03-17-2020 - AGENDA ITEM 05 CONSIDERATION OF AGREEMENT FOR FISCAL YEAR 2017-18 RESIDENTIAL STREET REHABILITATION PROGRAM - PROJECT NO. SP-1803211/16/2020
Print Staff Report
AGENDA ITEM NO. 5
DATE: March 17, 2020
TO: Mayor and City Council
FROM: David Carmany
City Manager
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
SUBJECT: CONSIDERATION OF AGREEMENT FOR FISCAL YEAR 2017-18 RESIDENTIAL
STREET REHABILITATION PROGRAM - PROJECT NO. SP-18032
RECOMMENDATION:
It is recommended that the City Council take the following actions:
1. Authorize the City Manager to execute a contract agreement with Onyx Paving Company, Inc. in the
amount of $1,182,920 for the following work:
a. $1,009,000 for Fiscal Year 2017-18 Residential Streets Rehabilitation Program; and
b. $173,920 as Change Order per Cost Proposal received from the contractor as additional work for
Parking Lot Rehabilitation located north of Cortez Park.
2. Authorize 15% of the awarded contract amount as contingency allowance to be used, if necessary, at the
City Manager's discretion; and
3. Adopt the following resolution:
RESOLUTION NO. 2020-15—A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WEST COVINA, CALIFORNIA, ADOPTING A BUDGET AMENDMENT FOR THE FISCAL
YEAR COMMENCING JULY 1, 2019, AND ENDING JUNE 30, 2020 (Onyx Paving)
BACKGROUND:
Adequate street maintenance is necessary to protect the original investment and to furnish maximum service to
the users. To delay maintenance work will hasten the day when an entirely new paving job will be necessary.
Maintenance work should therefore be given as much consideration by the City Council as new construction,
and the material used should be selected with the same caution as if it were intended for a new pavement.
Maintenance is a continuous process. The selected streets are based on the recommendations identified within
the City's Pavement Management Program (PMP). As part of this project, approximately 930,000 square feet
of pavement will be constructed slurry seal or cape seal; and, approximately 235,000 square feet of pavement
will be asphalt overlaid. Work also includes concrete improvements including sidewalk, curb and gutter, curb
ramp, striping and related work.
Streets that are recommended to be included in the Fiscal Year (FY) 2017-18 pavement rehabilitation include:
Street name From To
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required herein will be performed by Contractor or under its direct supervision, and that all personnel
engaged in such work shall be fully qualified and shall be authorized and permitted under applicable
State and local law to perform such tasks and services.
4.6 Utility Relocation - City or the owner of any owner, and not Contractor, is
responsible for removal, relocation, or protection of existing main or trunkline utilities but only to the
extent such utilities were not identified in the invitation for bids or specifications. Where the
specifications call for the Contractor to remove, relocate, reconstruct or protect such lines, all such
work shall be deemed included in the contract price. Contractor having been presented with a
reasonable basis to suspect that any previously unidentified main or trunkline may need to be
removed, relocated or protected in place, Contractor shall immediately notify City and the affected
utility company in writing of such belief, and the basis therefor, and Contractor shall thereafter work
with the City and the utility company to coordinate such removal, relocation or protection. City shall
reimburse Contractor for its reasonable costs incurred in locating, repairing damage not caused by
Contractor, and removing or relocating such unidentified utility facilities, including equipment idled
during such work. Contractor shall not be assessed liquidated damages for delays which meet both
of the following requirements (i) the delays occurred after Contractor gave City the written notice
required by this section; and (ii) the delays were caused by the removal, protection, or relocation of
such unidentified utility facilities. Nothing herein shall be deemed to prevent the City from seeking
reimbursement of any such costs from the affected utility company.
4.7 Trenches or Excavations - Pursuant to California Public Contract Code
Section 7104, if the work included in this Agreement requires excavations more than four (4) feet
in depth, the following shall apply.
a) Contractor shall promptly, and before the following conditions are
disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that
is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to
be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing
law; (2) Subsurface or latent physical conditions at the site different from those indicated; or (3)
unknown physical conditions at the site of any unusual nature, different materially from those
ordinarily encountered and generally recognized as inherent in work of the character provided for
in the contract.
b) City shall promptly investigate the conditions, and if it finds that the
conditions do materially so 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 1.8 of this Agreement.
c) If 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 provided for by the contract, but shall proceed
with all work to be performed under the contract. Contractor shall retain any and all rights
provided either by contract or by law which pertain to the resolution of disputes and protests
between the contracting parties.
CONTRACT DOCUMENTS IV-6
5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance - The Contractor shall procure and maintain, at its sole cost and
expense, in a form and content satisfactory to City, during the entire term of this Agreement including
any extension thereof, the following policies of insurance:
Coverage (Check if applicable)
Minimum Limits
combined single limits, per
occurrence and aggregate
Broad -form commercial general liability, in a form at
$2,000,000. If such insurance
least as broad as ISO from #CG 00 01 1188, including
contains a general aggregate
(X)
premises -operations, products / completed operations,
limit, it shall apply
broad form property damage, blanket contractual
separately to this Agreement
liability, independent contractors, personal injury or
or shall be twice the required
bodily injury.
occurrence limit.
(X)
Contractual Liability Insurance; Products Liability
$1,000,000 limit.
Insurance.
Comprehensive Automobile Liability Insurance
$2,000,000 per occurrence
(includes owned, non -owned, and hired automobile
combined single limit
(X)
hazard).
combined single limits, per
occurrence for bodily injury
and property damage.
Workers Compensation/Employers' Liability Insurance
Statutory $2,000,000 per
as required by the State of California. Contractor agrees
occurrence.
to waive, and to obtain endorsements from its workers'
compensation insurer waiving subrogation rights under
(X)
its workers' compensation insurance policy against the
City, its officers, agents, employees, and volunteers for
losses arising from work performed by Consultant for
the City and to require each of its subcontractors, if any,
to do likewise under their workers' compensation
insurance policies.
CONDITIONS:
a) Admitted. In accordance with Public Code Section 20170, the
insurance or surety companies who provide or issue the policy shall have been admitted to
do business in the State of California with a current Moody's credit rating of "A" minus or
better.
b) The policies shall contain or be endorsed to contain, with respect to:
(i) Notice of Termination: "Said policy shall not terminate, be
suspended, or voided, nor shall it be cancelled, nor the coverage or limits reduced, until
CONTRACT DOCUMENTS IV-7
thirty (30) days after written notice is given to City Engineer, City of West Covina, 1444
West Garvey Avenue South, West Covina, California 91790."
(ii) Additional Insureds: "The City of West Covina and its elected
and appointed boards, officers, officials, agents, employees, and volunteers are additional
insureds with respect to: liability arising out of activities performed by or on behalf of the
Contractor pursuant to its contract with the City; products and completed operations of the
Contractor; premises owned, occupied or used by the Contractor; automobiles owned,
leased, hired, or borrowed by the Contractor.
(iii) Excess: "Any insurance maintained by the City of West Covina
shall apply in excess of and not combined with insurance provided by this policy."
c) Any failure to comply with the reporting provisions of the policies
shall not affect coverage provided to the City of West Covina, its officers, officials, agents,
employees, and volunteers.
d) The Contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
e) Before starting work, Contractor shall deliver to the City insurance
endorsements and certificates of insurance confirming the existence of the insurance
required by this contract, and including the applicable clauses referenced above.
f) Such endorsements shall be signed by an authorized representative
of the insurance company and shall include the signatory's company affiliation and title.
Should it be deemed necessary by the City, Contractor shall see that the City receives
documentation, acceptable to the City, which sustains that the individual signing said
endorsements is indeed authorized to do so by the insurance company.
g) If the Contractor fails to maintain the aforementioned insurance, or
secure and maintain the aforementioned endorsement, the City may obtain such insurance,
and deduct and retain the amount of the premiums for such insurance from any sums due
under the agreement. Procuring of said insurance by the City is in addition to all other
remedies the City may have. In addition to any other remedies the City may have upon
Contractor's failure to timely provide and maintain required insurance or policy
endorsements, the City may order Contractor to stop work hereunder, and/or withhold any
payment(s) which became due to Contractor hereunder until Contractor demonstrates
compliance with the requirements hereof.
h) Nothing herein limits the extent to which Contractor may be held
responsible for payments of damages to persons or property resulting from Contractor's or
its sub -contractors' performance of the work covered under this agreement.
CONTRACT DOCUMENTS IV-8
i) Each contract between the Contractor and any sub -contractor shall
require the sub -contractor to maintain the same policies of insurance that the Contractor is
required to maintain pursuant to this Section 5.1.
5.2 Indemnification - Contractor agrees to defend (with an attorney of City's
choosing), indemnify, hold free and harmless the City, its elected and appointed officials, officers,
agents and employees, at Contractor's sole expense, from and against any and all claims, demands,
actions, suits or other legal proceedings brought against the City, its elected and appointed officials,
officers, agents and employees arising out of the performance of the Contractor, its employees, and/or
authorized subcontractors, of the work undertaken pursuant to this Agreement. The defense
obligation provided for hereunder shall apply without any advance showing of negligence or
wrongdoing by the Contractor, its employees, and/or authorized subcontractors, but shall be required
whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or
misconduct of the Contractor, its employees, and/or authorized subcontractors, and/or whenever any
claim, action, complaint or suit asserts liability against the City, its elected and appointed officials,
officers, agents and employees based upon the work performed by the Contractor, its employees,
and/or authorized subcontractors under this Agreement, whether or not the Contractor, its employees,
and/or authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the Contractor shall not be liable for the defense or indemnification
of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful
misconduct of the City. This provision shall supersede and replace all other indemnity provisions
contained in any other document, which shall be of no force and effect.
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 incur -red 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 or alleged to arise
out of or in connection with Contractor's (or its agents', employees', sub -contractors', or
invitees') negligent performance of or failure to perform such work, operations or activities
hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees
harmless therefrom;
c) If the City, its officers, agents or employees is/are made a party to any
action or proceeding filed or prosecuted against Contractor for such damages or other claims
arising or alleged to arise out of or in connection with the negligent performance of or failure
to perform the work, operation or activities of Contractor hereunder, Contractor shall 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 for counsel acceptable to City.
d) Contractor's duty to defend and indemnify as set out in this Section 5.2
shall include any claims, liabilities, obligations, losses, demands, actions, penalties, suits,
costs, expenses or damages or injury to persons or property arising or alleged to arise from,
in connection with, as a consequence of or pursuant to any state or federal law or regulation
CONTRACT DOCUMENTS IV-9
regarding hazardous substances, including but not limited to the Federal Insecticide,
Fungicide and Rodenticide Act ("FIFRA"), Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), Resource Conservation and Recovery
Act of 1976 ("RCRA"), the Hazardous and Solid Waste Amendments of 1984, the Hazardous
Material Transportation Act, the Toxic Substances control Act, the Clean Air Act, the Clean
Water Act, the California Hazardous Substance Account Act, the California Hazardous Waste
Control Law or the Porter -Cologne Water Quality Control Act, as any of those statutes may
be amended from time to time.
The Contractor's indemnification obligations pursuant to this Section 5.2
shall survive the termination of this Agreement. Contractor shall require the same indemnification in
favor of City from all sub -contractors.
5.3 Labor and Materials and Performance Bonds - Concurrently with
execution of this Agreement, Contractor shall deliver to City a labor and materials bond and a
performance bond each in the sum of the amount of this Agreement, in the forms provided by the
City Clerk, which secures the faithful performance of this Agreement. The bonds 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 bonds shall be unconditional and remain in
force during the entire term of the Agreement and shall be released or exonerated only if the
Contractor promptly and faithfully performs all terms and conditions of this Agreement.
5.4 Sufficiency of Insurer or Surety - Insurance or bonds required by this
Agreement shall be satisfactory only if issued by companies admitted to do business in California,
rated with a current Moody's credit rating of "A" minus or better unless such requirements are waived
by the City's Risk Manager in writing due to unique circumstances. If the Risk Manager of City
("Risk Manager") determines that the work or services to be performed under this Agreement creates
an increased risk of loss to the City, the Risk Manager may increase the minimum limits of the
insurance policies and the performance bond required by this Section 5 upon receipt of written notice
from the Risk Manager; provided that the Contractor may appeal such determination to the City
Council of City within ten (10) days of receipt of notice from the Risk Manager.
5.5 Substitution of Securities - Pursuant to California Public Contract Code
Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure
performance under the contract for the work to be performed will be permitted at the request and
expense of the successful bidder.
6. RECORDS AND REPORTS
6.1 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
CONTRACT DOCUMENTS IV-10
contemplated herein, Contractor shall promptly notify the Contract Officer of said fact,
circumstance, technique or event and the estimated increased or decreased cost related thereto.
6.2 Records - Contractor shall keep, and require sub -contractors to keep, such
books and records (including but not limited to payroll records as required herein) as shall be
necessary to perform the services required by this Agreement and enable the Contract Officer to
evaluate the performance of such services. 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 three (3) years following completion of the services hereunder, and the
City shall have access to such records in the event any audit is required.
6.3 Ownership of Documents - All drawings, specifications, reports, records,
documents and other materials prepared by Contractor, its employees, sub -contractors 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 of the documents and materials hereunder. Contractor may retain copies of
such documents for its own use. Contractor shall have an unrestricted right to use the concepts
embodied therein. All sub -contractors 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.
7. ENFORCEMENT OF AGREEMENT
7.1 California Law - This Agreement shall be construed and interpreted 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.
7.2 Notice of Default and Cure Period - If either party fails to perform its
obligations hereunder, the nondefaulting party shall provide the defaulting party written notice of such
default. The defaulting party shall have ten (10) days to cure the default; provided that, if the default
is not reasonably susceptible to being cured within said ten (10) day period, the defaulting party shall
have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, provided the
defaulting party commences to cure such default within ten (10) days of service of such notice and
diligently prosecutes the cure to completion; provided farther that if the default is an immediate
danger to the health, safety and general welfare, the defaulting party shall take such immediate action
as may be necessary. Notwithstanding the foregoing, the nondefaulting party may, in its sole and
absolute discretion, grant a longer cure period. Should the defaulting party fail to cure the default
within the time period provided in this Section, the nondefaulting party shall have the right, in addition
to any other rights the nondefaulting party may have at law or in equity, to terminate this Agreement,
and/or to call upon any completion or payment bond or other security for performance thereof.
Compliance with the provisions of this Section 7.2 shall be a condition precedent to bringing any legal
CONTRACT DOCUMENTS IV-11
action, and such compliance shall not be a waiver of any parry's right to take legal action in the event
that the dispute is not cured.
7.3. "Claims" by Contractor under Section 9204. Notwithstanding any other
provision of this Agreement to the contrary, this Agreement shall be subject to all requirements of
Public Contract Code section 9204 ("Section 9204") as it may be amended from time to time. The
parties acknowledge that Section 9204 applies to certain requests by Contractor, such as certain
requests for time extensions, certain requests for payments not covered by contract, and certain
requests for payments of amounts disputed by City. The parties further acknowledge that Section
9204 establishes all of the following: (i) Contractor may submit a "claim" to the City, as that term
is defined in section 9204; (ii) City has an initial 45 days to respond to review and respond to the
claim to state "what portion of the claim is disputed and what portion is undisputed";
(iii) Contractor must furnish reasonable documentation to support the claim; (iv) City has 60 days
from its written determination to pay any undisputed amount, and (v) specified procedures apply
to resolve any amounts in dispute.
7.4 Retention of Funds - Progress payments shall be made in accordance with
the provisions of Section 2.2 of this agreement. In accordance with said section, City shall pay
Contractor a sum based upon ninety five percent (95%) of the contract price apportionment. The
remaining five percent (5%) thereof shall be retained as performance security to be paid to the
Contractor within sixty (60) days after final acceptance of the work by the City Council, after
Contractor shall have furnished City with a release of all undisputed contract amounts if required
by City. If there are any claims specifically excluded by Contractor from the operation of the
release, the City may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount
in dispute. City's failure to deduct or withhold shall not affect Contractor's obligations hereunder.
To the extent consistent with Public Contract Code 22300, Contractor may request and City shall
make payment of retentions earned directly to an escrow agent at the expense of Contractor, and
may direct the investment of the payments into securities and Contractor shall receive the interest
earned on the investments upon the same terms provided for in Public Contract Code § 22300 for
securities deposited by Contractor. Upon satisfactory completion of this Agreement, Contractor
shall receive from the escrow agent all securities, interest, and payments received by the escrow
agent from the owner.
7.5 Waiver - No delay or omission in the exercise of any right or remedy by a
nondefaulting 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.
7.6 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 parry 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.
CONTRACT DOCUMENTS IV-12
7.7 Legal Action - In addition to any other rights or remedies, either parry may
take legal action, at 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.
7.8 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 liquidated damages for each working day of delay in the performance of any service
required hereunder, as specified in the Section II. 13. "Construction Schedule, Progress of Work,
Liquidated Damages". In addition, liquidated damages may be assessed for failure to comply with the
emergency call out requirements described in the scope of services. The City may withhold from any
moneys payable on account of services performed by the Contractor any accrued liquidated damages.
Contractor, its sureties, and City agree that the damages constitute a reasonable estimate of actual
damage, and are not punitive.
7.9 Termination for Default of Contractor - If termination is due to the failure
of the Contractor to fulfill its obligations under this Agreement, Contractor shall vacate any City
owned property which Contractor is permitted to occupy hereunder and 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 setoff or partial payment of the amounts owed the City as previously
stated.
CITY OFFICERS AND EMPLOYEES, NONDISCRIMINATION
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 - 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, 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, gender expression, marital status, national origin, disability, pregnancy,
sexual orientation or ancestry in the performance of this Agreement. To the extent required by law,
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, gender
expression, marital status, national origin, disability, pregnancy, sexual orientation or ancestry.
CONTRACT DOCUMENTS IV-13
MISCELLANEOUS PROVISIONS
9.1 Notice - Any notice, demand, request, document, consent, approval, or
communication either parry desires or is required to give to the other parry or any other person shall
be in writing and shall be deemed to be given when served personally or deposited in the U.S. Mail,
prepaid, first-class mail, return receipt requested, addressed as follows:
To City: City of West Covina
1444 West Garvey Avenue South
West Covina, California 91790
Attention: Jeff Anderson, Community Development Director
To Contractor: Onyx Paving Company, Inc.
2890 E. La Cresta Avenue
Anaheim, CA 92806
Attention: Corey R. Kirschner, President
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
parry by reason of the authorship of this Agreement or any other rule of construction which might
otherwise apply.
9.3 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.
9.4 Severability - If one or more of the words, phrases, sentences, clauses,
paragraphs, or sections in this Agreement is declared unenforceable by a court of competent
jurisdiction, such unenforceability shall not affect any of the remaining words, phrases, sentences,
clauses, paragraphs, or sections of this Agreement which are severable. Remaining enforceable
provisions shall be interpreted to carry out the intent of the parties unless an invalid provision is so
material that its invalidity deprives either party of the basic benefit of their bargain or renders this
Agreement meaningless.
9.5 Hiring of Undocumented Aliens Prohibited - Contractor shall not hire,
employ, or allow any person to work under this Agreement unless such person is properly documented
and may legally work within the United States.
9.6 Unfair Business Practices Claims - Consistent with Public Contract Code
section 7103.5, the contractor and all sub -contractors offer and agree to assign to the City all
rights, title, and interest in and to all causes of action they may have under Section 4 of the Clayton
Act (15 U.S.C. Section 15) and 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
CONTRACT DOCUMENTS IV-14
goods, services or materials pursuant to this Agreement. This assignment becomes effective when
the City renders final payment to the Contractor without further acknowledgment by the parties.
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.
9.8 Legal Responsibilities - The Contractor shall keep itself informed of City,
State, and Federal laws, ordinances and regulations, which may in any manner affect the performance
of its services pursuant to this Agreement. The Contractor shall at all times observe and comply with
all such laws, ordinances and regulations. Neither the City, nor its officers, agents, assigns nor
employees shall be liable at law or in equity as a result of the Contractor's failure to comply with this
section.
9.9 Termination for Convenience — The City may terminate this Agreement
without cause for convenience of the City upon giving contractor 30 days prior written notice of
termination of the Agreement. Upon receipt of the notice of termination, the Contractor shall cease
all further work pursuant to the Agreement. Upon such termination by the City, the Contractor shall
not be entitled to any other remedies, claims, actions, profits, or damages except as provided in this
paragraph. Upon the receipt of such notice of termination, Contractor shall be entitled to the following
compensation:
1. The contract value of the work completed to and including the date of receipt
of the notice of termination, less the amount of progress payments received by contractor.
2. Actual move -off costs including labor, rental fees, equipment transportation
costs, the costs of maintaining on -site construction office for supervising the move -off.
3. The cost of materials custom-made for this Agreement which the Contractor
cannot use in its normal course of business, and for which the City has not already paid.
4. Any costs shall not include any markups as might otherwise be allowed by
any plans or specifications which were a part of the Agreement.
The provisions of this paragraph shall supersede provisions of the Agreement and any provision of
any plans, specification, addendums or other documents which is or may become a part of this
Agreement. City and Contractor agree that the provisions of this paragraph are a substantive part of
this Agreement's consideration.
CONTRACT DOCUMENTS IV-15
11/16/2020
Print Staff Report
IArcridge Drive IIEnd
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Icameron Avenue
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IForestdale Avenue
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
CITY OF WEST COVINA,
a municipal corporation
David Carmany
City Manager
ATTEST:
Lisa Sherrick
Assistant City Clerk
APPROVED AS TO FORM:
Thomas Duarte
City Attorney
ONYX PAVING COMPANY, INC.
By: I12eE k-t9— C.HNGR
(Print Name)
Signature:`'
Title: U0.I'RE6,VP, Sec.T"S
Address: 2Bg0 E LA CR-�,-enA AvE
N-)mks M. CA g28oty
By: AtNoJr wt mr T E
(Print Nam
Signature
Title: CFO
Address: 2-SRO E t-A CResTA AVE
%I,JLiew, CA gUOc,
CONTRACT DOCUMENTS IV-16
ATTACHMENT NO. 2
RESOLUTION NO.2020-15
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WEST COVINA, CALIFORNIA, ADOPTING A BUDGET
AMENDMENT FOR THE FISCAL YEAR COMMENCING
JULY 1, 2019, AND ENDING JUNE 30, 2020 (Onyx Paving)
WHEREAS, the City Manager, on or about June 18, 2019, submitted to the City Council
a proposed budget for the appropriation and expenditure of funds for the City for West Covina for
Fiscal Year 2019-20; and
WHEREAS, following duly given notice and prior to budget adoption, the City Council
held public meetings, considered and evaluated all comments, and adopted a budget for the fiscal
year commencing July 1, 2019 and ending July 30, 2020; and
WHEREAS, amendments must periodically be made to the budget to conform to changed
circumstances following adoption of the budget.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA
DOES RESOLVE AS FOLLOWS:
SECTION 1. That the budget amendment for Fiscal Year 2019-20 is hereby approved as
reflected on Exhibit No. 1 attached hereto.
SECTION 2. That this resolution shall be effective immediately upon passage and
adoption
SECTION 3. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED, AND ADOPTED this 171h day of March 2020.
Tony Wu
Mayor
APPROVED AS TO FORM ATTEST
Thomas P. Duarte Lisa Sherrick
City Attorney Assistant City Clerk
I, HEREBY CERTIFY that the foregoing resolution was duly adopted by the City Council
of the City of West Covina, California, at a regular meeting thereof on the 171h day of March 2020
by the following vote of the City Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
Lisa Sherrick
Assistant City Clerk
Exhibit No. 1
CITY OF WEST COVINA
BUDGET AMENDMENT
BA # 042
Posted By:
Date Posted:
Date: 03/17/2020 Fiscal Year: 2019-2020
Requested by: Kelly McDonald Amount: $ 309,121.00
Dept/Div: Public Services Onyx Paving (18032)
EXPENDITURES
Account Number
Dept/Account Description
Current Budget
Proposed
Amendment
Amended Budget
18032.235.7500
Street Rehabilitation 18032
930 800.00
309 221.00
1,240,021.00
19031.235.7500
Street Rehabilitation 19031
798 528.00
309 221.00
489 307.00
REVENUES
Account Number
Account Description
Current Budget
Proposed
Amendment
Amended Budget
Street Rehabilitation Project No. 18032 bid higher than anticipated.
APPROVALS
City Council Approval Date (if required, attach minutes): 03/17/20 ❑ Approval Not Required
Dept Head Approval: See attached. Date:
Finance Director: Date:
Funds Available? ❑ Yes ❑No
City Manager: Date:
Comment: ❑ Approved ❑ Denied
11/16/2020
Print Staff Report
DISCUSSION:
On January 9, 2020, staff advertised construction bid package. The following nine (9) bids were received by
the City at the Bid Opening held on January 30, 2020.
Contractor Name 11
Total Bid Amount
Onyx Paving Company, Inc.
$1,009,000.00
Hardy & Harper, Inc.
$1,111,000.00
RJ Noble Company
$1,166,047.85
Excel Paving Company
$1,195,957.74
Copp Contracting, Inc.
$1,204,337.41
All America Asphalt
$1,219,777.00
Gentry Brothers
$1,297,948.31
Sully Miller Contracting, Co.
$1,376,000.00
EBS General Engineering
$1,622,469.89
Staff conducted a bid analysis including checking references, California Contractor Licensing, Department of
Industrial Relations registration, State and Federal debarment list review for Onyx Paving Company, Inc.
Lowest Responsible Bid
The lowest responsible bid was submitted by Onyx Paving Company, Inc. in the amount of $1,009,000.
Attached is the agreement to be executed with Onyx Paving Company, Inc. (Attachment No. 1).
Budget
The following is the breakdown of the construction phase budget:
Construction Budget
$1,009,000.00
Additional Cost as Change Order to the Contractor in the amount of $173,920
$173,920.00
per Cost Proposal received from the Contractor
Contingency Budget allowance authorization to staff to utilize for unforeseen
$177,438.00
conditions as necessary (15%)
Total Construction Budget
$1,360,358.00
Budget allowance for construction management, inspections, and
administration (services provided under Capital Improvement Projects
$136,036.00
Management Contract with Transtech)
Project Total
$1,496,394.00
OPTIONS:
The City Council has the following options:
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11/16/2020
1. Approve Staffs recommendation; or
2. Provide alternative direction.
Print Staff Report
ENVIRONMENTAL REVIEW:
The proposed Project is a project subject to CEQA. Staff has reviewed the proposed project and has
determined that it is categorically exempt from CEQA pursuant to CEQA Guidelines Section(s) 15302:
Replacement or Reconstruction (c) as the project involves the reconstruction of existing roadways and parking
lots with no expansion of capacity.
Prepared by: Okan Demirci, PE, CIP Manager
Fiscal Impact
FISCAL IMPACT:
The funds available for this project are as follows:
PNo. ct
Funds
Account No.
Amount
18032
Measure M 118032.235.7200
$1,305,082
LA County Park Bond Maintenance
007
E
and Servicing (M&S)
F�0
$191,312
Total
$1,496,394
Attachments
Attachment No. 1 - Contract Agreement with Onyx Paving Company
Attachment No. 2 - Resolution No. 2020-15
CITY Enhance the City Image and Effectiveness
COUNCIL Protect Public Safety
GOALS & Respond to the Global COVID-19 Pandemic
OBJECTIVES:
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ATTACHMENT NO. 1
CONTRACT SERVICE AGREEMENT
FOR
FISCAL YEAR 2017-18
RESIDENTIAL STREETS REHABILITATION PROGRAM
PROJECT NO. SP-18032
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered
into this 17th day of March 2020 by and between the CITY OF WEST COVINA, a municipal
corporation, (herein "City") and ONYX PAVING COMPANY, INC. (herein "Contractor"). The
parries hereto agree as follows:
RECITALS
A. City requires construction services for Fiscal Year 2017-18 Residential
Streets Rehabilitation Program that meet the requirements as shown in the project specifications
and this contract. Contractor has represented to City that Contractor is qualified to perform said
services and has submitted a proposal to City for same.
B. City desires to have Contractor perform said services on the terms and conditions set
forth herein.
NOW, THEREFORE, based on the foregoing Recitals and for good and valuable
consideration, the receipt and sufficiency of which is acknowledged by both parties, City and
Contractor hereby agree as follows:
1. SERVICES OF CONTRACTOR
1.1 Scope of Services - In compliance with all terms and conditions of this
Agreement, the Contractor shall provide those services specified in Article 1 ("Project Description")
of Section I ("Notice to Contractors"), which services may be refereed to herein as the "services" or
"work" hereunder. As a material inducement to the City entering into this Agreement, Contractor
represents and warrants that Contractor is a provider of first class work and services and Contractor
is experienced in performing the work and services contemplated herein and, in light of such status
and experience, Contractor covenants that it shall follow the highest professional standards in
performing the work and services required hereunder and that all materials will be of good quality, fit
for the purpose intended.
1.2 Documents Included in Contract - This contract consists of the (1) Notice
to Contractors, (2) Instructions to Bidders, (3) Bid Documents (inclusive of the (a) Proposal (b)
Proposal Schedule, (c) Sub -contractor list; (d) Bidder's guarantee; (e) Bid Bond; (f) Statement of
Non -collusion by Contractor; (g) Debarment and Suspension Certification; (h) Certification of
Principal; (i) reference form; (4) Contract Documents (inclusive of (a) Agreement; (b) Performance
Bond; (c) Warranty Bond; (e) Supplemental Information to be completed by Principal; (f) Tax
Identification Form; (g) Guarantee; (h) Substitution of Equals; (5) Special Provisions, all Exhibits to
the Special Provisions and attachments to it which are incorporated as if fully set forth herein. In the
CONTRACT DOCUMENTS IV-1
event of an inconsistency between any of the terms in this Agreement and any of the above, this
Agreement shall govern.
1.3 Compliance with Law - All 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 having jurisdiction in effect at the time the work is
performed.
1.4 Licenses, Permits, Fees, and Assessments - Contractor 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 this Agreement, including a business license from the City. 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 against any such fees, assessments, taxes penalties or interest levied, assessed or
imposed against City hereunder. Contractor shall be responsible for all sub -contractors' compliance
with this Section 1.4.
1.5 Familiarity with Work - By executing this Contract, Contractor warrants that
Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b)
has carefully considered how the services should be performed, and (c) 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. Should the Contractor discover any latent or unknown conditions, which will
materially affect the performance of the services hereunder, Contractor shall immediately inform the
City of such fact and shall not proceed except at Contractor's risk until written instructions are received
from the Contract Officer.
1.6 Care of Work - The Contractor shall adopt reasonable methods during the
life of this 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 may be caused by City's own negligence.
1.7 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. Contractor shall require all sub -contractors to
comply with the provisions of this Agreement.
1.8 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 change order is first given by the
CONTRACT DOCUMENTS IV-2
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. Any increase in compensation of the Contract Sum, or in the time to
perform of one hundred eighty (180) days or less may be approved by the Contract Officer except as
provided in West Covina Municipal Code section 19-302. Any increases which cannot be approved
by the Contract Officer as provided in West Covina Municipal Code section 19-302, taken either
separately or cumulatively, must be approved by the City Council. It is expressly understood by
Contractor that the provisions of this Section shall not apply to services specifically set forth in the
Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it
accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly
or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional
compensation therefor.
1.9 Prevailing Wages Laws — This project requires the payment of prevailing
wages under California Law. In accordance with Labor Code Section 1770, et seq., the director of
the Department of Industrial Relations of the State of California has ascertained a general prevailing
rate of wages which is the minimum amount which shall be paid to all workers employed to perform
the work pursuant to this Agreement. A copy of the general prevailing wage rate determination is on
file in the office of the City Clerk and is hereby incorporated in this Agreement. In accordance with
the provisions of Labor Code Section 1810, et seq., eight (8) hours is the legal working day. Contractor
must forfeit to the City Twenty Five Dollars ($25.00) a day for each worker who works in excess of
the minimum working hours for which Contractor does not pay overtime. Contractor is required to
post a copy of such wage rates at all times at the contract site. The statutory penalties for failure to
pay prevailing wage or to comply with State wage and hour laws will be enforced. Contractor also
shall comply with State law requirements to maintain payroll records and shall provide for certified
records and inspection of records as required by California Labor Code Section 1770, et seq.,
including Section 1776. Contractor shall comply with all statutory requirements relating to the
employment of apprentices.
1.10 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 "A" through Exhibit "B" and incorporated herein by this reference. In the event of a conflict
between the provisions of Exhibit "A" through Exhibit "B" and any other provisions of this
Agreement, the provisions of Exhibit "A" through Exhibit `B" shall govern.
2. COMPENSATION
2.1 Contract Sum - For the services rendered pursuant to this Agreement, the
Contractor shall be compensated as specified herein, but not exceeding the maximum contract amount
of One million one hundred eighty two thousand nine hundred twenty dollars and zero cents
($1,182,920.00) (herein "Contract Sum"), except as provided in Section 1.8. The Contract Sum shall
include the attendance of Contractor at all project meetings reasonably deemed necessary by the City;
Contractor shall not be entitled to any additional compensation for attending said meetings.
2.2 Progress Payments - Prior to the first day of the month, during the progress
of the work, commencing on the day and month specified in the Agreement, Contractor shall
CONTRACT DOCUMENTS IV-3
submit to the Contract Officer a complete itemized statement of all labor and materials
incorporated into the work during the preceding month and the portion of the contract sum
applicable thereto. Upon approval in writing by the Contract Officer, payment shall be made in
thirty (30) days. City shall pay Contractor a sum based upon ninety five percent (95%) of the
contract price apportionment of the labor and materials incorporated into the work under the
contract during the month covered by said statement. The remaining five percent (5%) of the
Contract Sum shall be retained as performance security. Refer to Section 7.4 of this Agreement
for retention of funds.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence - Time is of the essence in the performance of this
Agreement
3.2 Schedule of Performance -Contractor shall commence the services pursuant
to this Agreement upon receipt of a written notice to proceed and shall perform all services within the
time period(s) established in the Section II.13. "Construction Schedule, Progress of Work, Liquidated
Damages", if any, 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.
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 to the extent
caused by 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 other than 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 for 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. Contractor shall not be entitled to
any damages or increase in compensation due to force majeure.
3.4 Term - Unless earlier terminated in accordance with Section 7.9 of this
Agreement, this Agreement shall continue in full force and effect until final approval and acceptance
of the project by the Contract Officer.
4. COORDINATION OF WORK
4.1 Representative of Contractor - The following principals of Contractor 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:
CONTRACT DOCUMENTS IV-4
Attention: Corey R. Kirschner, President
Onyx Paving Company, hic.
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 foregoing 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. For purposes of this Agreement, the foregoing principals may not
be replaced nor may their responsibilities be substantially reduced by Contractor without the express
written approval of City.
4.2 Contract Officer - The Contract Officer shall be such person as may be
designated by the City Manager or City Engineer of City. The Contractor shall keep the Contract
Officer informed of Contractor's progress on the services. The Contractor shall refer any decisions
which must be made by City to the Contract Officer. Unless otherwise specified herein or in the
City's Municipal Code, any approval of City required hereunder shall mean the approval of the
Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the
City required by this Agreement.
4.3 Prohibition Against 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. 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 City's express consent.
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 sub -contractors, agents or
employees, performs 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, sub-
contractors, 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 sub -contractors, 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 venture or a member of any joint enterprise with Contractor.
4.5 Identity of Persons Performing Work - Contractor represents that it
employs or will employ at its own expense all personnel required for the satisfactory performance of
any and all tasks and services set forth herein. Contractor represents that the tasks and services
CONTRACT DOCUMENTS IV-5