)
2,000 SF $1.00 $ 2,000.00
1-3
4” Asphalt remove and reconstruct
per location (1,001 - 2000 SF) 5,500 SF $3.00 $ 16,500.00
Per additional inch in depth of
asphalt removal and replacement
(1,001 – 2,000 SF)
2,000 SF $1.00 $ 2,000.00
1-4
4” Asphalt remove and reconstruct
per location (>2,000 SF) 5,500 SF $2.30 $ 12,650.00
Per additional inch in depth of
asphalt removal and replacement
(>2,000 SF)
2,000 SF $1.00 $ 2,000.00
1-5
AC Cold Milling less than 3” 5,000 SF $1.25 $ 6,250.00
AC Fill less than 3” 5,000 SF $4.10 $ 20,500.00
1-6
AC Cold Milling greater than 3” to
6” 5,000 SF $1.35 $ 6,750.00
AC Fill greater than 3” to 6” 5,000 SF $4.20 $ 21,000.00
1-7
AC Cold Milling greater than 6” to
8” 3,500 SF $2.00 $ 7,000.00
AC Fill greater than 6” to 8” 3,500 SF $4.80 $ 16,800.00
1-8
AC Cold Milling greater than 8” to
10” 3,500 SF $2.90 $ 10,150.00
AC Fill greater than 8” to 10” 3,500 SF $6.00 $ 21,000.00
1-9
AC Cold Milling greater than 10” to
12” 3,500 SF $3.80 $ 13,300.00
AC Fill greater than 12” 3,500 SF $6.50 $ 22,750.00
1-10 Skin patching up to 2” 50,000 SF $3.15 $ 157,500.00
1-11 Traffic Striping, Markings, Raised
Pavement Markers 8 EA $3,000.00 $ 24,000.00
1-12 Full day flagging operation 15 DAY $4,300.00 $ 64,500.00
C-34
Subtotal Type One Work $ 493,230.00
Subtotal Type Two Work $ 166,870.00
Total Base Bid Amount $ 660,100.00
Item Description Estimated
Quantity Unit Unit Price Extended
Amount
1-13 Half day flagging operation 8 DAY $800.00 $ 6,400.00
1-14 Changeable Message Sign 25 DAY $60.00 $ 1,500.00
1-15 Class II Base Material 50 YD $90.00 $ 4,500.00
1-16 ¾” Crushed Rock 50 YD $140.00 $ 7,000.00
1-17 Portland Cement Curb and Gutter 20
0 LF $20.00 $ 4,000.00
1-18 Water Truck 12 Day $140.00 $ 1,680.00
Subtotal Type One Work $ 493,230.00
Item Description Estimated
Quantity Unit Unit
Price
Extended
Amount
2-1 Laborer 200 Hours $95.00 $ 19,000.00
2-2 Backhoe with operator 100 Hours $132.00 $ 13,200.00
2-3 Roller with operator 40 Hours $138.00 $ 5,520.00
2-4 Skip loader with operator 200 Hours $140.00 $ 28,000.00
2-5 Laborer with Dump Truck 160 Hours $125.00 $ 20,000.00
2-6 Sidewalk Grinding Crew 200 Hours $65.00 $ 13,000.00
2-7 Bobcat with operator 75 Hours $180.00 $ 13,500.00
2-8 Bobcat with operator and grinder 50 Hours $215.00 $ 10,750.00
2-9 Sawcut Truck with operator 100 Hours $115.00 $ 11,500.00
2-10 Paving machine with operator 50 Hours $190.00 $ 9,500.00
2-11 Screed operator 50 Hours $97.00 $ 4,850.00
2-12 Forman 100 Hours $98.00 $ 9,800.00
2-13 Vacuum Sweeper 25 Day $150.00 $ 3,750.00
2-14 Pickup Truck 10 Day $200.00 $ 2,000.00
2-15 Crew Truck 10 Day $210.00 $ 2,100.00
2-16 Compressor with 90lb hammer 20 Hours $20.00 $ 400.00
Subtotal Type Two Work $ 166,870.00
C-35
V. The total compensation for the Services shall not exceed $660,100 annually and $3,300,500
over the five (5) year term as provided in Section 2.1 of this Agreement.
C-36
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Contractor shall perform all work timely in accordance with the following schedule:
Schedule to be provided and added to this section once schedule is made available at the
project pre-construction meetings.
III. The term of this agreement shall be for Five consecutive years ending June 30, 2024, with
the possibility of three one year mutually agreed upon extensions which will be memorialized
with addendums to this agreement.
C-37
PAYMENT BOND
(Labor and Material Bond)
WHEREAS, the CITY OF RANCHO PALOS VERDES, (“City”), has awarded to
__________________________________, as Contractor (“Principal”), a Contract for the
work entitled and described as follows: on-call maintenance of the Palos Verdes Drive South
Landslide Road;
WHEREAS, said Contractor is required to furnish a bond in conjunction with said
Contract, to secure the payment of claims of laborers, mechanics, material men, and other
persons as provided by law;
NOW, THEREFORE, we the undersigned Contractor and Surety, are held and firmly
bound unto the City in the sum of ________________________________________
($______________), this amount being not less than one hundred percent (100%) of the total
Contract price, lawful money of the United States of America, for payment of which sum well
and truly be made we bind ourselves, our heirs, executors, administrators, and successors,
jointly and severally, firmly by these presents. In case suit is brought upon this bond, the Surety
will pay a reasonable attorney’s fee to the City in an amount to be fixed by the court.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if said Contractor, its
heirs, executors, administrators, successors, assigns, or subcontractor fails to pay: (1) for any
work, materials, services, provisions, provender, or other supplies, or for the use of implements
of machinery, used in, upon, for, or about the performance of the work to be done, or for any
work or labor thereon of any kind; (2) for work performed by any of the persons named in
Civil Code Section 9100; (3) for any amounts due under the Unemployment Insurance Code
with respect to work or labor performed under the contract; and/or (4) for any amounts required
to be deducted, withheld, and paid over to the Employment Development Department from the
wages of employees of the Contractor and/or its subcontractors pursuant to Section 13020 of
the Unemployment Insurance Code with respect to such work and labor, then the Surety herein
will pay for the same in an amount not exceeding the sum specified in this bond, otherwise the
above obligation shall be void.
This bond shall inure to the benefit of any of the persons named in Civil Code Section
9100 so as to give a right of action to such persons or their assigns in any suit brought upon
the bond. Moreover, if the City or any entity or person entitled to file stop payment notices is
required to engage the services of an attorney in connection with the enforcement of this bond,
each shall be liable for the reasonable attorney's fees incurred, with or without suit, in addition
to the above sum.
Said Surety, for value received, hereby stipulates and agrees that no change, extension
of time, alteration, or modification of the Contract Documents or of the work to be performed
thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice
of such change, extension of time, alteration, or modification of the Contract Documents or of
the work to be performed thereunder.
C-38
Executed on , 20____.
PRINCIPAL
(Seal if Corporation) By
Title
(Attach Acknowledgment of Authorized Representative of Principal)
Any claims under this bond may be addressed to:
(name and address of Surety)
(name and address of Surety's agent for service of process in California, if different from above)
(telephone number of Surety's agent in California)
(Attach Acknowledgment) SURETY
By (Attorney-in-Fact) APPROVED:
(Attorney for CITY)
NOTICE:
No substitution or revision to this bond form will be accepted. Sureties must be authorized to
do business in and have an agent for service of process in California. Certified copy of Power
of Attorney must be attached.
C-39
WORKERS COMPENSATION INSURANCE CERTIFICATE
Description of Contract: City of Rancho Palos Verdes
Project: _____________________________________________
Type of Insurance: Workers' Compensation and
Employers' Liability Insurance
THIS IS TO CERTIFY that the following policy has been issued by the below-stated company in
conformance with the requirements of Article 5 of the Contract and is in force at this time, and is
in a form approved by the Insurance Commissioner.
The Company will give at least 30 days' written notice to the City and Engineer/Architect prior to
any cancellation of said policy.
POLICY NUMBER EXPIRATION DATE LIMITS OF LIABILITY
Workers' Compensation:
Statutory Limits Under the Laws
of the State of California
Employers' Liability:
$_________________ Each Accident
$_________________ Disease - Policy Limit
$_________________ Disease - Each Employee
Named Insured (Contractor) Insurance Company
Street Number Street Number
City and State City and State
By
(Company Representative)
(SEE NOTICE ON NEXT PAGE)
C-40
Insurance Company Agent for Service
of Process in California:
Name
Agency
Street Number
City and State
Telephone Number
This certificate is issued as a matter of information only and confers no rights upon the certificate
holder. This certificate does not amend, extend, or alter the coverage afforded by the policy listed
herein.
This is to certify that the policy has been issued to the named insured for the policy period
indicated, notwithstanding any requirement, term, or condition of any contract or other document
with respect to which this certificate may be issued or may pertain, the insurance afforded by the
policy described herein is subject to all the terms, exclusions, and conditions of such policy.
NOTICE:
No substitution or revision to the above certificate form will be accepted. If the insurance called
for is provided by more than one insurance company, a separate certificate in the exact above form
shall be provided for each insurance company.
C-41
ADDITIONAL INSURED ENDORSEMENT
COMPREHENSIVE GENERAL LIABILITY
Name and address of named insured (“Named Insured”)
Name and address of Insurance Company (“Company”)
General description of agreement(s), permit(s), license(s), and/or activity(ies) insured
Notwithstanding any inconsistent statement in the policy to which this endorsement is attached (the
“Policy”) or in any endorsement now or hereafter attached thereto, it is agreed as follows:
1. The
(“Public Agency”), its elected officials, officers, attorneys, agents, employees, and volunteers are additional
insureds (the above named additional insureds are hereafter referred to as the “Additional Insureds”) under
the Policy in relation to those activities described generally above with regard to operations performed by
or on behalf of the Named Insured. The Additional Insureds have no liability for the payment of any
premiums or assessments under the Policy.
2. The insurance coverages afforded the Additional Insureds under the Policy shall be primary
insurance, and no other insurance maintained by the Additional Insureds shall be called upon to contribute
with the insurance coverages provided by the Policy.
3. Each insurance coverage under the Policy shall apply separately to each Additional Insured
against whom claim is made or suit is brought except with respect to the limits of the Company's liability.
4. Nothing in this contract of insurance shall be construed to preclude coverage of a claim by
one insured under the policy against another insured under the policy. All such claims shall be covered as
third-party claims, i.e., in the same manner as if separate policies had been issued to each insured. Nothing
contained in this provision shall operate to increase or replicate the Company's limits of liability as provided
under the policy.
5. The insurance afforded by the Policy for contractual liability insurance (subject to the
terms, conditions and exclusions applicable to such insurance) includes liability assumed by the Named
Insured under the indemnification and/or hold harmless provision(s) contained in or executed in conjunction
with the written agreement(s) or permit(s) designated above, between the Named Insured and the Additional
Insureds.
6. The policy to which this endorsement is attached shall not be subject to cancellation,
change in coverage, reduction of limits (except as the result of the payment of claims), or non-renewal
except after written notice to Public Agency, by certified mail, return receipt requested, not less than thirty
(30) days prior to the effective date thereof. In the event of Company's failure to comply with this notice
provision, the policy as initially drafted will continue in full force and effect until compliance with this
notice requirement.
7. Company hereby waives all rights of subrogation and contribution against the Additional
Insureds, while acting within the scope of their duties, from all claims, losses and liabilities arising out of
or incident to the perils insured against in relation to those activities described generally above with regard
C-42
to operations performed by or on behalf of the Named Insured regardless of any prior, concurrent, or
subsequent active or passive negligence by the Additional Insureds.
8. It is hereby agreed that the laws of the State of California shall apply to and govern the
validity, construction, interpretation, and enforcement of this contract of insurance.
9. This endorsement and all notices given hereunder shall be sent to Public Agency at:
City Manager, City of Rancho Palos Verdes, 30940 Hawthorne Boulevard, Rancho Palos Verdes, California
90275.
10. Except as stated above and not in conflict with this endorsement, nothing contained herein
shall be held to waive, alter or extend any of the limits, agreements, or exclusions of the policy to which
this endorsement is attached.
TYPE OF COVERAGES TO WHICH POLICY PERIOD LIMITS OF
THIS ENDORSEMENT ATTACHES FROM/TO LIABILITY
11. Scheduled items or locations are to be identified on an attached sheet. The following
inclusions relate to the above coverages. Includes:
□ Contractual Liability □ Explosion Hazard
□ Owners/Landlords/Tenants □ Collapse Hazard
□ Manufacturers/Contractors □ Underground Property Damage
□ Products/Completed Operations □ Pollution Liability
□ Broad Form Property Damage □ Liquor Liability
□ Extended Bodily Injury □
□ Broad Form Comprehensive □
General Liability Endorsement □
12. A □ deductible or □ self-insured retention (check one) of $
applies to all coverage(s) except:
(if none, so state). The deductible is applicable □ per claim or □ per occurrence (check one).
13. This is an □ occurrence or □ claims made policy (check one).
14. This endorsement is effective on at 12:01 a.m. and forms a part of
Policy Number .
(signatures on following page)
C-43
I, (print name), hereby
declare under penalty of perjury under the laws of the State of California, that I have the authority to bind
the Company to this endorsement and that by my execution hereof, I do so bind the Company.
Executed , 20
Signature of Authorized Representative
(Original signature only; no facsimile signature
Telephone No.: ( ) or initialed signature accepted)
C-44
ADDITIONAL INSURED ENDORSEMENT
AUTOMOBILE LIABILITY
Name and address of named insured (“Named Insured”)
Name and address of Insurance Company (“Company”)
General description of agreement(s), permit(s), license(s), and/or activity(ies) insured
Notwithstanding any inconsistent statement in the policy to which this endorsement is attached (the
“Policy”) or in any endorsement now or hereafter attached thereto, it is agreed as follows:
1. The
(“Public Agency”), its elected officials, officers, attorneys, agents, employees, and volunteers are additional
insureds (the above named additional insureds are hereafter referred to as the “Additional Insureds”) under
the Policy in relation to those activities described generally above with regard to operations performed by
or on behalf of the Named Insured. The Additional Insureds have no liability for the payment of any
premiums or assessments under the Policy.
2. The insurance coverages afforded the Additional Insureds under the Policy shall be primary
insurance, and no other insurance maintained by the Additional Insureds shall be called upon to contribute
with the insurance coverages provided by the Policy.
3. Each insurance coverage under the Policy shall apply separately to each Additional Insured
against whom claim is made or suit is brought except with respect to the limits of the Company's liability.
4. Nothing in this contract of insurance shall be construed to preclude coverage of a claim by
one insured under the policy against another insured under the policy. All such claims shall be covered as
third-party claims, i.e., in the same manner as if separate policies had been issued to each insured. Nothing
contained in this provision shall operate to increase or replicate the Company's limits of liability as provided
under the policy.
5. The insurance afforded by the Policy for contractual liability insurance (subject to the
terms, conditions and exclusions applicable to such insurance) includes liability assumed by the Named
Insured under the indemnification and/or hold harmless provision(s) contained or executed in conjunction
with the written agreement(s) or permit(s) designated above, between the Named Insured and the Additional
Insureds.
6. The policy to which this endorsement is attached shall not be subject to cancellation,
change in coverage, reduction of limits (except as the result of the payment of claims), or non-renewal
except after written notice to Public Agency, by certified mail, return receipt requested, not less than thirty
(30) days prior to the effective date thereto. In the event of Company's failure to comply with this notice
provision, the policy as initially drafted will continue in full force and effect until compliance with this
notice requirement.
7. Company hereby waives all rights of subrogation and contribution against the Additional
Insureds, while acting within the scope of their duties, from all claims, losses and liabilities arising out of
or incident to the perils insured against in relation to those activities described generally above with regard
C-45
to operations performed by or on behalf of the Named Insured regardless of any prior, concurrent, or
subsequent active or passive negligence by the Additional Insureds.
8. It is hereby agreed that the laws of the State of California shall apply to and govern the
validity, construction, interpretation, and enforcement of this contract of insurance.
9. This endorsement and all notices given hereunder shall be sent to Public Agency at:
City Manager
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
10. Except as stated above and not in conflict with this endorsement, nothing contained herein
shall be held to waive, alter or extend any of the limits, agreements, or exclusions of the policy to which
this endorsement is attached.
TYPE OF COVERAGES TO WHICH POLICY PERIOD LIMITS OF
THIS ENDORSEMENT ATTACHES FROM/TO LIABILITY
11. Scheduled items or locations are to be identified on an attached sheet. The following
inclusions relate to the above coverages. Includes:
□ Any Automobiles □ Truckers Coverage
□ All Owned Automobiles □ Motor Carrier Act
□ Non-owned Automobiles □ Bus Regulatory Reform Act
□ Hired Automobiles □ Public Livery Coverage
□ Scheduled Automobiles □
□ Garage Coverage □
12. A □ deductible or □ self-insured retention (check one) of $
applies to all coverage(s) except: (if none, so state). The deductible is applicable □
per claim or □ per occurrence (check one).
13. This is an □ occurrence or □ claims made policy (check one).
14. This endorsement is effective on at 12:01 a.m. and forms a part of Policy
Number .
(signatures on following page)
C-46
I, (print name), hereby
declare under penalty of perjury under the laws of the State of California, that I have the authority to bind
the Company to this endorsement and that by my execution hereof, I do so bind the Company.
Executed , 20
Signature of Authorized Representative
(Original signature only; no facsimile signature
Telephone No.: ( ) or initialed signature accepted)
C-47
ADDITIONAL INSURED ENDORSEMENT
EXCESS LIABILITY
Name and address of named insured (“Named Insured”)
Name and address of Insurance Company (“Company”)
General description of agreement(s), permit(s), license(s), and/or activity(ies) insured
Notwithstanding any inconsistent statement in the policy to which this endorsement is attached (the
“Policy”) or in any endorsement now or hereafter attached thereto, it is agreed as follows:
1. The
(“Public Agency”), its elected officials, officers, attorneys, agents, employees, and volunteers are additional
insureds (the above named additional insureds are hereafter referred to as the “Additional Insureds”) under
the Policy in relation to those activities described generally above with regard to operations performed by
or on behalf of the Named Insured. The Additional Insureds have no liability for the payment of any
premiums or assessments under the Policy.
2. The insurance coverages afforded the Additional Insureds under the Policy shall be primary
insurance, and no other insurance maintained by the Additional Insureds shall be called upon to contribute
with the insurance coverages provided by the Policy.
3. Each insurance coverage under the Policy shall apply separately to each Additional Insured
against whom claim is made or suit is brought, except with respect to the limits of the Company's liability.
4. Nothing in this contract of insurance shall be construed to preclude coverage of a claim by one insured under the policy against another insured under the policy. All such claims shall be covered as third-party claims, i.e., in the same manner as if separate policies had been issued to each insured. Nothing contained in this provision shall operate to increase or replicate the Company's limits of liability as provided
under the policy.
5. The insurance afforded by the Policy for contractual liability insurance (subject to the
terms, conditions and exclusions applicable to such insurance) includes liability assumed by the Named
Insured under the indemnification and/or hold harmless provision(s) contained in or executed in conjunction with the written agreement(s) or permit(s) designated above, between the Named Insured and the Additional Insureds.
6. The policy to which this endorsement is attached shall not be subject to cancellation,
change in coverage, reduction of limits (except as the result of the payment of claims), or non-renewal
except after written notice to Public Agency, by certified mail, return receipt requested, not less than thirty
(30) days prior to the effective date thereto. In the event of Company's failure to comply with this notice
provision, the policy as initially drafted will continue in full force and effect until compliance with this
notice requirement.
7. Company hereby waives all rights of subrogation and contribution against the Additional
Insureds, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to the perils insured against in relation to those activities described generally above with regard to operations performed by or on behalf of the Named Insured regardless of any prior, concurrent, or subsequent active or passive negligence by the Additional Insureds.
C-48
8. It is hereby agreed that the laws of the State of California shall apply to and govern the
validity, construction, interpretation, and enforcement of this contract of insurance.
9. This endorsement and all notices given hereunder shall be sent to Public Agency at:
City Manager
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
10. Except as stated above and not in conflict with this endorsement, nothing contained herein
shall be held to waive, alter or extend any of the limits, agreements, or exclusions of the policy to which
this endorsement is attached.
TYPE OF COVERAGES TO WHICH POLICY PERIOD LIMITS OF
THIS ENDORSEMENT ATTACHES FROM/TO LIABILITY
□ Following Form
□ Umbrella Liability
□
11. Applicable underlying coverages:
INSURANCE COMPANY POLICY NO. AMOUNT
12. The following inclusions, exclusions, extensions or specific provisions relate to the above
coverages:
13. A □ deductible or □ self-insured retention (check one) of $
applies to all coverage(s) except:
(if none, so state). The deductible is applicable □ per claim or □ per occurrence (check one).
14. This is an □ occurrence or □ claims made policy (check one).
15. This endorsement is effective on at 12:01 a.m. and forms a part of Policy
Number .
C-49
(signatures on following page)
I, (print name), hereby
declare under penalty of perjury under the laws of the State of California, that I have the authority to bind
the Company to this endorsement and that by my execution hereof, I do so bind the Company.
Executed , 20
Signature of Authorized Representative
(Original signature only; no facsimile signature
Telephone No.: ( ) or initialed signature accepted)
C-50
CITY OF RANCHO PALOS VERDES
CONTRACT SERVICES AGREEMENT FOR
INSPECTION SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein “Agreement”) is made and
entered into this 20th day of August, 2019, by and between the CITY OF RANCHO PALOS
VERDES, a municipal corporation (“City”) and Sunbeam Consultant, Inc. (herein “Consultant”).
NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all of the terms and conditions of
this Agreement, the Consultant shall perform the work or services set forth in the “Scope of
Services” attached hereto as Exhibit “A” and incorporated herein by reference. Consultant
warrants that it has the experience and ability to perform all work and services required
hereunder and that it shall diligently perform such work and services in a professional and
satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall
be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the
City and any Federal, State or local governmental agency of competent jurisdiction.
1.3 California Labor Law. If the Scope of Services includes any “public
work” or “maintenance work,” as those terms are defined in California Labor Code section 1720
et seq. and California Code of Regulations, Title 8, Section 16000 et seq., and if the total
compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and
comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq.,
and all other applicable laws.
1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain at its
sole cost and expense such licenses, permits, and approvals as may be required by law for the
performance of the services required by the Agreement.
1.5 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in the “Special Requirements”
attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a
conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the
provisions of Exhibit “B” shall govern.
2. COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,
Consultant shall be compensated in accordance with the “Schedule of Compensation” attached
hereto as Exhibit “C” and incorporated herein by this reference, but not exceeding the annual
amount of Eighteen Thousand Dollars ($18,000.00), and the maximum contract amount of
Seventy Two Thousand Dollars ($72,000.00) (“Contract Sum”).
C-51
2.2 Invoices. Each month Consultant shall furnish to City an original invoice
for all work performed and expenses incurred during the preceding month in a form approved by
City’s Director of Finance. By submitting an invoice for payment under this Agreement,
Consultant is certifying compliance with all provisions of the Agreement. The invoice shall
contain all information specified in Exhibit “C”, and shall detail charges for all necessary and
actual expenses by the following categories: labor (by sub-category), travel, materials,
equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed
by such categories. Consultant shall not invoice City for any duplicate services performed by
more than one person.
City shall independently review each invoice submitted by the Consultant to determine
whether the work performed and expenses incurred are in compliance with the provisions of this
Agreement. Except as to any charges for work performed or expenses incurred by Consultant
which are disputed by City, City will use its best efforts to cause Consultant to be paid within
forty five (45) days of receipt of Consultant’s correct and undisputed invoice; however,
Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot
guarantee that payment will occur within this time period. In the event any charges or expenses
are disputed by City, the original invoice shall be returned by City to Consultant for correction
and resubmission. Review and payment by the City of any invoice provided by the Consultant
shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.3 Additional Services. City shall have the right at any time during the
performance of the services, without invalidating this Agreement, to order extra work beyond
that specified in the Scope of Services or make changes by altering, adding to or deducting from
said work. No such extra work may be undertaken unless a written order is first given by the
Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum
for the actual cost of the extra work, and/or (ii) the time to perform this Agreement, which said
adjustments are subject to the written approval of the Consultant. Any increase in compensation
of up to ten percent (10%) of the Contract Sum but not exceeding a total contract amount of Five
Thousand Dollars ($5,000) or in the time to perform of up to ninety (90) days may be approved
by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be
approved by the City Council. No claim for an increase in the Contract Sum or time for
performance shall be valid unless the procedures established in this Section are followed.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Consultant shall commence the services
pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all
services within the time period(s) established in the “Schedule of Performance” attached hereto
as Exhibit “D” and incorporated herein by this reference. When requested by the Consultant,
extensions to the time period(s) specified in the Schedule of Performance may be approved in
writing by the Contract Officer but not exceeding thirty (30) days cumulatively.
3.3 Force Majeure. The time period(s) specified in the Schedule of
Performance for performance of the services rendered pursuant to this Agreement shall be
extended because of any delays due to unforeseeable causes beyond the control and without the
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fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public
enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions,
riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency,
including the City, if the Consultant shall within ten (10) days of the commencement of such
delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall
ascertain the facts and the extent of delay, and extend the time for performing the services for the
period of the enforced delay when and if in the judgment of the Contract Officer such delay is
justified. The Contract Officer’s determination shall be final and conclusive upon the parties to
this Agreement. In no event shall Consultant be entitled to recover damages against the City for
any delay in the performance of this Agreement, however caused, Consultant’s sole remedy
being extension of the Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Article 7 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services
but not exceeding One year from the date hereof, except as otherwise provided in the Schedule
of Performance (Exhibit “D”).
4. COORDINATION OF WORK
4.1 Representative of Consultant. Alan Braatvedt, President, is hereby
designated as being the representative of Consultant authorized to act on its behalf with respect
to the work and services specified herein and make all decisions in connection therewith. All
personnel of Consultant and any authorized agents shall be under the exclusive direction of the
representative of Consultant. Consultant shall utilize only competent personnel to perform
services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain
the stability and continuity of Consultant’s staff and subcontractors, and shall keep City informed
of any changes.
4.2 Contract Officer. Elias Sassoon, Director of Public Works, or such
person as may be designated by the City Manager, is hereby designated as being the
representative the City authorized to act in its behalf with respect to the work and services
specified herein and to make all decisions in connection therewith (“Contract Officer”).
4.3 Prohibition Against Subcontracting or Assignment. Consultant shall not
contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the City. Neither this Agreement nor any interest herein
may be assigned or transferred, voluntarily or by operation of law, without the prior written
approval of City. Any such prohibited assignment or transfer shall be void.
4.4 Independent Consultant. Neither the City nor any of its employees shall
have any control over the manner, mode or means by which Consultant, its agents or employees,
perform the services required herein, except as otherwise set forth. Consultant shall perform all
services required herein as an independent contractor of City with only such obligations as are
consistent with that role. Consultant shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City, or that it is a member of a joint
enterprise with City.
5. INSURANCE AND INDEMNIFICATION
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5.1 Insurance Coverages. Without limiting Consultant’s indemnification of
City, and prior to commencement of any services under this Agreement, Consultant shall obtain,
provide and maintain at its own expense during the term of this Agreement, policies of insurance
of the type and amounts described below and in a form satisfactory to City.
(a) General liability insurance. Consultant shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01,
in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily
injury, personal injury, and property damage. The policy must include contractual liability that
has not been amended. Any endorsement restricting standard ISO “insured contract” language
will not be accepted.
(b) Automobile liability insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury
and property damage for all activities of the Consultant arising out of or in connection with
Services to be performed under this Agreement, including coverage for any owned, hired, non-
owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each
accident.
(c) Professional liability (errors & omissions) insurance. Consultant shall
maintain professional liability insurance that covers the Services to be performed in connection
with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any
policy inception date, continuity date, or retroactive date must be before the effective date of this
Agreement and Consultant agrees to maintain continuous coverage through a period no less than
three (3) years after completion of the services required by this Agreement.
(d) Workers’ compensation insurance. Consultant shall maintain Workers’
Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at
least $1,000,000).
(e) Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall include all of the requirements stated
herein.
(f) Additional Insurance. Policies of such other insurance, as may be required
in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers’ compensation. Insurance certificates and endorsements must be
approved by City’s Risk Manager prior to commencement of performance. Current certification
of insurance shall be kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required insurance policies, at any
time.
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(b) Duration of coverage. Consultant shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to persons or damages to
property, which may arise from or in connection with the performance of the Services hereunder
by Consultant, its agents, representatives, employees or subconsultants.
(c) Primary/noncontributing. Coverage provided by Consultant shall be
primary and any insurance or self-insurance procured or maintained by City shall not be required
to contribute with it. The limits of insurance required herein may be satisfied by a combination
of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or
be endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of City before the City’s own insurance or self-insurance shall
be called upon to protect it as a named insured.
(d) City’s rights of enforcement. In the event any policy of insurance required
under this Agreement does not comply with these specifications or is canceled and not replaced,
City has the right but not the duty to obtain the insurance it deems necessary and any premium
paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient
to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(e) Acceptable insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance
or that is on the List of Approved Surplus Line Insurers in the State of California, with an
assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger)
in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by
the City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents, officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each of
its subconsultants.
(g) Enforcement of contract provisions (non-estoppel). Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to inform
Consultant of non-compliance with any requirement imposes no additional obligations on the
City nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or
limits contained in this section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to a given
issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for the higher limits maintained
by the Consultant. Any available insurance proceeds in excess of the specified minimum limits
of insurance and coverage shall be available to the City.
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(i) Notice of cancellation. Consultant agrees to oblige its insurance agent or
broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for
nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each
required coverage.
(j) Additional insured status. General liability policies shall provide or be
endorsed to provide that City and its officers, officials, employees, and agents, and volunteers
shall be additional insureds under such policies. This provision shall also apply to any
excess/umbrella liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages
required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in writing.
(l) Separation of insureds. A severability of interests provision must apply for
all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the insurer’s limits of
liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass through clause. Consultant agrees to ensure that its subconsultants,
subcontractors, and any other party involved with the project who is brought onto or involved in
the project by Consultant, provide the same minimum insurance coverage and endorsements
required of Consultant. Consultant agrees to monitor and review all such coverage and assumes
all responsibility for ensuring that such coverage is provided in conformity with the requirements
of this section. Consultant agrees that upon request, all agreements with consultants,
subcontractors, and others engaged in the project will be submitted to City for review.
(n) Agency’s right to revise specifications. The City reserves the right at any
time during the term of the contract to change the amounts and types of insurance required by
giving the Consultant ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Consultant, the City and Consultant may renegotiate
Consultant’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by City.
(p) Timely notice of claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant’s performance
under this Agreement, and that involve or may involve coverage under any of the required
liability policies.
(q) Additional insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own judgment may be
necessary for its proper protection and prosecution of the work.
5.3 Indemnification. To the full extent permitted by law, Consultant agrees to
indemnify, defend and hold harmless the City, its officers, employees and agents (“Indemnified
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Parties”) against, and will hold and save them and each of them harmless from, any and all
actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or
property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or
threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or
entity arising out of or in connection with the negligent performance of the work, operations or
activities provided herein of Consultant, its officers, employees, agents, subcontractors, invitees,
or any individual or entity for which Consultant is legally liable (“indemnitors”), or arising from
Consultant’s or indemnitors’ reckless or willful misconduct, or arising from Consultant’s or
indemnitors’ negligent performance of or failure to perform any term, provision, covenant or
condition of this Agreement, except claims or liabilities occurring as a result of City’s sole
negligence or willful acts or omissions. The indemnity obligation shall be binding on successors
and assigns of Consultant and shall survive termination of this Agreement.
6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors to keep, such
ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other
documents relating to the disbursements charged to City and services performed hereunder (the
“books and records”), as shall be necessary to perform the services required by this Agreement
and enable the Contract Officer to evaluate the performance of such services and shall keep such
records for a period of three years following completion of the services hereunder. The Contract
Officer shall have full and free access to such books and records at all times during normal
business hours of City, including the right to inspect, copy, audit and make records and
transcripts from such records.
6.2 Reports. Consultant shall periodically prepare and submit to the Contract
Officer such reports concerning the performance of the services required by this Agreement or as
the Contract Officer shall require.
6.3 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in
performance of this Agreement shall be considered confidential, unless such information is in the
public domain or already known to Consultant. Consultant shall not release or disclose any such
information or work product to persons or entities other than the City without prior written
authorization from the Contract Officer.
(b) Consultant shall not, without prior written authorization from the Contract
Officer or unless requested by the City Attorney, voluntarily provide documents, declarations,
letters of support, testimony at depositions, response to interrogatories or other information
concerning the work performed under this Agreement. Response to a subpoena or court order
shall not be considered “voluntary” provided Consultant gives the City notice of such court order
or subpoena.
(c) If Consultant provides any information or work product in violation of this
Agreement, then the City shall have the right to reimbursement and indemnity from Consultant
for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of
Consultant’s conduct.
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(d) Consultant shall promptly notify the City should Consultant be served
with any summons, complaint, subpoena, notice of deposition, request for documents,
interrogatories, request for admissions or other discovery request, court order or subpoena from
any party regarding this Agreement and the work performed thereunder. The City retains the
right, but has no obligation, to represent Consultant or be present at any deposition, hearing or
similar proceeding. Consultant agrees to cooperate fully with the City and to provide the City
with the opportunity to review any response to discovery requests provided by Consultant.
6.4 Ownership of Documents. All studies, surveys, data, notes, computer
files, reports, records, drawings, specifications, maps, designs, photographs, documents and other
materials (the “documents and materials”) prepared by Consultant in the performance of this
Agreement shall be the property of the City and shall be delivered to the City upon request of the
Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim
for further employment or additional compensation as a result of the exercise by the City of its
full rights of ownership use, reuse, or assignment of the documents and materials hereunder.
Moreover, Consultant with respect to any documents and materials that may qualify as “works
made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed
“works made for hire” for the City.
7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law. This Agreement shall be interpreted, construed and
governed both as to validity and to performance of the parties in accordance with the laws of the
State of California. Legal actions concerning any dispute, claim or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles,
State of California. In the event of litigation in a U.S. District Court, venue shall lie exclusively
in the Central District of California, in the County of Los Angeles, State of California.
7.2 Disputes; Default. In the event that Consultant is in default under the
terms of this Agreement, the City shall not have any obligation or duty to continue compensating
Consultant for any work performed after the date of default. Instead, the City may give notice to
Consultant of the default and the reasons for the default. The notice shall include the timeframe
in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but
may be extended, if circumstances warrant. During the period of time that Consultant is in
default, the City shall hold all invoices and shall, when the default is cured, proceed with
payment on the invoices. If Consultant does not cure the default, the City may take necessary
steps to terminate this Agreement under this Article.
7.3 Legal Action. In addition to any other rights or remedies, either party
may take legal action, in law or in equity, to cure, correct or remedy any default, to recover
damages for any default, to compel specific performance of this Agreement, to obtain
declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this
Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory
claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue any
legal action under this Agreement.
Except with respect to rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
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different times, of any other rights or remedies for the same default or any other default by the
other party.
7.4 Termination Prior to Expiration of Term. This Section shall govern any
termination of this Contract except as specifically provided in the following Section for
termination for cause. The City reserves the right to terminate this Contract at any time, with or
without cause, upon thirty (30) days’ written notice to Consultant, except that where termination
is due to the fault of the Consultant, the period of notice may be such shorter time as may be
determined by the Contract Officer. In addition, the Consultant reserves the right to terminate
this Contract at any time, with or without cause, upon sixty (60) days’ written notice to City,
except that where termination is due to the fault of the City, the period of notice may be such
shorter time as the Consultant may determine. Upon receipt of any notice of termination,
Consultant shall immediately cease all services hereunder except such as may be specifically
approved by the Contract Officer. Except where the Consultant has initiated termination, the
Consultant shall be entitled to compensation for all services rendered prior to the effective date
of the notice of termination and for any services authorized by the Contract Officer thereafter in
accordance with the Schedule of Compensation or such as may be approved by the Contract
Officer. In the event the Consultant has initiated termination, the Consultant shall be entitled to
compensation only for the reasonable value of the work product actually produced hereunder, but
not exceeding the compensation provided therefore in the Schedule of Compensation Exhibit
“C”. In the event of termination without cause pursuant to this Section, the terminating party
need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
7.5 Termination for Default of Consultant. If termination is due to the
failure of the Consultant to fulfill its obligations under this Agreement, City may, after
compliance with the provisions of Section 7.2, take over the work and prosecute the same to
completion by contract or otherwise, and the Consultant shall be liable to the extent that the total
cost for completion of the services required hereunder exceeds the compensation herein
stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City
may withhold any payments to the Consultant for the purpose of set-off or partial payment of the
amounts owed the City as previously stated.
8. MISCELLANEOUS
8.1 Covenant Against Discrimination. Consultant covenants that, by and for
itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account of
race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin,
ancestry, or other protected class in the performance of this Agreement. Consultant shall take
affirmative action to ensure that applicants are employed and that employees are treated during
employment without regard to their race, color, creed, religion, sex, gender, sexual orientation,
marital status, national origin, ancestry, or other protected class
8.2 Non-liability of City Officers and Employees. No officer or employee of
the City shall be personally liable to the Consultant, or any successor in interest, in the event of
any default or breach by the City or for any amount, which may become due to the Consultant or
to its successor, or for breach of any obligation of the terms of this Agreement.
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8.3 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of
the City, to the City Manager and to the attention of the Contract Officer (with her/his name and
City title), City of Rancho Palos Verdes, 30940 Hawthorne Boulevard, California 90275, and in
the case of the Consultant, to the person(s) at the address designated on the execution page of
this Agreement. Either party may change its address by notifying the other party of the change of
address in writing. Notice shall be deemed communicated at the time personally delivered or in
seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
8.4 Integration; Amendment. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this Agreement supersedes
and cancels any and all previous negotiations, arrangements, agreements and understandings, if
any, between the parties, and none shall be used to interpret this Agreement. This Agreement
may be amended at any time by the mutual consent of the parties by an instrument in writing.
8.5 Severability. In the event that part of this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining portions of this Agreement
which are hereby declared as severable and shall be interpreted to carry out the intent of the
parties hereunder unless the invalid provision is so material that its invalidity deprives either
party of the basic benefit of their bargain or renders this Agreement meaningless.
8.6 Waiver. No delay or omission in the exercise of any right or remedy by
non-defaulting party on any default shall impair such right or remedy or be construed as a
waiver. A party’s consent to or approval of any act by the other party requiring the party’s
consent or approval shall not be deemed to waive or render unnecessary the other party’s consent
to or approval of any subsequent act. Any waiver by either party of any default must be in
writing and shall not be a waiver of any other default concerning the same or any other provision
of this Agreement.
8.7 Attorneys’ Fees. If either party to this Agreement is required to initiate
or defend or made a party to any action or proceeding in any way connected with this
Agreement, the prevailing party in such action or proceeding, in addition to any other relief
which any be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees,
whether or not the matter proceeds to judgment.
8.8 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply.
8.9 Counterparts.
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.
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8.10 Warranty & Representation of Non-Collusion. No official, officer, or
employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any
official, officer, or employee of City participate in any decision relating to this Agreement which
may affect his/her financial interest or the financial interest of any corporation, partnership, or
association in which (s)he is directly or indirectly interested, or in violation of any corporation,
partnership, or association in which (s)he is directly or indirectly interested, or in violation of any
State or municipal statute or regulation. The determination of “financial interest” shall be
consistent with State law and shall not include interests found to be “remote” or “noninterests”
pursuant to Government Code Sections 1091 or 1091.5. Consultant warrants and represents that
it has not paid or given, and will not pay or give, to any third party including, but not limited to,
any City official, officer, or employee, any money, consideration, or other thing of value as a
result or consequence of obtaining or being awarded any agreement. Consultant further warrants
and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or
collusion that would result in the payment of any money, consideration, or other thing of value to
any third party including, but not limited to, any City official, officer, or employee, as a result of
consequence of obtaining or being awarded any agreement. Consultant is aware of and
understands that any such act(s), omission(s) or other conduct resulting in such payment of
money, consideration, or other thing of value will render this Agreement void and of no force or
effect.
Consultant’s Authorized Initials _______
8.11 Corporate Authority. The persons executing this Agreement on behalf of
the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound. This Agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the parties.
[Signatures On The Following Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first-above written.
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
Doug Willmore, City Manager
ATTEST:
Emily Colborn, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
William W. Wynder, City Attorney
CONSULTANT:
SUNBEAM CONSULTING, INC.
By:
Alan Braatvedt
President
By:
Chuck Stephan
Vice President
Address: 1817 Josie Avenue
Long Beach, CA 90815
Two corporate officer signatures required when Consultant is a corporation, with one signature required
from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2)
Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2019 before me, ________________, personally appeared ________________, proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2019 before me, ________________, personally appeared ________________, proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
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EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following inspection services for the for the project
entitled Access Improvements Area 9, as follows:
A. Identify, layout and quantify areas needing repairs, create a spreadsheet
containing quantities and rates of pay for identified areas, photograph each area
and identify each photograph with the area needing repair.
B. Inspect work for compliance with specifications while work is in progress –
Consultant shall provide construction inspection services to ensure that the work
is in compliance with contract documents. Consultant shall proactively examine
the work area prior to demolition, take photographs, verify accuracy, assure that
the project is including work areas in accordance with the intent of the project,
and to note any additional concerns that may be present.
B. Photograph conditions and activities throughout the project prior to start of work,
and upon completion of work.
C. Liaise with the City’s Contract Officer to keep him fully abreast of all aspects of
the project.
D. Monitor the work as it is installed; document the construction contractor’s
activities, progress, and all other information relevant to the project.
E. Prepare and submit daily inspection reports. Consultant shall prepare daily project
reports in the format required by the City, and transmitted to the City’s Project
Manager expeditiously. Reports will include daily photographic documentation.
F. Attend Meetings. Consultant’s inspector will attend project meetings, as required
throughout the duration of the projects. Consultant’s inspector shall also attend
the Pre- Construction meetings.
G. Monitor traffic and pedestrian controls and safety precautions the construction
contractor uses.
H. Provide all other services related to the inspection of the work performed by the
construction contractor.
II. As part of the Services, Consultant will prepare and deliver the following tangible
work products to the City:
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A. Spreadsheet containing the information required in Exhibit A.I.A identifying
areas needing repairs, with associated photographs prior to scheduling on-call
construction to perform the repairs.
B. Daily inspection reports.
III. In addition to the requirements of Section 6.2, during performance of the Services,
Consultant will keep the City updated of the status of performance by delivering the
following status reports:
NOT APPLICABLE
IV. All work product is subject to review and acceptance by the City, and must be
revised by the Consultant without additional charge to the City until found
satisfactory and accepted by City.
V. Consultant will use the following personnel to accomplish the Services:
A. Jim Pugh, Inspector
B. John Collins, Inspector
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EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
Added text is indicated in bold italics, deleted text is indicated in strikethrough.
I. The following shall replace section 3.5 Term:
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) 5
years from the date hereof, through June 30, 2024. A provision to extend this agreement beyond
June 30, 2024 at one year intervals is available providing both parties mutually agree to
amending this agreement, except as otherwise provided in the Schedule of Performance (Exhibit
“D”).
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following Services at the following rates:
RATE TIME SUB-BUDGET
A. Inspection
Services
$128/hr 140 Hours $18,000
II. A retention of ten percent (10%) shall be held from each payment as a contract
retention to be paid as a part of the final payment upon satisfactory completion of
services.
NOT APPLICABLE
III. Within the budgeted amounts for each Task, and with the approval of the Contract
Officer, funds may be shifted from one Task subbudget to another so long as the
Contract Sum is not exceeded per Section 2.1, unless Additional Services are
approved per Section 2.3.
NOT APPLICABLE
IV. The City will compensate Consultant for the Services performed upon submission of
a valid invoice. Each invoice is to include:
A. Line items for each day including: hours of work performed that day, the hourly
rate, total amount of the invoice, total billed during current fiscal year, amount of
contract remaining, purchase order number, invoice number, and daily reports for
associated with the working day’s invoiced.
V. The total compensation for the Services shall not exceed the Contract Sum as
provided in Section 2.1 of this Agreement.
VI. Consultant’s billing rates for all personnel are attached as Exhibit C-1.
NOT APPLICABLE
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EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely in conjunction with the City Contract
Officer-approved construction schedules for each on-call project, as follows, and as
may be amended by the City’s Contract Officer:
A. Pre-Construction Meetings – The Consultant shall attend pre-construction
meetings with the City’s Contract Officer and the construction contractor, as
scheduled by the City’s Contract Officer. The pre-construction meetings are
anticipated within 2 days of anticipated start of work for each maintenance work
period.
B. Completion of Work– All work associated with each on-call maintenance project
shall be completed by the Consultant within 20 business days following the date
indicated by the start of work by the construction contractor.
II. Consultant shall deliver the following tangible work products to the City by the
following dates.
A. Spreadsheet containing the information required in Exhibit A.I.A identifying
areas needing repairs, with associated photographs prior to scheduling on-call
construction to perform the repairs.
B. Daily Reports including: a written summary of work site conditions, number of
contractor’s vehicles, workers present, workers classification, hours worked for
each worker, work performed, difficulties encountered during performance of the
work, summary of work day’s activities – Weekly, on the Monday following each
on-call project.
III. The term of this agreement shall be for five (5) consecutive years ending June 30, 2024,
with the possibility of three one year mutually agreed upon extensions which will be
memorialized with addendums to this agreement.
IV. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
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