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05189 - ALCORN FENCE CO REPAIR-REPLACE DAMAGED GUARDRAILS CP 05-23
DOC* 2006-0273699 04/17/�oW 08:00R Fee:NG Page I of I Recorded in Official Records County of Riverside Larry W Ward flsseg5or, County Clerk 8 Recorder 111111111HE 11111111111111111111111111 IT 1 M 5 U PACE SIZE CA pGOR NOCOR IMF MI5C Recording Requested By And / ly When Recorded Return To: City of Palm Springs Attn: City Clerk copy LONG REFUND NGMc exra+ P.O. Box 2743 Palm Springs, CA 92263-2743 A R L (SPACE ABOVE Tills LINE FOR RECORDING USE) (LXEMV1`FROM RECORDING 111E PER GOV,CODE§6103) NOTICE OF COMPLETION DN NOTICE IS HEREBY given that: 1. The City of Palm Springs, California, is a municipal corporation, organized and incorporated pursuant to the laws of the State of California. 2. The City Clerk of the City of Palm Springs is authorized and directed to execute, on behalf of said City, any and :ill Notices of Completion. 3. The address of die City of Palm Springs is City Hall,3200 E-Tahgwtz Clnyu❑Way, Palm Springs, California(P.O. Box 2743, Palm Springs, CA 92263-2743). 4. The public work of improvement on the hereinafter referred to real property within the city was COMPLETED on the 13's day of .ianuary,2006. 5. The name of the contractor (if named) for such work of improvement was! Alcorn Fence Company, P.O. Box 2279,Riverside, CA 92519. 6. The public work of improvement, which was completed in the City of Palm Springs, County of Riverside, State of California, is described as follows: Citywide Guardrail Repairs/Replacement- 7. Nature of Interest: Fee Owner 8. The property address or location of said property is: Four Citywide locations: 1) Indian Canyon Derive at Railroad Bridge, 2) East end Garnet Avenue, 3) Gene Autry Trail at Railroad Bridge, and 4)Southridge Drive south of Fast Pahn Canyon Drive, Pahn Springs, CA. 9. City ]Project No. 05-23, Agreement Number: 5139, Minute Order Number: 7774 CITY OF PALM SPRINGS: REVIEWED BY: DATED: BY: J DATED: /! Director of Pt Mir Works/City Enrincer David J. Bar knin t/ JAMES THOMPSON, being duly sworn, says: That he is the City Clerk of the aforesaid City of Patin Springs,California,the corporation that executed thu foregoing notice; that ale inakcs this verification on behalf of sad corporation; that he has road the foregoing Notice of Completion, and knows the contents thereof, and that the facts stated therein are true; that as said City Clerkhe-inakes this verification on behalf of said municipal corporation. City Clerk -Jamus Thompson index No. 0306 A CITY OF PALM SPRINGS CALIFORNIA P 0.Box 2743, Palm Springs, California 92263, (760)323-8253 ,\ Department of Public Works and Engineering ^ /_\ NOTICE OF ACTION e�) FOR: ■ PUBLIC AND/OR ❑ PRIVATE IMPROVEMENTS TO: Alcorn Fence Company ACCEPTANCE DATE: January 13,2006 P.O.Box 2279 PROJECT. CP#05-23,Citywide Guardrail Riverside,CA 92519 Repair/Replacement ; AGREEMENT NO. 5189 MINUTE ORDER NO 7774 0�"\ This is to inform you that a Notice of Completion has been filed and recorded on the above-named project, d� i PUBLIC IMPROVEMENTS PRIVATE IMPROVEMENTS Curbing L.F. Curbing L F. Street Paving S.F. Street Pavim, ST Sidewalks S.F. Sidewalks S.F. Driveway Approaches S.F. Driveway Approaches S F. Bike Paths EA. Bike Paths S.F. Sewer Mains L,F. Sewer Mains L.F. Sewer Laterals LT Sewer Laterals L.P. Sewer Manholes EA, Sewer Manholes EA. Storm Drains L F. Storm Drains L.F. Survey Monuments EA Survey Monuments EA. Lighting/Landscaping L S. Repair Guardrails(4 locations) L.S. Location. Four various locations 1)Indian Canyon Drive nt Railroad Bridge,2)East end Garnet Avenue, 3)Gene Autry Trail it Railroad Bridge,and 4) Southrid2e Drive south of East Palm Canyon Drive,Palm Springs,CA. C.P.S. Drawing No(s). Specifications Permit No. 13708 Contractor(s)actually doing the work Alcorn Fence Company Notify your bonding company/bank to release the following bonds: No. 104493102 in the amount of $ 31,115 Performance O9 ill krl No. 104493102 in the amount of $ 31,115 Payment OS I l6 I ot, No, in the amount of $ Monuments No. in the amount of $ Maintenance Security No in the amount of $ Correction&Repair Construction bond in the amount of $ for Engineer. CITY ENGINEER Bond Co./Bank: Travelers Casualty and Surety CamManv of America Comments. FINAL CONTRACT AMOUNT: S 31,115 Submitted by: Dated: —II-OIa S reet Maintenance Manager Approved by: Dated: 6 a4 Director of Public Works/City Engineer Distribution:Original to Engineering Project File;Copies to Addressee,City Clerk,Engineering NOA Binder,Street Maintenance Manager,Building, and Facilities Index No. 0603 ., Alcorn rence Company Repait/Replace-Dmgd Guardrails AGREEMENT #5189 MO 7774, 11-16-05 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT Guardrail Repair/Replacement-Various Citywide Locations, CP#05-23 THIS CONTRACT SERVICES AGREEMENT(herein "Agreement"), is made and entered into this �' �1 day of WXR\ -t— 2005, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and Alcorn Fence Company, (herein "Contractor"). The term Contractor includes professionals performing in a consulting capacity. The parties hereto 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 those services specified in the "Scope of Services" attached hereto as Exhibit"A" and incorporated herein by this reference, which services 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 Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice ecognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. 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 service is rendered. 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. 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. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor(a)has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has, or will, investigate the site and is or will be fully acquainted with the conditions there existing, prior to H\ILSERS1ENG\Cnnlr.AgreementeACuordroll Repair-Alcorn Fence Companympci nROGI�E'viAL N,-IlD commencement of services hereunder. Should the Contractor discover any latent or unknown conditions,which will materially affectthe performance of the services hereunder, Contractorshall 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 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 may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 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 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. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000; whichever is less, or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions in Exhibit"B" shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit"C" and incorporated herein by this reference, but not exceeding the maximum contract amount of Thirty-One Thousand One Hundred Fifteen Dollars and No Cents ($31,115.00) (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or(iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures forreproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Companympd -2- 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. 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, that Contractor shall not be entitled to additional compensation therefore, and the provisions of Section 1.8 shall not be applicable for such services. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (1") working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 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 perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force Maieure. The time period(s)specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather,fires, earthquakes,floods,epidemics,quarantine restrictions,riots, strikes,freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, howevercaused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one(1)yearfrom the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit "D"). 4.0 COORDINATION OF WORK H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Companympd -3- 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Bob Jenkins It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement,the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. 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 to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 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 contractwith any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neitherthis 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 Contractoror any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley ("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. H*\USERS\FNG\Contr.Agreements\Guardrail Repair-Alcorn Fence Company wpd -4- 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or ajoint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the City of Palm Springs as additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185) or equivalent language. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of $1,000,OOO bodily and property damage, Said policy shall include coverage for owned, non- owned, leased and hired cars. (d)Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit "B". All of the above policies of insurance shall be primary insurance and issued by companies whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services underthis Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, endorsements orapprophate,insurance binders evidencing the above insurance coverages and said Certificates of Insurance, endorsements, or binders are approved by the City. H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Company,wpd -5- The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in anyway the extent to which the Contractor maybe held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or person for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section .4.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them, and each of them, harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees are 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. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original, notarized, signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional arid remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terrns and conditions of this Agreerrrent. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this H•1USERS\ENC,,\Cnntr.Agreements\r_,riardrall Repair-Alnnrn Fence Cnmpany wild -6- Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A"or better in the most recent edition of Best 's Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City Manager due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement create an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten (10) days of receipt of notice from the City Manager. 6.0 REPORTS AND RECORDS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may orwill materially increase ordecrease the cost of the work orservices 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 ordecreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such 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. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, 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. 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. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the Clty's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. 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 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. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Companympd -7- 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county. Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising underthis Agreement,the injured party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's 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. 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. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 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, eitherparty maytake 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. H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Company wpd -8- 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of ($ 425.00) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit"D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section fortermination for cause. The City reserves the right to terminate this Agreement 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 Agreement at any time, with or without cause, upon sixty (60) days written notice to City, except that where termination is due to the fault of 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 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 as may be approved by the Contract Officer, except as provided in Section 7.3. In the eventthe Contractorhas initiated termination,the Contractorshall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non- terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 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 H,\USERS\ENG\Contr Agreements\Guardrail Repair-Alcorn Fence Cumpany.wpd -9- default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest,director indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, byandforitself, 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, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 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 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, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263. In the case of the Contractor, it should be addressed 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. 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 Integration Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. 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 urienforceability 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. H.\U8ER8\ENU\Uun1i Ayieement6\Uumdiad Repeii -Alcuni Fence Con panywpd -10- 9.5 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. (SIGNATURES ON FOLLOWING PAGE) H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Company wpd -11- IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above CITY OF PALM SPRINGS, ATTEST: a municipal corporation City Clerk City Manage '�� //AF(PROVE TO FORM: APPROVED BY CITY COUNCIL 1 By: data 1II11+ QQ.�9a'O�J �� ty Attorney f CONTRACTOR Alcorn Fence Company Check one'_Individual_Partnership Corporation 6445 dley Road Riv r i e,,QA 92509 Ely: x tar/ - By. 1% 'gnatu a(notarized) Signature (notarized) G G ERICKSON Name: PRESIDENT Name: Title: Title (This Agreement must be signed In the above space by This Agreement must be signed in the above space by one of the following: Chairman of the Board, President one of the following. Secretary, Chief Financial Officer or any Vice President) or any Assistant Treasurer) State of P-Pt State of I County of ��ff�An�V. @�� 'S3; ��11 County of Iss On J,[N� Ol®®i� On before me cA F. E e M a CM ,; before me, personally appeared.( Ft acilZ�snry personally appeared personally known to me{or tha hasis.ofsatlgtactony personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(f)whose name(*)is/A&subscribed to evidence)to be the person(s)whose name(s)Ware subscribed to the within instrument and acknowledged to me that he/ytmAAty the within instrument and acknowledged to me that he/sheAhey executed the same in histbeM- -ir authorized capacity(ft),and that executed the same in his/her/their authorized capacity(ies),and that by hlsAwAi,{ipir signature(*)on the instrument the person(a),or the by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s) acted, executed the entity upon behalf of which the person(s) acted, executed the instrument. instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. Notary Signature... r^ .,t, ,_ Notary Signature: Notary Seal p Notary Seal Illlllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllif a+; JACQUELINE GORDON COMM. # 1441489 fY_ NOTARY PUBLIC - CALIFORNIA f) ta LOS ANGELES COUNTY My Comm.Expires Sept.23,2007 LIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII WI1111-I H:\IJSERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Company.wpd -12- NOV-23-2005 WED 11 :06 AN CITY OF PALM SPRINGS FAX NO. 760 322 8325 P, 03/03 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above CITY OF PALM SPRINGS, ATTEST: a municipal corporation By; _ By: City Clerk City Manager APPROVED AS TO FORM: By: City Attorney CONTRACTOR: Alcorn Fence Company Check one:_Individual_Partnership Corporation 4;1445 dley Roadv r e, 4 92509 V By By, � 4 gnatu a(notarized) gnature(nd ized) G ERICKSON IN PUSIDENT Name: G�ORIA Y. VENZON Title; Title:-SECRETARY/TREASURER/CFO (This Agreement must be signed in the above space by This Agreement must be signed in the above space by one of the following: Chairman of the Board, President one of the following' Secretary, Chief Financial Officer or any Vlce President) or any Assistant Treasurer) State oreabaRwfft state of CALIFORNIA County or County of i ins AN(-F.T.F. s On At On NOVEMBER 23, 2005 before me, before me, S. MCRENDRICK NOTARY PTTBT TC personally appeared_ personally appeared GLORTA Y. VEN9.ON personally known to meterprov eme�ptklyll7clsnfsalWctactoq•' personally known to me oviel e)to be the personW whose name(*)144W subscribed to )Wll to be the person)whose nari pjM subscribed to the within Instrument and acknowledged to me that heign!A uy the within instrument and acknowledged to me lhatAii*/sheMZK executed thosame In hlsw}�jglr authorized capacity(t,and that executed the same ln$NhefMauthorized capacltylW,and that by hl&4*fAkolr signature(d)on the instrument the person(p),or the byXlherRZ[slgnature(Ill on the instrument the pemon(g),or the entity upon behalf of which the person(s) acted, executed the enilty upon behalf of which the person(4) acted, executed the Instrument. instrument. WITNESS my hand and offlclal seal. WITNESS my hand and official seal. r• Notary Signature P,V—�ft-Q, Notary Signature;�i ' Lw✓�� Notary Seal �(/��� Noeiry Seal WIIIIIIIIIIIII IIIII III Illl,lllu II II I IIIII IIIII Ilu I nJl IIIIIII III IIIIIIIIII III,IIII IIIIIIIIIIIIIII Ilnl IIIIIIIIIL JACQUELINE GORDON a COMM. 4P 1441489 I,,,,, on NOTARY NOTARY PUBLIC - CALIFORNIA cn _ cKENDRICK > f Los ANGELES COUNTY 9 COMM. 1 1580554 '{ p tU; My Comm.Expires Sept.23,2007 2 0� ," �^ NOTARY PUBLIC -CALIFORNIA c n Fuullnlll,n illununlllnlunlllnllllulllllllllllllll,Illllllnll,mmllllll,lllllllllmm�ul""rum y LOS ANGELES COUNTY F' My Comm.Expires May 20,2009 H:\USERSIENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Company.wpd -12- EXHIBIT "A" SCOPE OF SERVICES [Repair or Replace damaged guardrails. Work to include the following: Mobilization, Traffic Control, PM-10 Requirements*, Call USA Alert, California Wage Rate Requirements (Prevailing Wage), Certified Payroll Requirement, remove and dispose damaged guardrail and resulting materials, provide and install new guardrail or re-use existing guardrail necessary to establish original alignment and conformance to Caltrans :specifications at four locations listed below: Street 1 Indian Canyon Drive @ Railroad Bridge, south bound Remove and dispose damaged guardrail and resulting materials. Install 50 LF MBGR with terminal system, Type SRT and connection to bridge abutment 2 East end of Garnet Avenue, east of Indian Canyon Drive Install 25 LF Thrie Beam Barrier with wood post and block 3 Gene Autry Trail @ Railroad Bridge, south bound Re-Install existing rail and steel posts. Remove and haul out excess concrete foundations 4 Southridge Drive, south of East Palm Canyon Drive Remove and dispose damaged guardrail and resulting materials. Install 162.5 LF MBGR with terminal system, and Type SFT. See Exhibit B for explanation MBGR = Metal Beam Guard Railing Fi:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Companympd -13- EXHIBIT "B" SPECIAL REQUIREMENTS A Pre-Construction meeting will be scheduled prior to the start of the work. A "NO FEE" permit will be issued at the Pre-Construction meeting. lit shall be the Contractor's responsibility to protect all existing improvements. The Contractor shall tie responsible for any and all damage done to existing property and adjacent properties during all construction work, and the Contractor, at its expense, shall make any repairs that result from its operation, to the approval of the Engineer and the subject property owner. The work shall be done in accordance with the Standard Specifications for Public Works Construction "Greenbook", 2003 Edition. Insofar as references may be made to Caltrans Standard Specifications, such work shall conform to the referenced portions of the technical provisions only. Provided, that wherever the term "Standard Specifications" is used without the prefix "Caltrans", it shall mean the Standard Specifications for Public Works Construction "Greenbook", 2003 Edition, as specified above. PM-10 Requirements will be as follows: 'I On-site water truck to control dust and track-out as needed per City Municipal Code 8.50.021 2 No Dust Control Plan is required 3 No AQMD sign is required 4 Soil or other potential dust generating materials transported onto or from the site using public streets, shall first be watered sufficiently to prevent generation of dust and then covered so as to prevent any spillage during transport. If deemed necessary, the Public Works and Engineering Division may specify additional measures. Section 4.2 Contract Officer- Pete Agres, Street Maintenance Manager is hereby designated as being the representative the City authorized to act in its behalf with respect to the work and services specified herein and make all decisions in connection therewith ("Contract Officer") Section 4.3, Performance Bond-"Performance Bond" is hereby waived. In lieu of a Performance Bond, submit a Payment Bond for the Contract Amount H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn Fence Company.wpd -14- EXHIBIT "C" SCHEDULE OF COMPENSATION Street Lump Sum 1 Indian Canyon Drive @ Railroad Bridge, south bound 7,430 Remove and dispose damaged guardrail and resulting materials. Install 50 LF MBGR with terminal system, Type SRT and connection to bridge abutment 2 East end of Garnet Avenue, east of Indian Canyon Drive 3,930 Install 25 LF Thrie Beam Barrier with wood post and block 3 Gene Autry Trail @ Railroad Bridge, south bound 4,780 Re-Install existing rail and steel posts. Remove and haul out excess concrete foundations 4 Southridge Drive, south of East Palm Canyon Drive $ 14,975 Remove and dispose damaged guardrail and resulting materials. Install 162.5 LF MBGR with terminal system, and Type SFT. Contract Total $ 31 115 H.\USERS\ENG\Cunli.Agieenienls\Guaidtail Repair-Alcurn Fence Company.wpd -15- EXHIBIT "D" SCHEDULE OF PERFORMANCE Start Date November 28, 2005 Completion Date December 19, 2005 Working Days 15 No work on City Holidays: November 24& 25, 2005 or December 23 & 26, 2005 or January 2, 2006. H:\USERS\ENG\Contr.Agreements\Guardrail Repair-Alcorn hence Company.wpd -16- 1M V11111! \ MI■ IV/ 0111— VI I I IIV VwI�111VVV I 11/15/4UU.7 PRODUCER (949)559-6700 FAX (949)559-6703 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Garrett/Mosier Insurance Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 12 Truman HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Irvine, CA 92620 Dani Rembl eski INSURERS AFFORDING COVERAGE NAIC# INSURED INSURERA. Travelers Property Casualty CO. of America Alcorn Fence Company INSURERS: SeaBright Insurance Company Alcorn Fence Company dba: Atlas Fence Company INSURER C. 9901 Glenoaks Boulevard INSURER D: Sun Valley, CA 91352-1089 INSURER COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDIN( ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR ADDIL TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS GENERAL LIABILITY TE-CO-2394AS22-TIL-05 02/28/2005 02/28/2006 EACH OCCURRENCE $ 1,000,00 X COMMERCIAL GENERAL LIABILITY DAMAGETORENTED de) $ 300,00 CLAIMS MADE � OCCUR MED EXP(Any one person) $ 5,000 A PERSONAL&ADV INJURY $ 1,000,00 GENERAL AGGREGATE $ 2,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,00 POLICY PRO LOG ECT AUTOMOBILE LIABILITY T-810-2394A510-TIL-05 02/28/2005 02/28/2006 COMBINED SINGLE LIMIT X ANY AUTO (Ea accident) $ 1,000,00 ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) A X HIRED AUTOS BODILY INJURY $ X NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANYAUTO OTHER THAN EA ACC $ AUTOONLY: AGG $ E%CFiSSIUMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND BB1050234 04/01/2005 04/01/2006 X WC STATU- OTH- EMPLOYERS LIABILITY B ANY PROPRIETORIPARTNERIEXECUTIVE E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under SPECIAL PROVISIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,00 OTHER DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS E: Guardrail Repair/Replacement - Various Citywide Locations, CP#05-23. his certificate may be relied upon only if the description of operations attachment referred to herein is attached hereto. 10 Day Notice of Cancellation in Event of Non-Payment of Premium. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL KA1GYcX1YUEtM MAIL City of Palm Springs 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Department of Public Works and Engineering N)*tKKKWWLUUKXd4iILYcOLXMXYMXK(X?ixy<#Jfkm)6XX17()LXIXXXX 3200 E. Tahquitz Canyon Way KM*)@M)(MXKN)€Xd6 XNXXXXWWKXP(K*)k)MX*MXXXXXXXXXX Palm Springs, CA 92262 AUTHORIZED REPRESENTATIVE Steven Mosier/DAR ACORD 25(2001108) ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer,and the certificate holder, nor does it affirmatively or negatively amend,extend or alter the coverage afforded by the policies listed thereon. ACORD 25(2001/08) City of Palm Springs :rtificate issued to City of Palm Springs 11/15/2005 x rett/Mosier Insurance Services, Inc. /15/2005 Guardrail Repair/Replacement - Various Citywide Locations, CP#05-23. ty of Palm Springs is added as Additional Insured and this insurance is primary, per CGD2461002 tached, with respect to work performed for them by Alcorn Fence Company; Alcorn Fence Company dba: las Fence Company under General Liability coverage. respects General Liability coverage, a Waiver of Subrogation is hereby included, per CGD3160704 tached. respects Workers' Compensation coverage, a Waiver of Subrogation is hereby included, per WC040306 (4- attached. Alcorn Fence Company Alcorn Fence Co. dba: Atlas Fence Co. COMMERCIAL GENERAL LIABILITY Policy Number: DTE-CO-2394A522-TIL-05 Effective: 02/28105-02/28/06 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY BLANKET ADDITIONAL INSURED (CONTRACTORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART COMMERCIAL GENERAL LIABILITY—CONTRACTORS COVERAGE PART 1. WHO IS AN INSURED — (Section II) is amended c) This insurance does not apply to "bodily in- to include any person or organization you are re- jury" or "property damage" caused by "your quired to include as an additional insured on this work" included in the "products-completed policy by a written contract or written agreement operations hazard" unless you are required to in effect during this policy period and signed and provide such coverage for the additional in- executed by you prior to the loss for which cover- sured by a written contract or written agree- age is sought. The person or organization does ment in effect during this policy period and not qualify as an additional insured with respect to signed and executed by you prior to the loss the independent acts or omissions of such person for which coverage is sought and then only or organization. The person or organization is for the period of time required by such con- only an additional insured with respect to liability tract or agreement and in no event beyond caused by"your work"for that additional insured. the expiration date of the policy. 2. The insurance provided to the additional insured 3. Subpart (1)(a) of the Pollution exclusion under is limited as follows: Paragraph 2., Exclusions of Bodily Injury and a) In the event that the limits of liability stated in Property Damage Liability Coverage (Section I — the policy exceed the limits of liability required Coverages) does not apply to you if the "bodily by a written contract or written agreement in injury' or "property damage" arises out of "your effect during this policy period and signed and work" performed on premises which are owned or executed by you prior to the loss for which rented by the additional insured at the time "your coverage is sought, the insurance provided work" is performed. by this endorsement shall be limited to the 4. Any coverage provided by this endorsement to an limits of liability required by such contract or additional insured shall be excess over any other agreement. This endorsement shall not in- valid and collectible insurance available to the crease the limits stated in Section III—LIMITS additional insured whether primary, excess, con- OF INSURANCE. tingent or on any other basis unless a written b) The insurance provided to the additional in- contract or written agreement in effect during this sured does not apply to "bodily injury", "prop-- policy period and signed and executed by you PpY Y � 1 rY . �P P erty damage", "personal injury" or"advertising prior to the toss for which coverage is sought injury" arising out of an architect's, engineer's specifically requires that this insurance apply on a or surveyor's rendering of or failure to render primary or non-contributory basis. When this in- any professional services including: surance is primary and there is other insurance available to the additional insured from any I. The preparing, approving or failing to source, we will share with that other insurance by prepare or approve maps, shop drawings, the method described in the policy. opinions, reports, surveys, field orders, change orders, or drawings and specifi- 5. As a condition of coverage, each additional cations; and insured must: II, Supervisory or inspection activities per- a.) Give us prompt written notice of any "occur- formed as part of any related architectural rence" or offense which may result in a claim or engineering activities, and prompt written notice of"suit". C:G D2 46 10 02 Copyright, The Travelers Indemnity Company, 2002 Page 1 of 2 I;OMMERCIAL GENERAL LIABILITY b.) Immediately forward all legal papers to us, requirement, the term "insures against' refers cooperate in the investigation or settlement of to any self-insurance and to any insurer which the claim or defense against the "suit," and issued a policy of insurance that may provide otherwise comply with policy conditions, coverage for the loss, regardless of whether c.) Tender the defense and indemnity of any the additional insured has actually requested claim or"suit' to any other insurer which also that the insurer provide the additional insured insures against a loss we cover under this with a defense and/or indemnity under that endorsement. This includes, but is not limited policy of insurance. to, any insurer which has issued a policy of d.) Agree to make available any other insurance insurance in which the additional insured that the additional insured has for a loss we qualifies as an insured. For purposes of this cover under this endorsement. Page 2 of 2 Copyright, The Travelers Indemnity Company, 2002 CG D2 46 10 02 COMMERCIAL GENERAL LIABILITY Alcorn Fence Company dba:Atlas Fence Company Policy No. DTE-CO-2394A522-TIL-05 Effective: 02/28/05-02/28/06 2. This insurance does not apply to damage to 5. This Provision B. does not apply if coverage premises while rented to you, or temporarily for Damage To Premises Rented To You of occupied by you with permission of the COVERAGE A. BODILY INJURY AND owner, caused by: PROPERTY DAMAGE LIABILITY (Section I— a. Rupture, bursting, or operation of pres- Coverages) is excluded by endorsement. sure relief devices; C. BLANKET WAIVER OF SUBROGATION b. Rupture or bursting due to expansion or We waive any right of recovery we may have swelling of the contents of any building or against any person or organization because of structure, caused by or resulting from wa- payments we make for injury or damage arising ter; out of: premises owned or occupied by or rented c. Explosion of steam boilers, steam pipes, or loaned to you; ongoing operations performed steam engines, or steam turbines. by you or on your behalf, done under a contract 3. Paragraph 6. of LIMITS OF INSURANCE with that person or organization; "your work"; or "your products". We waive this right where you (Section III) is deleted and replaced by the have agreed to do so as part of a written contract, following: executed by you before the "bodily injury" or Subject to 5. above, the Damage To Prem- "property damage" occurs or the "personal injury" ises Rented To You Limit is the most we will or"advertising injury"offense is committed. pay under COVERAGE A. for the sum of all D. BLANKET ADDITIONAL INSURED — MANAG- damages because of "property damage" to ERS OR LESSORS OF PREMISES any one premises while rented to you, or temporarily occupied by you with permission WHO IS AN INSURED Section II is amended to of the owner, caused by: fire; explosion; light- include as an insured any person or organization Wing; smoke resulting from such fire, explo- referred to below as "additional insured" with sion, or lightning; or water. The Damage To whom you have agreed in a written contract, exe- Premises Rented To You Limit will apply to all cuted before the "bodily injury" or "property dam- "property damage" proximately caused by the age" occurs or the "personal injury" or "advertis- same "occurrence", whether such damage ing injury" offense is committed, to name as an results from: fire; explosion; lightning; smoke additional insured, but only with respect to liability resulting from such fire, explosion, or light- arising out of the ownership, maintenance or use ning; or water; or any combination of any of of that part of any premises leased to you, subject these causes. to the following provisions: The Damage To Premises Rented To You 1. Limits of Insurance. The limits of insurance Limit will be the higher of: afforded to the additional insured shall be the a. $300,000; or limits which you agreed to provide in the writ- ten contract, or the limits shown on the Decla- b. The amount shown on the Declarations rations, whichever are less. for Damage To Premises Rented To You 2. The insurance afforded to the additional in- Limit. sured does not apply to: 4. Paragraph a, of the deflnition of"insured con- a. Any "bodily injury' or "property damage" tract" (DEFINITIONS — Section V) is deleted that occurs, or"personal injury"or"adver- and replaced by the following: tising injury" caused by an offense which a. A contract for a lease of premises. How- is committed, after you cease to be a ten- ever, that portion of the contract for a ant in that premises; lease of premises that indemnifies any b. Any premises for which coverage is ex- person or organization for damage to cluded by endorsement; or premises while rented to you, or tempo- rarily occupied by you with permission of c. Structural alterations, new construction or the owner, caused by: fire; explosion; demolition operations performed by or on lightning; smoke resulting from such fire, behalf of such additional insured. explosion, or lightning; or water, is not an 3. The insurance afforded to the additional in- "insured contract"; sured is excess over any valid and collectible Page 2 of 6 Copyright, The Travelers Indemnity Company, 2004 CG D3 16 07 04 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT—CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from US.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 2% of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description WHERE REQUIRED BY WRITTEN CONTRACT, PROVIDED THE CONTRACT IS SIGNED AND DATED PRIOR TO THE DATE OF LOSS TO WHICH THIS WAIVER APPLIES. IN NO INSTANCE SHALL THE PROVISIONS AFFORDED BY THIS ENDORSEMENT BENEFIT ANY COMPANY OPERATING AIRCRAFT FOR HIRE. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 4/1/05 Policy No. BB1050234 Endorsement No. Insured Alcorn Fence Company* Policy Effective Date 4/1/05 . Insurance Company SeaBright Insurance Company *Alcorn Fence Company dba:Atlas Fence Company v✓ Countersigned By _ WC 04 03 CI6 (Ed.4-84) ©1998 by the Workers'Compensation Insurance Rating Bureau of California.All rights reserved. PAYMENT BOND TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA (Public Work) Hartford, Connecticut 06183 Bond No.: 104493102 EXECUTED IN DUPLICATE PREMIUM: $173.00 KKI, 1A ALL BY THESE PRESENTS, That we, ALCORN FENCE COMPANY, as Principal, and Travelers Casualty and Surety Company of America, a Connecticut corporation, as Surety, are held and firmly bound unto CITY OF PALM SPRINGS, as Obligee, in the sum of THIRTY ONE THOUSAND ONE HUNDRED FIFTEEN AND NO/100 U.S. Dollars ($31,115.00) for the payment whereof said Principal and Surety bind themselves, jointly and severally, as provided herein. WHEREAS, Principal has entered into a contract with Obligee, dated on or about November 15, 2005, for GUARDRAIL REPAIR/REPLACEMENT-VARIOUS CITYWIDE LOCATIONS, CP#05-23 ("Contract"). NOW, THEREFORE, the condition of this obligation is such that if Principal shall promptly make payment to all Claimants as hereinafter defined for all labor and material actually used, consumed or incorporated in the performance of the construction work to be performed under the Contract, then this obligation shall be void; otherwise to remain in full force and effect, subject, however, to the following conditions: 1. A Claimant is defined as one other than Obligee having a contract with Principal or with a direct subcontractor of Principal to supply labor and/or materials and said labor and/or materials are actually used, consumed or incorporated in the performance of the construction work under the Contract. 2. Principal and Surety hereby jointly and severally agree with Obligee that every Claimant as herein defined who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such Claimant's work or labor was done or performed or materials were furnished by such Claimant, may bring suit on this bond, prosecute the suit to final judgment for the amount due under Claimant's contract for the labor and/or materials supplied by the Claimant which were used, consumed or incorporated in the performance of the work, and have execution thereon; provided, however, that a Claimant having a direct contractual relationship with a subcontractor of Principal shall have a right of action on this bond only if said Claimant notifies Surety in writing of its claim within ninety (90) days from the date on which said Claimant did or performed the last labor and/or materials for which the claim is made. Obligee shall not be liable for the payment of any costs or expenses of any such suit. 3. No suit or action shall be commenced hereunder by any Claimant: a. After the expiration of the earlier of: (1) one year after the day on which Claimant last supplied the labor and/or materials for which the claim is made; or (2) the limitation period set forth in the public works bond statutes, if any, in the location where the construction work is being performed. Any limitation contained in this bond which is prohibited by any law controlling in the state where the suit is filed shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by the law of that state, and said period of limitation shall be deemed to have accrued and shall commence to run on the day Claimant last supplied the labor and/or materials for which the claim is made; and b. Other than in a state court of competent jurisdiction in the county or other political subdivision of the state in which the project, or any part thereof, is situated, or in the United States District Court for the district in which the project, or any part thereof, is situated, and not elsewhere. Payment Bond—Page 1 of 2 4. The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder. Surety's liability hereunder is limited, singly, or in the aggregate, to the penal sum of the bond set forth herein. 5. This bond is provided to comply with a statutory or other legal requirement for performing construction contracts for public owners in the location where the construction work is being performed. Except as provided in paragraph 3 above, all provisions in the bond which are in addition to or differ from those statutory or legal requirements shall be read out of this bond, and all pertinent statutes and other legal requirements shall be read into the bond. This bond is a statutory bond, not a common law bond. Signed this 15TH day of NOVEMBER, 2005. ALCORN FENCE COMPANY (Principal) By. ja( 1. " iR G ERIC.€"'301,, PREWDENT Travelers Casualty andSurety Company of America By `- � !�_ JU ITH K. CUNNINGHAM., Attorne 'n-Fact Payment Bond-Page 2 of 2 NOTARY ACKNOWLEDGEMENT State of California County of Orange On November 15, 2005 before me, Sandi Ricard Notary (Date) (Name/Title-Notary Public) personally appeared Judith K. Cunningham personally known to me- OR- ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and c�44� l , I��stg�y l� that by his/her/them signature(s)on the instrument / the person(s), or the entity upon behalf of which M the person(s) acted, executed the instrument. Ny Comm.Expires Mzr. 1,2007 b Witness my hand and of ial seal. (Signature of Notary) OPTIONAL INFORMATION CAPACITY CLAIMED BY SIGNER(S) [] INDIVIDUAL [] CORPORATE ❑ OFFICER(S)_ (Title) PARTNERS(S) LIMITED GENERAL [� ATTORNEY-IN-FACT [] TRUSTEE(S) [] GUARDIAN/CONSERVATOR OTHER: SIGNER IS REPRESENTING: TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY AND SURETY COMPANY FARMINGTON CASUALTY COMPANY Hartford,Connecticut 06183-9062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEYS)-IN-FACT KNOW ALL PERSONS BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, corporations duly organized under the laws of the State of Connecticut, and having their principal offices in the City of Hartford, County of Hartford, State of Connecticut, (hereinafter the "Companies") hath made, constituted and appointed, and do by these presents make, constitute and appoint: John M. Garrett, Steven C. Mosier, Judith K Cunningham, Denise Bennett, Erika Nicholas, Geraldine R. McEwen, of Irvine, California, their true and lawful Attomey(s)-in-Fact, with full power and authority hereby conferred to sign, execute and acknowledge, at any place within the United States, the following instrument(s): by his/her sole signature and act, any and all bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto and to bind the Companies,thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the Companies, and all the acts of said Attomey(s)-in-Fact,pursuant to the authority herein given,are hereby ratified and confirmed. This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions are now in full force and effect: VOTED: That the Chairman,the President,any Vice Chairman,any Executive Vice President,any Senior Vice President,any Vice President,any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attomeys-in-Fact and Agents to act for and on behalf of the company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds,recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond,recognizance,or conditional undertaking,and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her. VOTED: That the Chairman, the President, any Vice Chairman,any Executive Vice President, any Senior Vice President or any Vice President may delegate all or anypart of the foregoing authority to one or more officers or employees of this Company,provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary. VOTED: That any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when(a)signed by the President,any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary,or(b)duly executed(under seal,if required)by one or more Attomeys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority. This Power of Attorney and Certificate of Authority is signed and sealed by facsimile (mechanical or printed) under and by authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY,which Resolution is now in full force and effect: VOTED: That the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents,Resident Assistant Secretaries or Attomeys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof,and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. (02-05)Unlimited IN WITNESS WHEREOF, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY have caused this instrument to be signed by their Senior Vice President and their corporate seals to be hereto affixed this 28th day of April, 2005. STATE OF CONNECTICUT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY AND SURETY COMPANY }SS.Hartford FARMINGTON CASUALTY COMPANY COUNTY OF HARTFORD ., ���'f,U�•�49`E'f�YC 9`4��1Y ANOs �py.ApSU,��T V 3�•I{AORp,t i�e� c NARTFORD, KU 1962 p BY cavN. fe cDN"' ;o � +a George W. Thompson Senior Vice President On this 28th day of April, 2005 before me personally came GEORGE W. THOMPSON to me known, who, being by me duly sworn, did depose and say: that he/she is Senior Vice President of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, the corporations described in and which executed the above instrument; that he/she knows the seals of said corporations; that the seals affixed to the said instrument are such corporate seals; and that he/she executed the said instrument on behalf of the corporations by authority of his/her office under the Standing Resolutions thereof. Ct43WGIO) My commission expires June 30, 2006 Notary Public Marie C.Tetreault CERTIFICATE I, the undersigned, Senior Vice President of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY,stock corporations of the State of Connecticut, DO HEREBY CERTIFY that the foregoing and attached Power of Attorney and Certificate of Authority remains in full force and has not been revoked; and furthermore, that the Standing Resolutions of the Boards of Directors, as set forth in the Certificate of Authority,are now in force. Signed and Sealed at the Home Office of the Company,in the City of Hartford, State of Connecticut. Dated this 15TH day of NOVEMBER 12005 . " ell J,,QY ANO l$`p;n wn�Y e sc ?pASU��ri ��•WiRfFORO�T'i� x" FURIFORD i ��1982� O �f� � CONN, f �rYi{•.._4�a � `a 4 Nib day .erAe� By I► Nicholas Seminara Senior Vice President STPAUL BOND NO: 104493102 TRAVELERS NOVEMBER 15, 2005 IMPORTANT DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE On November 26, 2002, President Bush signed into law the Terrorism Risk Insurance Act of 2002 (the "Act"). The Act establishes a short-term program under which the Federal Government will share in the payment of covered losses caused by certain acts of international terrorism. We are providing you with this notice to inform you of the key features of the Act, and to let you know what effect, if any, the Act will have on your premium. Under the Act, insurers are required to provide coverage for certain losses caused by international acts of terrorism as defined in the Act. The Act further provides that the Federal Government will pay a share of such losses. Specifically, the Federal Government will pay 90% of the amount of covered losses caused by certain acts of terrorism which is in excess of an insurer's statutorily established deductible for that year. The Act also caps the amount of terrorism-related losses for which the Federal Government or an insurer can be responsible at $100,000,000,000.00, provided that the insurer has met its deductible. Please note that passage of the Act does not result in any change in coverage under the attached policy or bond (or the policy or bond being quoted). Please also note that no separate additional premium charge has been made for the terrorism coverage required by the Act. The premium charge that is allocable to such coverage Is inseparable from and imbedded in your overall premium, and is no more than one percent of your premium. ILT-1018 (9/04) CONTRACT ABSTRACT Contract Company Name: Alcorn Fence Company Company Contact: Bob Jenkins Summary of Services: CP#05-23,Repair/Replacement Guardrails Citywide Contract Price: $31,115 Funding Source: 133-4298-50246 Contract Term: November 16, 2006 Contract Administration Lead Department: Public Works &Engineering Contract Administrator: David Barakian/George Farago Contract Approvals CounciUWPUMM Agency Approval Date: November 16, 2005 Minute Order : 7774 Agreement Number: 5189 Contract Compliance Exhibits: Signatures: Insurance: I Bonds: I I I Contract prepared by: Submitted on: By: I I I M E M O R A N D U M TO: Carrie Rovney \ Public Works & Engineering FROM: `%Kathie Hart, CMC 'Chief Deputy City Clerk DATE: December 15, 2005 SUBJECT: Alcorn Fence Company—A5189 cc: File Attached is a duplicate original for your files and/or distribution. We have retained the original For our records. Please feel free to contact me if there are any questions, ext. 8206. /kdh attach.