Hardy & Harper, Inc.-2021-08PUBLIC WORKS AGREEMENT
By and Between
CITY OF GRAND TERRACE
and
HARDY & HARPER, INC.
ON-CALL ASPHALT MAINTENANCE
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AGREEMENT FOR PUBLIC WORKS SERVICES
BETWEEN THE CITY OF GRAND TERRACE AND
ROQUET CONSTRUCTION, INC.
THIS AGREEMENT FOR PUBLIC WORKS SERVICES (herein "Agreement") is made
and entered into this 23rd day of February, 2021 by and between the City of GRAND TERRACE,
a California municipal corporation ("City") and HARDY & HARPER, fNC., a California
corporation ("Contractor"). City and Contractor may be referred to, individually or collectively,
as "Party" or "Parties."
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the
performance of the services defined and described particularly in Article 1 of this Agreement.
B. Contractor, following submission of a proposal or bid for the performance of the
services defined and described particularly in Article 1 of this Agreement, was selected by the City
to perform those services.
C. Pursuant to the City of Grand Terrace Municipal Code, City has authority to enter
into and execute this Agreement.
D. The Parties desire to formalize the selection of Contractor for performance of those
services defined and described particularly in Article 1 of this Agreement and desire that the terms
of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made
by the Parties and contained herein and other consideration, the value and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE 1. WORK OF CONTRACTOR
1.1 Scope of Work.
In compliance with all terms and conditions of this Agreement, the Contractor shall
provide those services specified in the "Scope of Work" attached hereto as Exhibit "A" and
incorporated herein by this reference, which may be referred to herein as the "services" or "work"
hereunder. As a material inducement to the City entering into this Agreement, Contractor
represents and warrants that it has the qualifications, experience, and facilities necessary to
properly perform the work required under this Agreement in a thorough, competent, and
professional manner, and is experienced in performing the work and services contemplated herein.
Contractor shall at all times faithfully, competently and to the best of its ability, experience and
talent, perform all services described herein. Contractor covenants that it shall follow the highest
professional standards in performing the work and services required hereunder and that all
materials will be both of good quality as well as fit for the purpose intended. For purposes of this
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Agreement, the phrase "highest professional standards" shall mean those standards of practice
recognized by one or more first-class finns perfonning similar work under similar circumstances.
1.2 Contract Documents.
The Scope of Work shall include the on-call maintenance and repair of potholes or
damaged roadway in accordance with the Standard Specifications of Public Works Construction,
latest edition, which is incorporated herein by this reference. All safety precautions, notification
and cleanup found in Standard Specifications of Public Works Construction, latest edition, shall
apply. In the event of any inconsistency between the tenns of the bid documents and this
Agreement, the tenns of this Agreement shall govern.
1.3 Compliance with Law.
Contractor shall keep itself informed concerning, and shall render all services
hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the
City and any Federal, State or local governmental entity having jurisdiction in effect at the time
service is rendered.
1.4 Compliance with California Labor Law.
(a) Public Work. The Parties acknowledge that the work to be
performed under this Agreement is a "public work" as defined in Labor Code Section 1720 and
that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1
(commencing with Section 1720) of the California Labor Code relating to public works contracts
and the rules and regulations established by the Department of Industrial Relations ("DIR")
implementing such statutes. The work performed under this Agreement is subject to compliance
monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by
regulation.
(b) Prevailing Wages. Contractor shall pay prevailing wages to the
extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773 .2, copies of
the prevailing rate of per diem wages are on file at City Hall and will be made available to any
interested party on request. By initiating any work under this Agreement, Contractor acknowledges
receipt of a copy of the Department of Industrial Relations (DIR) detennination of the prevailing
rate of per diem wages, and Contractor shall post a copy of the same at each job site where work
is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages. Contractor shall
comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning
the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing
wages. The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each
calendar day, or portion thereof, for each worker paid less than the prevailing rates as detennined
by the DIR for the work or craft in which the worker is employed for any public work done
pursuant to this Agreement by Contractor or by any subcontractor.
(d) Payroll Records. Contractor shall comply with and be bound by the
provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to: keep
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accurate payroll records and verify such records in writing under penalty of perjury, as specified
in Section 1776; certify and make such payroll records available for inspection as provided by
Section 1776; and inform the City of the location of the records.
(e) Apprentices. Contractor shall comply with and be bound by the
provisions of Labor Code Sections 1777 .5, 1777.6, and 1777.7 and California Code of Regulations
Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects.
Contractor shall be responsible for compliance with these aforementioned Sections for all
apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall
provide City with a copy of the information submitted to any applicable apprenticeship program.
Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of
its subcontractors shall submit to the City a verified statement of the journeyman and apprentice
hours performed under this Agreement.
(f) Eight-Hour Work Day. Contractor acknowledges that eight (8)
hours labor constitutes a legal day's work. Contractor shall comply with and be bound by Labor
Code Section 1810.
(g) Penalties for Excess Hours. Contractor shall comply with and be
bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work
excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for
each worker employed in the performance of this Agreement by the Contractor or by any
subcontractor for each calendar day during which such worker is required or permitted to work
more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week
in violation of the provisions of Division 2, Part 7 , Chapter I, Article 3 of the Labor Code. Pursuant
to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8)
hours per day, and forty (40) hours during any one week shall be permitted upon public work upon
compensation for all hours worked in excess of 8 hours per day at not less than one and one-half
( 1 Yi ) times the basic rate of pay.
(h) Workers' Compensation. California Labor Code Sections 1860 and
3700 provide that every employer will be required to secure the payment of compensation to its
employees if it has employees. In accordance with the provisions of California Labor Code Section
1861, Contractor certifies as follows :
"I am aware of the provisions of Section 3700 of the Labor Code which require
every employer to be insured against liability for workers' compensation or to
undertake self-insurance in accordance with the provisions of that code, and I will
comply with such provisions before commencing the performance of the work of
this contract."
(i) Contractor's Res onsibili for Subcontractors. For every
subcontractor who will perform work under this Agreement, Contractor shall be responsible for
such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section
1720) of the California Labor Code, and shall make such compliance a requirement in any contract
with any subcontractor for work under this Agreement. Contractor shall take all actions necessary
to enforce such contractual provisions and ensure subcontractor's compliance, including without
limitation, conducting a review of the certified payroll records of the subcontractor on a periodic
basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the
specified prevailing rate of wages. Contractor shall diligently take corrective action to halt or
rectify any such failure by any subcontractor.
1.5 Licenses, Permits, Fees and Assessments.
Contractor shall obtain at its sole cost and expense such licenses, pennits,
registrations, and approvals as may be required by law for the perfonnance of the services required
by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and
taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are
necessary for the Contractor's perfonnance of the services required by this Agreement, and shall
indemnify, defend and hold harmless City, its officers, employees or agents of City, against any
such fees , assessments, taxes, penalties or interest levied, assessed or imposed against City
hereunder.
1.6 Familiarity with Work.
(a) By executing this Agreement, Contractor warrants that Contractor
(i) has thoroughly investigated and considered the scope of work to be performed, (ii) has carefully
considered how the services should be performed, and (iii) fully understands the facilities,
difficulties and restrictions attending performance of the services under this Agreement. If the
services involve work upon any site, Contractor warrants that Contractor has or will investigate
the site and is or will be fully acquainted with the conditions there existing, prior to commencement
of services hereunder.
(b) Contractor shall promptly, and before the following conditions are
disturbed, notify the City, in writing, of any : (i) material Contractor believes may be hazardous
waste as defined in Section 25117 of the Health & Safety Code required to be removed to a Class
I, II , or III disposal site in accordance with existing law; (ii) subsurface, unknown or latent
conditions, materially different from those indicated; or (iii) unknown physical conditions at the
site of any unusual nature, different from those ordinarily encountered and generally recognized
as inherent in work of the character provided for in this Agreement, and will materially affect the
performance of the services hereunder.
(c) City shall promptly investigate the conditions, and if it finds that
the conditions do materially differ, or do involve hazardous waste, and cause a decrease or increase
in Contractor's cost of, or the time required for, performance of any part of the work, shall issue a
change order per Section I . I 0 of this Agreement.
(d) In the event that a dispute arises between City and Contractor
whether the conditions materially differ, or involve hazardous waste, or cause a decrease or
increase in Contractor's cost of, or time required for, performance of any part of the work,
Contractor shall not be excused from any scheduled completion date set, but shall proceed with all
work to be perfonned under the Agreement. Contractor shall retain any and all rights provided
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either by contract or by law, which pertain to the resolution of disputes and protests between the
contracting parties.
(e) City will compensate Contractor to the extent required by
Government Code Section 4215 by issuing a change order per Section 1.10 of this Agreement.
1.7 Protection and Care of Work and Materials.
The Contractor shall adopt reasonable methods, including providing and
maintaining storage facilities, during the life of the Agreement to furnish continuous protection to
the work, and the equipment, materials, papers, documents, plans, studies and/or other components
thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or
property, until acceptance of the work by City, except such losses or damages as caused by City's
own negligence. Stored materials shall be reasonably accessible for inspection. Contractor shall
not, without City's consent, assign, sell, mortgage, hypothecate , or remove equipment or materials
which have been installed or delivered and which may be necessary for the completion of the work.
1.8 Warranty.
Contractor warrants all work under the Agreement (which for purposes of this
Section shall be deemed to include unauthorized work which has not been removed and any
non-conforming materials incorporated into the work) to be of good quality and free from any
defective or faulty material and workmanship. Contractor agrees that for a period of one year (or
the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided
by any manufacturer or supplier of equipment or materials incorporated into the work, whichever
is later) after the date of final acceptance, Contractor shall within ten (I 0) days after being notified
in writing by the City of any defect in the work or non-conformance of the work to the Agreement,
commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty
at its sole cost and expense. Contractor shall act as soon as requested by the City in response to an
emergency. In addition, Contractor shall, at its sole cost and expense, repair, remove and replace
any portions of the work (or work of other contractors) damaged by its defective work or which
becomes damaged in the course of repairing or replacing defective work. For any work so
corrected, Contractor's obligation hereunder to correct defective work shall be reinstated for an
additional one year period, commencing with the date of acceptance of such corrected work.
Contractor shall perform such tests as the City may require to verify that any corrective actions,
including, without limitation, redesign, repairs, and replacements comply with the requirements of
the Agreement. All costs associated with such corrective actions and testing, including the
removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall
be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors,
suppliers and manufacturers with respect to any portion of the work, whether express or implied,
are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not
such warranties and guarantees have been transferred or assigned to the City by separate agreement
and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the
City. In the event that Contractor fails to perform its obligations under this Section, or under any
other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the
City shall have the right to correct and replace any defective or non-conforming work and any
work damaged by such work or the replacement or correction thereof at Contractor's sole expense.
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Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon
demand.
1.9 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all instruments,
prepare all documents and take all actions as may be reasonably necessary to carry out the purposes
of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of
the other.
1.10 Additional Work and Change Orders.
(a) City shall have the right at any time during the performance of the
services, without invalidating this Agreement, to order extra work beyond that specified in the
Scope of Work or make changes by altering, adding to or deducting from said work. No such extra
work may be undertaken unless a written change order is first given by the Contract Officer to the
Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to
perform this Agreement, which said adjustments are subject to the written approval of the
Contractor ("Change Order"). All Change Orders must be signed by the Contractor and Contract
Officer prior to commencing the extra work thereunder.
(b) Any increase in compensation of up to ten percent (10%) of the
Contract Sum or $25,000, whichever is less; or any increase in the time to perform of up to one
hundred eighty (180) days; and does not materially affect the Work and which are not detrimental
to the Work or to the interest of the City, may be approved by the Contract Officer. Any greater
increases, taken either separately or cumulatively, must be approved by the City Council.
(c) Any adjustment in the Contract Sum for a Change Order must be in
accordance with the rates set forth in the Schedule of Compensation in Exhibit "C". If the rates in
the Schedule of Compensation do not cover the type of work in the Change Order, the cost of such
work shall not exceed an amount agreed upon in writing and signed by Contractor and Contract
Officer. If the cost of the Change Order cannot be agreed upon, the City will pay for actual work
of the Change Order completed, to the satisfaction of the City, as follows:
(i) Labor: the cost of labor shall be the actual cost for wages of
workers and subcontractors performing the work for the Change Order at the time such work is
done. The use of labor classifications that would increase the cost of such work shall not be
permitted.
(ii) Materials and Equipment: the cost of materials and
equipment shall be at cost to Contractor or lowest current price which such materials and
equipment are reasonably available at the time the work is done, whichever is lower.
(iii) If the cost of the extra work cannot be agreed upon, the
Contractor must provide a daily report that includes invoices for labor, materials and equipment
costs for the work under the Change Order. The daily report must include: list of names of workers,
classifications, and hours worked; description and list of quantities of materials used; type of
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equipment, size, identification number, and hours of operation, including loading and
transportation, if applicable; description of other City authorized services and expenditures in such
detail as the City may require. Failure to submit a daily report by the close of the next working day
may, at the City's sole and absolute discretion, waive the Contractor's rights for that day.
( d) It is expressly understood by Contractor that the provisions of this
Section 1.10 shall not apply to services specifically set forth in the Scope of Work. Contractor
hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope
of Work may be more costly or time consuming than Contractor anticipates and that Contractor
shall not be entitled to additional compensation therefor. City may in its sole and absolute
discretion have similar work done by other contractors.
(e) No claim for an increase in the Contract Sum or time for
perfonnance shall be valid unless the procedures established in this Section are followed.
1.11 Special Requirements.
Additional tenns and conditions of this Agreement, if any, which are made a part
hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated
herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any
other provisions of this Agreement, the provisions of Exhibit "B" shall govern. Exhibit B consists
of approved installation plans and manufacture installation requirements.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Contractor
the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and
incorporated herein by this reference. The total compensation, including reimbursement for actual
expenses, shall not exceed Fifteen Thousand Dollars ($15,000) (the "Contract Sum"), unless
additional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon
completion; {ii) payment in accordance with specified tasks or the percentage of completion of the
services less the contract retention; {iii) payment for time and materials based upon the
Contractor's rates as specified in the Schedule of Compensation, provided that (a) time estimates
are provided for the performance of sub tasks, (b) contract retention is maintained and (c) the
Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of
Compensation .
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures
for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer
in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
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and only if specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Contractor at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If
Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall
not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Contractor shall furnish to City an original invoice for all work
performed and expenses incurred during the preceding month in a form approved by City's
Director of Finance. By submitting an invoice for payment under this Agreement, Contractor is
certifying compliance with all provisions of the Agreement. The invoice shall contain all
information specified in Exhibit "C", and shall detail charges for all necessary and actual expenses
by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and
sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories.
Contractor shall not invoice City for any duplicate services performed by more than one person.
City shall, as soon as practicable, independently review each invoice submitted by
the Contractor to determine whether the work performed and expenses incurred are in compliance
with the provisions of this Agreement. Except as to any charges for work performed or expenses
incurred by Contractor which are disputed by City, or as provided in Section 7.3, City will cause
Contractor to be paid within thirty (30) days of receipt of Contractor's correct and undisputed
invoice; however, Contractor acknowledges and agrees that due to City warrant run procedures,
the City cannot guarantee that payment will occur within this time period. In the event that City
does not cause Contractor to be paid within thirty (30) days of receipt of an undisputed and
properly submitted invoice, Contractor shall be entitled to the payment of interest to the extent
allowed under Public Contract Code Section 20104.50. In the event any charges or expenses are
disputed by City, the original invoice shall be returned by City to Contractor, not later than seven
(7) days after receipt by the City, for correction and resubmission. Returned invoices shall be
accompanied by a document setting forth in writing the reasons why the payment request was
rejected. Review and payment by the City of any invoice provided by the Contractor shall not
constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver.
Payment to Contractor for work performed pursuant to this Agreement shall not be deemed
to waive any defects in work performed by Contractor.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
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
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the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this
reference. When requested by the Contractor, extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the Contract Officer but not exceeding
one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the Contractor,
including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires,
earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars,
litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within
ten (I 0) days of the commencement of such delay notify the Contract Officer in writing of the
causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the services for the period of the enforced delay when and ifin the
judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall
be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled
to recover damages against the City for any delay in the performance of this Agreement, however
caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section.
3.4 Inspection and Final Acceptance.
City may inspect and accept or reject any of Contractor's work under this
Agreement, either during performance or when completed. City shall reject or finally accept
Contractor's work within forty-five (45) days after submitted to City. City shall accept work by a
timely written acceptance, otherwise work shatl be deemed to have been rejected. City's
acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such
gross mistakes as to amount to fraud. Acceptance of any work by City shatl not constitute a waiver
of any of the provisions of this Agreement including, but not limited to, Articles I and 5, pertaining
to warranty and indemnification and insurance, respectively.
3.5 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this
Agreement shall continue in full force and effect until completion of the services but not exceeding
one (I) years from the date hereof, except as otherwise provided in the Schedule of Performance
(Exhibit "D").
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor.
The following principals of Contractor ("Principals") are hereby designated as
being the principals and representatives of Contractor authorized to act in its behalf with respect
to the work specified herein and make all decisions in connection therewith:
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Michael Murray Vice President
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation
of the foregoing Principals were a substantial inducement for City to enter into this Agreement.
Therefore, the Principals shall be responsible during the term of this Agreement for directing all
activities of Contractor and devoting sufficient time to personally supervise the services hereunder.
All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive
direction and control of the Principals. For purposes of this Agreement, the Principals may not be
replaced nor may their responsibilities be substantially reduced by Contractor without the express
written approval of City. Additionally, Contractor shall make every reasonable effort to maintain
the stability and continuity of Contractor's staff and subcontractors, if any, assigned to perform
the services required under this Agreement. Contractor shall notify City of any changes in
Contractor's staff and subcontractors, if any, assigned to perform the services required under this
Agreement, prior to and during any such performance.
4.2 Status of Contractor.
Contractor shall have no authority to bind City in any manner, or to incur any
obligation, debt or liability of any kind on behalf of or against City, whether by contract or
otherwise, unless such authority is expressly conferred under this Agreement or is otherwise
expressly conferred in writing by City. Contractor shall not at any time or in any manner represent
that Contractor or any of Contractor's officers, employees, or agents are in any manner officials,
officers, employees or agents of City. Neither Contractor, nor any of Contractor's officers,
employees or agents, shall obtain any rights to retirement, health care or any other benefits which
may otherwise accrue to City's employees. Contractor expressly waives any claim Contractor may
have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be the City Manager or such person as may be designated
by the City Manager. It shall be the Contractor's responsibility to assure that the Contract Officer
is kept informed of the progress of the performance of the services and the Contractor shall refer
any decisions which must be made by City to the Contract Officer. Unless otherwise specified
herein, any approval of City required hereunder shall mean the approval of the Contract Officer.
The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all
documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner,
mode or means by which Contractor, its agents or employees, perform the services required herein,
except as otherwise set forth herein. City shall have no voice in the selection, discharge,
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01247.0006/669201.8
supervision or control of Contractor's employees, servants, representatives or agents, or in fixing
their number, compensation or hours of service. Contractor shall perform all services required
herein as an independent contractor of City and shall remain at all times as to City a wholly
independent contractor with only such obligations as are consistent with that role. Contractor shall
not at any time or in any manner represent that it or any of its agents or employees are agents or
employees of City. City shall not in any way or for any purpose become or be deemed to be a
partner of Contractor in its business or otherwise or a joint venturer or a member of any joint
enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Contractor, its principals
and employees were a substantial inducement for the City to enter into this Agreement. Therefore,
Contractor shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. All subcontractors shall
obtain, at its or Contractor's expense, such licenses , permits, registrations and approvals (including
from the City) as may be required by law for the performance of any services or work under this
Agreement. In addition, neither this Agreement nor any interest herein may be transferred,
assigned, conveyed, hypothecated or encumbered voluntarily or by operation oflaw, whether for
the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in concert of more
than twenty five percent (25 %) of the present ownership and/or control of Contractor, taking all
transfers into account on a cumulative basis . In the event of any such unapproved transfer,
including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall
release the Contractor or any surety of Contractor of any liability hereunder without the express
consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
Without limiting Contractor's indemnification of City, and prior to commencement
of any services under this Agreement, Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies ofinsurance of the type and amounts described
below and in a form satisfactory to City.
(a) General liability insurance. Contractor shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in
an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate, for bodily
injury , personal injury, and property damage. The policy must include contractual liability that has
not been amended . Any endorsement restricting standard ISO "insured contract" language will not
be accepted.
(b) Automobile liability insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and
property damage for all activities of the Contractor arising out of or in connection with Services
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to be performed under this Agreement, including coverage for any owned, hired, non-owned or
rented vehicles, in an amount not less than $1 ,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance. Contractor shall
maintain professional liability insurance that covers the Services to be performed in connection
with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any
policy inception date, continuity date, or retroactive date must be before the effective date of this
Agreement and Contractor agrees to maintain continuous coverage through a period no less than
three (3) years after completion of the services required by this Agreement.
(d) Workers' compensation insurance. Contractor shall maintain Workers'
Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (wi th limits of at
least $1 ,000,000).
(e) Subcontractors. Contractor shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required
in the Special Requirements in Exhibit "B".
5.2 General Insurance Requirements.
(a) Proof ofinsurance. Contractor shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers' compensation. Insurance certificates and endorsements must be
approved by City's Risk Manager prior to commencement of performance. Current certification
of insurance shall be kept on file with City at all times during the tenn of this Agreement. City
reserves the right to require complete, certified copies of all required insurance policies, at any
tim e.
(b) Duration of coverage. Contractor shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Services hereunder by
Contractor, its agents, representatives, employees or subcontractors.
(c) Primary/noncontributing. Coverage provided by Contractor shall be
primary and any insurance or self-insurance procured or maintained by City shall not be required
to contribute with it. The limits of insurance required herein may be satisfied by a combination of
primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be
endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of City before the City's own insurance or self-insurance shall
be called upon to protect it as a named insured .
(d) City's rights of enforcement. In the event any policy of insurance required
under this Agreement does not comply with these specifications or is canceled and not replaced,
City has the right but not the duty to obtain the insurance it deems necessary and any premium
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paid by C ity will be promptly reimbursed by Contractor or City will withhold amounts sufficient
to pay premium from Contractor payments. In the alternative, City may cancel this Agreement.
{e) Acceptable insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance or
that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned
policyholders' Rating of A-(or higher) and Financial Size Category Class VI (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the
City's Risk Manager.
(t) Waiver of subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents , officials, employees and volunteers or sha11 specifically allow
Contractor or others providing insurance evidence in compliance with these specifications to waive
their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against
City, and shall require similar written express waivers and insurance clauses from each of its
subcontractors.
(g) Enforcement of contract prov1s10ns (non-estoppe)). Contractor
acknowledges and agrees that any actual or alleged failure on the part of the City to inform
Contractor of non-compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or
limits contained in this section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a given issue and
is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or
a waiver of any type. If the Contractor maintains higher limits than th e minimums shown above,
the City requires and shall be entitled to coverage for the higher limits maintai ned by the
Contra ctor. Any available insurance proceeds in excess of the specified minimum limits of
insurance and coverage sha11 be available to the C ity.
(i) Notice of cancellation. Contractor agrees to oblige its insurance agent or
broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for
nonpayment for which a ten ( 10) day notice is required) or nonrenewal of coverage for each
required coverage.
(j) Additional insured status. General liability policies shall provide or be
endorsed to provide that City and its officers, officials, employees, and agents, and volunteers sha11
be additional insureds under such policies. This provision shall also apply to any excess/umbrella
liabil ity policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages
required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in writing.
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(1) Separation of insureds. A severability of interests provision must apply for
all additional insureds ensuring that Contractor's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the insurer's limits of
liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass through clause. Contractor agrees to ensure that its subcontractors and
any other party involved with the project who is brought onto or involved in the project by
Contractor, provide the same minimum insurance coverage and endorsements required of
Contractor. Contractor agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the requirements of
th is section. Contractor agrees that upon request, all agreements with subcontractors and others
engaged in the project will be submitted to City for review.
(n) Agency's right to revise specifications. The City reserves the right at any
time during the term of the contract to change the amounts and types of insurance required by
giving the Contractor ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Contractor, the City and Contractor may renegotiate
Contractor's compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to and
approved by City. City reserves the right to require that self-insured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by City.
(p) Timely notice of claims . Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Contractor's performance
under this Agreement, and that involve or may involve coverage under any of the required liability
policies.
(q) Additional insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment may be necessary
for its proper protection and prosecution of the work.
5.3 Indemnification.
To the full extent permitted by law, Contractor agrees to indemnify, defend and
hold harmless the City, its officers , employees and agents ("Indemnified Parties") against, and will
hold and save them and each of them harmless from, any and all actions, either judicial,
administrative, arbitration or regulatory claims, damages to persons or property, losses , costs,
penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims
or liabilities") that may be asserted or claimed by any person, finn or entity arising out of or in
connection with the negligent performance of the work, operations or activities provided herein of
Contractor, its officers, employees, agents , subcontractors, or invitees , or any individual or entity
for which Contractor is legally liable ("indemnitors"), or arising from Contractor's or indemnitors'
reckless or willful misconduct, or arising from Contractor's or indemnitors' negligent performance
of or failure to perform any tenn, provision, covenant or condition of this Agreement, and in
connection therewith:
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ni·M7 l'VV\l;//;f;Q')fl l II
(a) Contractor will defend any action or actions filed in connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the
City, its officers, agents or employees for any such claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform such work, operations or
activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers,
agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a
party to any action or proceeding filed or prosecuted against Contractor for such damages or other
claims arising out of or in connection with the negligent performance of or failure to perform the
work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its
officers, agents or employees, any and all costs and expenses incurred by the City, its officers,
agents or employees in such action or proceeding, including but not limited to, legal costs and
attorneys' fees .
In addition, Contractor agrees to indemnify, defend and hold harmless the
Indemnified Parties from, any and all claims and liabilities for any infringement of patent rights,
copyrights or trademark on any person or persons in consequence of the use by the Indemnified
Parties of articles to be supplied by Contractor under this Agreement, and of which the Contractor
is not the patentee or assignee or has not the lawful right to sell the same.
Contractor shall incorporate similar indemnity agreements with its subcontractors
and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore,
and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This
indemnification includes claims or liabilities arising from any negligent or wrongful act, error or
omission, or reckless or willful misconduct of Contractor in the performance of professional
services and work hereunder. The provisions of this Section do not apply to claims or liabilities
occurring as a result of City's sole negligence or willful acts or omissions, but, to the fullest extent
permitted by law, shall apply to claims and liabilities resulting in part from City's negligence,
except that design professionals' indemnity hereunder shall be limited to claims and liabilities
arising out of the negligence, recklessness or willful misconduct of the design professional. The
indemnity obligation shall be binding on successors and assigns of Contractor and shall survive
termination of this Agreement.
5.4 Notification of Third-Party Claims.
City shall timely notify Contractor of the receipt of any third-party claim relating
to the work under this Agreement. City shall be entitled to recover from Contractor its reasonable
costs incurred in providing such notification.
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nn.n ~·~oim o
ARTICLE6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Contractor shall keep, and require subcontractors to keep, such ledgers, books of
accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of
payroll records in compliance with all applicable laws, or other documents relating to the
disbursements charged to City and services performed hereunder (the "books and records"), as
shall be necessary to perform the services required by this Agreement and enable the Contract
Officer to evaluate the performance of such services. Any and all such documents shall be
maintained in accordance with generally accepted accounting principles and shall be complete and
detailed . The Contract Officer shall have full and free access to such books and records at all times
during normal business hours of City, including the right to inspect, copy, audit and make records
and transcripts from such records. Such records shall be maintained for a period of 3 years
following completion of the services hereunder, and the City shall have access to such records in
the event any audit is required. In the event of dissolution of Contractor's business, custody of the
books and records may be given to City, and access shall be provided by Contractor's successor
in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in
providing access to the books and records if a public records request is made and disclosure is
required by law including but not limited to the California Public Records Act.
6.2 Reports.
Contractor shall periodically prepare and submit to the Contract Officer such
reports concerning the performance of the services required by this Agreement as the Contract
Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the
cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor
agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that
may or will materially increase or decrease the cost of the work or services contemplated herein
or, if Contractor is providing design services, the cost of the project being designed, Contractor
shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the
estimated increased or decreased cost related thereto and, if Contractor is providing design
services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data,
notes, computer files, reports, records, documents and other materials (the "documents and
materials") prepared by Contractor, its employees, subcontractors and agents in the performance
of this Agreement shall be the property of City and shall be delivered to City upon request of the
Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim
for further employment or additional compensation as a result of the exercise by City of its full
rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use,
reuse or assignment of such completed documents for other projects and/or use of uncompleted
documents without specific written authorization by the Contractor will be at the City's sole risk
and without liability to Contractor, and Contractor's guarantee and warranties shall not extend to
such use, reuse or assignment. Contractor may retain copies of such documents for its own use.
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Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors
shall provide for assignment to City of any documents or materials prepared by them, and in the
event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages
resulting therefrom. Moreover, Contractor with respect to any documents and materials that may
qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are
hereby deemed "works made for hire" for the City.
6.4 Confidentiality and Release of Information.
(a) Information gained or work product produced by Contractor in
performance of this Agreement shall be considered confidential, unless such information is in the
public domain or already known to Contractor. Contractor shall not release or disclose any such
information or work product to persons or entities other than City without prior written
authorization from the Contract Officer.
(b) Contractor, its officers, employees, agents or subcontractors, shall
not, without prior written authorization from the Contract Officer or unless requested by the City
Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions,
response to interrogatories or other information concerning the work performed under this
Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided
Contractor gives City notice of such court order or subpoena.
(c) If Contractor, or any officer, employee, agent or subcontractor of
Contractor, provides any information or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity from Contractor for any damages, costs and
fees, including attorneys' fees, caused by or incurred as a result of Contractor's conduct.
(d) Contractor shall promptly notify City should Contractor, its officers,
employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions or other discovery
request, court order or subpoena from any party regarding this Agreement and the work performed
there under. City retains the right, but has no obligation, to represent Contractor or be present at
any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and
to provide City with the opportunity to review any response to discovery requests provided by
Contractor. However, this right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and
to performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of San Bernardino, State of California, or any other
appropriate court in such county, and Contractor covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action. In the event of litigation in a U.S . District
Court, venue shall lie exclusively in the Central District of California, in the County of San
Bernardino, State of California.
7 .2 Disputes.
(a) Default: Cure. In the event that Contractor is in default under the
tenns of this Agreement, the City shall not have any obligation or duty to continue compensating
Contractor for any work perfonned after the date of default. Instead, the City may give notice to
Contractor of the default and the reasons for the default. The notice shall include the timeframe in
which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may
be extended, though not reduced, if circumstances warrant. During the period of time that
Contractor is in default, the City shall hold all invoices and shall proceed with payment on the
invoices only when the default is cured. In the alternative, the City may, in its sole discretion, elect
to pay some or all of the outstanding invoices during the period of default. If Contractor does not
cure the default, the City may take necessary steps to terminate this Agreement under this Article.
Any failure on the part of the City to give notice of the Contractor's default shall not be deemed
to result in a waiver of the City's legal rights or any rights arising out of any provision of this
Agreement.
(b) Dispute Resolution. This Agreement is subject to the provisions of
Article 1.5 (commencing at Section 20104) of Division 2, Part 3 of the California Public Contract
Code regarding the resolution of public works claims of less than $3 75,000. Article 1.5 mandates
certain procedures for the filing of claims and supporting documentation by the Contractor, for the
response to such claims by the City, for a mandatory meet and confer conference upon the request
of the Contractor, for mandatory non-binding mediation in the event litigation is commenced, and
for mandatory judicial arbitration upon the failure to resolve the dispute through mediation. This
Agreement hereby incorporates the provisions of Article 1.5 as though fully set forth herein.
7.3 Retention of Funds.
Contractor hereby authorizes City to deduct from any amount payable to Contractor
(whether or not arising out of this Agreement) (i) any amounts the payment of which may be in
dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or
damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by
reason of Contractor's acts or omissions in perfonning or failing to perfonn Contractor's
obligation under this Agreement. In the event that any claim is made by a third party, the amount
or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear
to be the basis for a claim of lien, City may withhold from any payment due, without liability for
interest because of such withholding, an amount sufficient to cover such claim. The failure of City
to exercise such right to deduct or to withhold shall not, however, affect the obligations of the
Contractor to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any
party of any breach of the provisions of this Agreement shall not constitute a waiver of any other
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provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of
the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by
a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in
this Agreement, the rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
7 .6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in
law or in equity, to cure, correct or remedy any default, to recover damages for any default, to
compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any
contrary provision herein, Contractor shall file a claim pursuant to Government Code Sections 905
et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Nor applicable for daily on-call work.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically
provided in the following Section for termination for cause. The City reserves th e right to terminate
this Contract at any time, with or without cause, upon thirty (30) days' written notice to Contractor,
except that where termination is due to the fault of the Contractor, the period of notice may be
such shorter time as may be determined by the Contract Officer. In addition , the Contractor
reserves the right to terminate this Contract at any time, with or without cause , upon sixty (60)
days' written notice to City, except that where termination is due to the fault of the City, the period
of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of
termination , Contractor shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Except where the Contractor has initiated
termination, the Contractor shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the Contract Officer
thereafter in accordance with the Schedule of Compensation or such as may be approved by the
Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated
termination, the Contractor shall be entitled to compensation only for the reasonable value of the
work product actually produced hereunder. In the event of termination without cause pursuant to
this Section, the terminating party need not provide the non-terminating party with the opportunity
to cure pursuant to Section 7.2.
lll'M'! (VV\j;/~01111 V
7.9 Termination for Default of Contractor.
If termination is due to the failure of the Contractor to fulfill its obligations under
this Agreement, City may, after compliance with the provisions of Section 7 .2, take over the work
and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable
to the extent that the total cost for completion of the services required hereunder exceeds the
compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such
damages), and City may withhold any payments to the Contractor for the purpose of set-off or
partial payment of the amounts owed the City as previously stated.
7.10 Attorneys' Fees.
If either party to this Agreement is required to initiate or defend or made a party to
any action or proceeding in any way connected with this Agreement, the prevailing party in such
action or proceeding, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney's fees . Attorney's fees shall include attorney's
fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed
to have accrued on commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment.
7.11 Unfair Business Practices Claims.
In entering into this Agreement, Contractor offers and agrees to assign to the City
all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton
Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700)
of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods,
services or materials related to this Agreement. This assignment shall be made and become
effective at the time the City renders final payment to the Contractor without further
acknowledgment of the Parties.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Contractor, or
any successor in interest, in the event of any default or breach by the City or for any amount which
may become due to the Contractor or to its successor, or for breach of any obligation of the terms
of this Agreement.
8.1 Conflict of Interest.
Contractor covenants that neither it, nor any officer or principal of its firm, has or
shall acquire any interest, directly or indirectly, which would conflict in any manner with the
interests of City or which would in any way hinder Contractor's performance of services under
this Agreement. Contractor further covenants that in the performance of this Agreement, no person
having any such interest shall be employed by it as an officer, employee, agent or subcontractor
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without the express written consent of the Contract Officer. Contractor agrees to at all times avoid
conflicts of interest or the appearance of any conflicts of interest with the interests of City in the
perfonnance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any decision
relating to the Agreement which effects his financial interest or the financial interest of any
corporation, partnership or association in which he is, directly or indirectly, interested, in violation
of any State statute or regulation. The Contractor warrants that it has not paid or given and will not
pay or give any third party any money or other consideration for obtaining this Agreement.
8.2 Covenant Against Discrimination.
Contractor covenants that, by and for itself, its heirs, executors, assigns, and all
persons claiming under or through them, there shall be no discrimination against or segregation
of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual
orientation, marital status, national origin, ancestry, or other protected class in the perfonnance of
this Agreement. Contractor shall take affinnative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed, religion,
sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class.
8.3 Unauthorized Aliens.
Contractor hereby promises and agrees to comply with all of the provisions of the
Federal Immigration and Nationality Act, 8 U.S.C. § I 101 et seq., as amended, and in connection
therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ
such unauthorized aliens for the perfonnance of work and/or services covered by this Agreement,
and should any liability or sanctions be imposed against City for such use of unauthorized aliens,
Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions
imposed, together with any and all costs, including attorneys' fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication
either party desires or is required to give to the other party or any other person shall be in writing
and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City
Manager and to the attention of the Contract Officer (with her/his name and City title), City of
Grand Terrace, 22795 Barton Road , Grand Terrace, California 92313, and in the case of the
Contractor, to the person at the address designated on the execution page of this Agreement. Either
party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72)
hours from the time of mailing if mailed as provided in this Section. All correspondence relating
to this Agreement shall be serialized consecutively.
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9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of
the language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and
exclusive expression of the understanding of the parties. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this Agreement supersedes
and cancels any and all previous negotiations, arrangements, agreements and understandings, if
any, between the parties, and none shall be used to interpret this Agreement. No amendment to or
modification of this Agreement shall be valid unless made in writing and approved by the
Contractor and by the City Council. The parties agree that this requirement for written
modifications cannot be waived and that any attempted waiver shall be void.
9.5 Scverability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or
sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder unless the invalid provision is so material that its invalidity deprives either
party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect,
in this Agreement, nor shall any official , officer, or employee of City participate in any decision
relating to this Agreement which may affect his/her financial interest or the financial interest of
any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in
violation of any corporation, partnership, or association in which (s)he is directly or indirectly
interested, or in violation of any State or municipal statute or regulation. The determination of
"financial interest" shall be consistent with State law and shall not include interests found to be
"remote" or "noninterests" pursuant to Government Code Sections I 091 or 1091.5 . Contractor
warrants and represents that it has not paid or given, and will not pay or give, to any third party
including, but not limited to, any City official, officer, or employee, any money, consideration, or
other thing of value as a result or consequence of obtaining or being awarded any agreement.
Contractor further warrants and represents that (s)he/it has not engaged in any act(s), omission(s),
or other conduct or collusion that would result in the payment of any money, consideration, or
other thing of value to any third party including, but not limited to, any City official, officer, or
-22 -
employee, as a result of consequence of obtaining or being awarded any agreement. Contractor is
aware of and understands that any such act{s), omission(s) or other conduct resulting in such
payment of money, consideration, or other thing of value will render this Agreement void and of
no force or effect.
9.7
Contractor's Authorized Initials~
Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that
(i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver
this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and {iv) the entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound. This Agreement shall
be b inding upon the heirs , executors, administrators, successors and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first-above written.
CITY:
City of
APPROVED AS TO FORM:
a£:&w L ~
Adrian R. Guerra, City Attorney
CONTRACTOR:
Address:
Two corporate officer signatures required when Contractor is a corporation, with one signature required from
each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any
Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR'S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY.
-24-
01247.0006/669201.8
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary publ ic or other officer completing this certificate verifies only the identity of the individual who signed the
document to which th is certificate is attached, and not the truthfulness, accuracy, or valid ity of that document.
State of California
Countyof _____ _..O~ra~n~g-e.._ __ ~~
On __ ..... M .... a..,r...,c....,h_1 ... 8....._..2 ... 0_2_._1 __ before me, _____ _.A_,,s..,_h=li .... e-=B..,la""'n....,c..,_h..,.a""'rd,... ...... N..:.:o .... t""'a...,rv""'P""'u""b ..... 11,..c.__ ___ _
Date Here Insert Name and Title of the Officer
personally appeared Michael Murray and Kristen Paulino
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ts/are
subscribed to the within instrument and acknowledged to me that he/sWe/they executed the same in
his/her/their authorized capacity(ies), and that by hi6/hler/their signature(s) on the instrument the person(s),
o r the entity upon behalf of which the person(s) acted, executed the instrument.
ASHLIE BLANCHARD
• COMM. #2279550 ~
' Notary Public-{:alifomia ll
·<·> . ORANGE COUNTY 11.
« .. ; •.• -• My Comm Expires March 3, 2023
Place Notary Sea/ Above
I certify under PENAL TY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS ?d and o~cial seal.
/
J
Signature 4,~ -bAJM ~J
Signature of Notary Public
------------~~~OPTIONAL-----~~~~~~~~~~
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Tltle or Type of Document: Document Date: --------
Number of Pages: Signer(s) Other Than Named Above: ------------
Capacity(ies) Claimed by Signer(s)
Signer 's Name:------------
0 Corporate Officer -Title(s): -------
0 Partner -0 Limited 0 General
0 Individual D Attorney in Fact
0 Trustee 0 Guardian or Conservator
0 Other:--------------
Si gner Is Representing: ---------
Signer's Name:-------------
0 Corporate Officer -Title(s): -------
0 Partner -0 Limited 0 General
0 Individual 0 Attorney in Fact
0 Trustee 0 Guardian or Conservator
D Other: --------------
Signer Is Representing : ---------
~~iOreifi<:.~~vc;.~
0 2014 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
EXHIBIT "A"
SCOPE OF WORK
I. Contractor shall perfonn all of the work and comply with all of the specifications and
requirements in Exhibit A-I, including, but not limited to, any the "General Provisions"
and "Special Provisions". Pursuant to Section 1.2, Contractor shall also perfonn all of the
work and comply with all of the specifications and requirements in accordance with the
Standard Specifications of Public Works Construction, latest edition, which is incorporated
herein by this reference.
II. Brief description of the work to be perfonned under this Agreement ts as follows
("Project'):
Contractor shall provide on-call Project services to maintain and repair asphalt potholes
pursuant to this Agreement.
III. The Contractor has been selected to provide the Project services which will be readily
available when needed for the fixed rates set forth in Exhibit C. However, before any work
is perfonned, the Contractor must provide a specific written Task Proposal for any
requested Project services and get written approval of the tenns of the Task Proposal from
the City, as such process is more fully described in the Work Request Procedure below in
Section IV. Unless specifically defined, each category or type of work listed in Exhibit C
shall be construed broadly to include all services customarily described under such
category or type.
IV. Work Request Procedure
A. Each task to be performed shall be set forth in a written request ("Request")
produced by the Contract Officer with a description of the work to be performed,
and the time desired for completion. All tasks shall be carried out in conformity
with all provisions of this Agreement.
B. Following receipt of the Request, the Contractor shall prepare a "Task Proposal"
that includes the following components:
(A) a written description of the requested task (''Task Description") including
all components and subtasks, and including any clarifications of the
descriptions provided in the Request;
(B) the costs to perform the task (''Task Budget");
(C) an explanation of how the cost was determined; and
(D) a schedule for completion of the task (''Task Completion Schedule"),
including a final completion date (''Task Completion Date").
01241 .0006 .'669201 .s A -1
C . Contract Officer shall approve, modify, or reject the Task Proposal in writing, and
issue a Notice to Proceed when a written agreement has been reached on the Task
Proposal.
D. The task shall be perfonned at a cost not exceeding the Task Budget.
E. Contractor shall complete the task and deliver all deliverables to Contract Officer
by the Task Completion Date and in accordance with the Task Completion
Schedule.
V. Contractor acknowledges that City has no obligation to request work from Contractor
under this Agreement. City may establish a rotation schedule with multiple contractors1
and may seek competing Task Proposals.
VI. In addition to the requirements of Section 6 .2, during performance of the work , Contractor
will keep the City apprised of the status of performance by delivering status reports as may
be required by the City from time to time.
VII. All work is subject to review and acceptance by the City, and must be revised by the
Contractor without additional charge to the City until found satisfactory and accepted by
City.
VIII. Contractor shall provide safe and continuous passage for pedestrian and vehicular traffic
in accordance with the Work Area Traffic Control Handbook (WATCH), latest edition.
0 1247.0006166920 1.8 A·2
EXHIBIT "A-1"
CONTRACT SPECIFICATIONS AND DOCUMENTS
LOCATION OF WORK TO BE PERFORMED UNDER THIS AGREEMENT
Various locations citywide.
CONDITIONS:
1. All work to be perfonned Monday thru Fridays during nonnal working Hours 7am to
5pm. Weekends, evenings and Holiday work will be considered as extra work.
2. Work will need to be scheduled so Contractor has full access to entire site.
2-1.5 SUBMITTALS.
During the process, the Contractor shall furnish the following infonnation to the City Engineer
daily:
1) Certi tied tickets for each load of asphalt used delivered
SECTION A. LICENSES
A-1. Construction License
Contractor must possess a current Class A (Public Works General License) Contractor's
License issued by the State of California to cover all of the work to be perfonned under this project.
Effective April 1, 2015, Contractors and subcontractors bidding and performing work
on public works project must register on an annual basis with Department oflndustrial
Relations.
SECTION B. INSTRUCTION TO CONTRACTOR
B-1. Local Conditions. Contractor shall examine carefully the site of the work
contemplated and the Contract Documents. By entering into this Agreement, Contractor
represents and warrants that Contractor has investigated and is satisfied as to the conditions to
be encountered, as to the character, quality and quantities of work to be perfonned and the
materials to be furnished, and as to the requirements of the Contract Documents.
Infonnation derived from inspection of topographic maps, or from Plans showing
location of utilities and structures will not in any way relieve the Contractor from any risk, or
from properly examining the site and making such additional investigations as it may elect, or
from properly fulfilling all the tenns of the Agreement.
Ol 247JN)(J6/669ZOl.8
Contractor shall inform itself of, and the bidder awarded an Agreement, shall comply
with , Federal , State and Local laws, relative to the execution of the work. This requirement
includes, but is not limited to, applicable laws and regulations concerning employment of labor,
protection of public and employee safety and health, environmental protection, the protection
of natural resources, fire protection, burning and non-burning requirements, permits, fees, and
similar subjects.
As applicable, Contractor shall be licensed as required under applicable provisions of the
Contractors License Law (California Business and Professions Code section 7000, et seq.) and
regulations adopted pursuant thereto; and Contractor shall provide City with its type of
contractor's license, license number, and other requested information prior to commencing
the work under this Agreement. No oral, telephon ic or telegraphic Bid or modification of a Bid
will be considered .
8-2. List of Subcontractors
(a) Prior to commencing the work under this Agreement, Contractor shall set forth the
following information in accordance with the provisions of Public Contract Code sections 4100-
4113 :
( 1) The name, location of the place of business, and contract license number
of each Subcontractor who will perform work or labor or render service to the prime Contractor
in or about the construction of the work or improvement, or a Subcontractor licensed by the
State of California who, under subcontract to the prime Contractor, specifically fabricates and
installs a portion of the work or improvement according to the Contract Documents, in any
amount in excess of one-half of one percent (0 .5%) of the prime Contractor's Contract Sum,
or, in the case of bids or offers for the construction of streets or highways, including bridges,
in excess of one-half of one percent (0.5%) of the Contractor's total bid or ten thousand dollars
($10 ,000), whichever is greater.
(2) The portion of the work which will be done by each such Subcontractor,
only one Subcontractor shall be listed for each such portion of the work as defin ed in the Bid.
(3) The Contractor is considered the prime contractor and shall perform at least
fifty-one percent (51.0%) of the work, as determined by a percentage of the value of the work.
(b) If the Contractor fails to specify a Subcontractor for any portion of the work
to be performed under the Contract pursuant to Section B-2(a) above, the Contractor agrees to
perform that portion of the work itself.
8-3. Interpretation of Contract Documents
Any explanation desired by the Contractor regarding the meaning or interpretation of
any of the Contract Documents must be requested in writing, with sufficient allowance of time
for receipt of reply before commencement of work under this Agreement. Any such explanations
or interpretations will be made in the form of addenda to the documents and will be furnished
to the Contractor. Neither the City Engineer nor any representative of the City is authorized to
() / 247.{}(1(}6166920/ ,8
give oral explanations or interpretations of Contract Documents, and execution of this
Agreement by Contractor constitutes agreement by the Contractor that it has placed no reliance
on any such oral explanation or interpretation. However, the City Engineer may, upon
inquiry by , orally direct the Contractor's attention to specific provisions of the Contract
Documents which cover the subject of the inquiry.
8-5. Discrepancies
In the case of discrepancy between unit prices and totals, unit prices will prevail. In
case of discrepancy between words and figures, words will prevail.
8-6. Servicing and Maintenance
Contractor shall, if requested , furnish e vidence that there is an efficient service
organizat ion which regularly carries a stock of repair parts for the proposed equipment to be
furnished and installed in the work and that the organization is conveniently located for prompt
service.
8-7. Time of Completion
The City will attempt to provide 6 weeks notice to Contractor for scheduling as required
on proposal and stated under Exhibit "C". The Contractor shall begin work after written notice
to proceed with work has been issued by the City. The Contractor shall then have fifteen (15)
calendar days after receipt of written notice to proceed to begin work. The counting of contract
days will begin fifteen (15) calendar days from the time the Contractor receives the Notice to
Proceed or when Contractor starts work, whichever comes first.
The time of completion of the work to be performed hereunder is the essence of this
Contract. Delays and extensions of time may be allowed in accordance with the provisions of
the Agreement for Construction Services. The time allowed for the completion of the work
is variable depending on scope of work.
8-8. Licensing Requirements for Contractors
Contractor, including its subcontractors and specialty contractors, shall hold such
li censes as may be required by the laws of the State of California for the performance of the
work specified in the Contract Documents.
Effective April 1, 2015, Contractors and its subcontractors bidding and performing work
on public works project must register on an annual basis with Department of Industrial
Relations (DIR). A contractor or subcontractor shall not be qualified to bid on, be listed in a bid
proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage
in the performance of any contract for public work, unless currently registered and qualified
to perfonn public work pursuant to Section 1725 .5. It is not a violation of this section for
an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business
and Professions Code or by Section 10164 or 20103 .5 of the Public Contract Code, provided
Ol l47.f}()06 /669:Wl .8
the contractor is registered to perfonn public work pursuant to Section 1725 .5 at the time
the contract is awarded.
8-9. Preconstruction Conference
Prior to any work, the Contractor shall provide the City Engineer with a list of key
personnel assigned to the project and the telephone numbers where they may be reached at
any time. The list shall be made available in sufficient copies and presented at the
preconstruction conference, if meeting is necessary.
()/ 247.0(J(J6/66920/.8
EXHIBIT "C"
SCHEDULE OF COMPENSATION
I. Contractor shall perform all work at the rates submitted as part of Contractor's Proposal,
and listed below:
Item Rate
Reoair asohalt ootholes pursuant to Exhibit A* $3,3 75 oer day
*Notes:
INCLUSIONS:
(A) LABOR, EQUIPMENT & MATERIAL
(B) PRICE BASED ON (1) MOVE-IN -$3,375.00 FOR EACH
ADDITIONAL MOVE-IN
(C) PRICE BASED ON MINIMUM 8 HR SHIFTS
(D) CUT, LOAD, HAUL , SWEEP & TACK
(E) GRADES TO BE RECEIVED AT +/-.04 1
-NO FINE GRADE
(F) SURVEYING, ENGINEERING AND STAKING BY OTHERS. ALL
FINISHED FILLS, INCLUDING FILLS AT GRADE BREAKS TO BE
PAINTED ON THE GRADE I PAVEMENT BY PRIME
CONTRACTOR AT 25' STATIONS AT NO COST TO CONTRACTOR
FILLS TO BE GIVEN PRIOR TO PA YING
(G) PROPOSAL & ENTIRE CONTENTS SHALL BE fNCORPORA TED
INTO SUBCONTRACT -MINIMUM 6 WEEKS NOTICE FOR ALL
SCHEDULING
(H) TRAFFIC CONTROL PER WATCH MANUAL
EXCLUSIONS:
0/247.tHJ06/66920 1.8
(A) QCQA, ARHM, ENGINEERfNG, PERMITS, BONDS, FEES,
INSPECTION FEES, SWPPP, LAYOUT, SURVEY, GRADE
CHECKER, OIL INDEX
(B) TEMP AC, TRENCH /SLOT PAVING, MEDIAN PAVING, SAWCUT,
CRACKFILL, WEEDKILL, FOG SEAL, PRIME COAT, SLURRY,
SEAL COAT
(C) COLDMILL, INERTIAL PROFILE, MUST GRINDS,
PROFILOGRAPH, PRE-PA VE IRI & GRINDING, CLEAN EXISTfNG
AC, STEEL PLATES
(D) IMPORT/EXPORT, SUBGRADE PREP & REMOVAL/COMPACTION,
GRADING, FINE GRADING, PCC BACKFILL, REDWOOD HEADER
{E) PROTECTION I LOCATING OF EXST. UTILITIES, UTILITY
ADJUSTMENTS, SPEED BUMPS, POSTING
{F) DRAINAGE REQUIREMENTS W/ LESS THAN 2% FALL, TRAFFIC
CONTROL, T IC PLANS, CMS BOARD, DETOURS, ROOT
PRUNE/REMOVAL
(G) FABRIC & PLACEMENT, FABRIC REMOVALS I DISPOSAL,
STRIPING, TEMP STRIPING & TABS, PROTECTION OF WORK
AFTER SHIFT
(H) HAZARDOUS WASTE, WEATHER DELAYS, TEMPERATURE
DELAYS, WATER & SOURCE, OPERA TED WATER TRUCK I
BUGGY, LIGHTS
(I) SAFETY TRAINING, TWIC, BADGING COST, SANDBLASTING,
STRIPING REMOVALS, NIGHTS & WEEKENDS, AS BUILDS
(J) Loops, Traffic Signal or Electrical Work, Nightwork, Weekend Work,
Asphalt R&R, Grind and Overlay, Striping
JI. A retention of five percent (5%) shall be held from each payment as a contract retention to
be paid as part of the final payment upon satisfactory completion of services.
III. Within the budgeted amounts for each item above, and with the approval of the Contract
Officer, funds may be shifted from one item's subbudget to another so long as the Contract
Sum is not exceeded per Section 2.1, unless Additional Work is approved per Section 1.10.
IV. The City will compensate Contractor for the Services performed upon submission of a
valid invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours
worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting
documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and
travel properly charged to the Services.
V. The total compensation for the Services shall not exceed $15,000 as provided in Section
2.1 of this Agreement.
0 / 247.011{16/6f,92'J/.8
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
I. Contractor shall perform all Project work timely in accordance with the Task
Completion Schedule for each Task Proposal pursuant to Exhibit A.
II. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
0/ 247.(}()(16/669201 .8