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Item No. 8 - CONSIDERATION OF CONTRACT AGREEMENT FOR FISCAL YEAR 2020-21 RESIDENTIAL STREETS REHABILITATION PROGRAM - PROJECT NO. 21020 AND 21007AGENDA ITEM NO. 8 AGENDA STAFF REPORT City of West Covina I Office of the City Manager DATE: May 4, 2021 TO: Mayor and City Council FROM: David Carmany City Manager SUBJECT: CONSIDERATION OF CONTRACT AGREEMENT FOR FISCAL YEAR 2020-21 RESIDENTIAL STREETS REHABILITATION PROGRAM - PROJECT NO.21020 AND 21007 RECOMMENDATION: It is recommended that the City Council take the following actions: 1. Authorize the City Manager to execute a Construction Services Agreement with Gentry Brothers, Inc. for $1,374,712.02, in substantially the form as attached and in such final form as approved by the City Attorney; 2. Authorize 25% of the awarded contract amount as contingency allowance to be used, if necessary, at the City Manager's discretion, for unforeseen conditions; and 3. Authorize the City Manager to execute any amendment to the agreement. BACKGROUND: Many municipalities take a reactive approach to pavement maintenance on their local roads. Faced with a tight budget, they wait until a roadway deteriorates to the point it brings complaints from local drivers before they rehabilitate it. Ironically, these efforts to save money often wind up costing more in the long run. A good "rule of thumb" is that every $1 invested now in preventative maintenance saves $4 to $10 in rehabilitation/reconstruction costs later. Pavement deteriorates at a fairly predictable rate. Deterioration is slow for the first three-quarters of its life cycle. Then, in the final quarter, the deterioration accelerates rapidly. In December 2020, the City's Pavement Management Program ("PMP") was approved by the City Council. PMP is a planning and budgeting tool used to prioritize street paving and maintenance projects over a ten-year period. City engineering staff reviewed the PMP recommendations for residential street maintenance, conducted field reviews, and determined the final streets to be included in this year's (Fiscal Year 2020-21) Residential Streets Rehabilitation Program. The selected streets are based on the recommendations identified within the City's Pavement Management Program (PMP) for Fiscal Year (FY) 2020-21, and also per engineering field review and judgment. As part of the project, approximately 1,090,000 square feet of pavement will receive asphalt slurry seal, and approximately 635,000 square feet of pavement will be cold planed and overlaid. Cold planing is the controlled removal of the surface of the existing pavement to the desired depth, with specially designed equipment to restore the pavement surface to a specified grade and cross -slope. Work also includes localized asphalt pothole repairs, markings and striping and related work. See Attachment No. 1 — Fiscal Year 2020-21 Residential Streets Rehabilitation Locations for the streets included on this project. The project also includes the pedestrian safety improvements at Lark Ellen Avenue and Grovecenter Street adjacent to Grovecenter Elementary School, City Project No. 21007. The subject intersection is at the border between the cities of Covina and West Covina. On April 21, 2020, the City Council approved the execution of a Memorandum of Understanding ("MOU") between the cities of Covina and West Covina for the design, construction and maintenance of updated pedestrian signage and striping, and crosswalk removal and relocation. According to the MOU, the City of West Covina takes the lead in design and construction of the proposed improvements, and the cost of the improvement will be divided equally between the two cities. In addition to the improvements set forth in the MOU, the City of West Covina intends to install a streetlight at the intersection as part of the project. In order to benefit from the economies of scale for construction, the proposed improvement for Lark Ellen Avenue and Grovecenter Street intersection was advertised as part of City's FY 2020-21 Residential Streets Rehabilitation Program. The proposed project also includes pedestrian signage, striping and pavement markers installation at various locations citywide. These locations were previously recommended by the City's Traffic Committee, and such recommendations were approved by City Council in 2020 and 2021. The improvements locations are as follows: • Cameron Avenue and Orange Avenue • Vincent Avenue north of I-10 • Nora Avenue and Workman Avenue • Workman Avenue and Homerest Avenue • Vine Avenue between Hollenbeck Street and Citrus Street • Garvey Avenue North between Azusa Avenue and Hollenbeck Avenue • Garvey Avenue South east of Citrus Street • Montezuma Way between Vine Drive and Citrus Street • Hillside Drive between Grand Avenue and Castle Rock Court • Broadmoor Avenue and Rexwood Street • Walnut Avenue and Merced Avenue DISCUSSION: On April 15, 2021, staff advertised the construction bid package. The following four (4) bids were received by the City at the Bid Opening held on April 26, 2021, at 11:00 A.M. Contractor Name Total Bid Amount Gentry Brothers, Inc. $1,374,712.02 Onyx Paving Company, Inc. $1,488,000.00 All American Asphalt $1,558,449.00 Sequel Contractors, Inc. $1,623,856.00 Staff conducted a bid analysis including checking references, California Contractor Licensing, Department of Industrial Relations registration, State and Federal debarment list review for the apparent low bidder, Gentry Brothers, Inc. Lowest Responsive Bid The lowest responsive bid was submitted by Gentry Brothers, Inc. in the amount of $1,374,712.02. A draft of the proposed Construction Services Agreement to be executed with Gentry Brothers, Inc. is included as Attachment No. 2. Budget The following is the breakdown of the nroiect budget: Construction Contract $1,374,712.02 Contingency budget allowance authorization to staff to utilize for unforeseen conditions as necessary (25%) $343,678.00 Total Construction Budget $1,718,390.02 Project management and administration (Preparation of Bid Documents) $86,000.00 Construction management and inspection $181,839.00 Newspaper advertisement, SCE cost for new streetlight, other miscellaneous expenses $10,000.00 Total Project Budget $1,996,229.02 LEGAL REVIEW: The City Attorney's Office will review and approve the agreement as to form prior to its execution. OPTIONS: The City Council has the following options: 1. Approve Staffs recommendation; or 2. Provide alternative direction. 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) Replacement or reconstruction of existing utility and/or facilities involving negligible or no expansion of capacity. Prepared by: Okan Demirci, PE, CIP Manager Fiscal Impact FISCAL IMPACT: The funds available for this project are as follows: Project Funds Account No. Amount 21020 General Fund (MOE) 237.80.7005.7200 $567,148.00 21020 SB1 237.80.7005.7200 $1,407,790.41 F21007 City of Covina Matchatch per MOU (based on actual construction cost) 224.80.7005.7200 $21,290.61 Total $1,996,229.02 Attachments Attachment No. I - FY 2020-21 Residential Streets Rehabilitation Locations Attachment No. 2 - Construction Services Agreement with Genty Brothers, Inc. CITY Enhance City Facilities and Infrastructure COUNCIL Enhance the City Image and Effectiveness GOALS & Protect Public Safety OBJECTIVES: ATTACHMENT NO. 1 Fiscal Year 2020-21 Residential Streets Rehabilitation Locations Street Name Begin Location End Location ALASKAST GLENVIEW RD AZUSAAVE ALMANACDR AUTUMN DR ALMANACDR ALMANACDR NEWCRESTDR ALMANACDR ANSON WAY RODNEY RD WOLSEY LN AUBURN DR PORTNERST END OF STREET AUBURN DR GREENVILLEDR END OF STREET AUTUMN DR ALMANACDR DOUBLEGROVE ST AUTUMN DR AZUSAAVE ALMANACDR AVINGTONAVE MAP LEG ROVEST END OF STREET BRENTWOOD DR AMAR RD ALLEY WY BROOKTREE CIRCLE EVENINGSIDEDR END OF STREET BROOKTREECIRCLE EVENINGSIDEDR END OF STREET BUTTERFIELD MERCED AVE MCWOODST CAMPER DR MAPLEGROVE ST END OF STREET CHARLINDAST FERNWOODST FLEETWELL AVE DOUBLEGROVE ST 1628 DOUBLEGROVE ST SEASON AVE DOUBLEGROVE ST GRENOBLE AVE 1628 DOUBLEGROVEST EXETER CT BRENTWOOD RD END OF STREET FAIRGROVEAVE MOLOKAI NELSON ST FAIRGROVEAVE AZUSAAVE NELSON ST FAIRGROVEAVE LARK ELLEN AVE MOLOKAI FERNWOODST CAMERON AVE END OF STREET FLEETWELL AVE MOBECKST CHARLINDAST FLEETWELL AVE PORTNERST END OF STREET FLEETWELL AVE GREENVILLEDR END OF STREET FLEETWELL AVE ALASKAAVE THACKERYST GLENVIEW RD VINEAVE MERCED AVE GLENVIEW RD THACKERYST END OF STREET GREENVILLE DR AZUSAAVE GLENVIEW RD LEAF AVE VINEAVE PORTNERST LEAF AVE MCWOODST END OF STREET MAPLEGROVEST CAMPER DR END OF STREET MAPLEGROVEST OAKGREENAVE CAMPER DR MAPLEGROVEST LARKELLEN AVE OAKGREENAVE MCWOOD ST WILSON DR LEAF AVE NELSON ST AZUSAAVE FAIRGROVEAVE NEWCREST DR AUTUMN DR ALMANACDR NEWCREST DR VARILLADR OAKGREENAVE OAKGREENAVE HARVEST MOON ST MAPLEGROVEST Street Name Begin Location End Location OXFORDCT DOUBLEGROVE ST END OF STREET PARKSIDEDR EVENINGSIDEDR END OF STREET PEPPERTREE CIRCLE EVENINGSIDEDR END OF STREET PORTNERST GLENVIEW RD AZUSAAVE RIMSDALEDR PORTNERST END OF STREET RIMSDALEDR GREENVILLEDR END OF STREET SEASON AVE DOUBLEGROVE ST DUBESOR ST THACKERYST GLENVIEW RD END OF STREET VINEAVE LARK ELLEN AVE GLENVIEW RD VINEAVE GLENVIEW RD AZUSAAVE WOLSEY LN BRENTWOOD RD ANSON WY AJAX RODNEYRD END OF STREET BARHAMAVE RODNEYRD END OF STREET BRENTWOOD DR ALLEY WY END OF STREET CAMBRIDGE CT DOUBLEGROVE ST END OF STREET CUMBERLANDDR RENOWNTER NELSON ST EVENINGSIDEDR FAIRGROVEAVE ALLEY WY EVENINGSIDE DR BRENTWOOD DR ALLEY WY GLENVIEW RD 1621 THACKERYST VINEAVE GRENOBLEAVE AZUSAAVE DOUBLEGROVE ST HARVESTMOON ST LARK ELLEN AVE END OF STREET HERRINGAVE LARKELLEN AVE LEAF AVE JONESCT VARILLADR END OF STREET LARKWOODST LARKELLEN AVE END OF STREET LEAF AVE THACKERYAVE 912 S LEAF AVE LEAF AVE HERRINGAVE 912SLEAF AVE NEWCREST DR VARILLADR ALMANACDR. PARKSIDEDR FAIRGROVEAVE ALLEY WY PARKSIDEDR ALLEY WY EVENINGSIDEDR PORTNERST LARKELLEN AVE END OF STREET RENOWNTER CUMBERLANDDR BARHAMAVE ROBIN RD MERCED AVE MCWOOD ST RODNEYRD ANSONWY BARHAMAVE THACKERYAVE LARK ELLEN AVE LEAF AVE VARILLADR NEWCRESTDR END OF STREET WILSON DR MERCED AVE END OF STREET WILSON DR MERCED AVE MCWOOD ST WIMBLEDON CT GRENOBLE AVE END OF STREET ATTACHMENT NO.2 CONTRACT DOCUMENTS CITY OF WEST COVINA CONSTRUCTION SERVICES AGREEMENT FOR PROJECT NO.21020 AND 21007 FY 2020-21 RESIDENTIAL STREETS REHABILITATION PROGRAM THIS CONSTRUCTION SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 4 h day of May, 2021 ("Effective Date") by and between the CITY OF WEST COVINA, a municipal corporation (herein "City"), and GENTRY BROTHERS, INC., a California (herein "Contractor"). RECITALS A. City requires construction services for the FY 2020-21 Residential Streets Rehabilitation Program, Project No. 21020 and 21007 ("Project"), that meet the requirements as shown in the project specifications and this Agreement. B. Contractor has submitted a bid to perform the construction services for the Project and has represented to City that Contractor is qualified to perform said services. C. City and Contractor desire to enter into this Agreement for the Project 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: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide all work described in the Contract Documents, as further described herein, which services may be referred to herein as the "services" or "work". 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 and fit for the purpose intended. 1.2 Documents Included in Contract. The complete Agreement consists of (a) This Agreement; (b) Notice to Contractors and Instructions to Bidders, Bid Documents and Contract Documents for the Project (collectively, "Bid Documents"), incorporated by this reference as if fully set forth herein; (c) Contractor's Proposal, attached hereto as Exhibit A and incorporated herein; (d) Certificates of Insurance, attached hereto as Exhibit B and incorporated herein; (e) Bonds, attached hereto as Exhibit C and incorporated herein; (f) The Standard Specifications and Standard Specifications for Public Works Construction, as detailed in Section 19-1 of the West Covina Municipal Code, incorporated by this reference as if fully set forth herein; and (g) All exhibits and attachments to the foregoing documents. The documents comprising the complete Agreement may be referred to in this Agreement as the "Contract Documents" In the event of an inconsistency between any of the terms in this Agreement and any of the documents referenced 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 subcontractors' compliance with this Section. 1.5 Familiarity with Work. By executing this Agreement, 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 wan -ants 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 active negligence. CONTRACT DOCUMENTS IV-2 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 cant' out the purposes of this Agreement. Contractor shall require all subcontractors 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 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. All change orders are subject to the requirements of West Covina Municipal Code Section 19-302. 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 Wage Requirements. (a) Prevailing Wage Laws. Contractor is aware of the requirements of Chapter 1 (beginning at Section 1720 et seq.) of Part 7 of Division 2 of the California Labor Code, as well as Title 8, Section 16000 et seq. ofthe California Code of Regulations ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. This Project is a "public works" project and requires compliance with the Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. (b) Payment of Prevailing Wages. Contractor shall pay the prevailing wage rates for all work performed under this Agreement. When any craft or classification is omitted from the general prevailing wage determinations, Contractor shall pay the wage rate of the craft or classification most closely related to the omitted classification. A copy of the general prevailing wage rate determination is on file in the Office of the City Clerk and is incorporated into this Agreement as if fully set forth herein. Contractor shall post a copy of such wage rates at all times at the project site(s). (c) Legal Working Day. In accordance with the provisions of Labor Code Section 1810 et seq, eight (8) hours is the legal working day. Contractor and any subcontractor(s) of Contractor shall comply with the provisions of the Labor Code regarding eight (8)-hour work day and 40-hour work week requirements, and overtime, Saturday, Sunday, and holiday work. Work performed by Contractor's or any subcontractor's employees in excess of eight (8) hours per day, and 40 hours during any one week, must include compensation for all hours worked in excess of eight (8) hours per day, or 40 hours during any one week, at not less than one and one-half times the basic rate of pay. Contractor shall forfeit as a penalty to City Twenty -Five Dollars ($25.00), CONTRACT DOCUMENTS IV-3 or any greater penalty set forth in the Labor Code, for each worker employed in the execution of the work by Contractor or by any subcontractor(s) of Contractor, for each calendar day during which such worker is required or permitted to the work more than eight (8) hours in one calendar day or more than 40 hours in any one calendar week in violation of the Labor Code. (d) Apprentices. Contractor shall comply with the provisions of Labor Code Section 1777.5 concerning the employment of apprentices on public works projects. Contractor shall be responsible for ensuring compliance by its subcontractors with Labor Code Section 1777.5. (e) Pavroll Records. Pursuant to Labor Code Section 1776, Contractor and any subcontractor(s) shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by Contractor or any subcontractor in connection with this Agreement. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, staring both of the following: (1) The information contained in the payroll record is true and correct; and (2) The employer has complied with the requirements of Sections 1771, 1881, and 1815 of the Labor Code for any work performed by his or her employees on this Project. The payroll records shall be certified and shall be available for inspection at all reasonable hours in accordance with the requirements of Labor Code Section 1776. (f) Reaistration with DIR. Contractor and any subcontractor(s) of Contractor shall comply with the provisions of Labor Code Section 1771 and Labor Code Section 1725.5 requiring registration with the DIR. 2.0 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 Three Hundred Seventy -Four Thousand Seven Hundred and Twelve Dollars and Two Cents ($1,374,712.02) (herein "Contract Sum"), except as provided in Section 1.8 (Additional Services). 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 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 within thirty (30) days. City shall pay Contractor a sum based upon ninety five percent (95%) of the Contract Sum apportionment of the labor and materials incorporated into the work under the Agreement during the month covered by said statement. The remaining five percent (5%) of the Contract Sum shall be retained as performance security as detailed in Section 2.3 (Retention of Funds). CONTRACT DOCUMENTS IV-4 2.3 Retention of Funds. Progress payments shall be made in accordance with the provisions of Section 2.2 (Progress Payments) of this Agreement. hi accordance with said section, City will retain five percent (5%) of the Contract Sum apportionment from each progress payment 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 furnishes 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 as authorized by Public Contract Code Section 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 Section 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 Section 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 City. 3.0 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 complete all services within forty (40) working days. Contractor shall submit for the Contract Officer's approval its proposed Construction Schedule. Contractor shall perform the services in accordance with the approved Construction Schedule. When requested by the Contractor, extensions to the time period(s) specified in the Construction Schedule may be approved in writing by the Contract Officer. 3.3 Force Majeure. The rime period(s) specified in the Construction Schedule 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 within ten (10) days of the commencement of such delay notifies 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 as set forth herein, this Agreement shall continue in full force and effect until final approval and acceptance of the project by the City. 4.0 COORDINATION OF WORK CONTRACT DOCUMENTS IV-5 4.1 Representative of Contractor. The following principal(s) of Contractor are hereby designated as being the principal(s) and representative(s) of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Wayne Gentry, Secretary/Treasurer It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal(s) were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal(s) 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 principal(s) 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, to the extent permitted by the City's Municipal Code. 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 subcontractors, 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, subcontractors, 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 subcontractors, 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 CONTRACT DOCUMENTS IV-6 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 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, 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 Sum. 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 and 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 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 Agreement. (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 (Additional Services) 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 CONTRACT DOCUMENTS IV-7 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 Agreement, but shall proceed with all work to be performed under the Agreement. 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. 5.0 INSURANCE 5.1 Minimum Scope and Limits of Insurance. Contractor shall obtain, maintain, and keep in full force and effect during the life of this Agreement all of the following minimum scope of insurance coverages with an insurance company admitted to do business in California, with a current A.M. Best's raring of no less than A: VII, and approved by City: (a) Broad -form commercial general liability, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury with a policy limit of not less than Two Million Dollars ($2,000,000.00), combined single limits, per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or shall be twice the required occurrence limit. (b) Business automobile liability for owned vehicles, hired, and non -owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per accident for bodily injury and property damage. (c) Workers' compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with a limit of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury or disease. Contractor agrees to waive, and to obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City, its officers, agents, employees, and volunteers for losses arising from work performed by Contractor for the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. By execution of this Agreement, the Contractor certifies as follows: I am aware of, and will comply with, Section 3700 of the Labor Code, requiring every employer to be insured against liability of Workers' Compensation or to undertake self-insurance before commencing any of the work. The Contractor shall also comply with Section 3800 of the Labor Code by securing, paying for and maintaining in full force and effect for the duration of this Agreement, complete Workers' Compensation Insurance, and shall furnish a Certificate of Insurance to the City before execution of this Agreement by the City. The City, its officers and employees shall not be responsible for any claims in law or equity occasioned by failure of the Contractor to comply with this section. CONTRACT DOCUMENTS IV-8 (d) Builder's Risk (Course of Construction) insurance utilizing an "All Risk" (Special Perils) coverage form, with limits equal to the completed value of the Project and no coinsurance penalty provisions. The Builder's Risk coverage shall name the City as a loss payee. If the Project does not involve new or major construction, City may, in its discretion, permit an Installation Floater. If authorized, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion, or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery, or equipment damaged, impaired, broken or destroyed during the performance of the work, including during transit, installation, and testing at the project site. If the Contractor maintains higher limits or has broader coverage than the minimums shown above, the City requires and shall be entitled to all coverage, and to the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 5.2 Endorsements. The insurance policies are to contain, or be endorsed to contain, the following provisions: (a) 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. (b) Notice of Cancelation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. (c) Primary Coverage: The Contractor's insurance coverage shall be primary insurance as respects the City of West Covina, its officers, officials, agents, employees, and volunteers. Any other insurance maintained by the City of West Covina shall be excess and not contributing with the insurance provided by this policy. (d) Waiver of Subrogation: Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (e) Coverage Not Affected: Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of West Covina, its CONTRACT DOCUMENTS IV-9 officers, officials, agents, employees, and volunteers. (f) Coverage Applies Separately: 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. 5.3 Deductible or Self Insured Retention. If any of such policies provide for a deductible or self -insured retention to provide such coverage, the amount of such deductible or self -insured retention shall be approved in advance by City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. 5.4 Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 5.5 Non -limiting. Nothing in this Section shall be construed as limiting in any way the indemnification provision contained in this Agreement or the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractors' performance of the work covered under this Agreement. 5.6 Subcontractors. Contractor shall require and verify that all subcontractors maintain insurance meeting all requirements stated herein, and Contractor shall ensure that the City is listed as an additional insured on insurance required of subcontractors. 5.7 Sufficiency of Insurers. Insurance required by this Agreement shall be satisfactory only if issued by companies authorized to do business in California, rated with a current A.M. Best's rating of no less than A:VII unless such requirements are waived by the City's Risk Manager in writing due to unique circumstances. If the City's 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 required by this Section by providing written notice to Contractor; 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. 6.0 BONDS 6.1 Labor and Materials, Performance and Warranty Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City: (1) a labor and materials bond in an amount equal to one hundred percent (100%) of the Contract Sum as security for the payment of all persons furnishing labor or materials in connection with the work, (2) a performance bond in an amount equal to one hundred percent (100%) of the Contract Sum as security for the faithful CONTRACT DOCUMENTS IV-10 performance of this Agreement, and (3) a warranty bond in an amount equal to fifty percent (50%) of the Contract Sum to guarantee the work for a period of one (1) year following completion of the work, on the forms provided by the City. 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/her 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. 6.2 Sufficiency of Sureties. Sureties must be authorized to issue bonds in California. In addition, sureties must possess a minimum rating from A. M. Best Company of A: VII and must be listed as an acceptable surety on federal bonds by the United States Department of the Treasury, http://www.fms.treas.gov/c570/c570.htm1, subject to the maximum amount shown in the listing. If co -sureties are used, their bonds must be on a joint and several basis. 6.3 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 Agreement for the work to be performed will be permitted at the request and expense of Contractor. 7.0 INDEMNIFICATION Contractor agrees to defend (with legal counsel 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, CONTRACT DOCUMENTS IV-11 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', subcontractors', 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 parry 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 forth herein 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 regarding hazardous substances, including but not limited to the Federal hisecticide, Fungicide and Rodenticide Act CTIFRA"), 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. Contractor's indemnification obligations pursuant to this Section shall survive the termination of this Agreement. Contractor shall require the same indemnification in favor of City from all subcontractors. 8.0 RECORDS AND REPORTS 8.1 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 may require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto. 8.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records (including but not limited to payroll records as required herein) as may 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, CONTRACT DOCUMENTS IV-12 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. 8.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership 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 subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 9.0 ENFORCEMENT OF AGREEMENT; TERMINATION 9.1 Governing 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. 9.2 Notice of Default and Cure Period. If either party fails to perform its obligations hereunder, the nondefaulting parry may provide the defaulting parry written notice of such default. The defaulting parry 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 parry commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the defaulting parry 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 parry 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 shall be a condition precedent to bringing any legal 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. 9.3 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, upon termination, 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 CONTRACT DOCUMENTS IV-13 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. 9.4 Termination for Convenience. The City may terminate this Agreement without cause for convenience of the City upon giving Contractor thirty (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: (a) The contract value of the work completed through and including the date of receipt of the notice of termination, less the amount of progress payments received by Contractor. (b) Actual move -off costs including labor, rental fees, equipment transportation costs, the costs of maintaining on -site construction office for supervising the move -off. (c) 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. (d) 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 Section shall supersede any inconsistent provisions of the Agreement or the Bid Documents. City and Contractor agree that the provisions of this Section are a substantive part of this Agreement's consideration. 9.5 "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 review and respond to the claim to state "what portion of the claim is disputed and what portion is undisputed". If the City does not issue a written statement, the claim is deemed rejected in its entirety; (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. 9.6 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 CONTRACT DOCUMENTS IV-14 approval shall not be deemed to waive or render unnecessary the other parry's consent to or approval of any subsequent act. Any waiver by either parry of any default must be in writing and shall not be considered a waiver of any other default concerning the same or any other provision of this Agreement. 9.7 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 parry. 9.8 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. 9.9 Liquidated Damages. Contractor agrees that failure to complete work within the time allowed herein will result in damages being sustained by the City. Contractor further agrees that 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. Therefore, Contractor agrees that it and its sureties shall be liable for and shall pay to the City liquidated damages in the amount of ($____) for each working day of delay in the performance of any service required hereunder. Contractor further agrees that 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 amounts payable on account of services performed by the Contractor any accrued liquidated damages. Contractor, on behalf of itself and its sureties, and City agree that the liquidated damages constitute a reasonable estimate of actual damages, and are not punitive. 10.0 CITY OFFICERS AND EMPLOYEES, NONDISCRIMINATION 10.1 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. 10.2 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. 10.3 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 ensure that applicants are employed CONTRACT DOCUMENTS IV-15 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. 11.0 MISCELLANEOUS PROVISIONS 11.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and 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 Attn: City Engineer To Contractor: Gentry Brothers, Inc. 384 Live Oak Ave. Irwindale, CA 91706 Attn: Wayne Gentry 11.2 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. 11.3 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. 11.4 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 parry of the basic benefit of their bargain or renders this Agreement meaningless. 11.5 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. 11.6 Unfair Business Practices Claims. Consistent with Public Contract Code Section 7103.5, Contractor, on behalf of itself and all subcontractors, offers and agrees to CONTRACT DOCUMENTS IV-16 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 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. 11.7 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such parry 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. 11.8 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. 11.9 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Counterpart written signatures may be transmitted by facsimile, email or other electronic means and have the same legal effect as if they were original signatures. [SIGNATURE PAGE FOLLOWS.] CONTRACT DOCUMENTS IV-17 IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above. CITY OF WEST COVINA, A municipal corporation Date: David Carmany City Manager CONTRACTOR /� % f Date: "/ � Z ` � / Wa e G Secre reasurer ATTEST: Lisa Sherrick Assistant City Clerk APPROVED AS TO FORM: Date: Thomas P. Duarte City Attorney APPROVED AS TO INSURANCE: Date: Helen Tran Risk Management CONTRACT DOCUMENTS IV-18