City Council / Housing Authority
February 3, 2025

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PUBLIC WORKS CONTRACT

Between

The City of Pomona

and

Garcon Construction, Inc.

For

ADA Curb Ramps and Path of Travel
(Citywide)(CDBG)(FY 23-24)
[Construction]

Project No. 428-67941
IFB NO: 2024-69
(Updated 07/16/2024)

ATTACHMENT NO. 2

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PUBLIC WORKS CONTRACT
ADA Curb Ramps and Path of Travel (Citywide)
(CDBG)(FY 23-24) [Construction]
Project No. 428-67941
IFB NO: 2024-69

TABLE OF CONTENTS

ARTICLE 1.   SCOPE OF WORK. A-4
ARTICLE 2.   TIME FOR COMPLETION. A-4
ARTICLE 3.   CONTRACT PRICE. A-4
Sec. 3.1   Contract Price. A-4
Sec. 3.2   Payment Terms A-5
ARTICLE 4.   COMPONENT PARTS OF THE CONTRACT. A-5
ARTICLE 5.   PROVISIONS REQUIRED BY LAW. A-5
Sec. 5.1   Contractors License. A-5
Sec. 5.2   Ineligible Contractor Prohibited. A-6
Sec. 5.3   Unfair Business Practices Claims. A-6
Sec. 5.4   Trenches, Excavations and Unknown Conditions. A-6 Sec. 5.5   Trench and Pipeline Safety. A-6
Sec. 5.6   Utility Relocation. A-7
Sec. 5.7   Third Party Claims Notification. A-7
Sec. 5.8 State License Board Notice. A-7
ARTICLE 6.   INSURANCE, BONDS AND INDEMNIFICATION. A-8 ARTICLE 7.   LABOR AND WAGE PROVISIONS. A-10
Sec. 7.1   Prevailing Wages. A-10
Sec. 7.2   Apprentice Program. A-10
Sec. 7.3   Legal Hours of Work and Overtime. A-10
Sec. 7.4   Payroll Records. A-10
ARTICLE 8.   COORDINATION OF WORK A-12
ATTACHMENT NO. 2

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Sec. 8.1   Representative of Contractor. A-12
Sec. 8.2   Contracting Officer. A-13
Sec. 8.3   Prohibition Against Assignment. A-13
Sec. 8.4   Independent Contractor. A-13
Sec. 8.5   Identity of Persons Performing Work. A-13
ARTICLE 9.   ENFORCEMENT OF CONTRACT A-14
Sec. 9.1   California Law. A-14
Sec. 9.2   Disputes A-14
Sec. 9.3   Waiver. A-14
Sec. 9.4   Rights and Remedies are Cumulative. A-14
Sec. 9.5   Legal Action. A-15
Sec. 9.6   Termination for Default of Contractor. A-15 Sec. 9.7   Termination for Convenience. A-15
Sec. 9.8   Attorneys' Fees. A-15
Sec. 9.9   Legal Actions Against the City A-16
ARTICLE 10.   CITY OFFICERS AND EMPLOYEES, NONDISCRIMINATION A-18 Sec. 10.1   Non-liability of City Officers and Employees. A-18 Sec. 10.2    Conflict of Interest. A-19
Sec. 10.3    Covenant Against Discrimination. A-19
ARTICLE 11.   MISCELLANEOUS PROVISIONS A-20
Sec. 11.1   Notice. A-20
Sec. 11.2   Interpretation. A-20
Sec. 11.3   Integration; Amendment. A-20
Sec. 11.4   Severability. A-21
Sec. 11.5   Hiring of Undocumented Workers Prohibited A-21 Sec. 11.6   Corporate Authority A-21
Sec. 11.7   Independent Contractor. A-21
Sec. 11.8   Legal Responsibilities. A-21
Sec. 11.9   Sales And/Or Taxes: A-21
ATTACHMENT NO. 2

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PUBLIC WORKS CONTRACT
ADA Curb Ramps and Path of Travel-
Citywide (CDBG) (FY 23-24)
Project No. 428-67941

THIS CONTRACT ("Contract") is made and entered into on February 4, 2025, in the County of Los Angeles, State of California, by and between the City of Pomona, hereinafter called City, and Garcon Construction, Inc., hereinafter called Contractor. The City and the Contractor for the considerations stated herein agree as follows:

ARTICLE 1. SCOPE OF WORK.

The Contractor shall perform all Work within the time stipulated in the Contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 4 below for the following Project(s):
“ADA Curb Ramps and Path of Travel- Citywide
(CDBG) (FY 23-24)”
Project No. 428-67941
IFB NO: 2024-69

The Contractor and its surety shall be liable to th e City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION.

The Work shall be commenced on the date stated in the City’s Full Notice to Proceed. All work to be done under this contract shall be completed within 60 consecutive working days for all the base bid work and 10 consecutive working days for a ll the additive alternate work (if awarded), and if only a portion of the additive altern ate work is awarded the allowed additive alternate working days will be prorated based on the dollar amount) beginning on the date stipulated in the written "Notice to Proceed" issued by the City Engineer. All base bid work shall be completed prior to additive alternate work unless otherwise approved by the City Engineer.

ARTICLE 3. CONTRACT PRICE.

Sec. 3.1 Contract Price.

The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, for Base Bid items and Additive Alternates No. 1 through 3, and including all applicable taxes and costs, the sum of Seven Hundred Thirteen Thousand, Th ree Hundred and Ninety-Eight Dollars and Ten Cents ($713,398.10).

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Sec. 3.2 Payment Terms
Payment shall be made as set forth in the Section 7 of Special Provisions.

ARTICLE 4. COMPONENT PARTS OF THE
CONTRACT.

The “Contract Documents” include the following:
• Purchasing Specifications
• Special Provisions Contractor's Bid Forms
• Contractor’s Certificate Regarding Workers’ Compensation • Bid Bond
• Statement of Non-Collusion by Contractor
• Agreement for Indemnification by Contractor and Acceptance and Acknowledgment of Procurement Practices of the City of Pomona • Public Works Contract
• Performance Bond
• Payment (Labor and Materials) Bond
• Worker’s Compensation/Employers Liability Endorsement • General Liability Endorsement
• Automobile Liability Endorsement
• Special Provisions (or Special Conditions)
• Technical Specifications
• Green book Standard Specifications (Sections 1-9 Excluded, except as specifically referenced herein)
• Addenda
• Approved and fully executed change orders
• All other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents.

All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.

ARTICLE 5. PROVISIONS REQUIRED BY LAW.

Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federa l, state and local laws, rules a nd regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project. Such laws, rules a nd regulations shall include, but not be limited to the following.

Sec. 5.1 Contractors License.

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The Contractor shall possess a Ty pe "A" or Type “C8” California Contractor's license at the time of award of the Contract.

Sec. 5.2 Ineligible Contractor Prohibited.

Any contractor or subcontractor who is ineligible to perform work on a public works project pursuant to Section 1777.1 or 1777.7 of the Labor Code is prohibi ted from performing work under this Contract.

Sec. 5.3 Unfair Business Practices Claims.

The Contractor or subcontractor offers and agr ees to assign to the City all rights, title, and interest in and to all causes of action it may have under Sec tion 4 of the Clayton Act (15 U.S.C.

Section 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 pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the City renders final payment to the Contractor without further acknowledgment by the parties. (California Public Contract Code Section 7103.5.).

Sec. 5.4 Trenches, Excavations and Unknown Conditions.

Pursuant to California Public Contract Code Section 7104, in the event the work included in this Contract requires excavations more than four (4) feet in depth, the following shall apply. (a) Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of all: (1) material that Contractor be lieves is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance w ith provisions of existing law; (2 ) Subsurface or latent physical conditions at the site different from those indicated; or (3) Unknown physical conditions at the site of any unusual nature, different materially fr om those ordinarily en countered and generally recognized as inherent in work of the character provided for in the contract. (b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous wa ste, and cause a decrease or increase in Contractor’s cost of, or the time required for, pe rformance of any part of the work shall issue a change order per Section 3 of the Special Provisions.
(c) That, 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 provided for by the contract, but shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties.

Sec. 5.5 Trench and Pipeline Safety.

If this Contract is for more than $25,000 and invol ves excavation of any trench five feet or more in depth, the Contractor shall submit a detailed plan of shoring, bracing, sloping or other provisions to be made for worker protection in accordance with Labor Code Section 6705. Such plan shall be ATTACHMENT NO. 2

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reviewed by the City, and if no exceptions are taken by the City the plan shall be deemed accepted by the City. In addition, the Contractor, in accordance with California Labor Code Sections 6500, 6501 and 6502, shall submit a Permit Application Form (see Appendix, Part 7 for sample of this document) to State of California, Department of Industrial Relation, Division of Occupational Safety & Health for a permit.

Sec. 5.6 Utility Relocation.

City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse contractor for any costs incurred in locating, repairing damage not caused by Contractor and removing or relocating such unidentified uti lity facilities, including equipment idled during such work. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.

Sec. 5.7 Third Party Claims Notification.

The City shall timely notify the Contractor in writing of any third party claims relating to the contract.

Sec. 5.8 State License Board Notice.

Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4 ) years of the date of the alleged violation. A complaint regarding a latent act or omission pertai ning to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, C ontractors’ State License Bo ard, P.O. Box 26000, Sacramento, California 95826.

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ARTICLE 6. INSURANCE, BONDS AND
INDEMNIFICATION.

Insurance. All insurance issued in compliance with this section shall be issued in the form, and by an insurer or insurers, satisf actory to and first approved by the City in writing. Certificates of insurance in the amounts required shall be furnishe d by the Contractor to the City prior to the commencement of work.

The Contractor shall maintain adequate workman's compensation insurance under the laws of the State of California for all labor employed by him or by any Subcontra ctor under him who may come within the protection of such workman's compensation insurance laws. At the time of execution of the Contract, the Contractor shall provide the certificate in substantially the following form: "I am aware of the provisions of Sec tion 3700 of the Labor Code which require every employer to be insured against liability for worker s' compensation or to undertake self-insurance in accordance with the provisions of that code, a nd I will comply with such provisions before commencing the performance of the work of this contract." (California Labor Code 1860-1861).

The Contractor shall maintain during the life of this Contract public liability and property damage insurance in which the City shall be named as an additional insured, and which shall protect the Contractor or any subcontractor performing work covered by the contract from claims for personal injury, including accidental death as well as for claims for personal damages and property damages which may arise from the operations under any contract entered into whether such operations shall be performed by the Contractor or any subcontractor, or by anyone directly or indirectly employed by any one of them. The City of Pomona and its elected or appointed officials, directors, officers, agents, employees, volunteers, or contractors sh all be named as an "Additional Insured" under public liability and property damage insurance. The issuing insurance company must have A.M.

Best rating no less than A-:VII. Al l said insurance policies, as de scribed in this section, shall provide that the same is non-cancelable except upon thirty (30) calendar days written notice to the City.

The limit of liability for such insurance shall be as follows:

1. General Liability:

Each Person Each Occurrence Aggregate

Bodily Injury

$500,000

$1,000,000

$2,000,000

Property Damage

---

$1,000,000

$2,000,000

A combined single limit policy with aggreg ate limits in the amount of $2,000,000 will be considered equivalent to the above minimum limits.

2. Automobile Liability
Any vehicle, combined single limit $1,000,000
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Bonds. The Contractor shall secure with a responsible corporate su rety or corporate sureties, satisfactory bonds conditioned upon faithful perfor mance by the Contractor of all requirements under the contract and upon the payment of claims of material, men and laborers there-under. The Faithful Performance Bond shall be in the sum of not less than one hundred percent (100%) of the estimated aggregate amount of the payments to be made under the contract computed on the basis of the prices stated in the bid. The Faithful Performance Bond shall convert to a Warranty Bond in the amount of Fifty (50%) percent of the amount of the contract price plus all change orders, and shall cover warranty of the work and materials for a period of one year after the recordation of the Notice of Completion. The Labor a nd Material Bond shall be in the sum of not less than one hundred percent (100%) of the estimated aggregate amount of the payments to be made under the contract computed on the basis of the prices stated in the bid. Both bonds shall be on forms provided by the City. At the time of submitting the Faithful Performance Bond and the Labor and Material bond the insurer shall submit to the City the following:
(a) the original, or certified copy of the unrevoked appoint ment, power of attorney, bylaws, or other instrument entitling or authorizing the person who executed the bond; or (b) a certified copy of the certificate of authority of the insurer issued by the Insurance Commissioner; or
(c) a certificate from the Los Angeles County Clerk stating that the certificate of authority of the insurer has not been surrendered, revoked, canceled, annulled, or suspended or, in the event that it has, that renewed authority has been granted; or (d) copies of the insurer’s most recent annua l statement and quarterly statement filed with the Department of Insura nce pursuant to Article 10 (co mmencing with Section 900) of Chapter 1 of Part 2 of Division 1 of the Insura nce Code, Department of Insurance pursuant to Article 10 (commencing with Section 900) of Chapte r 1 of Part 2 of Divi sion 1 of the Insurance Code.

Indemnity. Contractor hereby agrees to indemnify, in cluding the cost to defend the City, and its officers, officials, agents, employees, and volunt eers, from any and all losses, claims, liens, demands, liability, and causes of action of ever y kind and character including, but not limited to, the amounts of judgment, interests, court costs, legal fees, expert co sts, expert fees and other all expenses incurred by the City to the maximum extent allowed by law arising in favor of any party, that arise out of, or pertain to, or relate to the negligence, reck lessness, or willful misconduct of Contractor, its agents, subcontract or’s or subcontractor’s agents, in the performance of services under this contract, but this indemnity does not apply to liabili ty for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the ag ents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City.

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ARTICLE 7. LABOR AND WAGE PROVISIONS.

Sec. 7.1 Prevailing Wages.

Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City Engineer's office or may be obtained online at http//www.dir.ca.gov/dlsr and which must be posted at the job site. The Contractor shall forfeit as a penalty to the City not more than Two H undred Dollars ($200.00), purs uant to Labor Code section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the Department of Industrial Relations for such work or craft in which such worker is employed for any public work done under the Contract by it or by any subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.

Sec. 7.2 Apprentice Program.

The Contractor's attention is directed to the provisions of Sections 1777.5 and 1777.6 of the Labor Code concerning the employment of apprentices by the Contractor or any Subcontractor under him. The Contractor and any Subcontractor under him shall comply with the requirements of said sections in the employment of apprentices.

Information relative to apprenticeship standards and administration of the apprenticeship program may be obtained from the Director of Industrial Relations, P.O. Box 603, San Francisco, California 94101 or from the Division of Apprenticeship Standards and its branch office.

Sec. 7.3 Legal Hours of Work and Overtime.

Pursuant to Labor Code Section 1810, et se q., eight hours of work is a legal days work, and hours worked in excess of that amount must be paid as overtime at a rate of not less than one and one-half time the basic rate of pay. The Contractor and subcontractors shall keep an accurate record showing the name and actual hours worked for each calendar day and week for each workman. The Contractor shall pay a penalty of $25 per day for each violation of these wage provisions.

Sec. 7.4 Payroll Records.
(a) The Contractor's attention is directed to the following provisions of Labor Code Section 1776. The Contractor shall be responsible for compliance with its provisions by Contractor and his Subcontractors.
(b) In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the ce rtified payroll records directly to the Department of Industrial Relations on the specified interval and format prescribed by the Department of Industrial Relations, which may include electronic subm ission. Contractor shall comp ly with all requirements and regulations from the Department of Industrial Re lations relating to labor compliance monitoring and enforcement. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 sha ll not apply to work performed on a public ATTACHMENT NO. 2

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works project that is exempt pursuant to the sm all project exemption specified in Labor Code Section 1771.4.
(c) Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Cont ractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless fr om any claim or liabili ty arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor. (d) Each Contractor and Subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, and straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by him or her in connection with the public work.

Each payroll record shall contai n or be verified by a written d eclaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by hi s or her employees on the public works project.
(e) The payroll records enumerated under subdi vision (b) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the Contractor on the following basis:
(1) A certified copy of an employee's payroll record shall be made available for inspection or furnished to such employee or his or her authorized representative on request. (2) A certified copy of all payroll records enumerated in subdivision (b) shall be
made available for inspection or furnished upon re quest to a representative of the body awarding the contract, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in subdivision (b) shall be
made available upon request to the public for inspection or for copies thereof. However, a request by the public shall be made th rough either the body awarding th e contract, th e Division of Apprenticeship Standards, or th e Division of Labor Standards En forcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made . The public shall not be given access to such records at the principal office of the Contractor.

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(f) The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division. (g) Each Contractor shall file a certified copy of the records enumerated in subdivision (b) with the entity that requested such records within 10 days after receipt of a written request. (h) Any copy of records made available for inspection as copies and furnished upon request to the public or any pub lic agency by the awarding body, th e Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contract or awarded the contract or perf orming the contract shall not be marked or obliterated.
(i) The Contractor shall inform the body awar ding the contract of the location of the records enumerated under subdivision (b), including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address. (j) The contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects the contractor must comply with this section. In the event that the contractor fails to comply within the 10 day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one hundred dollars ($100.00) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. (k) The Contractor and Subcontractors shall submit to the City Engineer certified payrolls and copies of all payroll checks and pay stubs showing all itemized deductions for each employee on a weekly basis during the term of this contract.

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ARTICLE 8. COORDINATION OF WORK
Sec. 8.1 Representative of Contractor.

The following principals of Contractor are he reby designated as being the principals and representatives of Contractor auth orized to act on its behalf with respect to the work specified herein and make all decisions in connection therewith:

Name / Title: Gabriel Garcia Jr., Project Manager
Company / Firm: Garcon Construction, Inc.

Address: 4975 W. Phillips Blvd.

City/State/Zip: Ontario, CA 91762
Phone/Email: (909) 591-8601
It is expressly understood that the experien ce, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Contract. Therefore, the foregoing principals shall be responsible duri ng the term of this Cont ract for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder.

For purposes of this Contract, the foregoing pr incipals may not be replaced nor may their responsibilities be substantially reduced by Cont ractor without the express written approval of City.

Sec. 8.2 Contracting Officer.

The Contracting Officer shall be such person as may be designated by the City Manager. It shall be the Contractor's responsibility to assure that the Contracting 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 Contr acting Officer. Unless otherwise sp ecified herein, any approval of City required hereunder shall m ean the approval of the Contra cting Officer. The Contracting Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Contract.

Sec. 8.3 Prohibition Against Assignment.

The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Contract. Neither this Contract nor any interest herein may be transf erred, 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 sh all 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, ta king all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Contract shall be void.

No approved transfer shall releas e the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.

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Sec. 8.4 Independent Contractor.

Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its subcontra ctors, agents or employees, performs the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contr actor's employees, subcontractors, servants, representatives or agents, or in fixing their number , compensation or hours of service. Contractor shall perform all services required herein as an i ndependent contractor of City and shall remain at all times as to City a wholly independent contract or with only such oblig ations as are consistent with that role.

Contractor shall not at any time or in any manner represent that it or any of its subcontractors, agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contract or in its business or otherwise or a joint venture or a member of any joint enterprise with Contractor.

Sec. 8.5 Identity of Persons Performing Work.

Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services set forth herein. Contractor represents that the tasks and services requ ired herein will be performed by Contractor or under its direct supervision, and that all personnel engaged in su ch work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services.

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ARTICLE 9. ENFORCEMENT OF CONTRACT
Sec. 9.1 California Law.

This Contract shall be construed and interpreted both as to validity and as 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 Contract shall be instituted in the Superior Court of the County of Los Angeles, Stat e of California, or any other a ppropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

Sec. 9.2 Disputes.

In the event either party fails to perform its obligations hereunder, the non-defaulting party shall provide the defaulting party written notice of such default. The defaulting party shall have ten (10) days to cure the default; provided that, if the de fault is not reasonably susceptible to being cured within said ten (10) day period, the defaulting party shall have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, so long as the defaulting party commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the defaulting party shall take such immediat e action as may be necessary.

Notwithstanding the foregoing, the non-defaulting part y may, in its sole and absolute discretion, grant a longer cure period. Should the defaulting party fail to cure the default within the time period provided in this Section, the non -defaulting party shall have the right, in addition to any other rights the non-defaulting party may have at law or in equity, to terminate this Contract. Compliance with the provisions of this Section 9.2 shall be a condition precedent to bringing 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.

Sec. 9.3 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 Contract.

Sec. 9.4 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Contract, the rights and remedies of the parties are cumulative a nd 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.

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Sec. 9.5 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 recove r damages for any default, to compel specific performance of this Contract, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Contract.

Sec. 9.6 Termination for Default of Contractor.

If termination is due to the failure of the Contra ctor to fulfill its obliga tions under this Contract, Contractor shall vacate any City owned prope rty which Contractor is permitted to occupy hereunder and City may, after co mpliance with the provisions of Section 9.2, 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 co st for completion of the servic es 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 th e purpose of setoff or partial payment of the amounts owed the City as previously stated.

Sec. 9.7 Termination for Convenience.

The City may terminate this C ontract without cause for the c onvenience of the City upon giving contractor thirty (30) days prior written notice of termination of the Contract. Upon receipt of the notice of termination, the Contract or shall cease all further work pursuant to the Contract unless otherwise indicated in the notice. Upon such termination by the City, the Contractor shall not be entitled to any other remedies, cl aims, actions, profits, or damages except as provided in this paragraph. Upon the receipt of such notice of termin ation, Contractor shal l be entitled to the following compensation:
(a) The contract value of the work completed to the City’s satisfaction as solely determined by the City up to and including the termination date indicated in the notice of termination, less the amount of progress payments received by contractor. (b) Actual move-off costs including labor, rental fees, equipment transportation costs, the costs of maintaining on-site construction office for supervising the mover-off. (c) The cost of materials custom-made for th is Contract which cannot be used by the Contractor in the normal course of his business, and which have not been paid for by City in progress payments.
(d) All costs shall not include any markups as might otherwise be allowed by any plans or specifications which were a part of the Contract.

The provisions of this paragraph shall supersed e any other provision of the Contract or any provision of any plans, specification, addendums or other documents which are or may become a part of this Contract. City a nd Contractor agree that the provi sions of this paragraph are a substantive part of the consideration for this Contract.

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Sec. 9.8 Attorneys' Fees.

If either party to this Contract is required to in itiate or defend or made a party to any action or proceeding in any way connected with this Cont ract, 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 enfor ceable whether or not such action is prosecuted to judgment.

Sec. 9.9 Legal Actions Against the City
In the event litigation is brought against the City concerning compliance by the City with State or Federal laws, rules or regulations applicable to highway work, the provisions of this section shall apply.
(a) If, pursuant to court order, the City prohibits the Contractor from performing all or any portion of the work, the delay will be considered a right of way delay w ithin the meaning of Subsection 6-6 of the Standard Specification unless the contract is terminated as hereinafter provided, in which event compensation payable to the Contractor shall be determined in accordance with said termination provisions.
(b) If, pursuant to court order (other than an order to show cause) the City is prohibited from requiring the Contractor to perform all or any portion of the work, the City may, if it so elects, eliminate the enjoined work pursuant to Section 3 of the Standard Specifications or terminate the contact in accordance with Subsections 6-3 and 6-5 of the Standard Specifications. (c) If the final judgment in the action prohibits the City from requiring the Contractor to perform all or any portion of the work, the City will either eliminate the enjoined work pursuant to Sections 3 of the Standard Specifications or terminate the contract in accordance with Subsections 6-3 and 6-5 of the Standard Specifications. (d) Termination of the contract and the tota l compensation payable to the Contractor in the event of termination shall be governed by the following:
(1) The City Engineer will issue the Contractor a written notice specifying that the contract is to be terminated. Upon receipt of said written notice and, except as otherwise directed in writing by the City Engineer, the Contractor shall:
a. Stop all work under the contract, except that specifically directed to be completed prior to acceptance.
b. Perform work the City Engineer deems necessary to secure the project for termination.
c. Remove equipment and plan from the site of the work. d. Take such action as is necessary to protect materials from damage.

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e. Notify all Subcontractors and supplie rs that the contract is being terminated and that their contracts of orders are not to be further performed unless otherwise authorized in writing by the City Engineer. f. Provide the City Engineer with an inventory list of all materials previously produced, purchased or orde red from suppliers for use in the work and not yet used in the work, including its storage location and such other information as the City Engineer may request.
g. Dispose of materials not yet used in the work as directed by City Engineer. It shall be the Contractor's responsibility to provide the City with good title to all materials purchased by the City hereunder, including materials for which partial paymen t has been made as provided in Subsection 9-3.2 of the Standard Specifi cations, and with bills of sale or other documents of title for such materials.
h. Subject to the prior written approval of the City Engineer, settle all outstanding liabilities and all claims ar ising out of subcontracts or orders for materials terminated hereunder. To the extent directed by the City Engineer, the Contractor shall assign to the City all the right title and interest of the Contractor under subcontracts or orders for materials terminated hereunder.
i. Furnish the City Engineer with the documentation required to be furnished by the Contractor under the pr ovisions of the contract including, on projects as to which Federal fu nds are involved, all documentation required under the Federal requirements included in the contract. j. Take such other actions as the City Engineer may direct.

(2) Acceptance of the contract as hereinafter specified shall not relieve the Contractor of responsibility for damage to materials except as follows:

a. The Contractor's responsibility fo r damage to materials for which partial payment has been made as provided in Subsection 9-3.2 of the Standard Specifications, and for materi als furnished by the City for use in the work and unused, shall terminate when the City Engineer certifies that such materials have been stored in the manner and at the locations he has directed.
b. The Contractor's responsibility fo r damage to materials purchased by the City subsequent to the issuance of the notice that the contract is to be terminated shall terminate when title and delivery of the materials has been taken by the City.
c. When the City Engineer determines that the Contractor has completed the work under the contract directed to be completed prior to termination and such other work as ma y have been ordered to secure the project for termination, he will recommend that the City Engineer formally accept the contract, and immediately upon and after such acceptance by the City Engineer, the Contractor will not be required to perform any further work thereon and shall be relieved of his contractual responsibilities for injury to persons or property which occurs after the formal acceptance of the project by the City Engineer.

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(3) The total compensation to be paid to the Contractor shall be determined by the City Engineer on the basis of the following:
a. The reasonable cost to the Contract or, without profit, for all work performed under the contract, includ ing mobilization, demobilization and work done to secure th e project for terminatio n. Reasonable cost will include a reasonable allowance fo r project overhead and general administrative overhead not to exceed a total of seven percent (7%) of direct costs of such work.

When in the opinion of the City Engin eer, the cost of a contract item of work is excessively hi gh due to costs incurred to remedy or replace defective or rejected work, the reasonable cost to be allowed will be the estimated reasonable cost of performing such work in compliance with the requirements of the plans and specificat ions and the excessive actual cost shall be disallowed.
b. A reasonable allowance for profit on the cost of the work performed as determined under Subsection (a), provided the Contractor establishes to the satisfaction of the City Engineer th at it is reasonably probable that he would have made a profit had the contract been completed and provided further that the profit allowed shall in no event exceed four percent (4%) of said cost.
c. The reasonable cost to the Contractor of handling material returned to the vendor, delivered to the City or otherwise disposed of as directed by the City Engineer
d. A reasonable allowance for the Cont ractor's administrative costs in determining the amount payable due to termination of the contract. e. All records of the Contractor and his Subcontractors, necessary to determine compensation in accordance w ith the provisions of this section, shall be open to inspection or audit by representatives of the City at all times after issuance of the notice that the c ontract is to be terminated and for a period of three years, and such records shall be retained for that period. f. After acceptance of the work by the City Engineer, the City Engineer may make payments on the basis of interim estimates pending issuance of the Final Estimate when in his opinion the amount thus paid, together with all amounts previously pa id allowed, will not result in total compensation in excess of that to which the Contractor will be entitled. All payments, including payment upon the Fi nal Estimate shall be subject to deduction for prior payments and amounts, if any, to be kept or retained under the provisions of the contract.

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ARTICLE 10. CITY OFFICERS AND EMPLOYEES,

NONDISCRIMINATION
Sec. 10.1 Non-liability of City Officers and Employees.

No officer or employee of the City shall be pe rsonally 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.

Sec. 10.2 Conflict of Interest.

The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.

Sec. 10.3 Covenant Against Discrimination.

Contractor covenants that, by and for itself, its heirs, executors , assigns, and all persons claiming under or through them, that there shall be no disc rimination against or segregation of, any person or group of persons on account of race, color, cree d, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. To the extent required by law, Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry.

Any Contractor who shall be found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of Federal law or executive order in the performance of any contract with the City, thereby shall be found in material breach of such contract and thereupon the City shall have power to cancel or suspend the contractor, in whole or in part, or to deduct from the am ount payable to such Contractor the sum of twenty-five dollars ($25.00) for each person for each calendar day during which such person was discriminated against, as damages for said breach of contract; or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent Federal agency or officer shall constitute evidence of a violation of contract under this section.

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ARTICLE 11. MISCELLANEOUS PROVISIONS
Sec. 11.1 Notice.

Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the U.S. Mail, prepaid, first-class mail, return receipt requested, addressed as follows:

To City: City of Pomona
Public Works Department, Engineering Division
City Hall, 505 S. Garey Ave., PO BOX 660
Pomona, CA 91767
Attention: City
Engineer
To Contractor: Name, Title: Ga briel Garcia Jr., Project Manager Company/Firm: Garcon Construction, Inc.

Address: 4975 W. Phillips Blvd.

City/State/ZC: Ontario, CA 91762

The above address of Contractor is designated as the place to which all notices, letters and other communications to the Contractor shall be mailed or delivered. The mailing to or delivering at the above named place of any notice, letter or other communication to the Contractor, shall be deemed sufficient service thereof upon the C ontractor. The date of said serv ice shall be the date of such mailing or delivery. Such address may be changed at any time by a written notice signed by the Contractor and delivered to the City Engineer.

Sec. 11.2 Interpretation.

The terms of this Agreement shall be construe d in accordance with the meaning of the language used and shall not be construed fo r or against either pa rty by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

Sec. 11.3 Integration; Amendment.

It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes a nd 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 ma y be amended at any time by the mutual consent of the parties by an instrument in writing.

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Sec. 11.4 Severability.

In the event that any one or mo re of the phrases, sentences, cl auses, 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.

Sec. 11.5 Hiring of Undocumented Workers Prohibited
Contractor shall not hire or employ any person to perform work within the City of Pomona or allow any person to perform work required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States.

Sec. 11.6 Corporate Authority
The persons executing this Agreem ent on behalf of the parties here to 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 en tering into this Agreem ent does not violate any provision of any other Agreement to which said party is bound.

Sec. 11.7 Independent Contractor.

The Contractor is and shall at all times remain as to the City, a wholly independent contractor.

Neither the City, nor any of its officers, employees or agents shall have control over the conduct of the
Contractor or any of the Contractors’ officers, employees or agents, except as herein set forth. The Contractor shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City, nor shall City officers, employees or agents be deemed the officers, employees, or agents of Contractor as a result of this Agreement.

Sec.11.8 Legal Responsibilities.

The Contractor shall keep itself informed of City, State, and Federal laws, ordinances and regulations, which may in any manner affect the performance of its services pursuant to this Agreement. The Contractor shall at all times obser ve and comply with all such laws, ordinances and regulations. Neither the City, nor its officers, agents, or employees shall be liable at law or in equity as a result of the Contractor’s failure to comply with this section.

Sec. 11.9 Sales And/Or Taxes:

Except as may be otherwise specif ically provided herein, all sale s and/or use taxes assessed by Federal, State or local authorities on materials us ed or furnished by the C ontractor in performing the work hereunder shall be paid by the Contractor.

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ARTICLE 12. FEDERAL CONTRACT PROVISIONS
Sec. 12.1 Required Contract Provisions in Accordance with Appendix II to Part 200 – Contract Provisions for Non-Federal Entity Contracts under Federal Awards (2 C.F.R. § 200.327)

(a) Appendix II to Part 200 (A); A ppendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. If the contract is in excess of $10,000 and the contract does not include provisions for both termination for cause and termination for convenience by the Agency, including the manner by which it will be effected and the basis for settlement, then the following termination clauses shall apply.

If the contract is for more than the simplified acquisition threshold (see 2 C.F.R. § 200.88) and does not provide for administrative, contractual, or legal remedies in instances where Contractor violates or breaches the terms of the contract, then the following termination clauses shall apply and have precedence over the contract. Otherwise, the following termination clauses shall not be applicable to the contract.
(i) Termination for Convenience. The Ag ency may, by written notice to Contractor, terminate this contract for convenience, in whole or in part, at any time by giving written notice to Contractor of such termination, and specifying the effective date thereof (“Notice of Termination for Convenience”). If the termination is for the convenience of the Agency, the Agency shall compensate Contractor for work fully and adequately provided through the effective date of termination. No amount shall be paid for unperformed work including anticipated profit. Contractor shall provide documentation deemed adequate by the Agency to show the work actually completed by Contractor prior to the effective date of termination. This contract shall terminate on the effective date of the Notice of Termination.
(ii) Termination for Cause. If Contractor fails to perform pursuant to the terms of this contract, the Agency shall provide written notice to Contractor specifying the default (“Notice of Default”). If Contractor does not cure such default within ten (10) calendar days of receipt of Notice of Default, the Agency may terminate this contract for cause, or may, in its sole discretion, make a demand on Contractor’s performance bond surety. If Contractor fails to cure a default as set forth above, the Agency may, by written notice to Contractor, terminate this contract for cause, in whole or in part, and specifying the effective date thereof (“Notice of Termination for Cause”). If the termination is for cause, Contractor shall be compensated for that portion of the work which has been fully and adequately completed and accepted by the Agency as of the date the Agency provides the Notice of Termination. In such case, the Agency shall have the right to take whatever steps it deems necessary to complete the project and correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the Agency's corrective action, including reasonable overhead, profit and attorneys' fees.
(iii) Reimbursement; Damages. The Agency shall be entitled to reimbursement for any compensation paid in excess of work rendered and shall be entitled to withhold compensation for defective work or other damages caused by Contractor’s performance of the work. (iv) Additional Termination Pr ovisions. Upon receipt of a Notice of Termination, either for cause or for convenience, Contractor shall promptly discontinue the work unless the Notice directs to the contrary. Contractor shall deliver to the Agency and transfer title (if necessary) to all completed work, ATTACHMENT NO. 2

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and work in progress including drafts, documents, plans, forms, maps, products, graphics, computer programs and reports. Contractor acknowledges the Agency’s right to terminate this contract with or without cause as provided in this Section, and hereby waives any and all claims for damages that might arise from the Agency’s termination of this contract. The Agency shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed work, and shall not be entitled to damages or compensation for termination of work. If Agency terminates this contract for cause, and it is later determined that the termination for cause was wrongful, the termination shall automatically be converted to and treated as a termination for convenience. In such event, Contractor shall be entitled to receive only the amounts payable under this Section, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits. The rights and remedies of the Agency provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this contract including, but not limited to, the right to specific performance.
(b) Appendix II to Part 200 (C) – Equal Employme nt Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Contractor shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60:
(i) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (ii) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (iii) The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.

This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information. (iv) The Contractor will send to each labor uni on or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided ATTACHMENT NO. 2

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advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(v) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (vi) The Contractor will furnish all informati on and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (vii) In the event of the Cont ractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (viii) The Contractor will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal ATTACHMENT NO. 2

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opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.
(c) Appendix II to Part 200 (D) – Davis-Bacon Act:
(i) If this contract is in excess of $2,000 and if required by Federal program legislation, Contractor must comply with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). (ii) The Davis-Bacon Act only applies to the emergency Management Preparedness Grant Program, Homeland Security Grant Program, Nonprofit Security Grant Program, Tribal Homeland Security Grant Program, Port Security Grant Program, and Transit Security Grant Program. It does not apply to other FEMA grant and cooperative agreement programs, including the Public Assistance Program.
(iii) If applicable, all transactions regarding this contract shall be done in compliance with the Davis-Bacon Act (40 U.S.C. 3141¬3144, and 3146-3148) and the requirements of 29 C.F.R. pt. 5 as may be applicable. The contractor shall comply with 40 U.S.C. 3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
(iv) Contractors are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. (v) Additionally, contractors are required to pay wages not less than once a week. (d) Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act:
(i) Contractor shall comply with the Cope land "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 C.F.R. Part 3) as may be applicable, which are incorporated by reference into this contact. In situations where the Davis-Bacon Act does not apply, neither does the Copeland “Anti-Kickback Act. The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
(ii) Contractor. The Contract or shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract.
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shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses.
(iv) Breach. A breach of the contract clause s above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12. (e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act:
(i) If this contract is in excess of $100,000 and involves the employment of mechanics or laborers, Contractor shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours.

Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
(ii) Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(iii) Violation; liability for u npaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section.
(iv) Withholding for unpaid wages and liquida ted damages. The Agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section. (v) Subcontracts. The Contractor or subcontract or shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to ATTACHMENT NO. 2

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include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section.
(f) Appendix II to Part 200 (F) – Rights to Invent ions Made Under a Contract or Agreement:
(i) If the Federal award meets the definiti on of “funding agreement” under 37 C.F.R. § 401.2(a) and the non-Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the non-Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency. (ii) The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.
(iii) This requirement does not apply to th e Public Assistance, Hazard Mitigation Grant Program, Fire Management Assistance Grant Program, Crisis Counseling Assistance and Training Grant Program, Disaster Case Management Grant Program, and Federal Assistance to Individuals and Households – Other Needs Assistance Grant Program, as FEMA awards under these programs do not meet the definition of “funding agreement.”
(g) Appendix II to Part 200 (G) – Clean Air Act a nd Federal Water Pollution Control Act: If this contract is in excess of $150,000, Contractor shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). (i) Pursuant to the Clean Air Act, (1) Contra ctor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Contractor agrees to report each violation to the Agency and understands and agrees that the Agency will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Contractor agrees to include these requirements in each subcontract exceeding $150,000. (ii) Pursuant to the Federal Water Pollution C ontrol Act, (1) Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Contractor agrees to report each violation to the Agency and understands and agrees that the Agency will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Contractor agrees to include these requirements in each subcontract exceeding $150,000.

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(h) Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
(i) This contract is a covere d transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Contractor is required to verify that none of the Contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(iii) This certification is a material representa tion of fact relied upon by Agency. If it is later determined that Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the Agency, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Contractor warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Contractor also agrees to verify that all subcontractors performing work under this contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Contractor further agrees to notify the Agency in writing immediately if Contractor or its subcontractors are not in compliance during the term of this contract.
(i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this contract is in excess of $100,000, Contractor shall have submitted and filed the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1353). If at any time during the contract term funding exceeds $100,000.00, Contractor shall file with the Agency the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Pr ocurement of Recovered Materials:
(i) Contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of ATTACHMENT NO. 2

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the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement.
(ii) In the performance of th is contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired:

Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or At a reasonable price. (iii) Information about this requirement, al ong with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (iv) The Contractor also agrees to comply w ith all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.”
(k) Appendix II to Part 200 (K) – §200.216 Prohi bition on Certain Telecommunications and Video Surveillance Services or Equipment:
(i) Contractor shall not contract (or exte nd or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Contract. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(2) Telecommunications or video surveillance serv ices provided by such entities or using such equipment.
(3) Telecommunications or video surveillance e quipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. (ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Do mestic Preferences for Procurement:
(i) Contractor shall, to the greatest exte nt practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts
(ii) For purposes of this section:

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(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

Sec. 12.2 Contracting with Small and Minority Firms, Women’s Business Enterprise and Labor Surplus Area Firms (2 C.F.R. § 200.321)

(a) Contractor shall be subject to 2 C.F.R. § 200.321 and will take affirmative steps to assure that minority firms, women’s business enterprises, and labor surplus area firms are used when possible and will not be discriminated against on the grounds of race, color, religious creed, sex, or national origin in consideration for an award.
(b) Affirmative steps shall include:
(i) Placing qualified small and minority bus inesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority busin esses, and women's business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economica lly feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises; (iv) Establishing delivery schedules, wher e the requirement permits, which encourage participation by small and minority business, and women's business enterprises; and (v) Using the services/assistance of the Small Business Administration (SBA), and the Minority Business Development Agency (MBDA) of the Department of Commerce.

Contractor shall submit evidence of compliance with the foregoing affirmative steps when requested by Agency.

Sec. 12.3 Access to Records & Record Retention

(a) Access to Records. The following access to records requirements apply to this contract:
(i) The Contractor agrees to provide the State, Agency, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. (ii) The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

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(iii) The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract.
(iv) In compliance with the Disaster Recovery Act of 2018, the Agency and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.

Sec. 12.4 Miscellaneous
(a) The Contractor shall not use the DHS seal(s ), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapproval. (b) This is an acknowledgement that FEMA fina ncial assistance will be used to fund all or a portion of this contract. The Vendor will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.
(c) The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the Agency, Contractor, any subcontractors or any other party pertaining to any matter resulting from the contract.
(d) Contractor acknowledges that 31 U.S.C. Ch apter 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor’s actions pertaining to this contract.

Sec. 12.5 Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine

When funding for the services is provided, in wh ole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6- 22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “E” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.

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This Contract is executed by the CITY pursuant to the approval by its Governing Body in session on February 3, 2025, authorizing the same, and CONTRACTOR has caused this Contract to be duly executed.

CITY OF POMONA CALIFORNIA Contractor:___________________________ _

By: ___________________________________
City Manager

ATTEST:

______________________________________
City Clerk

Approved as to form:

______________________________________
City Attorney

By:___________________________________

_____________________________________
Name

_____________________________________
Title

Date:__________________________________

(Attach acknowledgment for Authorized Representative of Contractor.)

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(Use of City Bond Form is Required)

FAITHFUL PERFORMANCE BOND PUBLIC WORK (CALIFORNIA)

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, ________________________________________ (as Principal) has entered into a contract dated ____ _______________, _____, (the "Contract" ) with the City of Pomona (Obligee) referred to and made a part hereof to perform the following work of public improvement, to wit: ADA Curb Ramps and Path of Travel-Citywide (CDBG) (FY 23-24) [Construction] and all appurtenant work in accordance with the plans and s pecifications for Project Nos. 428-67941 , which agreement requires the Princi pal to provide Obligee with this bond.

NOW THEREFORE, we, _______________________ ________________ (as Pr incipal) and ___________________________________________ (as Surety) a corporation organized under the laws of __________________ _______, and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of Pomona (as Obligee) in the sum of
_____________________________________________________________________ Dollars ($_______________________), lawful money of the United States of America, for the payment whereof well and truly to be made the Principa l and Surety bind themselves, their heirs, executors, administrator s, successors, and assigns, jointl y and severally, firmly by these presents.

The address at which the Surety may be served with notices, papers and other documents is:
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

The address at which the Principal may be served with notices, papers and other documents is:
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

The condition of the foregoing obligation is such that if the Principal, his or its heirs, executors, administrators, successors or assigns, and each of his or its subcontractors shall well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements of said contract, and during the life of any guaranty required under the contract, and shall also well and truly perform and fulfill all t he undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of said contract that may hereafter be made, then this obligation shall be void; otherwise it shall be and remain in full force and effect.

Whenever Principal shall be, and is declared by the Obligee to be, in default under the Contract, the Surety shall remedy the default pursuant to the Contract, or shall promptly, at the Obligee’s option:

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i. Take over and complete the Project in accordance with all terms and conditions in the Contract; or

ii. Obtain a bid or bids for completing t he Project in accordance with all terms and conditions in the Contract and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the Obligee, and make ava ilable as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract pr ice” as used in this paragraph shall mean the total amount payable to Principal by the Obligee under the Contract and any modification thereto, less any amount pr eviously paid by the Obligee to the Principal and any other set offs pursuant to the Contract.

iii. Permit the Obligee to complete the Projec t in any manner consistent with California law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Principal by the Obligee under the Contract and any modification thereto, less any amount previously paid by the Obligee to the Principal and any other set offs pursuant to the Contract.

Surety expressly agrees that the Obligee may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Principal.

Surety shall not utilize Principal in completing t he Project nor shall Surety accept a bid from Principal for completion of the Project if the Obligee, when declaring th e Principal in default, notifies Surety of the Obligee’s objection to Principal’s further participation in the completion of the Project.

As part of the obligation secur ed hereby and in addition to the fa ce amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the Obligee in successfully enfor cing such obligation, all to be taxed as costs and included in any judgment rendered.

The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications.

This document is signed by the respective parties on the dates next to their names.

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PRINCIPAL
Signature: _____________________________________ Date: _________________

Name and Title (Print): ________ __________________________________________ SURETY
Signature: _____________________________________ Date: ________________

Name and Title (Print): __________________________________________________

I declare under penalty of perjury under the laws of the State of California that the contents of the above Faithful Performance Bond are true and correct, and that I have been duly authorized to sign this Faithful Performance Bond on behalf of Surety. This Declaration is signed on ____________________, in the City of _____________________ , State of California.

SURETY

Signature: _____________________________________ Date: ________________

Name and Title (Print): __________________________________________________

--OR—

State of California )
County of Los Angeles )

On__________________________, before me, _________ ___________________ (here insert name and title of the officer), personally
appeared_____________________________________________________________, who proved to me on the basis of sa tisfactory evidence to be the per son(s) whose name(s) is/are subscribed to the within inst rument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by hi s/her/their signature(s) on the instrument the person(s), or t he entity upon behalf of which the per son(s) acted, executed the instrument.

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I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________________ (Seal)

-- AND –
(Proof of signature authorization or power of attorney must be attached)

APPROVED AS TO FORM:

____________________________________
Deputy City Attorney

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(Use of City Bond Form is Required)

LABOR AND MATERIAL PAYMENT BOND PUBLIC WORK (CALIFORNIA)

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, _________________ _______________________ (as Principal) has entered into a contract dat ed ___________________, _____, (the "Contract") with the City of Pomona (Obligee) referred to a nd made a part hereof to perform the following work of public improvement, to wit: “ ADA Curb Ramps and Path of Travel-Citywide (CDBG)(FY 23-24) [Construction] and all appurtenant work in accordance wit h the plans and specifications for Project Nos. 428-67941, which requires Principal to file this bond to secure claims made under Civil Code Section 8000, et seq.

NOW THEREFORE, we, __________________ __________________ (as Principal) and ___________________________________________ (as Surety) a corporation organized under the laws of __________________ ____ and duly authorized to transact business in the State of California, are hel d firmly bound unto the City of Pomona (as Obligee), and all subcontractors, laborers, material persons and other persons em ployed in the performance of the referenced agreement, in the sum of
_______________________________________________________________ Dollars ($_______________________), lawful money of the United Stat es of America, which is 100% of the amount of the Contract, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, execut ors, administrators, successors, and assigns, jointly and severally, firmly by these presents.

The address at which the Surety may be served with notices, papers and other documents is:
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

The address at which the Principal may be served with notices, papers and other documents is:
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

If the above bounden Principal, his or its heirs, executors, administrators, successors, assigns, or any of his or its subcontractors, fails to pay for any materials, provisions, provender, or other supplies, or teams, implements or machinery, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor to persons named in Section 9100 of the Civil Code, or for amounts due under the Unempl oyment Insurance Code with respect to such work or labor performed under the Contract, or for any amounts requi red to be deducted, withheld and paid over to th e Employment Development D epartment from the wages of employees of the Contract or and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, then the Surety on this bond will pay the same, in an amount not exceeding the sum specified in this bond, and also, in case suit is brought upon this bond, a ATTACHMENT NO. 2

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reasonable attorney's fee, which shall be awarded by the court to the prev ailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment herein rendered.

As part of the obligation secu red hereby, the Surety shall not be exonerated or released from the obligation of the bond by any change, alteration, or modification in or of any contract, plans, specifications, or agreem ent pertaining or relating to any sc heme or work of improvement or pertaining or relating to the furnishing of labor, materials, or equipment therefor, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme of work of improvement, nor by any rescission or attempted rescission of the contract, agreem ent or bond, nor by any conditi ons precedent or subsequent in the bond attempting to limit the right of reco very of claimants other wise entitled to recover under any such contract or agreement, or under the bond, nor, where the bond is given for the benefit of claimants, by any fr aud practiced by any person other than the claimant seeking to recover on the bond.

This bond shall inure to the benefit of any and all persons, companies and corporations named in Civil Code Section 9100 so as to give them a right of action in a suit on this bond.

This bond is executed for the purpose of comp lying with the laws of the State of California designated as Title 3, Chapter 5, Works of Improvement, commencing with Section 9550 of the Civil Code of the State of California and all am endments thereto, and shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code of the State of California.

This document is signed by the respective parties on the dates next to their names.

PRINCIPAL

Signature: _____________________________________ Date: _________________

Name and Title (Print): __________________________________________________

SURETY

Signature: _____________________________________ Date: ________________

Name and Title (Print): __________________________________________________

I declare under penalty of perjury under the laws of the State of California that the contents of the above Labor and Material Paym ent Bond are true and correct, and that I have been duly authorized to sign this Labor and Material Payment Bond on behalf of Surety. This Declaration is signed on ____________________, in the City of ________ _____________ , State of California.

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SURETY

Signature: _____________________________________ Date: ________________

Name and Title (Print): __________________________________________________

--OR--

State of California )
County of Los Angeles )

On__________________________, before me, _________ ___________________ (here insert name and title of the officer), personally
appeared_____________________________________________________________, who proved to me on the basis of satisfactory evi dence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me th at he/she/they executed the same in his/her/their authorized capacity(ies), and that by hi s/her/their signature(s) on the instrument the person(s), or t he entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________________ (Seal)

-- AND –

(Proof of signature authorization or power of attorney must be attached)

APPROVED AS TO FORM:

____________________________________
Deputy City Attorney

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CONTRACTOR'S CERTIFICATE

REGARDING WORKMEN'S COMPENSATION
Labor Code Section 3700
"Every employer except the State and all political subdivisions of institutions thereof, shall secure the payment or compensation in one or more of the following ways:" "(a) By being insured against liability to pay compensation in one or more insurers duly authorized to write compensation insurance in this State." "(b) By securing from the Director of Indust rial Relations a certificate of consent to selfinsure, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-ins ure and to pay any co mpensation that may become due to his employees."
I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for workmen's co mpensation or to underta ke 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.

CONTRACTOR:
______________________________________
Name of Contractor
By: ___________________________________ Date:
_______________ _________________
_______________________________________
(printed name of signer)

(In accordance with Article 5 {commencing at Se ction 1860}, Chapter 1, Part 7, Division 2, of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any work under this contract.)
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CITY OF POMONA CONTRACT RETENTION POLICY
(To be completed when escrow account is requested)

Pursuant to Section 22300 of the Public Contract Code of the State of Ca lifornia, the City of Pomona offers the attached Escrow Agreement for Security Deposits in Lieu of Retention with the following specifications:

1. The Escrow Agent shall be the Citizens Business Bank located at 1095 N. Garey Avenue, Pomona, CA 91767.

2. The City (Owner) shall receive monthly st atements from the Escrow Agent on any retention payments to the Escrow Agent and shall reconcile the bal ance of the account to the City’s general ledger retention liability account each month. A copy of the Escrow statement shall be provided to the Contractor upon request.

3. The retention account will be closed by the Owner and the balance therein released to the Contractor Sixty thirty-five (60 35) days after the Notice of Completion is recorded by the Los Angeles
County Recorder. If, however, the Owner receives claims for any amount held in retention, or the Owner identifies valid unpaid notices, the Owner shall retain amounts necessary to address such claims and notices.

CONTRACTOR

Signature: ____________________________________ Date: ________________

Name and Title: ________________________________________________________

CITY OF POMONA

Signature: ____________________________________ Date: ________________

Name and Title: ________________________________________________________

ESCROW AGENT

Signature: ____________________________________ Date: ________________

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ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION

This Escrow Agreement is made and entered into by and between:

1) The CITY OF POMONA, whose address is 505 S. Gare y Avenue, Pomona, CA 91769, hereinafter called “Owner,” whose address is 505 S. Garey Avenue, Pomona, CA 91766; 2) ________________________________, hereinafter called “Contractor,” whose address is _____________________________________________________; and 3) Citizens Business Bank, hereinafter called “ Escrow Agent,” whose address is 1095 North Garey Avenue, Pomona, CA 91767.

For the consideration hereinafter set forth, the Owner, Contract or and Escrow Agent agree as follows:

1. Pursuant to Section 22300 of the Public Contract Code of the State of California, Contractor has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner pursuant to the Construction Contract entered into between the Owner and Contractor for ____________________________________ in the amount of $_____________ ______, dated ______________ _______________ (hereinafter referred to as the “ Contract”). Alternatively, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to the Escrow Agent. When Contractor deposits the securities as a substitute for Contractor earnings, the Escrow Agent shall notify the Owner within ten (10) days of the deposit. The market value of the securities at the time of the substitu tion shall be at least equal to the cash amount required to be withheld as ret ention under the terms of the Contract between the Owner and Contractor. Securities shall be held in the name of City of Pomona, and shall designate the Contractor as the beneficial owner. All securities used as a substitute for retention earnings will be in compliance with the California State Government Code Section 16430.

2. The Owner shall make progress payments to the Contractor for such funds which otherwise would be withheld from progres s payments pursuant to the C ontract provisions, provided that the Escrow Agent holds securities in the form and amount specified above.

3. When the Owner makes payment of retention earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until the time that the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditi ons of this Agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the Escrow Agent directly.

4. Contractor shall be responsible for paying all fees for the expenses incurred by the Escrow Agent in administrating the Escrow Account and all expenses of the Owner. The expenses and payment terms shall be determined by the Owner and Contractor.

5. The interest earned on the securities or t he money market accounts held in Escrow and all interest earned on the interest shall be for t he sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the Owner.

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6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied with wr itten authorization from the Owner to the Escrow Agent that Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor.

7. The Owner shall have a right to draw upon t he securities in the event of default by the Contractor. Upon seven (7) days’ written notice to the Escrow Agent from the Owner of the default, the Escrow Agent shall immediately c onvert the securities to cash and shall distribute the cash as instructed by the Owner.

8. Upon receipt of written notific ation from the Owner certifying that the Contract is final and complete, and that the Contractor has co mplied with all requirements and procedures applicable to the Contract, the Escrow Agent sha ll release to Contractor all securities and interest on deposit, less escrow fees and char ges of the Escrow Account. If the Owner determines that any portion of the securities (and interest) on deposit shall be retained in response to third party claims (and any related notices), the Owner shall provide the Escrow Agent with written notice of said retention. The Escrow Agent shall withhold amounts from release pursuant to said notice. The Escrow Account shall be closed immediately upon disbursement of all monies and securities on deposit and payments of fees and charges.

9. The Escrow Agent shall rely on the writ ten notification from th e Owner and Contractor pursuant to Sections (5) to (8), inclusive, of this Agreement and the Owner and Contractor shall hold Escrow Agent harml ess from Escrow Agent’s release and disbursement of the securities and interest as set forth above.

10. The names of the persons who are authorized to give written notice or to receive written notice on behalf of the Owner and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows:

[Intentionally left blank – signatures follow on the next page.]

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On Behalf of Owner:

Signature: __________________________________________
Andrew Mowbray, Finance Director
City of Pomona
505 S. Garey Avenue
Pomona, CA 91766

On Behalf of Contractor:

Signature: __________________________________________

Name and Title: ________________________________________________

Address: ______________________________________________________

On Behalf of Escrow Agent:

Signature: __________________________________________

Name and Title: ________________________________________________

Address: 1095 N. Garey Avenue, Pomona, CA 91767

At the time of escrow account if opened, the Owner and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the dates first set forth above.

OWNER

Signature: ____________________________________ Date: _____________ Andrew Mowbray, Finance Director

CONTRACTOR

Signature: ____________________________________ Date: _____________

Name and Title: _____________________________________________________

APPROVED AS TO FORM

Signature: ____________________________________ Date: _____________ City Attorney

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NOTICE
Labor Code, Division 2, Part 7, Chapter 1, Article 2, Section 1773.3 states:
"An awarding agency whose public works contra ct falls within the jurisdiction of Section 1777.5 shall, within five (5) calendar days of the award, send a copy of the award to the Division of Apprenticeship Standards. When specifically requested by a local joint apprenticeship committee, the division shall notify the local joint apprenticeship committee making the request.

Within five (5) calendar days of a finding of any discrepancy regarding the ratio of apprentices to journeymen, pursuant to the certificated fixed number of apprentices to journeymen, the awarding agency shall notify the Division of Apprenticeship Standards." (Added by Stats. 1978, Ch. 1249.)
Submission of the "Extract of Public Works Contract Award" (see Appendix, Part 7 for sample of this document) will satisfy the above noted requirement.

Also note Labor Code Sections 1776(g), 1777.5 and 1777.7.

NOTICE

THE CONTRACTOR WILL BE REQUIRED TO FURNISH THE CITY OF POMONA WITH THE

CLASSIFICATIONS OF LABORERS TO BE USED FOR THE COMPLETION OF THIS PROJECT WITHIN THREE (3) WORKING DAYS AFTER NOTIFICATION OF AWARDING OF CONTRACT.

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RELEASE
OWNER:

CONTRACTOR:

PROJECT:

In consideration of final payment of undisputed Contract amounts relating to all labor, services, equipment or material furnished to Owner on t he above referenced Project, Contractor hereby waives and releases any right to a stop notice, mechanic's lien, or against a labor and materials bond on the Project and hereby releases Owner fr om any and all claims for payment on the Project except for the disputed work and the disputed amounts both of which are set forth below:

DESCRIPTION OF DISPUTED WORK

DISPUTED AMOUNTS

CHECK IF NONE: ______

CHECK IF NONE: ______

Contractor acknowledges that it has been advised by its attor neys concerning, and is familiar with, the provisions of California Civil Code Section 1542, which provides as follows:

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A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

Contractor, in that connection, acknowledges that it may have sustained damages, loss, cost, or expense that is presently unknown or unsuspected, and that such damages, loss, cost, or H - 1
expense as may have been sustained, may give rise to additional damages, loss, cost, or expense in the future. Neverthel ess, Contractor acknowledges that this Release has been negotiated and agreed upon in light of that situation, and hereby expressly waives any and all rights which it may have under California Civil C ode Section 1542 or under any other state or federal statutes or common law principle of similar effect.

Date: __________________

CONTRACTOR
By:
____________________________________
(signature)

Typed Name:
____________________________
Title: ___________________________________

NOTICE: This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional release form.

ATTACHMENT NO. 2

APPENDICES

ATTACHMENT NO. 2

APPENDIX A

STANDARD DRAWINGS

ATTACHMENT NO. 2

APPENDIX B

CITY PERMIT FORMS

ATTACHMENT NO. 2

APPENDIX C

CONCRETE REPAIR

LOCATION LIST

ATTACHMENT NO. 2

APPENDIX D

CONCRETE REPAIR

AREAS (DISTRICT MAPS)

ATTACHMENT NO. 2

APPENDIX E

FEDERAL WAGE RATES

ATTACHMENT NO. 2

APPENDIX F

REQUIRED HUD

PROVISIONS

ATTACHMENT NO. 2

APPENDIX G

BABA(Buy America Build
America)

ATTACHMENT NO. 2

APPENDIX H

PROJECT INFORMATION
SIGN

ATTACHMENT NO. 2