2018/12/01 Paint and Restoration Masters La Ladera Park Painting ProjectCoNTRACT SERVICES AGREEMENT FOR
COMMUNITY SERVICES DEPARTMENT
LA LADERA PARK PAINTING PROJECT
THIS CONTRACT SERVICES AGREEMENT ("Agreement") is made and etl'ective this
I ilay of DE(. . 2old by and between the CITY OF MENIFEE. a California municipal
corporation, ("City") and Paint and Restoration Masters, a sole proprietorship ("Contractor").
City and Contractor are sonretimes hereinalier individually referred to as "Party" and hereinalter
collectively rel'erred to as the "Parties".
A. City has sought. by issuance of a Request lbr Proposals or Invitation tbr Bids. the
perlbrmance of the services detined and described particularly in Article I of this Agreement.
B. Contnactor, following submission of a proposal or hid tbr the performance of the
services defined rnd described particularly in A(icle I ofthis Agreernent. was selected by City to
perlbmr those services.
C. Punuant to the City of Menit'ee's Municipal Code. City has authority to enter into
this Contract .Services Agreement and the City Manager has authority to execute thisAgreement.
D. The Parties tlesire to tbrmalize the selection of Contractor [<rr perlbnnirnce of those
services delined and described panicularly in Article I of this Agreement and desire that the ternrs
of that perfonnance be as particularly detined and described herein.
OPER ATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the
Parties and contained herein and other consideralion. the value and adequacy of which are hereby
acknowledged. the Parties agree as fbllows:
l.l c(J of Services . In conrpliance with all terms and conditions ol'this Agreernent.
Contractor shall provide those services specilied in the Contracl Documents and Specifications lilr
the LA LADERA PARK PAINTING PROJECT ("Bid Specifications") attached herero as
Exhihit B and incorporated herein by this reference. which services rnay be ref'errcd to herein ls
thc "Services." As a material induccmcnt to City entering into this Agreement. Conlractor
represents and warrants that il has the qualifications, experience. and facilities necessary to
properly perf'ornr the Services required under this Agreement in a thorough. competent. and
professional manner. and is experienced in performing the Services contcntplated herein.
Contractor shall at all times faithlully. competently. and to the best of its ability. experience, and
talent. perlbrm all Services described hercin. Contractor covenants that it shall lirllow the highesr
prol'essional standards in pertbrming the Services required hereunder and that all materials will he
of good quality. tlt lbr the purpose intended. For purposes of this Agrecment. the phrase "highest
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167l 0lln5n.0{rrr Exhibi( A
ARTICLE I. SERVICESOFCONTRACTOR.
prol'essional standards" shall mean those standards of practice recogniz-ed by one or more flrst-
class firms performing similar work under similar circumstances.
1.2 Contractor's Prooosal. The "Scope of Services" shall include Contractor's scope
of work or bid which is attached as Exhibit C and incorporated herein by this rel'erence as though
fully set fbrth herein. In the event of any inconsistency between the terms of such proposal and
this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law. Contractor and any subcontractor shall comply with all
applicable local. state. and t'ederal Iaws and regulations applicable to the pertbnnance of the work
hereunder. Contractor shall not hire or employ any person to pertbrm work within City or allow
any person to perlbrm the Services required under this Agreement unless such person is properly
documented and legally entitlcd to be enrployed within the United States. Any and all work subjecr
to prevailing wages. as determined by the Director oflndustrial Relations <ll'the State of Calitbrnia.
will be the minimum paid to all laborers. includin_e Contractor's employee and subcontractors. Il
is understood that it is the responsibility of Contractor to determine the corrcct scale. The State
Prcvailing Wage Rates nray be obtaincd liom the California Department of Industrial Relations
("DIR") pursuant to Calilbrnia Public Utilities Code, Sections 465. 466. and 467 by calling 415-
703-4774. Appropriate records demonstrating cornpliance with such requirement shall be
maintained in a sat'e and secure location at all times. and readily available at City's request.
Contractor shall indemnify. del'end. and hold City and its elected and appointed boards. members.
officials, ollicers, agents. representatives, employees. and volunteers harmlcss l'rom and against
any liability. loss. damage. cost or expenses (including hut not linrited to reasonable attorneys'
l'ecs. expert witness l'ees. coun costs. and costs incurred related to any inquiries or proceedings)
arising fionr or related to (i) the noncompliance by Contractor or any party performing the Scrvices
o[ any applicable local, state, and/or f'ederal law. including. without linritation. any applicable
l'ederal and/or state labor laws (including. without limitation, the requirement to pay state
prevailing wages and hire apprentices)l (ii) the implementation ofSecrion l78l of the Labor Code.
as the same nray be anrended from tinre to time. or any other sirnilar law: and/or (iii) tailure hy
Contractor or any party perlbrming the Services to provide any required disclosure or identification
as required by Labor Code Section 1781. as the same may be amended liorr time to time. or any
other similar law. It is agreed hy the Parties that. in connection with perf'ornrance ofthe Services.
including, without limitation. any and all public works (as defined by applicable law). Contractor
shall bear all risks of paynlent or non-payment of prevailing wages under California law and/or
the implementalion of Labor Code Sec(ion 1781. as the same may be amended tiom time ro time.
and/or any other similar law. Contractor acknowledges and agrees that it shall be independently
rcsponsible for reviewing the tpplicablc laws and regulations and etTectuating compliancc with
such laws. Contractor shall requirc the sarne of all subcontractors.
I .4 Licenses. Permits.Fccs and Assess ments. Contractor shall obtain at its sole cost
and expense such licenses. permits. and approvals as may be required by law fbr the pertbrmance
ol' thc Services required by this Agreement. Contractor and its employees, agents. and
sttbcontract<trs shall, at their sole cost and expense, keep in elfect at all tirnes during the term of
this Agrcement any licenses. pcnnits, and approvals that are legally required tbr the perlbrmance
of the Services required by this Agreement. Contractor shall have the sole obligation to pay lbr
any t'ees. assessments. and taxes. plus applicable penalties and interest, which may be imposed by
law and arise tiom or are necessary fbr Contractor's perfonnance of the Services required by this
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Agreement, and shall indemnity. def'end and hold harmless City, its ofticers. employees or agents
of City. against any such fees. assessments. taxes, penalties or interest levied. assessed, or imposed
against City hereunder. In addition to the foregoing, Contractor and any subcontractors shall
obtain and rnaintain during the term of this Agreement valid Business Licenses from City.
l.-5 Farniliarrty with Work. B y executing this Agreement, Contractor warrants that
Contractor (i) has thoroughly investigated and considered the Scope of Services to be performed.
(ii) has carelully considered how the Services should be perfornred, and (iii) fully understands the
facilities, difficutties, and restrictions attending performance of the Services under this Agreement.
lf 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 the Services hereunder. Should Contractor discover any latent or unknown
conditions. which will materially allect the performance of the Services hereunder, Contractor
shall imnrediately intbrm City of such tact and shall not proceed until written instructions are
received fiom the Contract C)fllcer.
I .6 Care of Services. Contractor shall adopt reasonable nrethods during the life of this
Agreentenl to tumish continuous protection to the Services. and the equiprnent, materials, papers.
documents. plans. studies. and/or other components thereofto prcvent losses or damages, and shall
be responsible lbr all such damages. to persons or property. until acceptance of the Services by
City. except such losses or damagcs as may be caused by City's own negligence.
1.7 Warrantv. Contractor warrants all work under this Agreement (which lbr 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 fiom any
dct'ective or faulty material and worknranship. Contractor agrees that lirr a period of one ( I ) year
(or the period of time specilied elsewhere in this Agreement or in any guarantee or warranty
provided by any manulacturer or supplier of equipment or materials incorporated into the work.
whichever is later) afier the date of linal acceptance, Contractor shall within ten ( l0) days after
bcing notified in writing by City of any del'ect in the work or non-conformance of the work to this
Agreement. commence and prosecute with due diligence all work necessary to fulfill the tenns of
the warranty at Contractor's sole cost and expense. Contractor shall ct sooner as requested by
City in response to an emergency. In addition. Contractor shall, at its sole cost and expense, repair
ancl replace any portions of the work (or work of other contractors) damaged by Contractor's
del'ective work or which becomes damaged in the couse of repairing or replacing def'ective work.
For any work so corrected. Contractor's obligation hereunder to correct defective work shall be
reinstated fbr an additional one ( l) year period, commencing with the date of acceprance of such
corrected work. Contractor shall perlorm such tests as City may require to verify that any
corrective actions. including, with<lut lirnitation, redesign. repairs, and replacements comply with
the requirelnents of this Agreement. All costs associated with such corrective actions and testing.
including the rernoval, replacement. and reinstitution ofequipment and materials necessary to gain
access. shall be the sole responsibility of Contractor. All warranties and guarantees of
subcontractors, suppliers. and manulacturers with respect to any porti<ltt of the work, whether
express ol'implied, are deemed to be obtained by Contractor tbr the benellt of City, r'egardless of
whether or not such warranties and guarantees have been transt'erred or assigned to City by
separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary.
on behalf of City. In the event that Contractor tails to perform its obligations under this Section,
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or under any other warranty or guaranty under this Agreement, to the reasonable satistaction of
City, City shall have the right to conect and replace any defective or non-conforming work and
any work damaged by such work or the replacement or correction thereol'at Contractor's sole
expense. Contractor shall be obligated to tully reimburse City lbr any expenses incurred hereunder
upon demand. This provision may be waived in Exhibit A ifthe services hereunder do not include
construction of any improvements or the supplying of equipment or materials.
1.8 Prevailing Waqes. Contractor is aware of the re quirenrents of Calilbmia Labor
Code Sections 172O. et seq., and 1770, et se(!..0$ well as California Cule of Regulations, Title 8.
Sections l6(X). ct seq.. ("Prevailing Wage Laws"). which require the payment of prevailing wage
rates and the perfbrmance of other requirements on "Public works" and "Maintenance" projects.
If the Serviccs are being performed as part o[ an applicable "Public works" or "Maintenance"
project. as defined by the Prevailing Wage Laws. and if the total compensation is ONE
THOUSAND DOLLARS ($ | ,000) or more. Contractor agrees to tully comply with such
Prevailing Wage Laws including, but not limited to. requirements related to the maintenance of
payroll records and the employment of apprentices. A copy of the general prevailing wage rate
determination is on lile in the Otfice of the City Clerk and is hereby incorporated in this
Agreement. Contractor shall make copies of the prevailing rates of per diem wages lbr each crati.
classification, or type ofworker needed to execute the Services available to interested parties upon
request, and shall post copies at Contractor's principal place of business and at the project site.
The statutory penalties fbr failure to pay prevailing wage or to comply with State wage and hour
laws will be entbrced. In accordance with the provisions of Labor Code Sections l8l0 er se4..
eight ( 8) hours is the legal working day. Contractor must forf'eit to City TWENTY FIVE
DOLLARS ($2.5.00) per day for each worker who works in excess of the minimum working hours
when Contractor does not pay ovenime. Contractor shall defend (with counsel selected by City),
indemnify. and hold City, its elected ofUcials, ollicers, employees, and agents fiee and harmless
tiom any claim or Iiability arising out ofany tailure or alleged lailure to comply with the Prevailing
Wage Laws.
1.9 Fuflhcr Rcsponsibilities ol'Parries. Both Parties agrce to use reasclnable care and
diligence to perlbrm their respective obligations under this Agreement. Both Parties agree to act
in good taith to execute all instruments, prepare all documents. and take all actions as may be
reasonably necessary to carry out the purposes of this Agreement. Unlcss hereafter specified.
neither Party shall be responsible lbr the service of thc other.
l.l0 Additional Services. City shall have the right ar any rime during rhe perlbrmance
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 tiom said work. N<r
such extra work nray be undertaken unless a writien change order is lirst given by the Contract
Olllcer to Contractor, incorporating therein any adjustrnent in (i) the Contlact Sum, and,zor (ii) the
time to perform this Agreement. which said adjustments are subject to the written approval of
Contractor. Any increase in compensation of up to five percent (-5yo) of the Contract Sum or
TWENTY-FIVE THOUSAND DOLLARS ($25,0tm), whichever is less: or in the time to pertbnn
of up to one hundred eighty (180) days may be approved by the Conrract Oflicer. Any greater
increases. taken either separately or cumulatively must be approved by the City Council of City.
It is expressly understood by Contractor that the provisions of this Section shall not apply to work
specilically set forth in the Scope of Services or reasonably contemplated therein. Contractor
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hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope
ofServices may be more costly or time consuming than Contractor anticipates and that Contractor
shall not be entitled to additional compensation therefore.
l.l I Special Re quirements. Additional temrs and conditions 01' this Agreement, if any.
which are made a part hereof are set tbrth in the "Special Requirements" attached hereto as
Exhibit A and incorporated herein by this reference. In the event of a contlict between the
provisions of Exhibit A and any other provisions of this Agreement. the provisions of Exhibit A
shall govern.
ARTICLE 2. COMPENSATION AND ETHOD OF PAYMENT
2.1 Contract Sum. Su bject to any limitations set forth in this Agreement, City agrees
to pay Contractor the amounts specilied in the Bid Specifications and incorporated herein by this
reference. The total compensation. including reimbursement lbr actual expenses. shall not exceed
Twenty Three Thousand Four Hundred Forty Five Dollars Cents ($23,445.00) (the "Conrracr
Sum"), unless additional compensation is approved pursuant to Section I . 10.
2.2 Methr ol' Conrpensation. The rnelhod of corn pensation may include: (i) a lump
sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage
of completion of the Services. (iii) payment fbr time and materials based upon Contractor's rates
as specified in the "Schedule of Compensrtion" in the Bid Specifications, and incorporated herein
by this rel'erence, provided that time estimates are provided ltrr the performance of subtasks. but
not exceeding the Contract Sum. or (iv) such other methods as may be specified in the Schedule
of Compensation.
2.3 Reimbumable Expenses. Com pcnsation may includc rcirnburscnrent li)r actual and
necessary expenditures for reproduction costs, telephone expenses. and travel expenses approved
by the Contract Ofllcer in advance, or actual subcontractol expenses ol'an approved subcontractor
pursuant to Section 4.5. and only ifspecified in the Schedule of Compensation. The Contract Sum
shall include the attendance of Contractor at all project meetings reasonably deemed necessary by
City. Coordination of the perlbnnance of the Services with City is a critical component of the
Services. If Contractor is required to attend additional meetings to lacilit te such coordination.
Contractor shall not be entitled to any additional compensation tbr attending said meetings.
2.4 Invoices. Each month Contractor shall fumish to City an original invoice tbr all
work perlbrmed and expenses incurred during the preceding month in a fonn approved by City's
Director of Finance. The invoice shall detail charges tbr all necessary and actual expenses by the
tbllowing categories: labor (by sub-category). travel, materials. equipment. supplies, and sub-
contractor contracts. Subcontractor charges shatl also be detailed by such categories.
City shall independently review each invoice submitted by Contractor to determine
whether the work perfbrmed and expenses incurred are in compliance with the provisions of this
Agreement. Except as to any charges fbr work perfbrmed or expenses incurred by Contractor
which are disputed by City. or as provided in Section 7.3, Ciry will use its best efforts to cause
Contr cbr to be paid within lbrty-five (45) days ofreceipt of Contractor's correct and undisputed
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invoice. ln the event any charges or expenses are disputed hy City. the original invoice shall be
retumed by City to Contractor lbr correction and resubmission.
lnvoiccs shall be subnrittcd to:
City of Menil'ee
Attn: Accounts Payable
29714 Haun Road
Menil'ee. CA 92586
2-5 Annual Aooroori ation of Fundins. ln accord with Article 16 Section ltt of the
Calitbrnia Constitution, payment ofcompensation under this Agreement is contingent upon annual
appropriation of funds by City for that purpose. Contractor acknowledges and agrees that to lhe
extent that the Services provided under this Agreement extend beyond one ( I ) liscal year. payment
lbr such Services is expressly conditioned on City's annual appropriation of lunds lbr such
Services fbr each year. If no f'unds are appropriated then this Agreement shall be terminated. City
pledges and agrees to process such appropriation requests annually and in good faith. Nothing in
this Section shall be construed to lirnit the right of either Pany to terminate this Agreement as
provided herein.
2.6 Waiver. Payment to Contractor for Services pertbrmed pursuant to this Agreemenr
shall not be dcerned to waive any defects in work performed by Contractor.
ARTICLE 3. PERFORMAN
3. I Time of Essence. Tirne is ol'the essence in the pertbnnance of this Agreement
3.2 Schcdule of Performance. Contractor shall commence the Services pursuant to this
Agreenrent upon receipt of a written notice to proceed and shall perlbrm all Services within the
time period(s) established in the "Time Limits of Work" in the Bid Specilicarions. and
incorporated herein by this reference ("Schedule of Perlbrmance"). When requested by
Contractor, extensions to the time period(s) specified in the Schedule of Perlbrmance may be
approved in writing by the Contract Officer but not exceeding one hundred eighty(180) days
cunrulatively.
3.3 Force Ma eu re . The time period(s) specitied in the Schedule of Perlbrmance fbr
performance ofthe Services rendered pursuant to this Agreement shall be extended because ofany
delays due to unlbreseeable causes beyond the control and without the l'ault or negligence of
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, fieight
embargoes. wars. litigation. and/or acts of any governmental agency. including City. if Contractor
shall within ten (10) days of the commencement ofsuch delay notify lhe Contract Offlcer in
writing of the causes ol'the delay. The Contract Otlicer shall ascertain the tacts and the extent of
delay. and extend the time ibr perlbrming the Services for the period of the enlbrced delay when
and if in the judgment of the Contract Olficer such delay is justified. The Conrracr Officer's
determination shall be final and conclusive upon the Parties to this Agreement. ln no event shall
Contractor be entitled to recover damages against City for any delay in the perlbnnance of this
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Agreement. however caused, Contractor's sole remedy heing extension of this Agreement pursuant
to this Section
3.4 Inspection and Final Acc eptance.City may inspect and accept or reject any of
Contractor's work underthis Agreement, eitherduring perlbrmance or when completed. Cityshall
reject or finally accept Contractor's work within tbrth five (45) days atter submitted to City. City
shall accept work by a timely written acceptance. otherwise work shall be deemed to have heen
rejected. City's acceptance shall be conclusive as to such work except with respect to latent
delects, lruud, and such gross mistakes as amount to fraud. Acceptance ofany work by City shall
not constitute a waiver of any of the provisions of this Agreement including. but not limited to.
Article -5. pertaining to indemnification and insurance. respectively.
3.5 Tenr. The term of this Agreement shall begin on November l, 201E. Unless
earlier terminated in accordance with Article 7 of this Agreernent. this Agreemenr shall continue
in lull force and el'lect until tinal approval and acceptance of the project by the Contract Ollicer.
ARTICLE 4. COORDINATION OF WORK
4.1 Re resentatives and ls ntfactor. Th c lbllowing principals ol'
Contractor ("Principals") are hereby designated as being the principals and representatives ot
Contractor authorized to act in its behalf with respect to the work specified herein and make all
decisi<lns in connection therewith:
(Nanre)(Title)
(Nanle)(Titlc )
(Nanre)(Title)
It is expressly undersrood that the experience. knowledge. capability. and
reputation of the Principals were a substantial inducerncnt tbr City to enter into this Agrcelnent.
Theretore. the Principals shall be responsible during the terrn of this Agreement for directing all
activities of Contractor and devoting sullicient time to personally supervise the .services
hereunder. All personnel of Contractor. and any authorized :rgents. shall at all times be under the
exclusive direction and control of the Principals. For purposes of this Agreernent. the Principals
may not be replaced nor tnay their responsibilities be substantially reduced by Contractor without
the express written approval of City. Additionally. Contractor shall make every reasonable efibn
to maintain the stability and continuity of Contractor's statI and subcontractors. if any. assigned
to perlbrm the Services required under this Agreement. Contractor shall notify City of any changes
in Contfttctor's stal'f and subcontractors. iI any, assigned tn perlbrm the Services required under
this Agreement, prior to and during any such pertbrmance.
4.2 Status of on r. Conturctor shall havc no authorit y to hind City in any manner.
or to incur any obligation, debt, or liability of any kind on behalf of or against City, whether. by
contr ct or othetwise. unless such authority is expressly conl'erred under this Agreement or is
167l 0l l85n ll0(,1 -1
otherwise expressly cont'erred 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 flgenls are in any manner
ollicials, officers, employees, or agents of City. City shall not be liable for compensation or
indernnillcation to Contractor lbr injury or sickness arising out of perlbrming the Services
hereunder. Notwithstanding any other City, state. or l'ederal policy. rule. regulation, law. or
ordinance to the contrary, Contractor and any of its employees. agents, and subcontractors
providing services under this Agreement shall not qualify tbr or become entitled to any
compensation, benelit, or any incident of enrployment by City. including but not limited to
eligibility to enroll in the Califbrnia Public Employees Retirement System ("PERS") as an
ernployee of City and entitlement to any contribution to be paid by City lbr employer contributions
and/or employee contributions lbr PERS benefits. Contractor expressly waives any claim
Contructor may have to any such rights.
4.3 Contract Olficer. The "Ct>ntract OtUcer" shall be such person as may be designated
by the City Manager of City. It shall be Contractor's responsibility to assure thflt the Contract
Officcr is kept informed oI the progress of the performance of the Services and Contractor shall
ret'er any decisions which must be mude by City to the Contract Otficer. Unless otherwise
specilied herein. any approval of City required hereunder shall mean the approval ofthe Contract
Oificer. The Contract Oflicer shall have authority, if specitied in writing by the City Manager. to
sign all documents on behalf of City required hereunder to carry out the terrns of this Agreement.
4.4 Independent Contractor. Neither Cit y nor any of its employees shall have any
control over the manner, mode. or means by which Contractor. its agents. or employees. perlbrm
the Services required herein. except as otherwise set lbrth herein. City shall have no voice in the
selection. discharge, supervision. or control of Contractor's employees, servants, representatives.
or agenls. or in l'ixing their number. compensation. or hours of service. Contractor shall perlbrnr
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 rnanner represent that it or any of ils agents or employees
are aSents or employees ofCity. Cityshall not in any way or lbr any purpose become or be deemed
to be a partner of Contractor in its business or otherwise or a joint veniurer or a member ol'any
joint enterprise with Contractor.
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4.5 Prohibition Aqainst Suhcontractins or Assiqnment. The experience, knowledge,
capability, and reputation of Contractor. its principals, and employees were a substantial
inducement lbr City to enter into this Agreement. Therefbre, Contractor shall not contract with
any other entity to perfbrm in whole or in part the Services required hereunder without the express
written approval of City. In addition. neither this Agreement nor any interest herein may be
transferred, assigned, conveyed, hypothecated. or encumbered voluntarily or by operation of law,
whether fbr the benellt of creditors or otherwise, without the prior written approval of City.
Transf'ers restricted hereunder shall include the transf'er to any person or group of persons acting
in conce( of more than twenty live percent (25%) of the present ownership and/or control of
Contractor. taking all transl'ers into account on a cumulative basis. In the event of any such
unapproved transf'er. including any bankruptcy pro,ceeding. this Agreement shall be void. No
approved transl'er shall release Contractor or any surety of Contractor of any liability hereunder
without the express consent of City.
4.6 Utilitv Relocation. City is responsible tbr removal. relocation. or protection ol'
existing main or trunkline utilities to the extent such utilities were not identified in the invitation
lbl bids or specifications. City shall reimburse Contractor for any costs incured in krcating.
repairing danrage not caused by Contractor, and removing or relocating such unidentified utility
lacilities. Contractor shall not be assessed liquidated damages lbr delay arising liom the removal
or relocation of such unidentified utilitv lacilities.
4.7 Trenches or Excavations. Pursuant to Calilbrnia Public Contract Code
Section 7104. in the event the work included in this Agreement requires excavations more than
fbur (4) f'eet in depth, the following shall apply.
(a) Contractor shall promptly. and before the following conditions are
disturbed, notify City, in writing, of any: ( I ) material that Contractor believes may be material
that is hazardous waste. as defined in Section 25 I l7 of the Health and Safety Code. that is re<;uired
to be removed to a Class I. Class II. or Class lll disposal site in accordance with provisions of
existing law: (2) subsurface or latent physical conditions at the site different from those indicated
by information about the site made available to bidders prior to the deadline for submitting bids;
or (3) unknown physical conditions at the site of any unusual nature. difl'erent graterially liom
those ordinarily encountered and generally recognized as inherent in work of the character
provided for in this Agreement.
(b) City shall promprly investigate the conditions, and if it finds rhat the
conditions do materially so dil'ler. or do involve hazardous waste. and cause a decrease or increase
in Contractor's cost of. or the time required lbr, pertbrmance of any part of the work shall issue a
change order per Section I.l0 of this Agreement.
(c) That. in the event that a dispute arises between City and Contractor whcther
the conditions tnaterially dift'er. or involve hazardous waste. or cause a decrease or increase in
contractor's cost ot, or time required fbr. pertbrmance oi any part of the work, contractor shall
not be excused liom any scheduled completion date provided tbr by this Agreement. but shall
procecd with all w<lrk to be perfbrmed under this Agreenrent. Contractor shall retain any ancl all
rights provided either by contract or by law which penain to the resolution of disputes and protests
between the contracting Parties.
4.8 Sal'etv. Contractor shall execute and maintain its work so as to avoid injury or
danrage to any person or property. ln carrying out the Services. Contractor shall at all timcs be in
compliance with all applicable local. state. and f'ederal laws. rules and regulations. and shall
exercise all necessary precautions fbr the satety ofemployees appropriate to the nature ofthe w<trk
and the conditions under which the work is to be perlbrmed. Sal'ety precautions as applicable shall
include. but shall not be Iimited to: (A) adequatc lil'c prorection and life saving equiprnent anti
proceduresl (B) instructions in accident prevention lbr all enrployees and subcontractors. such as
safe walkways. scallblds, tall protection ladders, blidges, gang planks. contined space procedures.
trenching and shoring, equipment and other saf'ety devices. equiprnent and wearing apparel as are
necessiu'y or lawfully required to prevent accidents or injuries; ancl (C) adequate facilities for the
proper inspection and maintenance ol'all sal'ety nleasures.
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ARTICLE 5.INSURANCE. INDEMNIFICATION AND BONDS
Insurance Coverage.5.1
Contractor shall procure and maintain. at its sole cost and expense, in a lbnn and
conlent satisl'actory to City, during the entire term of this Agreement including any extension
thereof. the tbllowing policies of insurance which shall cover all elected and appointed oftlcers.
employees. and agents of City:
(a)Comprehensivc General Liahilit y lnsurance (Occurrence Fornr CG([0] or
equivalent). A policy of comprehensive general liahility insurance written on a per occurence
basis fbr bodily injury. personal injury, and propeny damage. Claims-made. modified. Iimited, or
restricted occurrence lbrms are not acceptable without prior written consent from City. The policy
of insurance shall be in an amount not less than ONE MILLION DOLLARS ($1.000,ffi0.00) per
occunence. TWO MILLION DOLLARS ($2.0m.0m.00) in the general aggregare, and TWO
MILLION DOLLARS ($2.00O,000.m) productvcompleted operations aggreSare. The general
aggregate limit shall apply separately to the Scrvices to be performed under lhis Agreement.
The policy delinition of "insured contract" shall include assumptions ol' liability
arising out of both ongoing operations and products-completed operations hazard as set lbrth in
"f' definition in tbrm CG (XX) I , or equivalent.
The policy nrusl cover inter-insured suits and include a "Separation of Insurcds" or
"severability" clause which treats each insured separately.
The insurance must be maintained lbr at least one ( I ) year lbllowing the completion
of the Services or the expiration or termination of this Agreement.
(b) Worker's Conrpensation Insurance. A policy ol'worker's compensution
insurance in such arnount as will tully comply with the laws of the State ol'Calitbmia, including
Section 3700 of the Calitbrnia Labor Code. and which shall indemnily. insure. and provide legal
defense for both contractor and city against any loss. claim or damage arising from any injuries
or occupational diseases occurring to any worker employed by or any persons retained by
Contractor in the course of carrying out the Services contemplated in this Agreement. The
worker's compensation policy of insurance shall be in an amount not less than ONE MILLION
DOLLARS ($1.Un.000.m) per accident, ONE MILLION DOLLARS (9t,ff)0.0fi).00) disease
per enlployee, and ONE MILLION DOLLARS ($ 1.m0,000.00) disease per policy.
(c)Autonx)tive Insurance (Form CA U)01 (Ed l/87)including "any iruto" and
endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance
written on a per occurrence for bodily injury and propeny damage in an amount not less than oNE
MILLION DOLLARS ($ I .000,fin.00). Said policy shall include coverage for owned. non-
owned. leased. and hired cars.
(d)
Contractor's prot'e
coverage lbr contr
must be endonied
Prolessional Liabilitv. Prolession al liahility insurance appropriate t<r
ssion. This coverage may be written on a "claims made" basis, and must include
actual liability. The prot'essional liability insurance required by this Agreerlent
to be applicable to claims based upon. arising out ol', or related to the Services
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performed under this Agreement. The insurance must be maintained tbr at least t'ive (5)
consecutive years fbllowing the completion of the Services or the expiration or termination of this
Agreement. Duringthis additional Iive (5)-year period. Contractor shall annually and upon request
of City submit written evidence ol'this continuous coverage.
(e)Pollution Liahilitv. A policy of pollution liability insurance written on a per
occutrence for bodily injury, personal injury and property damage. The policy of insurance shall
be in un amount not less than ONE MILLION DOLLARS ($ I,000,000.00) per pollution incident
and ONE MILLION DOLLARS ($ 1,000,000.00) in the general aggre8are. The policy shall upply
to any incidents at or fiom any location on which Contr.lctor perfbrms the Services under this
Agreement.
The insurance must be maintained for at least one (l) year fbllowing the
completion of Contractor's services or the expiration or termination ol'this Agreement.
(r)Addiri nce . Policies of such other insurance. as may be requireds
in the Spccial Requirements in Exhibit A.
5.2 General Insurance Requirements. All of the above policies of insunurce shall be
primary insurance and shall name City. its elected and appointed ollicers. employees, agents, and
authorized volunteers as additional insureds and any insurance maintained by City or its officers.
employees. agents, or authorized volunteers shall apply in excess ol, and not contribute with.
Contractor's insurance. The insurer is deemed hereof to waive all rights of subrogation and
contribution it may have against City. its officers. employees, agents. authorized volunteers. and
their respective insurers.
Prior written consent from City is required if any of the said policies have a
deductible or self-insured retention in excess of TWENTY-FIVE THOUSAND
DOLLARS ($2-s.000).
Contractor shall provide written notice to City within ten (10) working days if:
( I ) any of the required insurance policies is terminated: (2) the limits of any of the required polices
are reduced; or (3) the deductible or self insured retention is increased. ln the event any ol'said
policies of insurance are cancelled. Contractor shall. prior to the cancellation date. submit new
evidence of insurance in conlbrmance with Section 5. I to the Contract Officer.
167 | r).r|ll58 0r)l)l -ll-
No Services under this Agreement shall commence until Contractor has provided
City with original endorsements eflbcting coverage set lbrth in this Article 5. The endorsentents
are to be signed by a person authorized by that insurer to bind coverage on its behalf. The
endol*iement is to be on forms provided by or approved by City. As an alternative to city-approved
fornrs, Contractor may provide complete certified copies of all required insurance policies.
including endorsements altecting the coverage. City reserves the right to inspect complete.
certilled copies of all required insurance policies at any time. Any t'ailure to comply with the
reporting or other provisions of the policies including breaches or wan'anties shall not aftect
coverage provided to City.
City and its ollicers, employees. agents. and authorized volunteers shall be covered
as additional insureds with respect to each of the tbllowing: liability arising out of the Services
pertbrmed by oron behalf of Contractor- including the insured's general supervision ofContractor:
products and cornpleted operations of Contractor. as applicable: premises owned. occupied. or
used by Contr ctor: rnd autolnobiles owned. leused, or used by Contractor in the course ol'
providing the Selvices pursuant to this Agreentent. The coverage shall contain no special
limitations on the scope of protection afl'orded to City or its otficers. employees. agents. or
tuthorized volunteers. Contractor's insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits oflhe insurer's liability.
Any deductibles or self'-insured retcntions must be declared ro and approved by
City. At the option ol'City. either the insurer shall reduce or eliminate such deducribles or sell'-
insured retentions as respects City or its respective elected or appointed offlcers. officials.
employees. and voluntecrs or Contractor shall procurc a bond guilranteeing paynrent of losses and
related investigations. clairn administration. del'cnsc expenses, and claims. Contractor agrees th t
the requirement to provide insurance shall not be construed as limiting in any way the extent to
which Contractor may he held responsible lbr the payment of damages to any persons or property
resulting fronr Contructor's activities or the activities of any penion or persons for which
Contractor is otherwise responsible nor shall it lirnit Contructor's indenrnification liabilities as
provided in Section .5.3.
In the event Contractor subcr)ntracts any portion ofthe Services in compliance with
Section4.5 of this Agtccrlent. the controct between Contractor and such subcontractor slrall
require the subcontractor to nraintain the same policies ol'insurance that Contractol is required to
maintain pursuant to Section .5. l. and such cerlificates and endonements shall be provided to City.
5.3 lndemnillcation. To the tull exten t permitted by law. Contractor agrees to
indcmnity. dct'end, and hold hannless City. its olliccrs. employees. agcnts. and v.lunteers
("Indemnilied Parties") lionr and against any and all actions. either .judicial. adnrinistrarive.
arbitration. or regulatory. damages to persons or propeny. losses. costs. penalties. obligations.
errors. omissions. or liabilities whether actual or threatened ("Claims or Liabilities") that nray he
asserted or clainred by any person, firnr. or cntity arising out of or in conncction with the
perlbrmance of the Services. operations, or activities provided herein ol Contractor, its olt'icers.
employees. agents. subcontritctors. or invitees. or any individual or enttty tbr which Contractor is
legally liable ("lndemnors"). or arising fiom Contractor's reckless or willf'ul misconduct. or arising
lrom Contractor's or Indemnors' negligent perf'<rrnrance of or failure to pertbrm any term.
provision. covenant. ol'condition of this Agreement. and in connection therewith:
(a) Contractor shall del'end (with counsel selected by City; any action or actions
tlled in connection with any of said Claims or Liabilities and will pay all costs and expenses.
including legal costs and attorneys't'ees incurred in connection thercwith:
(b) Contractor will promptly pay any judgment rendercd against City. its
oflicers, agents, or employees tbr any such Claims or Liabilities arising out of or in connection
with the perfbrmance of or thilure to pertbrm such Services. operations or activities of Contractor
hereunder: and contractor agrees to save and hold City. its offlcers. agents. and emplovecs
hannless therefrom:
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(c) In the event City. its otficers. agents. or employees is made a pany to any
action or proceeding filed or prosecuted against Contractor lbr such damages or other claims
arising out ofor in connection with the perlbrmance ofor lailure to perlbrm the Services, operation
rlr activities of Contractor hereunder. Contractor agrees to pay to City. its otllcers. agents. or
employees. any and all costs and expenses incurred by City, its otlicers. agents, or employees in
such action or proceeding, including but not limited to. legal costs and attorneys' t'ees.
Contractor shall incorpolatc sin.rilar indenrnity aBreenrents with its subcontractors
and il' it lails to do so Contractor shall be lully responsible to indernnity City. and lailure ol'City
to nronitor compliance with these provisions shall not be a waiver hereol'. This indemnification
includes Claims or Liabilities arising tiorn any negligent or wrongt'ul act. error or omission. or
recklcss or willful misconduct ofContractor in the perfomrance ol'prol'cssional services hereunder.
The provisions of this Section do not apply to Claims or Liabilities occurring as u result ol Ciry's
sole negligence or willtul acts or omissions. hut to the tullest extent permitted by law. shall apply
to claims and liabilities resulting in part liom City's negligence. except that design prof'essionals'
indcmnity hereunder shall be linrited to claims and liabilities arising out of the negligence.
recklessness. or willtul tnisconduct ol the design prol'essional. The indemnity obligation shall be
binding on successors and assigns ol'Contractor and shall survive termination ol this Agreement.
ment and Perfilrmance Bond Concurrently with execution of this Agreement.
Contractor shall deliver to City a paylnent (labor and materials) bond and a perlbrmance bond.
each in the sum of the amount of this Agreemenr. in the lbrms provided by the City Clerk. which
secures the taithlul pertbrmance of this Agreement. The bonds shallcontain the original notarized
signature of an authorized otlcer of the surety and affixed thereto shall be a certified and current
copy ol his power of attorney. The bonds shall be unconditional and remain in force during the
entire term of this Agreement and shall be null urd void only if Contractor promptly and faithlully
pertbrms all terms and conditions of this Agreement.
5.5 Sutficiencv of Insurer or.Suret y. Ins urance or bonds required hy this Agreerrent
shall be satislactory only if issucd by conrpanies qualified to do husiness in Califbrnia. rated "A"
or better in the most recent edition ol'Best Rating Guide. The Key Rating Guide. or in the Fedelal
Register. and only if they are of a linancial category Class VII or better. unless such requiremenrs
are waived by the Contract Ottcer due to unique circumstances. If this Agreement continues tbr
more than three (3) years duration. ol in thc event the Conlracl Ol'llcer determines that the Seryiccs
to bc perlbrmed under this Agrecment creates an increased or decreascd risk of loss to City.
Conlractor agrees that the minimum lirnits of the insurance policies and the perlbrmance bond
required by Section 5.4 may be changed accordin-ely upon receipt of written notice tiom the
Contract Ollicer; provided that Contractor shall have the right ro appeal a derermination ol'
increased coverage by the contracr ol'licer to the City Council of city wirhin rcn (10) days ol'
receipt of notice tiom the Contracr OtUcer.
-5.6 Substitution of Securities.Pursuant to Public Contract Code Section 223(X).
substitution of eligible cquivalent sccurities fbr any moneys withheld to cnsure performance under
this Agreerrent may be pennitted at the request and expensc ol-Contfactor.
ARTICLE 6. RECORD.S.REPORTS. AND RE
5.4 Pa
:6? I r'.tl,tslr (xx)t
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LEASE OF INFORMATION
6.1 Records. Contractor shall keep. and require subconlractors to keep, such ledgers
books o[ accounts, invoices. vouchers. canceled checks. reports (including but not limited to
payroll reports). studies. or other docunrents relating to the disbursements charged to City and the
Services perlbrmed hereunder (the "Books and Records"). as shall be necessary to perlbrrn the
Services required by this Agreement and enable the Contract Ollicer Io evaluate the perlormance
of such Services. Any and all such Books and Records shall be maintained in accordonce with
generally accepted accoLrnting principles and shall be complete and detailed. The Contract OIficer
shall have lull and l'ree 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 tiom such
Books and Records. Such Books and Records shall be maintained for a period of three (3) years
following cornpletion of the Services hereunder, and City shall have access to such Books and
Recot'ds in the event any audit is required. In the event ol dissolution of Contractor's business.
custody of the Books and Records may be given to City. and access shall be provided hy
Contractor's successor in interest. Under Calitbmia Covemment Code Section 8546.7. if the
amount of public funds expended under this Agrcemcnt exceeds TEN THOUSAND
DOLLARS ($10,000.00). this Agreenrent shall be subject to thc exanrination and audit ofthe State
Auditor. ut the request of City or as pan ol'any audit ol'City. tbr a period ol'three (3) years afier
linal paynrent under this Agreement.
6.2 Reports. Contractor shall periodically prcpare and submit to the Contract Olllcer
such reports concerning the perlbrmance of the Services required by this Agreement as the
Contract Ofllcer shall require. Contractor hereby acknowledges that City is _ereatly concerned
ahout the cost of the Services to be pertbrmed pursuant to this Agreement. For this reason.
Contractor agrees tha( if Contractor becomes aware of any facts. circumstances, techniques, or
events that lnay or will materially increase or decrease the cost of the Services contemplated hcrein
or. if Contractor is pnrviding design services, the cost of the project being designed, Contracror
shall promptly notity the Contract OU'icer 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 decrcased cost estimate lbr the project being designed.
6.3 Ow nershi of Documents All drawings. specitications. maps. designs.l)
photographs. studies, surveys. data. notes. computer tiles. reports. records. documents. and other
materials plans. drawings. estimates. test data, survey results. models. renderings. and other
documcnts or works of authorship lixed in any tangible nredium of exprcssion. including but not
limited to, physical drawings. digital renderings. or data stored digitally, magnetically. or in any
other medium (the "Documents and Materials") prepared or caused to be prepared by Contractor.
its employces. 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 Ofllcer or upon the
expiration or termination ol'this Agreement. and Contractor shall have no claim lbr lurther
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 ol such cotnpleted Drrcuments and Matcrials for other projects anrl/or use of
unconrpleted documents without specific written authorization by Contractor will be at City's sole
risk and without liability to Contractor. and Contractor's guarantee and warranties shall not extend
to such use. revise. or assignment. Contractor may retain copies of such Documents and Materials
for its own use. Contractor shall have an unrestricted right to use the concepts embodied thercin.
All subcontractors shall provide lbr assignment to Cily of uny Documents and Materials preparecl
167l 0i Ii58 rxx)t -14-
by them. and in the event Contractor tails to secure such assignment. Contraclor shall indemnify
City for all damages resulting therel'rom.
6.4 Licensinu of lntellectual ProDertv This Agleerlent creates a non-exclusive and
perpetual Iicense tbr City tr) copy, use, modity, reuse. or sublicense any and all copyrights, designs.
rights of reproduction, and other intellectual property embodied in the Documents and Materials.
Contr ctor shall require all suhcontnrctors lo agree in writing lhat City is granted a non-excltrsive
and perpetual license for the Documents and Materials the subcontlactor prepares under this
Agreement. Contractor represents and warrants that Contractor has the legal right to license any
and all of the Documenls and Materials. Conlractor makes no such representation and warranty
in regard to the Documents and Materials which were prepared by design professionals other than
Contractor or provided to Conlractor by City. City shall nol be Iimited in any way in its use of the
Documents and Materials at any time. provided that any such use not within the purposes intended
by this Agreement shall be at City's sole risk.
(a) All inlbrmation gained or work product produced by Conrractor in
pertbrmance ol'this Agreement shall be considered confidential, unless such infornration 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 lioni the Contract Otficer'.
ARTICLET. EN FORCEMENT OF ACREEM ENT AND TERMINATION
167l 0lDr58.lr)t)l
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6.5 Confidentialitv and Release of Infbrmation.
(b) Contractor, its oflicers. employees. agents. or subcontractors. shall not.
without prior written authorization tiom the Contract Olficer or unless requested by the City
Attorney. voluntarily provide documents, declarations. letters of support. testimony at depositions.
response to interrogatories, or other infbrmation concerning the work perfornred under this
Agreement. Response to a subpoena or court order shall not be considered voluntary so Iong as
Contractor gives City notice of such court order or subpoena.
(c) If Contractor. or any officer, employee. agcnt, or subcontractor of
Contractor. provides any inlbrmation or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity liom Contractor tbr any damages. costs, and
f'ees. including attomeys' t'ees, 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 fbr docutnents. interrogatories. request lbr admissions. or other discovery
request. coun order, or subpoena from any party regarding this Agreement and the Services
performed thereunder. City retains the right, but has no obligation, to represent Contractor or be
present at any deposition, hearing, or similar proceeding. Conlractor agrees to cooperate fully with
City and to provide City with the opportunity to review any response to discovery requests
provided by Contractor. However, this right to review any such response does not imply or mean
the right by City to control. direct. or rewrite said response.
7.1 Califbmia Law. This Agreement shall be interpreted. construed. and governed both
as to validity and to perlbrmance of the Parties in accordance with the laws ol' the State of
Calitbrnia. lrgal actions conceming any dispute, clairr. or matler arising out of or in relation to
this Agreement shall be instituted in the Superior Court of the County of Riverside. State of
Calitbrnia, or any other appropriate court in such county. and Contractor covenants and agrees to
submit to the personaljurisdiction ofsuch court in the event ofsuch action. In the event of Iitigation
in a U.S. District Court. venue shall lie exclusively in the Central District of California. in
Riverside.
7 .2 Disputes I Delault. In the event that Contractor is in delault under the terms of this
Agreement, City shall not have any obligation or duty to continue compensating Contractor for
any ofthe Services perlbnned after the date ofdefaull. lnstead, City may give noticc to Contractor
ol'the delault and the reasons fbr the delault. The notice shall include the timeliame in which
Contractor may cure the default. This timefiame is presumptively thirly (30) days. but may be
extended. though not reduced. ifcircumstances warrant. Duringthe period of time that Contractor
is in detault, City shall hold all invoices and shall. when the default is cured, proceed with payment
on the invoices. In the alternative, City may. in its sole discretion. elect to pay some or all of the
outstanding invoices during the period of detault. [f Contractor does not cure the detault. City
may take necessory steps to terminate this Agreement under this Article. Any tailure on the part
of City to give notice of Contractor's default shall not be deemed to result in a waiver of City's
legal rights or any rights arising out of any provision of this Agreenrent.
7.3 Rqtention of F'unds. Contractor hereb y authorizes City to retain and deduct ltom
any amount payahle to Contractor not exceeding five percent (5% ) of the Contracl Sum (whether
or not arising out of this Agreement) as security fbr perlormance of this Agreement. The retained
l'unds shall be paid to Contractor within sixty (60) days after l-rnal acceptance of the Services by
the City Council of City and atier Contractor has furnished City with l'ull release of all undisputed
payments under this Agreement. In the event there are any claims specifically excluded hy
Contractor from the operation of the release, City may retain pnrceeds of up to one hundred filiy
percent ( 1507o ) ol' the amount in dispute. The failure ol' City to exercise such right to deduct or to
withhold shall not. however, allect the obligations of Contractor to insure, indemnity. and protect
City as provided in this Agreerrent.
7 .4 Waiver. Waiver by any Party to this Agreement of any tenn. condition. or covenant
ol' this Agreernent shall not constitute a waiver of any other term. condition. or covenant. Wuivcr
by any Pany of any breach of the provisions of this Agreement shall not constitute a waiver of any
other provision or a waiver of any suhsequent breach or violation of any provision of this
Agreement. Acceptance by City ofany work or services by Contractor shall not constitute a waiver
o[ any of the pnrvisions of this Agreement. No delay or omission in the exercise of any right or
rernedy by a non-delaulting Party on any default shall impair such right or remedy or be construed
as a waiver. Any waiver hy either Party ofany detault must he in writing and shall not be a waiver
of any other defirult conceming the same or any other provision of this Agreement.
7.5 Rishts and Remedies arc Cunrulative . Except with respect to rights and renredies
exprcssly declared (o be exclusive in this Agreement. the rights and remedies ol'ihe Parties are
cumulative and the exercise by either Party of one or more of such rights or remedies shall not
l67l l)l lll58 r,00t
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preclude the exercise by it. at the same or different times. of any other rights or remedies tbr the
same default or any other delault by the other Party.
7.6 Lesal Action. In addition to any other rights or renredies, either Party may take
legal action, in law or in equity, to cure. correcl, or remedy any delault. to recover damages tbr
any default. to compel specitic performance of this Agreement. to obtain declaratory or injunctive
relief. or to obtain any other remedy consistent with the purposes of this Agreement.
'7.7 Liquidated Darnages. Since the dcternrinarion ol'acrual damages lbr .rny delay in
perlbrmance of this Agreement would be extremely ditllcult or impractical to determine in the
event of a breach of this Agreement. Contractor and its sureties shall be liable tbr and shall pay to
City the surn of FIVE HUNDRED DOLLARS ($500.m) as liquidated damages lbr each working
day of delay in the perlbrrnance of any of the Services required hereunder. as specified in the
Schedule of Perli)rnance. City may withhold liom any monies payable on account of the Servir:es
pertbrmed by Contractor any accrued liquidated damages.
7.8 Termination Prior to Expiration of Term. This Section 7.8 shall govern any
termination of this Agreement except as specilically provided in the lollowing Section 7.9 fbr
termination lbr cause. City reserves the right to terminate this Contract at any tinre. with or without
cause. upon thirty (30) days' written notice to Contraclor. except that where termination is due to
the tault ofContractor, the period of notice may be such shorter time as may be determined hy the
Contract Otllcer. In addition, Contractor reserves the right to terrrinate this Agreement 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 City, the period of notice may be such shorter time as Conlractor
may determine. Upon receipt of any notice of termination. Contractor shall immediately cease all
Services hereundcr except such as may be specifically approved by the Contract Olficer. Except
where Contractol has initiated termination. Contractor shall be entitled to corrpensation lbr all
Services rendered prior to the efTective date of the notice of termination and lbr any Services
authorized by the Contract Officer therealier 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 evcnt
Contractor has initiated lennination, Contractor shall be entitled to compensation only tbr the
reasonable value of the work product actually produced hereunder. ln the event ol'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.
1.9 Tcrmination lbr Delault of Contractot'. Il' termination is duc to thc lailure ol'
contractor to tulflll its obligations under this Agreement, City may. atier compliance with the
provisions ofSection 7.2. take over the Services and prosecute the same to completion by contract
or otherwise. and Contractor shall be liable to the extent thar the total cost for completion of the
Services required hereunder exceeds the compensation herein sripulated (provided rhat City shall
use reasonable el'torts to mitigate such damages). and City may withhold any payments to
contractor for the purpose of set-ofr or partial payment of the amounts owed City as previously
stated.
7. l0 Attorneys' Fees. lf either Part y to this Agrcement is rcquired to initiate or del-end
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.
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whether legal or equitable. shall be entitled to reasonable attomeys' t'eesl provided. however. that
the attomeys' fees awarded pursuant to this Section shall not exceed (he hourly rate paid by City
for legal services multiplied by the reasonable number of houru spent by the prevailing Pany in
the conduct ol'the litigation. Attorneys' t'ees shall include attomeys' lbes on any appeal. and in
addition a Party entitled to attomeys' fees shall be entitled to all other reasonable costs tbr
investigating such action. taking depositions and discovery, and all other necessary costs the courl
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. The coun may set such fees in the same action or in a separate action brought lbr
that purpose.
ARTICLE It, CTTY OFFICERS AND EMPLOYEES: NON.DISCRIMINATION
8.1 Non-liabilitv of Citv Officers and Enrolovees. No olficer, oflicial, employee.
agent. representative. or volunteer of City shall be personally liable to Contractor. or any successor
in interest, in the event of any default or breach by City or for any amount which may become due
to Contractor or to its successor, or lbr breach ofany obligation ofthe terms of this Agreement.
tt.2 Conflict ol'lnterest. Contractor covenants that neither it. nor an y oll icer or plincipal
of it, has or shall acquire any interest. directly or indirectly. which would cont'lict in any manner
with the interests of City or which would in any way hinder Contractor's pedonnance of the
Services under this Agreement. Conlraclor further covenants that in the perfofmancc oi this
Agreement. no person having any such interest shall be employed by it as an olllcer, employee.
agent. or suhcontractor without the express written consent of the Contract Officer. Contractor
agrees to at all times avoid conflicts of interest or the appearance of any contlicts of interest with
the intercsts of City in the perlbmrance of this Agreement.
:67t lull5r{ rxx)t
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No olTicer or employee of City shall have any flnancial interest, direct or indirect.
in this Agreement nor shall any such oU'icer or employee participate in any decision relating to
this 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. Contractor warants that it has not paid or given and will not pay or give any
third party any money or other consideration tbr obtaining this Agreement.
8.3 Covenant Aqainst Discrimination. Contractor covenants that, by and lbr itsell. its
heirs, cxecutors. assigns, and all persons claiming under or through them, thtt thcre shall be n<r
discrimination against or segregation ol'. any penon or group of persons on account of any
impermissible classitication including. but not limited to. race. color. creed. religion, sex. marital
status, sexual orientation, national origin. or ancestry in the performance of this Agreement.
Contractor shall takc alllrmative action to insure that applicants are employed and that cnrployecs
afe treated during empk.rynrent without regard to their race. color, creed. religion. sex, marital
status. sexual orientation. national origin, or ancestry.
8.4 Unauthorized Aliens. Contractor hereby promises and agrees to comply with all of
the provisions of the Federal Immigration and Nationaliry Act, 8 U.S.C.A. $$ ll0l. et s('q., lts
amended. and in connection therewith. shall not employ unauthorized aliens as dellned therein.
Should Contractor so employ such unauthorized aliens tbr the perfbrmance of the Services covered
by this Agreement, and should any liability or sanctions be imposed against City tbr such use of
unauthorized aliens. Contractor hereby agrees to and shall reimburse City tbr the cost of all such
liabilities or sanctions inrposed. together with any and all costs, including uttorneys' l'ees. incurrcd
by City.
ARTICLE9. MISCELLANEOUSPROVISIONS
9.1 Notices. Any notice. denrand, rcquest. document. consent. approval, or
communication either Party desires or is rer.;uired to give to the other Party or any other person
shall be in writing and either served personally or sent by prepaid. tirst-class nrail. in the case of
City, to the City Manager and to the attention of the Contract Of flcer. CITY OF MENIFEE. 297 I 4
Haun Road. Menif'ee. CA 92586 and in the case of Contractor. to the person at the addrcss
designated on the execution page of this Agreernent. Either P;rty may change its address by
notitying the othcr Party of the change of address in writing. Notice shall be deemed
communicated at the time personally delivered or in seventy-two (72) hours fiom the time of
mailing if mailed as provided in this Section.
9.2 Unfair Business Practices Clairns. In enteri ng into this Agreement, Contractor
ollers and agrees to assign to City all rights. title. and interest in and to all causes of action it may
have under Section 4 of the Clayton Act ( I-5 U.S.C. g l5) or under the Cartwright Act (Chapter 2.
(commencing with Section 16700) of Pan 2 of Division 7 of the Business and Professions Code).
arising liorn purchases ofgoods, services, or materials related to this Agreenlent. This assignnrent
shall be made and become ell'ective at the time City renders tinal payment to Contractor without
t'urther acknowledgment of the Panies.
9.3 Intcrpretation. The tc'rnrs ol'this A greemenl shall be construed in accordance with
the nreaning of the languagc used and shall not be construed lbr or against either Party by rcason
of the authorship of this Agteernent or any other rule of construction which might rxherwise apply.
9.4 Article and Section Headinqs and Subheadings. The anicle and section headings
and subheadings containcd in this Agreement are included lbr convenience only and shall not limit
or otherwise afl'ect the tenns of this Agreement.
9.5 Counterpans. 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.
9.6 Intesration: Amendment. This Agreement including the attachments hereto is the
entire, complete. and exclusive expression of the understanding of the Parties. It is understood
thal there are no oral agreements between the Parties hereto atl'ecting this Agreement and this
Agreement supersedes and cancels any and all previous negotiations. arrangemenls. agreements,
and undcrstandings. ifany, between the Panies. 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 Contractor and by the City Council of City. The Parties agree that this requirement
for written modifications cannot be waived and that any attempted waiver shall be void.
9.7 Severabilitv. In the event that an y onc (n-nrore <-rl'the articlcs. phrases. sentcnces.
clauses. p:rragraphs. or sections contained in this Agreernent shall be declaled invalid or
167l 0ll85x rxxlt -t9-
unenfbrceable. such invalidity or unenforceability shall not aflect any of the remaining articles,
phrases, sentences, clauses, paragraphs. or sections of this Agreement which are hereby declared
as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the
invalid provision is so material that its invalidity deprives either Party ofthe basic benefit oftheir
bargain or renders this Agreement meaningless.
9.8 No Third Parry Beneficiaries. With thL'exce ption of the specific provisions set
tbrth in this Agreement, there are n<-r intended third-party beneliciaries under this Agreement and
no such other third panies shall have any rights or obligations hereunder.
9.9 Execution r>f Contract. The persons execuring this Agreement on behalfofeach of
Ihe Parties hereto represent and 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 ptovisions of this Agreement, and
(iv) that 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, executon.
administrators, successors, and assigns of the Parties.
ISIGNATI.IRES ON FOLLOWING PACEI
16?t 03 t risn rxx)t -20-
IN WITNESS WHEREOF. the Panies hereto have executed lhis Agreement on the date
and year first-above written.
ACENCY:CONTRACTOR
CITY ORMENI E Paint and Restortti0n Masters
Armando illa. City Manager
ATT
s Manw y Clerk
APPROVED AS TO FORM:
Contractor's City Business License
# 761825/C-33. B
B-v,
By:
olqo 81
State Contractor License No. & Class
Address:
29 I 3I CELESTIAL DRIVE
MENIFEE. CA 925It4
J v elching. City v
Two signatures are required if a corporation.
NOTE: APPROPRLATE 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.
:67t 03[t58.txt)t
76.1{)667.: n(15 ll lX -2 l-
OA+$ ^'
EXHIBIT A
SPECIAL REQUIREMENTS
(Not Applicable)
16'71 r):rlr{5x-0rx)l 2)
EXHIBIT B
CONTRACT DOCUMENTS AND SPECIFICATIONS FOR
COMMUNITY SERVICES DEPARTMENT
LA LADERA PARK PAINTING PROJECT
(Not Applicable)
167 t 01lll5n.llllt)t Exhihit B
EXHIBIT C
CONTRACTOR'S PROPOSAL
:67t ('r lN5)l (xx)l Exhibit C
Paint And Restorarion lvlaster s
Contra(tor Li(ense: 761825
SeMng The lnldnd Enrpire, san Diego And Orange County
Phone:800.760'0015
ContactChns
Email:hieber(hris@gmail.com
Custom€r Addresr
Bryre Howell CityOf i,renifee
29629 La Laderd Rd
lr,1 en ifee. CA
951 723 37 52
bhowell@cityofntenrf ee. us
Desall otron
Quote,
Ddte:
63
Sep'19,2018
I
Exterlor Palntint
Scope of work: rntludes two gazebos, one restloom buildrng, three lree srandrnS srructur es
and two gates. ln( ludes the suppon columns. Does not include the bnck around restroom
or rnsrde of them.
Prcparatron: pressure wash all surfa(es to tle parnted. sand and scrape areas where
needed. Prime all rusted areas a((ording to your specs. Frll holes and (ra(ks where
needed. Mask off and cover all areas not to be parnted. Clean up.
T)pe of paint: Sherwin Williams, Vrsta or Dunn Edwdrds alkyd enamel dire(t to nretal
premium paints. lncludes two (oats. lncludescolorchange. ln(ludes two (olors, ln(ludes
the merrl rooftops and underneath the sdme (olor.
t23,445.00
Total
Pahl Ard Ranordiqr ai..5 Phcra:300 7b0 ml5 I wtyvr.l,intandeslrrradfnnrasler.s...rl
$23,445.00
:6?t 0:I85N rXXI ..>.
Terms and conditiont
Scope of Work; Company lvill p.ovide services 6 desclibed in the attached quote. Company will provide all
services, materidls, labor, tools, and equipment needed lor completion of services.
Payment Terms: Weekly protress payments based on (ompleted work
ChanSe Order: Any deviation from the above quote involvinS a change in the scope of work or any
additional costs will be exe(uted only with a written chante order signed and dated by both the Company
and Customer.
warranty: company warrants all work will be performed in a good and workmanlike manner, Any
warranties for par ts or mater ialS ar e subiect to manufacturer terms on such products.
Conditions: This proposal is valid fo, 30 days. Company reserves the .ight to withdraw this proposal or
re-quote the project if contract acceptance is beyond 30 days.
Name Date
?.i.a And Rcitor.aion M.ste75 | Phone:soo-75O.0O15 | t*w p.,ntand,ertoratonm.lers (om
t67l oltx5x.{xtll -3-
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