1 MASTER CONSTRUCTION AGREEMENT –
HIGH VOLTAGE ELECTRIC FACILITIES
This Master Construction Agreement – High Voltage Electric Facilities (“Master Agreement”), dated by the Anaheim City Clerk on _____________________ (“Effective Date”), is made and entered into by and between the City of Anaheim, a municipal corporation (“Anaheim”), and [ENTITY NAME, STATE, AND TYPE] (“Contractor”). Anaheim and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
RECITALS
A. Anaheim is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Anaheim Charter.
B. Anaheim desires to engage Contractor to obtain construction, maintenance, repair, relocation, inspection, and immediate-response services (“Work”) in connection with its electric power production, transmission, distribution and service, streetlight, and communication systems (“Electric System”) on an as-needed basis to support Anaheim’s Public Utilities Department’s (“APU”) Electric Services Division.
C. Anaheim issued a request for Pre-qualification of Contractors Seeking to Bid on High Voltage Utility Projects for 2026-2031 dated January 2026 to perform the Work (“Request for Pre-Qualification”).
D. The Request for Pre-Qualification is incorporated herein by reference and is applicable to the Work unless otherwise set forth herein.
E. In response to Anaheim’s Request for Pre-Qualification, Anaheim received a response from Contractor, evaluated Contractor’s qualifications, including experience, skills, abilities, licenses, certifications, materials, and expertise, and, based upon such evaluation, determined Contractor to be prequalified to perform the Work.
TERMS AND CONDITIONS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. WORK TO BE PROVIDED
1.1 Contractor shall provide all labor, materials, tools, equipment, systems, and incidental and customary services necessary to fully and adequately perform the Work, which is generally described in the Scope of Work attached hereto as Exhibit A (“Scope of Work”). The specific Work to be provided by Contractor 2 shall be specified in individual work order packages (“Work Order Package(s)”) to be prepared by Anaheim when it requests specific Work from Contractor or, in the case of immediate response services, through a Request for Immediate Response Services (“Request(s)”).
1.2 The Scope of Work includes specific service categories (each, a “Service Category,” and collectively, “Service Categories”) for which Contractor, along with other contractors, has been pre-qualified to bid on and perform Work under this Master Agreement in one or more Service Categories.
1.3 Each Work Order Package or Request shall include a specific description of the Work, applicable plans, a bid list, the schedule commencement and Work completion dates, and any required bond requirements. The terms and conditions of this Master Agreement shall govern and apply to the performance of all Work Order Packages or Requests issued by Anaheim under this Master Agreement.
Individual Work Order Packages or Requests may, but need not, include the following language for clarity of reference to this Master Agreement:
1.3.1 “For purposes of this Work Order Package/Request, the general terms and conditions applicable hereto shall be the Master Agreement between Anaheim and Contractor dated on or about ________20___, which by this reference is incorporated herein and made a hereof.”
1.3.2 Any pre-printed or other Contractor-inserted provisions that purport to set forth general terms and conditions shall not govern or have any application to transactions involving any Work Order Package or Request that references this Master Agreement.
1.4 Contractor shall provide the Work in accordance with this Master Agreement; the applicable Work Order Package or Request received from Anaheim’s Representative (as defined herein); Appendices A through L hereto (“Appendices”); the latest edition of the Standard Specifications for Public Works Construction (“Standard Specifications”); the Standard Specifications Supplement (“Specifications Supplement”); Anaheim’s Electric Construction Standards; and the California Public Utilities Commission General Orders, as the same be modified from time to time.
1.5 In the event of any conflict among the following documents, including any Change Order, the documents shall control in the priority order listed below (collectively, the “Contract Documents”). For purposes of this Master Agreement, “Special Provisions” shall mean written project-specific provisions issued by the City in connection with a Work Order Package or Request, including any technical, administrative, or performance requirements and a “Change Order” means a written document issued by Anaheim that authorizes a modification to the specified Work, schedule, or price of a Work Order Package, including any addition, deletion, or other adjustment to the Work, and constitutes 3 Anaheim’s formal approval for Contractor to perform such modified or additional Work.
(1) Change Order, Faithful Performance Bond (Appendix K), Labor and Materials Bond (Appendix L);
(2) Work Order Package or Request;
(3) Second Amended and Restated Community Workforce Agreement (“CWA”), as adopted by the City of Anaheim and as amended from time to time, but only with respect to Work that is determined by Anaheim to be subject to the CWA pursuant to the terms of this Master Agreement. (4) This Master Agreement;
(5) Special Provisions (if any) issued with a specific Work Order Package or Request;
(6) Anaheim’s Electrical Engineering Construction Standards; (7) Appendices A through J, and M through N;
(8) Specifications Supplement;
(9) Standard Specifications;
(10) Exhibit A of this Master Agreement; and
(11) Contractor’s proposal (or bid) in response to Work Order Package or Request (“Proposal”).
1.6 In entering into this Master Agreement, Contractor offers and agrees to assign to Anaheim all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. §§ 12-27) or under the Cartwright Act (Cal. Bus. & Prof. Code, §§ 16700 – 16770) arising from purchases of goods, services, or materials pursuant to this Master Agreement. This assignment shall be made and become effective at the time Anaheim tenders final payment to Contractor on a Work Order Package or Request, without further acknowledgement by the Parties.
1.7 When Work under this Master Agreement, other than immediate response services, is needed, Anaheim shall issue a written Work Order Package to all contractors pre-qualified in the Service Category applicable to such Work Order Package, which may include Contractor. If Contractor elects to pursue the Work, Contractor shall submit, along with other pre-qualified contractors, a sealed bid through Anaheim’s electronic bidding portal, setting forth the proposed cost and any other information required by the applicable Work Order Package. Anaheim shall open electronic bids at the time specified in the applicable Work Order Package.
1.7.1 APU’s Electric Services Division shall administer the bidding process and bid opening. The Electric Services Division will select the successful contractor based on the lowest responsive total bid price to complete the Work within the time frame established in the Work Order Package.
1.7.2 Contractor acknowledges that Anaheim reserves the right, in its sole discretion and in accordance with applicable law, to reject any and all 4 bids, to waive any irregularities or informalities in any bid or in the bidding process, to postpone or cancel a Work Order Package, and to make awards in the manner that best serves the interests of Anaheim.
Anaheim further reserves the right to modify or withdraw a Work Order Package at any time prior to contract award.
1.8 If Anaheim needs immediate response services, Anaheim may contact pre- qualified contractors by telephone or electronic means and shall continue such contact as necessary until the immediate response services are satisfied. Under this immediate response process, Anaheim shall issue a Request and may, in its discretion, contact Contractor. If selected, Contractor shall commence performance of the Work in a timely and expeditious manner, as directed by the Electric Services Division, and shall continue performance until the earlier of: (1) final completion and acceptance of the Work by Anaheim or (2) suspension or termination of the Work in accordance with this Master Agreement.
1.9 If Contractor receives a Work Order Package or Request from Anaheim but is unable or unwilling to provide the Work, Contractor shall promptly notify Anaheim of such fact.
1.10 The Work is of such a nature that timely performance is essential to the orderly progress of related work and to Anaheim’s operating schedule. Accordingly, if required by the applicable Work Order Package or Request, Contractor shall submit with its sealed bid a proposed construction schedule that identifies at a minimum (i) each phase of the Work, (ii) the number of personnel to be utilized for each phase, and (iii) the time required to complete each phase. Contractor shall revise the construction schedule as reasonably requested by Anaheim, and the schedule shall be subject to Anaheim’s final approval.
1.11 Contractor shall not provide any Work until Anaheim (a) selects Contractor in accordance with the provisions of this Section 1 and (b) issues a formal notification authorizing Contractor to begin Work (“Notice to Proceed”). If selected, Contractor shall perform the Work as directed by Anaheim and in accordance with the Work Order Package or Request, the Notice to Proceed, and this Master Agreement.
1.12 If performance of the Work falls behind the Parties’ agreed upon schedule, Contractor shall, upon request by Anaheim’s Representative, make reasonable efforts to accelerate performance of the Work at no additional cost to Anaheim, until such time performance catches up to the agreed upon schedule.
1.13 For both Work Order Packages and Requests, Contractor shall obtain prior written approval from Anaheim’s Representative before incurring any overtime or procuring any equipment or materials that would result in additional cost to Anaheim. Anaheim reserves the right to decline payment of overtime premiums where Contractor could perform the Work at straight-time rates using additional personnel, consecutive shifts, or other methods approved by Anaheim. 5 1.14 Contractor acknowledges and agrees that Anaheim may request Work on an as- needed basis. Nothing in this Master Agreement guarantees that Anaheim will select Contractor to perform any Work, that any particular amount of Work will be requested, or that Contractor will receive any specific level of compensation.
2. TERM
2.1 The term of this Master Agreement commences on the Effective Date and continues through ______, 2031 (“Initial Term”), unless extended as provided in Section 5.2 or terminated early per Section 33.
2.2 If APU’s General Manager (“General Manager”) determines that an extension of the Initial Term is necessary for the successful completion of the Work, the General Manager is authorized to extend the Initial Term (upon the same terms and conditions) for no more than one (1) one-year period after the Initial Term.
The Initial Term, plus any extensions pursuant to this Section or Section 5.2 constitutes the “Term.”
2.3 The continuation of this Master Agreement beyond any fiscal year of Anaheim, which ends June 30, is subject to the appropriation and availability of funds as determined by the Anaheim City Council in its sole discretion. Anaheim makes no representation that sufficient funds will be appropriated for this Agreement in any future fiscal year. In the event funds are not appropriated or are otherwise unavailable, Anaheim may terminate this Agreement, without penalty or liability, upon written notice to Contractor, effective at the end of the then-current fiscal year or such earlier date as specified in the notice. In the event of such termination, Anaheim shall pay Contractor only for work satisfactorily performed and accepted, and for authorized goods delivered, up to the effective date of termination. Contractor shall not be entitled to any other compensation, including but not limited to anticipated profits, unperformed work, or consequential damages. This provision shall control notwithstanding any other provision of this Agreement.
3. ADMINISTRATION
3.1 For all Work performed under this Master Agreement, Anaheim shall designate an authorized representative (“Anaheim’s Representative”) as identified in the applicable Work Order Package or Request.
3.1.1 For Work defined as Public Works pursuant to state law and/or municipal ordinance and so identified in the applicable Work Order Package or Request, Anaheim’s Director of Public Works (“Director of Public Works”) or designee shall serve as "Anaheim's Representative" in all matters pertaining to such Work to be performed under this Master Agreement. Contractor shall, in the performance of this Master Agreement for such Work, consult with the Director of Public Works or 6 designee and other Anaheim employees as the Director of Public Works or designee may direct.
3.1.2 For Work defined as maintenance, operation, inspection, and/or repair of the Electric System pursuant to Anaheim’s municipal code or as Immediate Response Services, and so identified in the applicable Work Order Package or Request, the General Manager or designee shall serve as "Anaheim's Representative" in all matters pertaining to such Work to be rendered under this Master Agreement, including without limitation, termination of this Master Agreement and giving any notices required under this Master Agreement on behalf of Anaheim. Contractor shall, in the performance of this Master Agreement for such Work, consult with the General Manager or designee and such other Anaheim employees as the General Manager or designee may direct.
3.2 APU shall administer this Master Agreement. The following APU employees are authorized to take the following actions pursuant to this Master Agreement:
3.2.1 The General Manager is authorized to take any action on behalf of Anaheim as set forth herein and to terminate this Master Agreement in accordance with Section 33 below.
3.2.2 When APU issues a Notice to Proceed for a specific Work Order Package or Request, the Notice to Proceed shall identify Anaheim’s Project Administrator (“Project Administrator”). Subject to the limitations set forth in this Master Agreement, the Project Administrator, or designee, shall have the authority to act on behalf of Anaheim for the day-to-day administration of approved Work Order Packages, including but not limited to coordinating, directing, reviewing, and approving Work performed by Contractor in accordance with the terms of this Master Agreement and the applicable Work Order Package.
3.2.3 Notwithstanding Section 3.2.2:
3.2.3.1 No Work Order Package or Request shall be issued, and no Work shall be authorized to commence, unless the Work
Order Package or Request has been approved and executed by the General Manager or the General Manager’s
expressly authorized designee.
3.2.3.2 Unit prices, billing rates, and any not-to-exceed amounts shall be approved as part of the applicable Work Order
Package or Request. The Project Administrator may
approve payment for Work performed in accordance with
the approved unit prices and billing rates and may approve modifications or adjustments to such prices or rates
provided that the total compensation does not exceed the 7 applicable not-to-exceed amount set forth herein. The Project Administrator shall have no authority to approve any modification, increase, or adjustment that would cause compensation to exceed the applicable not-to-exceed
amount, except pursuant to an approved change order.
4. COMPENSATION
4.1 The Parties understand and agree that full and complete payment for all Work performed for a single Work Order Package or Request in accordance with this Master Agreement shall not exceed one million dollars ($1,000,000), excluding Change Orders but inclusive of hiring incentives, if any. Contractor’s performance of the Work shall be compensated either on a lump sum basis in an amount set forth in the applicable Work Order Package or Request or on a unit price, crew hour rate or time, materials, and equipment basis as set forth in Contractor’s bid, at Anaheim’s election.
4.2 The Parties understand and agree that the combined cumulative compensation of all Work Order Packages and Requests awarded or paid to Contractor during any fiscal year (July 1 through June 30) during the Term of the Master Agreement shall not exceed the sum of four million dollars ($4,000,000), excluding Change Orders. Any unused portion of this annual limit shall not carry over to increase the dollar limit of Work that may be awarded in the subsequent fiscal year.
4.3 Each Proposal in response to a Work Order Package or Request shall include Contractor’s rate sheet. If selected, the Notice to Proceed issued to Contractor shall set forth the “Work Order Amount,” which is the maximum compensation a Contractor may receive for Work performed pursuant to the applicable Work Order Package or Request. Contractor shall not exceed the Work Order Amount unless otherwise authorized by this Section 4. Contractor shall perform the Work at the rates and other costs set forth in Contractor’s rate sheet and shall not change the rates without Anaheim’s prior written approval.
4.4 Unless otherwise stated in the applicable Work Order Package or Request, Contractor’s performance of the Work on a Time, Materials, and Equipment basis shall be paid at the hourly rates for the respective classifications as set forth in the Proposal. Contractor’s performance of the Work on a Crew Hour Rate basis shall be paid at the hourly rate for the respective crew composition as set forth in the Proposal. Billing rates shall include (a) all labor-related costs, including, but not limited to, payroll, benefits, payroll taxes, Workers Compensation Insurance, Liability Insurance; (b) small tools, personal and consumable supplies; (c) home office and field overhead; and (d) profit. All shift differentials shall be paid as direct reimbursables.
4.5 Material and equipment reimbursement costs shall consist of the amounts invoiced to Contractor by its suppliers, including freight charges and any applicable discounts and taxes, plus five percent (5%) to cover overhead and 8 handling costs. All such charges must be separately stated on each invoice.
Anaheim shall not pay any profit on material costs.
4.6 Costs for subcontracted Work shall be paid as invoiced by subcontractors plus five percent (5%) markup for administrative costs.
4.7 Costs for Contractor’s own equipment shall be paid at rates as set forth in the Contractor’s Proposal, as applicable to the specific Work Order Package or Request.
4.8 Reasonable costs for rental equipment, including insurance, as invoiced by suppliers to Contractor, shall be reimbursed only in accordance with the Specifications Supplement, plus a five percent (5%) markup for administrative costs. Reimbursement for rentals must also comply with the following requirements:
4.8.1 Rental period shall begin when equipment is received at jobsite or the Work is initiated, whichever occurs later. Rental period shall end when equipment leaves the jobsite or Work is essentially completed, whichever occurs earlier.
4.8.2 Rental period shall not include time for which equipment is unusable due to unsafe conditions, is not in use due to schedule delays caused by Contractor, is inoperative, or is in transit.
4.8.3 The lowest combination of monthly, weekly, daily, and hourly rates shall apply. Rates shall include (1) any routine maintenance, parts, and supplies; (2) all applicable insurance; and (3) fuel and transportation costs, as specified in Contractor’s Proposal, as applicable.
4.9 Contractor shall assume exclusive responsibility for, and shall pay before delinquency, all federal, state, and local sales, use, excise, and other taxes, charges, or contributions of any kind, whether now or hereafter imposed, that are attributable to or measured by the equipment, materials, supplies, or labor furnished under this Master Agreement, or the wages, salaries, or other compensation paid to individuals employed in the performance of the Work.
4.10 The following payment procedures apply:
4.10.1 For time, materials, and equipment-based Work, Contractor shall submit daily timesheets to the Project Administrator for approval and retention, detailing the work performed, employee name and classification, straight- time and overtime hours, and equipment and material usage. Each monthly invoice shall include sufficient supporting documentation to enable Anaheim to evaluate the invoiced costs, including approved timesheets by classification and applicable rates, supplier and subcontractor invoices, and equipment rental charges.
9 4.10.2 For crew hour rate Work, Contractor shall submit daily timesheets to the Project Administrator for approval and retention, identifying the work performed, crew composition, straight-time and overtime hours, and any additional equipment not included in the crew hour rate, if applicable.
Each monthly invoice shall include sufficient supporting documentation to allow Anaheim to evaluate the invoiced costs, including approved timesheets by crew composition and applicable rates, supplier and subcontractor invoices, and equipment rental charges.
4.10.3 Contractor shall submit a separate invoice for each Anaheim Work Order Package or Request.
4.10.4 For lump sum or unit price Work, Contractor shall submit invoices in accordance with the progress payment schedule set forth in the applicable Work Order Package or Request, or as otherwise approved by Anaheim’s Representative, and consistent with the Work completion schedule.
4.11 As part of each submission for payment, Contractor shall: (i) certify that the portion of the Work for which payment is requested has been completed in accordance with this Master Agreement, including all applicable terms, conditions, and specifications; (ii) state Contractor’s good-faith estimate of the percentage of construction completed and the actual construction costs incurred to date; (iii) certify that the amount requested has not been included in any prior application for payment; and (iv) provide an estimate of the time required to complete the Work. Each application for payment shall be accompanied by an executed Estoppel Certificate in the form attached hereto as Appendix J, identifying the applicable Work Order Package or Request, signed by an authorized officer of Contractor, and submitted with the application for payment.
4.12 Contractor shall submit invoices in a format compliant with this Section and approved by Anaheim to:
City of Anaheim Public Utilities Department
Attention: Project Administrator
Master Agreement No. ______
Electrical Engineering
201 S. Anaheim Blvd., Suite 701
Anaheim, CA 92805
4.13 When requesting final payment following final acceptance of all Work by Anaheim, Contractor shall execute a “Conditional Waiver and Release Upon Final Payment” pursuant to California Civil Code (“CIV Code”) section 8136 or successor statute in a form approved by Anaheim. If requested, Contractor shall provide further assurances reasonably required by Anaheim that all subcontractors, suppliers, and employees have been paid. No final payment shall be made to Contractor without full compliance with this requirement. 10 4.14 Anaheim may withhold payment of the whole or part of any amount due or claimed by Contractor to such extent as may be necessary to protect Anaheim from losses, including, but not limited to, the following: (i) defective Work not remedied; (ii) third party claims filed or reasonably evidenced indicating probable filing of such claims; (iii) failure of Contractor to make payment promptly to its employees, suppliers or subcontractors; (iv) damage caused by Contractor to another contractor to Anaheim; (v) failure of Contractor to diligently prosecute the Work and maintain satisfactory progress required to meet the Work completion schedule; or (vi) any other material breach by Contractor of its obligations under the Work Order Package, Request, or this Master Agreement.
4.14.1 Anaheim may withhold any amounts it reasonably disputes until resolution of the dispute. Such withholding shall not constitute a failure to pay under this Master Agreement. Contractor shall not discontinue the Work as a result of such withholding.
4.14.2 Contractor may appeal any disputed withholding to the Anaheim’s City Manager or designee; the decision shall be administratively final. Contractor shall be entitled to receive interest on any amounts ultimately determined to have been improperly withheld at the rate of return earned by Anaheim on its investments during the withholding period.
4.15 Subject to the foregoing, Anaheim shall make payment within thirty (30) days after receipt and approval of Contractor’s invoice.
5. TIME OF PERFORMANCE
5.1 Time is of the essence in the performance of the Work. Contractor shall perform and complete all Work in accordance with the Work Order Package or Request, unless otherwise modified in writing by Anaheim. Notwithstanding the foregoing, Contractor shall at all times perform the Work with the degree of skill, care, and diligence normally exercised by professionals in the same discipline under similar circumstances, consistent with the applicable standard of care. In the event that any conflict arises between meeting the prescribed deadlines and maintaining the requisite standard of care, Contractor shall promptly notify Anaheim in writing, identifying the nature of the conflict and proposing a reasonable solution.
Anaheim may, at its sole discretion, grant a reasonable extension of time to ensure that the Work is completed in a manner that does not compromise professional standards or public safety. Contractor’s failure to adhere to the specified deadlines without prior written approval from Anaheim or to perform in accordance with the standard of care described herein may constitute a material breach of this Master Agreement, which shall allow Anaheim to elect to terminate the Work Order Package or Request and this Master Agreement and to pursue any remedies available at law or equity.
11 5.2 Anaheim may extend the time for performing a Work Order Package or Request if:
(1) Within ten (10) days of the commencement of a delay described in this Section 5.2, Contractor gives the Project Administrator written notice of the causes of the delay;
(2) The delay is due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not limited to, acts of God or of the public enemy; unusually severe weather, fires, earthquakes, floods, pestilence, or other natural catastrophes; epidemics, pandemics, quarantine restrictions; riots; strikes; freight embargoes; wars; litigation; civil disturbance or disobedience; labor disputes; labor or material shortages; sabotage; change in government priorities; restraint by court order or public authority; and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Anaheim;
(3) Contractor could not reasonably have been expected to avoid the delay; (4) Contractor, by exercise of due diligence, has not been able to overcome the delay; and
(5) Anaheim’s Representative ascertains the facts and the extent of delay and determines such delay is justified.
5.3 Anaheim’s Representative’s determination shall be final and conclusive. In the event of delay, however caused, Contractor’s sole remedy shall be an extension of the Term, pursuant to this Section, and Contractor shall not be entitled to recover damages against Anaheim.
6. LIQUIDATED DAMAGES
The Parties acknowledge that if the Work is not completed by the completion date specified in the applicable Work Order Package or Request, the actual damages Anaheim would incur as a result of the delay would be difficult or impracticable to determine at the time of contracting.
Accordingly, if Contractor fails to complete the Work by such completion date, except for any time extension granted by Anaheim’s Representative under Section 5.2, Contractor shall pay Anaheim liquidated damages—not as a penalty—for each calendar day of delay in the amount specified in the applicable Work Order Package or Request. If no amount is specified, the liquidated damages shall be Five Hundred Dollars ($500) per calendar day.
7. ACCEPTANCE
7.1 Upon Contractor’s belief that the Work has achieved Final Completion, Contractor may submit a written request for final acceptance to Anaheim’s Representative, together with a request for written acknowledgment. Anaheim shall, within thirty (30) days after (i) completion of its final inspection and 12 determination that the Work has been satisfactorily completed in accordance with the Contract Documents and (ii) receipt of all close-out documentation required under this Master Agreement and the applicable Work Order Package or Request, either issue a written acknowledgment of acceptance or provide written notice identifying any deficiencies preventing acceptance. Anaheim’s written acknowledgment of acceptance shall constitute final acceptance of the Work.
7.2 No inspection, review, use, occupancy, or payment by Anaheim, nor any failure by Anaheim to issue a written acknowledgment of acceptance within any stated time period shall constitute final acceptance of the Work. Final acceptance shall occur only upon execution of a written acknowledgment of acceptance by Anaheim in accordance with Section 7.1.
8. TITLE
8.1 Title to all materials, equipment, or property furnished by Anaheim for the performance of the Work shall remain with Anaheim at all times. Contractor shall use such materials solely for the Work, shall exercise reasonable care in their custody, and shall return all unused materials to Anaheim upon completion or termination of the Work.
8.2 Title to the Work, including all materials, equipment, and components incorporated into the Work or delivered to Anaheim for incorporation into the Work, shall pass to Anaheim upon incorporation into the Work or delivery to Anaheim, whichever occurs first, and shall be free and clear of all liens, claims, security interests, or other encumbrances.
8.3 All sketches, documents, drawings, tracings, field survey notes, computations, details, data, photographs, and other tangible or electronic materials prepared or developed by Contractor specifically for Anaheim pursuant to this Master Agreement (collectively, “Work Product”) shall be deemed works made for hire to the extent permitted by law and shall become the property of Anaheim upon creation, whether or not completed, and regardless of whether payment has been made.
(1) To the extent any Work Product does not qualify as a work made for hire, Contractor hereby irrevocably assigns to Anaheim all right, title, and interest therein.
(2) Notwithstanding the foregoing, Contractor retains ownership of its pre- existing materials, standard details, templates, software, or proprietary methodologies, provided that Contractor grants Anaheim a perpetual, royalty- free, non-exclusive license to use, reproduce, modify, and distribute such materials as incorporated into the Work Product for Anaheim’s governmental purposes.
13 9. CHANGES AND EXTRA WORK
9.1 Contractor may request a change in scope of a Work Order Package or Request by giving Anaheim written notice of the change believed to be necessary. Anaheim may initiate a request for extra work by written notice to Contractor. As soon as practicable after either written notice, Contractor shall prepare and forward to Anaheim the price for the change or extra work in accordance with the Proposal and any required adjustment to the schedule. The price shall include all costs associated with performing the additional or changed work, including the impact on original contract Work, inefficiencies created by the additional or changed Work, and overhead associated with the additional or changed Work. All extra work shall be billed at the rates shown in the Proposal or at a lump sum price approved by Anaheim.
9.2 If Contractor’s price is not accepted, Contractor shall provide Anaheim's Representative with the details of its price estimate. If the Parties fail to agree on the price, Anaheim's Representative may authorize the additional or changed Work to be performed on a Time, Materials and Equipment or Crew Hour Rate basis, while reserving the option to obtain the change or extra work of other contractors to perform such Work.
9.3 Should changes or extra work be authorized by Anaheim’s Representative, Contractor shall furnish the necessary labor with requisite small tools and/or materials required for performing such additional work. All authorized changes and extra work, along with the agreed-upon price, shall be confirmed and directed through a Change Order to the applicable Work Order Package or Request.
9.4 Contractor shall implement a change or extra work only after it has received a written copy of an authorized Change Order. All changes or extra work shall be performed under the terms and conditions of this Master Agreement, except as specified in the Change Order. All Change Orders shall be signed by authorized representatives of both Parties prior to commencing the specified Work.
9.5 Contractor hereby expressly waives any compensation for any change or extra work not authorized by an executed Change Order to the Work Order Package or Request. No compensation for labor or schedule impacts from changes or extra work shall be valid, except as specified in the Change Order.
9.6 In no event shall the dollar amount of an individual Change Order exceed ten percent (10%) of the original cost specified in the Work Order Package or Request, and in no event shall the combined total of Change Orders for a single Work Order Package or Request exceed the sum of One Hundred Thousand Dollars ($100,000).
10. CONTRACTOR’S REPRESENTATIVE
10.1 Prior to commencing Work under any Work Order Package or Request, Contractor shall designate, for each such Work Order Package or Request, a 14 representative (“Contractor’s Representative”) with whom all contacts concerning that Work Order Package or Request shall be made. Contractor’s Representative or designee shall be on the job site at all times during the performance of the Work.
10.2 Anaheim shall have the right but not the obligation to approve Contractor’s Representative for each Work Order Package or Request. If Anaheim disapproves Contractor’s Representative for a Work Order Package or Request, Contractor shall promptly designate another Contractor’s Representative acceptable to Anaheim in its sole discretion. Failure by Anaheim to object to Contractor’s designation of the Contractor’s Representative at any time before or during performance of the Work shall not be a waiver of Anaheim’s right to require Contractor to replace its designated Contractor’s Representative at any time during performance of the Work.
10.3 Other than as set forth above, Contractor shall give a minimum of thirty (30) days advance notice and receive Anaheim’s written approval prior to substitution of the Contractor’s Representative designated for a specific Work Order Packages or Request pursuant to this Section, prior to assignment to the performance of the Work under this Master Agreement.
10.4 If Contractor’s Representative, agents, employees, or other personnel, including subconsultants ( collectively, “Contractor’s Personnel”), fail or refuse to perform the Work in accordance with the requirements of this Master Agreement, or if Anaheim, in its sole discretion, determines Contractor’s Personnel to be uncooperative, incompetent, a threat to the adequate or timely completion of the Work set forth in a Work Order Package or Request, or a threat to the safety of persons or property, then at Anaheim’s request, Contractor shall promptly remove Contractor’s Personnel from the performance of Work. Contractor warrants that it will continuously furnish the necessary personnel to complete the Work on a timely basis as contemplated by this Master Agreement and the impacted Work Order Package or Request.
10.5 Contractor’s Personnel shall be fully qualified and licensed for the Work set forth in the Work Order Package or Request.
11. WARRANTY
11.1 Contractor expressly warrants that all the Work performed by it and any subcontractors shall be in conformance with this Master Agreement, the Work Order Package or Request, shall be free from defects in workmanship, and shall be performed in a skillful, competent, and workmanlike manner, consistent with prevailing industry standards and the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Contractor further warrants that the Work shall be performed in a manner consistent with prudent construction and utility industry practices. 15 11.2 Contractor represents and warrants to Anaheim that Contractor and its subcontractors have obtained and shall maintain throughout the Term all licenses, permits, certifications, approvals, qualifications, and insurance required by law to perform the Work, including any required Anaheim business license. Contractor further represents and warrants that Contractor and its subcontractors are properly licensed, qualified, and experienced to perform the class and type of Work described in the applicable Work Order Package or Request and are adequately equipped, organized, staffed, and financed to perform such Work.
11.3 Upon receipt of written notice from Anaheim’s Representative that any Work performed is unsatisfactory, defective, or otherwise not in conformance with this Master Agreement, the Work Order Package or Request, Contractor shall promptly correct or re-perform such Work at Contractor’s sole expense.
11.4 Contractor further agrees that if any fault, break, or defect due to workmanship, fabrication, or installation occurs in any of the Work performed under this Master Agreement within three (3) years from the final acceptance date as set forth in Section 7, Contractor shall repair the same promptly, as requested by Anaheim’s Representative, without expense to Anaheim, so as to fully comply with the Work Order Package or Request.
11.5 In the event any Work performed by Contractor does not comply with the terms of this Master Agreement, the Work Order Package or Request, and Anaheim's Representative deems it necessary that such non-conforming Work shall be temporarily utilized, Contractor agrees that any such Work may be utilized by Anaheim until the Work can be repaired in accordance with this Master Agreement. Contractor shall not claim any compensation from Anaheim for any such temporary utilization.
11.6 If the nature of any defects is such that Anaheim's Representative shall deem it inexpedient to attempt to correct the same, Anaheim shall have the right to deduct from any amounts then due or which shall thereafter become due to Contractor under this Master Agreement, or Contractor shall refund to Anaheim, such sums of money as Anaheim’s Representative shall consider a proper equivalent for the difference in value between the Work as performed and that specified in the Work Order Package or Request, as well as damages resulting therefrom.
11.6.1 Contractor may contest the valuations on which such deductions are based with Anaheim’s Representative, as applicable, and may recover sums that have been improperly deducted. Decisions of Anaheim’s Representative on such matters, as applicable, shall be administratively final.
11.7 All Work performed and any and all measurements of the Work performed under the Work Order Package or Request shall be made to the satisfaction of Anaheim’s Representative, or designee, whose sole judgment shall determine whether the quality of the Work shall satisfy the requirements of the Work Order Package or Request.
16 11.8 This Section shall not be construed as a limitation of Contractor’s liability. The warranties, correction obligations, and remedies provided herein are cumulative, shall survive acceptance and final payment, and are in addition to all other remedies Anaheim may have for Contractor’s negligence, breach of contract, or defective performance.
12. OTHER WORK
12.1 Contractor acknowledges that this Master Agreement is not exclusive and that Anaheim reserves the right to employ or contract with other entities for the performance of the Work outlined in Exhibit A.
12.2 If any part of Contractor’s Work depends upon the Work of another contractor or of the employees of Anaheim, Contractor shall inspect and promptly report to Anaheim's Representative any defects in such Work that renders it unsuitable for the proper execution and results of Contractor’s Work. Failure to so inspect and report any defective Work shall constitute an acceptance of the same by Contractor as being fit and suitable for the proper execution and results of the Work.
12.3 Contractor further agrees that during the performance of the Work, Contractor shall not hinder or interfere with any individuals whom Anaheim may employ to do any Work. Contractor shall suspend any part of the Work, or shall carry on the same, as directed by Anaheim's Representative, so as to afford all reasonable facilities for the performance of such other Work. Contractor shall not claim any extra compensation for delays in the Work. Contractor’s sole recourse shall be an extension of time for performance as Anaheim may grant in accordance with the provisions hereof.
13. REPORTS
Contractor shall keep Anaheim regularly informed of the status and progress of the Work, including activities performed and planned, scheduled or proposed meetings, and any matters affecting performance. Upon request by Anaheim’s Representative or designee, Contractor shall provide written status reports comparing actual labor hours, costs, and performance against estimated labor hours, estimated costs, and scheduled performance. Such reports shall include projected completion dates, explanations of material variances, and identification of any actual or potential issues that may affect the cost to Anaheim or the timely completion of the Work.
14. INSPECTION
14.1 Anaheim may, at any time and from time to time, inspect the Work prior to its completion to see that the Work is or has been performed in accordance with the Work Order Package or Request. Such inspections will be conducted at reasonable times.
14.2 Anaheim may also inspect the Work at any time when Anaheim’s Representative, or designee, determines that an inspection is necessary for health or safety 17 reasons. Any such inspection, regardless of its outcome, shall not constitute a waiver of Anaheim’s right to reject the Work at a later time and shall not relieve Contractor of its obligation to perform and complete the Work in accordance with the applicable Work Order Package or Request.
15. PROTECTIVE MEASURES
15.1 Contractor shall be responsible, until final acceptance of the Work and issuance of a notice of completion for the applicable Work Order Package or Request, for the inspection, care, and protection of all equipment and materials delivered and all Work performed. Contractor shall also adequately protect adjacent property, including existing work on public property, as required by law and this Master Agreement.
15.2 Contractor shall take all necessary precautions to ensure the safety of its employees, subcontractors, and others performing the Work on its behalf and to prevent injury to persons on, about, or adjacent to the Work site. Contractor shall erect, maintain, and remove, as required by the conditions and progress of the Work, all necessary safeguards, barriers, and warnings to protect such persons and property.
16. RISK OF LOSS AND DAMAGE
Contractor shall be responsible for any loss or damage to the Work, or material furnished by Anaheim for the Work, until final acceptance of the Work and issuance of a notice of completion by Anaheim for a specific Work Order Package or Request. In the event of loss or damage, if it should become necessary to replace materials furnished by Anaheim, the cost of replacement shall be paid by Contractor to Anaheim. Anaheim may deduct such costs from any amounts due or to become due Contractor.
17. ANAHEIM-FURNISHED TOOLS AND EQUIPMENT
17.1 Any tools or equipment furnished by Anaheim to Contractor for performance of the Work are provided solely as a convenience to Contractor and subject to the conditions set forth below:
(1) Contractor shall ensure that all employees using any Anaheim-furnished tools or equipment are properly trained in their correct, intended, and safe use, and shall actively supervise such use with trained personnel to ensure at all times that the tools or equipment are used safely, for their intended purpose, and without risk of injury or damage to persons or property. (2) The Comprehensive General Liability Insurance required under this Master Agreement shall include coverage for all liability assumed by Contractor arising out of or related to the use of, supervision of, or training in connection with any Anaheim-furnished tools or equipment. 18 (3) Contractor shall inspect all Anaheim-furnished tools and equipment prior to use and shall be responsible for identifying any defects. Any tool or equipment found to be defective shall not be used and shall be immediately returned to Anaheim.
(4) All tools and equipment furnished by Anaheim shall be promptly returned upon request by Anaheim’s Representative. If Contractor fails to do so, Anaheim may, at its option, replace such tools or equipment at Contractor’s expense.
18. FAMILIARITY WITH THE WORK
By executing this Master Agreement, Contractor represents and warrants that it has thoroughly reviewed and considered the Work generally described in the Scope of Work (Exhibit A).
Accordingly, Contractor represents and warrants that it: (i) has carefully evaluated the manner in which the Work is to be performed and (ii) fully understands the facilities, conditions, difficulties, and restrictions associated with performance of the Work under this Master Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the provision of such Work or as represented by Anaheim, Contractor shall immediately inform Anaheim of such fact and shall not proceed except at Contractor’s risk until written instructions are received from Anaheim.
19. INDEPENDENT CONTRACTOR
19.1 Neither Anaheim nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents or employees, perform the Work, except as otherwise set forth herein. Except as expressly provided herein, Anaheim shall have no voice in the selection, discharge, supervision, or control of Contractor’s employees, servants, representatives or agents, or in fixing their number, compensation, or hours of service. Contractor shall perform all Work as an independent contractor of Anaheim and shall remain at all times, as to Anaheim, a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Anaheim. Anaheim shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
19.2 In consideration for the compensation Anaheim pays to Contractor, Contractor agrees that Anaheim shall not be liable or responsible for any benefits, including, but not limited to, worker’s compensation, disability, retirement, life, unemployment, health, or any other benefits that Contractor offers to its employees/agents, and Contractor agrees that it shall not sue or file a claim, petition, or application therefor against Anaheim or any of its appointed or elected officials (together, “officials”), officers, employees, agents, representatives, or sureties.
19 20. INSURANCE
20.1 Without limiting Anaheim’s right to indemnification, it is agreed that Contractor shall secure, prior to commencing any activities under this Master Agreement, and maintain, during the term of this Master Agreement, the following minimum insurance coverage requirements:
(1) Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000. (2) Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Contractor’s Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Master Agreement.
(3) Commercial Automobile Liability Coverage, as required by California law including—as applicable—owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, written on an occurrence form.
20.2 The General Liability and Auto Liability Insurance required herein shall include coverage insuring against Contractor’s indemnification obligations set forth herein, provided that this provision shall not diminish any rights Anaheim may have as an additional insured under this insurance.
20.3 If Contractor maintains broader coverage and/or higher limits than the minimums shown above, Anaheim requires and shall be entitled to the broader coverage and/or the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Anaheim.
20.4 The Worker’s Compensation and Liability Insurance policies required herein shall each provide for a waiver of subrogation in favor of Anaheim.
20.5 Each insurance policy required by this Master Agreement shall contain the following clause or shall otherwise provide for the following conditions:
“This insurance shall not be canceled, limited in scope or coverage, or non- renewed until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium which shall provide for not less than ten (10) days notice.”
20 20.6 Each insurance policy required by this Master Agreement, except policies for Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
“It is agreed that any insurance maintained by Contractor pursuant to this Master Agreement shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim.” “The City of Anaheim, its officers, agents, employees, representatives and volunteers are added as additional insureds as respects acts, omissions, operations, goods or work provided, or activities of, or on behalf of, the named insured under an agreement or contract with the City of Anaheim.”
20.7 Prior to commencing any Work under this Master Agreement, Contractor shall deliver to Anaheim insurance certificates confirming the existence of the insurance required by this Master Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Master Agreement, Contractor shall provide to Anaheim (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable Anaheim evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies.
Should it be deemed necessary by Anaheim, it shall be Contractor’s responsibility to see that Anaheim receives documentation acceptable to Anaheim which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing A.M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to Anaheim, with prior written permission from Anaheim. In the event that (i) a claim or other legal action is filed against Anaheim, and Anaheim, in its good faith opinion, believes it may have coverage under any of the insurance required herein, and (ii) the issuer of any such insurance has failed to fully accept, without reservation, Anaheim’s submission of said claim or legal action, then Anaheim has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that Contractor shall fully defend, hold harmless, and indemnify Anaheim against any such claim or other legal action.
20.8 In addition to any other remedies Anaheim may have if Contractor fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Anaheim may, at its sole option:
(1) Order Contractor to stop Work under this Master Agreement and/or withhold any payment(s) which become due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof;
(2) Terminate this Master Agreement.
21 20.9 Exercise of any of the above remedies, however, is an alternative to other remedies Anaheim may have and is not the exclusive remedy for Contractor's failure to maintain insurance or secure appropriate endorsements.
20.10 Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payment of damages to persons or property resulting from Contractor’s, or Contractor’s contractors/subcontractor’s, if any, performance of the Work covered under this Master Agreement.
20.11 In the event Contractor hires other persons or firms to perform some of the Work related to this Master Agreement, Contractor shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than and subject to the same limits, terms and conditions as, the insurance required of Contractor under this Master Agreement; and in either instance, Contractor shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Anaheim.
20.12 Anaheim’s Risk Manager is hereby authorized to amend or accept any Contractor generated request to amend or reduce the requirements set forth herein in the event such amendment or reduction is in Anaheim’s best interest.
21. INDEMNIFICATION
Contractor agrees to indemnify, defend, and hold harmless Anaheim, its officials, agents, employees, and representatives, from and against any and all claims, demands, defense costs and liability of any kind or nature (collectively referred to hereinafter as “Claims”) arising out of or in connection with Contractor’s (or Contractor’s subcontractors’, if any) performance or failure to perform work performed by or on behalf of Contractor, or goods or services provided by or on behalf of Contractor under the terms of this Master Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of Anaheim. Such agreement shall be in effect without regard to whether or not Anaheim, Contractor, or any other person or entity maintains or fails to maintain insurance coverage for any such Claims. The obligations set forth in this indemnification/defense provision shall survive the termination of this Master Agreement.
Without limiting the foregoing, Contractor shall be responsible for the prompt removal, discharge, or bonding over of any mechanic’s lien or stop notice filed in connection with the Work and shall indemnify Anaheim for all costs arising therefrom.
22. REQUIRED BONDS
22.1 Upon the execution of this Master Agreement, Contractor shall provide both a performance bond and a bond for payment for labor and material to secure its performance of Work under this Master Agreement.
22.2 Contractor shall maintain these bonds for the entire Term of this Master Agreement. Each such bond shall be written in the principal amount of not less than One Million Dollars ($1,000,000) and in the form set forth in the Sample Faithful Performance Bond attached hereto as Appendix K and Sample Labor and 22 Material Bond attached hereto as Appendix L. However, should the total value of all Work awarded to Contractor but not yet completed by Contractor and accepted by Anaheim for all Work to be completed pursuant to this Master Agreement exceed the sum of One Million Dollars ($1,000,000), at any time, Contractor agrees to increase the principal amount of such bonds to an amount not less than the total value of the Work. Such higher bond amount shall be maintained until such time that one or more outstanding Work Order Packages or Requests have been completed, and a corresponding portion of the bond has been released by Anaheim. At that time the total principal amount of the bonds may be reduced to the new total amount of all Work Order Packages or Requests then awarded but not yet completed and signed off.
22.3 Notwithstanding the above, in no event shall the principal amount of each of the bonds be less than One Million Dollars ($1,000,000) at any time during the entire Term of this Master Agreement. Such bonds shall be written with surety (i) authorized to do business in the State of California by the California Department of Insurance, and (ii) listed on the most current version of the Department of Treasury's Circular 570.
23. BREACH OF AGREEMENT
Contractor shall not be relieved of liability to Anaheim for any damages sustained by Anaheim as a result of a breach of this Master Agreement by Contractor. Anaheim may withhold payments to Contractor for purposes of set-off until the exact amount of damages owed to Anaheim is determined, including pursuant to Section 4.14. In addition, Anaheim may pursue all remedies available at law for any such breach. The waiver by either Party of any breach of this Master Agreement shall not constitute a waiver of any subsequent breach.
24. CALIFORNIA LABOR CODE; PREVAILING WAGES
24.1 By executing this Master Agreement, Contractor understands that this Master Agreement involves Work that, in whole or in part, constitutes “public works” as defined in the California Labor Code (“Labor Code”) sections 1720 et seq.
24.2 Contractor and its subcontractors (if any) shall be registered with the California Department of Industrial Relations (“DIR”) in accordance with Labor Code section 1725.5 prior to performing any public work under this Master Agreement.
Contractor shall furnish the DIR registration numbers for itself and each subcontractor. Registration shall remain active throughout the Term. If registration lapses at any time, Contractor shall immediately notify Anaheim.
24.3 Contractor shall pay all workers employed on any public work under this Master Agreement not less than the prevailing wage rates as determined by the Director of the DIR in accordance with Labor Code sections 1720 et seq. and 1770 et seq. and applicable regulations (together, “Prevailing Wage Laws”). The applicable prevailing wage rates include employer payments for health and welfare, pension, vacation, and similar purposes. Prevailing wage obligations apply to all workers, 23 including those employed by subcontractors, and extend to on-site work and the delivery of materials when applicable.
24.4 If there is any difference between applicable wage requirements under Anaheim’s Living Wage Ordinance, state Prevailing Wage Laws, or federal Davis-Bacon Act requirements (40 U.S.C. §§ 3141-3148), the highest applicable wage rate shall apply.
24.5 Contractor shall post a copy of the prevailing wage rates at the project site and at its principal place of business, in accordance with Labor Code section 1773.2.
These rates must be visible and accessible to all workers.
24.6 Contractor shall not be entitled to any additional compensation under this Master Agreement for increases in prevailing wage rates during the Term. Contractor is responsible for considering potential wage rates changes when submitting its bid for specific Work Order Packages and Requests, and when entering into this Master Agreement.
24.7 If Contractor or its subcontractor fails to pay the prevailing wage as required, Contractor shall, as a penalty to Anaheim, forfeit fifty dollars ($50) for each calendar day or portion thereof for each worker paid less than the applicable prevailing wage rate, in accordance with Labor Code section 1775. In addition to penalties, Contractor shall pay the affected workers the difference between the wages paid and the prevailing wage rate.
24.8 Contractor shall comply with Labor Code section 1810 through 1815 regarding working hours on public works. Contractor shall not permit any worker to perform Work under this Master Agreement for more than eight (8) hours in a calendar day, forty (40) hours a calendar week, or weekends and holidays, unless such worker is compensated for all excess hours at a rate of not less than one and one-half times the basic rate of pay.
24.8.1 Contractor shall forfeit to Anaheim, as a penalty under Labor Code section 1813, twenty-five dollars ($25) for each calendar day during which any worker is required or permitted to work in violation of these requirements
24.9 If the total value of the Work under this Master Agreement, Work Order Package or Request is $30,000 or more, Contractor and its subcontractors shall comply with Labor Code sections 1777.5 and 1777.6 and applicable regulations concerning the employment and training of apprentices. Upon request, Contractor shall provide Anaheim with (1) documentation submitted to applicable apprenticeship programs and (2) within 60 days of completing work a verified statement of journeyman and apprentice hours worked. Penalties for noncompliance may be withheld by Anaheim in accordance with Labor Code section 1777.7.
24.10 By executing this Master Agreement, Contractor certifies compliance with Labor Code section 1861 and acknowledges awareness of the requirements of section 24 3700, which mandate that every employer must secure workers’ compensation coverage or undertake self-insurance. Upon request, Contractor shall provide proof of compliance before beginning Work under this Master Agreement.
24.11 Contractor and its subcontractors shall maintain accurate certified payroll records in accordance with Labor Code section 1776. These records must be available for inspection during regular business hours and electronically submitted to the Labor Commissioner, as required by Labor Code section 1771.4 and applicable regulations. Upon request, Contractor shall also report the location of such records or submit the records to Anaheim.
24.12 Contractor shall include all applicable labor compliance obligations, including DIR registration, prevailing wage, working hours, apprenticeship, workers’ compensation, and certified payroll requirements, in every subcontract it enters into for performance of Work under this Master Agreement. Contractor shall ensure that each subcontractor complies with all such obligations and shall be liable for any subcontractor’s noncompliance.
24.12.1 Contractor shall not contract with any subcontractor that is debarred or suspended under state or federal law.
24.13 Contractor shall not divide or separate any project, task, Work Order Package or Request into smaller components to avoid the application of prevailing wage laws. Any such action shall constitute a material breach of this Master Agreement and subject Contractor to applicable penalties under the Labor Code.
24.14 Anaheim may withhold or reject payment, in whole or in part, if Contractor or any of its subcontractors fails to meet labor compliance requirements, including those mentioned in this Section. Such withholdings shall not relieve Contractor of its contractual obligations.
24.15 To the maximum extent permitted by law, Contractor shall indemnify, defend (with counsel reasonably acceptable to Anaheim), and hold harmless Anaheim, its officials, officers, employees, agents, designated consultants, and volunteers from and against any claims, penalties, liabilities, costs, or expenses, including attorneys’ fees, arising from Contractor’s or its subcontractors’ failure to comply with applicable Labor Code provisions, including but not limited to any requirement mentioned in this Section. This indemnity obligation shall survive the termination of this Master Agreement.
25. PROHIBITION AGAINST ASSIGNMENT AND TRANSFERS
The Parties recognize that a substantial inducement to Anaheim for entering into this Master Agreement is the professional reputation, experience, and competence of Contractor. Contractor has no right to assign, transfer, delegate, or otherwise encumber (together “Assignment”) any rights, obligations, duties, interests, or privileges in or arising out of this Master Agreement, including as a result of a merger, acquisition, consolidation, or other form of corporate assimilation, without the prior written consent of Anaheim. Any such purported Assignment 25 without Anaheim’s prior consent shall be void as to Anaheim. If Anaheim approves an Assignment, this Master Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of Contractor.
26. SUBCONTRACTING
Except for those subcontractors, if any, identified in Contractor’s Proposal to a Work Order Package or Request, Contractor shall not subcontract any portion of the Work without the prior written authorization of Anaheim. Contractor shall be fully responsible to Anaheim for all acts and omissions of any subcontractor. Nothing in this Master Agreement shall create any contractual relationship between Anaheim and the subcontractor, nor shall it create any obligation on the part of Anaheim to pay or ensure the payment of any monies due to any such subcontractor other than as otherwise required by law. Anaheim is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and Anaheim pursuant to this Master Agreement.
27. USE AND OWNERSHIP OF DOCUMENTS AND DATA
27.1 Anaheim shall furnish to Contractor such documents, data, and materials as may be relevant and pertinent to the provision of Work hereunder as Anaheim may possess or acquire. Contractor may rely upon the accuracy and completeness of such materials, provided that Contractor shall provide Anaheim prompt notice of any known defects in such materials before submitting a bid.
27.2 All documents, data, and written materials furnished by Anaheim to Contractor pursuant to Section 27.1shall remain the property of Anaheim and shall be returned to Anaheim upon termination of this Master Agreement, for any reason.
All documents, data, or written material prepared or caused to be prepared by Contractor, its officers, employees, agents, and subcontractors in the course of implementing this Master Agreement shall become the exclusive property of Anaheim, and Anaheim shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party.
Contractor shall, at Contractor’s sole cost and expense, provide such documents, data, and material to Anaheim upon prior written request. Notwithstanding Anaheim’s ownership of such documents, data, and materials, any portion thereof that constitutes Confidential Information shall remain subject to the confidentiality obligations set forth in Section 28.
28. CONFIDENTIALITY
28.1 “Confidential Information” means, with respect to a Party hereto, all information or material that are either (1) marked or identified as “Confidential,” “Restricted,” or “Proprietary,” or other similar marking or identification, or (2) the Receiving Party knew, or under the circumstances should have known, was considered confidential or proprietary by the “Disclosing Party” (as defined below). Confidential Information shall consist of all information, whether in 26 written, oral, electronic, digital, or other form that was furnished in connection with this Master Agreement by the Disclosing Party or its Authorized Personnel (“Authorized Personnel” means those elected or appointed officials, directors, officers, employees, agents, advisors, or consultants of a Party or any of its subsidiaries or affiliates who are expressly authorized by such Party, on a need-to- know basis, to access Confidential Information solely in furtherance of this Master Agreement) to the Receiving Party or to its Authorized Personnel and specifically includes, but is not limited to, Anaheim’s individually identifiable customer information and Anaheim’s customer usage data and financial data.
28.2 The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Master Agreement by the Receiving Party or its Authorized Personnel; (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Master Agreement without any obligation of confidentiality and through no breach of this Master Agreement by the Receiving Party or its Authorized Personnel; (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
28.3 Contractor and Anaheim shall each hold the other’s Confidential Information in confidence. Neither Party shall make the other’s Confidential Information available in any form to any third party or use the other’s Confidential Information for any purpose other than to perform this Master Agreement.
28.4 The Party providing Confidential Information (“Disclosing Party”) to the other Party (“Receiving Party”) shall remain the sole owner of such information.
Except as provided elsewhere within this Master Agreement, nothing contained in this Master Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software, or other technology, either expressly or by implication to the Receiving Party, its Authorized Personnel, or to others. For the avoidance of doubt, Anaheim’s ownership rights under Section 27.2are not limited by this Confidentiality Section, provided that Anaheim shall continue to comply with applicable confidentiality and disclosure obligations under law.
28.5 By virtue of this Master Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Master Agreement does not diminish, revoke, or supersede any existing confidentiality, non-disclosure, or similar Master Agreement between the Parties that does not pertain to the subject matter of this Master Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Master Agreement shall be governed by the terms of this Section 28, which shall supersede any less-restrictive provisions of such previous Master Agreement with 27 respect to such Confidential Information. Any Confidential Information relating to the subject matter of this Master Agreement that was exchanged under such previous Master Agreement shall be treated as though it were exchanged under this Master Agreement as of the date of such exchange.
28.6 The Receiving Party will treat all Confidential Information of the Disclosing Party as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Master Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Master Agreement or as authorized in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Master Agreement to any person other than its Authorized Personnel who requires knowledge of such Confidential Information in furtherance of this Master Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Authorized Personnel of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Master Agreement by its Authorized Personnel. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
28.7 If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible, but in no event later than five (5) days after knowledge of Contractor’s obligation to such requirement. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Master Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose and will exercise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
28.8 In the event the Receiving Party discloses, disseminates, or releases any Confidential Information, except as expressly permitted by this Master 28 Agreement, such disclosure, dissemination, or release will be deemed a material breach of this Master Agreement, and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party.
As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate.
Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Master Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies the Disclosing Party may have.
28.9 Within two (2) weeks of the termination of this Master Agreement, Contractor will return to Anaheim or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions, or any other form of said material without retaining any copy or duplicate thereof; provided that Contractor may retain Confidential Information contained on backup media created in the ordinary course of business; provided further that there is no effort to access such Confidential Information, and Contractor’s confidential obligations with respect to such information shall continue so long as such information is retained. Contractor shall certify in writing the destruction of the Confidential Information. Anaheim may perform an audit of Contractor’s records to confirm the return or destruction of the Confidential Information. Anaheim shall have this audit right for three (3) years after the termination of this Master Agreement. The return or destruction obligations set forth in this Section are in addition to, and not in limitation of, Contractor’s obligations under Section 27.2.
28.10 Contractor may access Anaheim records, including data maintained by Anaheim’s Electric Services Division, solely to the extent necessary to perform this Master Agreement. Access to any Critical Infrastructure Information (“CII”) requires Contractor to execute any additional confidentiality or nondisclosure agreements that Anaheim deems necessary. Failure to execute such agreements may constitute a material breach of this Master Agreement. All access to Anaheim records and CII remains subject to the confidentiality obligations set forth in this Section 28.
28.11 Notwithstanding the termination of this Master Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Master Agreement.
29 29. FISCAL RECORDS AND AUDIT
29.1 Contractor shall maintain complete, accurate, and detailed records and invoices in connection with all Work and charges under this Master Agreement, including records of cost, expenses, disbursements, and other financial transactions. All records shall be maintained using generally accepted accounting principles and be clearly identifiable and organized to facilitate inspection and audit.
29.2 Contractor shall retain all records required to be maintained under this Master Agreement for the longer of (a) three years (3) following the later of final payment or termination of this Master Agreement, (b) the retention period required by applicable law or any other provision of this Master Agreement, or (c) the resolution of any audit or claims.
29.3 Anaheim, its authorized representatives and auditors (including contracted certified public accounting firms), and state or federal agencies with jurisdiction shall have the right, upon reasonable advance notice, to access and audit Contractor’s books, records, documents, accounting procedures, internal controls, and all other information related to performance under this Master Agreement.
Such audits may occur during the Term and throughout the applicable retention period and shall be conducted during normal business hours in accordance with generally accepted auditing standards.
29.4 Contractor shall ensure that any subcontractor performing Work under this Master Agreement maintains records and provides Anaheim with the same audit and inspection rights set forth in this Master Agreement. Contractor shall include language in its subcontractors sufficient to secure these rights for Anaheim.
29.5 Contractor shall fully cooperate with any audit or inspection conducted pursuant to this Master Agreement, including by making Contractor’s Personnel available for interviews. Upon Anaheim’s request, Contractor shall also prepare and submit reports regarding its performance of the Master Agreement. Contractor’s participation in up to five (5) hours of such cooperation per audit shall be at no additional cost to Anaheim. Any additional participation shall be reimbursed at Contractor’s commercially reasonable hourly rates.
29.6 If any audit or inspection reveals that Contractor has overcharged Anaheim or otherwise improperly billed costs under this Master Agreement, Anaheim may adjust current or future payments accordingly. If any reimbursement is due to Anaheim, Contractor shall make such payment within thirty (30) days of written notice. If payment is not received within this period, interest shall accrue at a rate of ten percent (10%) per annum from the notice date until payment is received, unless a higher rate is specified elsewhere in this Master Agreement. If any audit reveals overcharges exceeding one percent (1%) of the audited Master Agreement value, Contractor shall also reimburse Anaheim for the full cost of the audit. 30 30. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the Contractor’s negligence, recklessness, willful misconduct, or breach of the applicable standard of care, and that result in expense to Anaheim greater than what would have resulted if there were not errors or omissions in the Work performed by Contractor, the additional cost and expense shall be borne by Contractor. Nothing in this paragraph is intended to limit Anaheim’s rights under the law or any other sections of this Master Agreement.
31. CONFLICT OF INTEREST
31.1 Contractor or Contractor’s Personnel may be subject to the provisions of the California Political Reform Act of 1974 (the “Act”), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Master Agreement and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all other requirements of the Act that may be applicable. Failure to do so constitutes a material breach and is grounds for immediate termination of this Master Agreement by Anaheim.
31.2 Contractor’s Work under this Master Agreement may now or in the future involve participation in governmental decision-making processes such that Anaheim deems it necessary to designate one or more of Contractor’s Personnel a filer of a Statement of Economic Interests (“Form 700 Filer”) under the Act. Anaheim shall make such designations based on the nature and Scope of Work and requirements of the Act. If Contractor’s Personnel is designated a Form 700 Filer, such employee(s) shall file under Disclosure Category 1, unless otherwise directed by Anaheim, and shall periodically complete ethics training as required by Anaheim. Contractor shall at its own cost and expense ensure such employee’s compliance with these filing and ethics-training requirements.
31.3 Contactor shall indemnify and hold harmless Anaheim for any and all claims for damages resulting from Contractor’s violation of this Section. 31 32. NOTICES
Any notice or demand to be made under this Master Agreement shall be in writing and shall be deemed effective when: (1) delivered personally, upon receipt or refusal of receipt by the receiving Party; (2) sent by registered or certified mail, return receipt requested, postage prepaid, on the date shown on the return receipt or the date of refusal of receipt; or (3) sent by recognized overnight courier service, delivery fees prepaid, the business day following deposit with the courier. Notices shall be addressed to the Parties at the following addresses:
If to Anaheim: Anaheim City Clerk
City of Anaheim
200 S. Anaheim Blvd., 2nd Floor
Anaheim, California 92805
With copies to: Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
If to Contractor: [CONTRACTOR ENTITY NAME]
[ADDRESS]
[CITY, STATE, ZIP]
Each Party may change its address for notice by providing written notice to the other in accordance with this Section.
33. TERMINATION
33.1 Anaheim may terminate this Master Agreement with or without cause upon giving Contractor fifteen (15) days prior written notice. Anaheim may terminate any specific Work authorized pursuant to a Work Order Package or Request with or without cause upon giving Contractor five (5) days prior notice.
33.2 If this Master Agreement or any Work is terminated without cause, Contractor will be paid for costs incurred and actual Work satisfactorily performed for Anaheim up to and including the date of termination.
33.3 Termination of this Master Agreement, with or without cause, shall result in (1) immediate suspension of the Contractor’s pre-qualified status, (2) immediate prohibition of further bids and proposals by Contractor under this Master Agreement, and (3) immediate termination of all pending Work Order Packages and Requests awarded to Contractor under this Master Agreement, except such operations as may be necessary to prevent damage to property or to the Work already accomplished, and those operations shall be terminated as soon as practicable. Such termination shall be duly noticed and provide the Contractor with an opportunity for appeal and a hearing consistent with Anaheim’s pre- qualification procedures.
32 33.4 The General Manager is authorized to terminate this Master Agreement and any Work as stated herein.
34. SUSPENSION OF WORK
34.1 Suspension of a Work Order Package or Request under this Section is temporary in nature and does not constitute a termination of this Master Agreement or the Work, except as expressly provided herein. Termination of this Master Agreement or any Work shall be governed exclusively by the Termination provisions set forth in Section 33.
34.2 Anaheim may at any time suspend the entire Work, or any portion thereof, upon written notice to Contractor, who shall thereupon discontinue and suspend the Work except such operations as may be necessary to prevent damage to property or to the Work already accomplished. Contractor shall resume the Work after Anaheim gives written notice lifting the suspension.
34.3 Contractor shall be paid, in accordance with the applicable Work Order Package or Request, for Work satisfactorily performed prior to the effective date of any suspension. If a suspension delays completion of the Work, Contractor shall be entitled to an equitable extension of time and to reimbursement of reasonable, documented costs actually incurred in deactivating and reactivating the Work as a result of an Anaheim-ordered suspension. Such time and cost adjustment shall be Contractor’s sole and exclusive compensation for any suspension of the Work by Anaheim.
34.4 This Section 34 applies only to suspensions of a Work Order Package or Request ordered by Anaheim and caused by conditions that could not have been reasonably anticipated. This Section does not apply to suspensions arising from conditions identified in the Work Order Package or Request, inclement weather, the nature of the Work, Anaheim’s operating requirements, or termination as defined herein.
35. COMMUNITY WORKFORCE AGREEMENT – CONDITIONAL APPLICATION
35.1 Anaheim has adopted a CWA applicable to certain public works construction projects. The CWA, as amended from time to time, is hereby incorporated into this Master Agreement by reference as though fully set forth herein. A copy of the CWA is available on Anaheim’s website at: https://www.anaheim.net/229/Public- Works.
35.2 The requirements of the CWA shall apply only to those Work Order Packages or Requests, task authorizations, or discrete scopes of Work issued under this Master Agreement that (i) meet the applicability thresholds and conditions set forth in the CWA and (ii) do not fall within any exemption, exclusion, or exception expressly provided in the CWA or formally determined by Anaheim to be exempt pursuant to the CWA’s terms. Work that qualifies under an express exception identified in 33 the CWA, or that Anaheim determines in writing to be exempt pursuant to the CWA’s administrative procedures, shall not be subject to CWA requirements.
35.3 Anaheim shall determine, at the time of issuance of each Work Order Package or Request (or prior thereto), whether the applicable scope of Work is subject to the CWA. Such determination shall be documented in the applicable Work Order Package or Request or in a written notice issued by Anaheim’s Project Administrator. Anaheim’s determination shall be controlling absent manifest error.
35.4 For any Work determined to be subject to the CWA, Contractor shall:
(1) Comply with all terms and conditions of the CWA.
(2) Execute a Letter of Assent, if required.
(3) Ensure that all subcontractors of any tier performing covered Work execute a Letter of Assent and are bound to the CWA prior to commencement of such Work.
(4) Include appropriate CWA flow-down provisions in all subcontracts for covered Work.
35.5 Nothing in this Master Agreement shall be construed to expand the scope or applicability of the CWA beyond that required by its express terms. The CWA shall apply only to covered Work as defined therein.
35.6 In the event of a conflict between the provisions of this Master Agreement and the CWA with respect to covered Work, the terms of the CWA shall control. For Work not subject to the CWA, this Master Agreement shall control.
36. SKILLED AND TRAINED WORKFORCE
To the extent required by applicable law, Contractor acknowledges and agrees that it is responsible for complying with the skilled and trained workforce requirements set forth in California Public Contract Code (“PCC”) sections 2601 through 2603. Contractor, and any of its subcontractors at every tier, shall use a skilled and trained workforce for any work performed under this Master Agreement for which such requirements are legally applicable. Where skilled and trained workforce requirements apply, Contractor shall provide to City, on a monthly basis during performance of any applicable work, documentation demonstrating compliance with Chapter 2.9 of the PCC. Nothing in this provision shall be construed to require application of skilled and trained workforce requirements to work that is not subject to such requirements under applicable law.
37. DISPUTES
37.1 Any dispute arising under this Master Agreement shall first be submitted to Anaheim’s Representative, or designee, for review and determination. Such determination shall constitute an administrative decision only and shall not be final or binding for purposes of CIV Code section 1670. 34 37.2 If the dispute is not resolved through such administrative review, the dispute shall be resolved by independent arbitration if mutually agreed by the Parties, or otherwise by litigation in a court of competent jurisdiction, as required by CIV Code section 1670.
37.3 Contractor shall not commence arbitration or litigation until completion of the foregoing administrative review and until Anaheim has made final payment for all undisputed Work.
38. COMPLIANCE WITH ALL LAWS
38.1 Contractor shall, at its own cost and expense, comply with all applicable statutes, ordinances, regulations, and requirements of federal, state, county, and municipal authorities, whether currently in effect or enacted during the performance of the Work. All Work performed by Contractor shall conform to applicable local, county, state, and federal laws, rules, regulations, and permit requirements (collectively, “Laws and Practices”) and shall be subject to the approval of the Project Administrator. Contractor further warrants that all Work performed under this Master Agreement shall be in strict compliance with such Laws and Practices, including, without limitation, Cal/OSHA, AQMD, and EPA regulations.
38.2 The Project Administrator may enter the jobsite at reasonable times to inspect and monitor compliance with applicable Laws, Practices, and the terms of this Master Agreement. Contractor shall at all times maintain proper facilities and provide safe access for such inspections to all parts of the jobsite. When a Work Order Package or Request specifies that Work must be specially tested or approved, such Work shall not be tested or approved without timely advance notice to Anaheim’s Representative of its readiness and without the prior written consent of Anaheim’s Representative.
38.3 If Anaheim’s Representative identifies any noncompliance with Laws and Practices, Anaheim’s Representative may notify Contractor of the noncompliance and require Contractor to promptly bring the jobsite into compliance.
38.4 If Anaheim’s Representative identifies a situation that, in the Representative’s opinion, presents an immediate risk of bodily harm or significant property damage, Anaheim’s Representative may contact Contractor and recommend that the Work be stopped until the situation is corrected to the satisfaction of Anaheim’s Representative.
38.5 If Anaheim’s Representative identifies a noncompliance that, in the Representative’s opinion, constitutes an imminent danger of serious bodily harm or death, the Representative may contact Contractor and require that the situation be immediately corrected to the Representative’s satisfaction.
38.6 Anaheim’s decision to exercise or not exercise any rights under these provisions shall not create any liability for Anaheim, nor relieve Contractor of any obligations under this Master Agreement, provided that Anaheim’s 35 Representative acts in good faith in exercising or refraining from exercising such rights.
38.7 Contractor shall dispose of all materials used in the performance of this Master Agreement in full compliance with all applicable Laws and Practices.
38.8 Contractor shall not discriminate against individuals with disabilities in the provision of services and shall ensure that such individuals have access to the services provided under this Master Agreement. Contractor shall comply with all applicable requirements of the Americans with Disabilities Act of 1990 and its implementing regulations (28 CFR Parts 35–36) to provide accessibility to the extent readily achievable.
38.9 Contractor shall allow representatives of Anaheim access to Contractor’s employment records related to this Master Agreement, during regular business hours, to verify compliance with these provisions upon request by Anaheim.
39. WAIVER
No failure or delay by either Party in exercising any right under this Master Agreement shall constitute a waiver of that right, nor shall any waiver of a breach or default be deemed a waiver of any concurrent or subsequent breach or default. Any waiver must be in writing and signed by the waiving Party.
40. INTEGRATED CONTRACT
40.1 This Master Agreement and the Exhibits and Appendices hereto, if any, contain the entire agreement between the Parties with respect to the matters covered hereby, and no agreement, statement, or promise made by either Anaheim or Contractor that is not contained herein shall be valid or binding. No prior agreement, understanding, or representation pertaining to any the matters covered hereby shall be effective for any purpose.
40.2 Anaheim has provided the following Appendices to Contractor, which are incorporated herein by this reference:
Appendix A - General Definitions for the Appendices
Appendix B - General Specification
Appendix C - Overhead Electrical Specification
Appendix D - Underground Electrical Specifications
Appendix E - Substation Specifications
Appendix F - Directional Boring and Open trench Installation of Conduit for Replacement of Direct Buried Primary, Secondary and Service Cables Specification
36 Appendix G - Street Lighting Installation Specification Appendix H - Telecommunication Specifications & Standards Appendix I - 12kV and 69 kV Underground Electrical Specification Appendix J - Estoppel Certificate
Appendix K - Sample Faithful Performance Bond
Appendix L - Sample Labor and Material Bond
Appendix M – Public Contract Code section 9204
Appendix N – Contractor Environmental and Safety Requirements
40.3 Contractor acknowledges receipt of these Appendices. In addition to the Appendices, the following contract documents are incorporated into this Master Agreement by reference as if fully set forth herein: (i) the Non-collusion Affidavit; (ii) Equal Employment Opportunity Certificates of Compliance; (iii) Special Provisions of the Master Agreement (when applicable); (iv) CWA (when applicable); (v) Anaheim’s Electrical Engineering Construction Standards; (vi) the Specifications Supplement, the Standard Specifications; (vii) Contractor’s Proposal; (viii) and Exhibit A of the Master Agreement. Anaheim has provided the foregoing documents to Contractor, and Contractor acknowledges receipt of these incorporated documents.
41. INTERPREATION
Each Party acknowledges that he/she/it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Master Agreement. The provisions of this Master Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
42. AMENDMENTS
This Master Agreement may be modified or amended only by a written document executed by both Parties and approved as to form by the Anaheim City Attorney’s Office.
43. SEVERABILITY
If any term or provision of this Master Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Master Agreement or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Master Agreement shall be valid and enforceable to the fullest extent permitted by law.
37 44. NO THIRD-PARTY BENEFICIARIES
The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Master Agreement or of any covenant, duty, obligation, or undertaking established herein.
45. CONTROLLING LAW AND VENUE
This Master Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Any legal action or proceeding arising under or related to this Master Agreement shall be brought exclusively in a court located in Orange County, California. The Parties irrevocably consent to the jurisdiction of such court and waive any objection to venue or forum based on inconvenience or any other grounds.
46. DISCRIMINATION
Contractor agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin, or other prohibited basis in its provision of Work or hiring of subcontractors or employees. To the extent this Master Agreement provides that Contractor offer accommodations or Work to the public, such accommodations or Work shall be offered by Contractor to the public on fair and reasonable terms.
47. SIGNATURE & DATE AUTHORITY
47.1 Each Party and each Party’s signatory represents and warrants that each is duly authorized to execute and deliver this Master Agreement on behalf of such Party and that this Master Agreement is binding upon such Party in accordance with its terms. Upon Anaheim’s request, Contractor shall deliver a certified copy of its governing board’s resolution or certificate authorizing or evidencing such execution.
47.2 Anaheim shall have the authority to fill in the date field opposite Contractor’s signature if Contractor fails to write a date.
48. HEADINGS
The headings contained in this Master Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Master Agreement.
49. COUNTERPARTS AND ELECTRONIC SIGNATURE
This Master Agreement may be executed in counterparts, each deemed an original and together constituting one instrument. Digital signatures obtained through DocuSign shall be considered valid and binding as though signed in ink.
[SIGNATURES ON FOLLOWING PAGE]
38 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the dates hereinafter respectively set forth.
[ENTITY NAME, STATE, AND TYPE]:
[NAME] [TITLE]
Signature Printed Name Title Date
[ENTITY NAME, STATE, AND TYPE]:
[NAME] [TITLE]
Signature Printed Name Title Date
CITY OF ANAHEIM, a California municipal corporation:
Dukku Lee
Public Utilities
General Manager
Signature Printed Name Title Date
ATTEST
Theresa Bass City Clerk
Signature Printed Name Title Date
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY’S OFFICE
Gloria V. Ramirez Deputy City Attorney
Signature Printed Name Title Date
(157243)
39 EXHIBIT A
SCOPE OF WORK – GENERAL
CONTRACTOR(s) shall be fully qualified and licensed to perform the following scope of work, including working with and transportation of polychlorinated biphenyls (PCB) and hazardous materials.
PART A: CONSTRUCTION, MAINTENANCE, REPAIR, AND RELOCATION
SERVICES
The services of a Contractor(s) required on an as-needed basis, for the construction, maintenance, inspection, repair and relocation of underground and overhead transmission, distribution and electric service systems, transmission and distribution substations, and telecommunications related work. Typical work under this Part A will include, but not be limited to, the following:
1) Reconductoring 12kV primary overhead circuits and low voltage secondaries and services; 2) Transportation, inspection, testing, installation, replacement and / or repair of:
a) 12kV/6.9kV primary underground cables and low voltage secondaries and services; b) Overhead, padmounted and underground transformers;
c) Overhead, padmounted and underground PCB transformers; d) High voltage overhead, padmounted and underground switches and related automation facilities;
e) Electric line extensions and service facilities for residential and commercial/ industrial facilities and developments;
f) Power poles, including treatment and reinforcement of power poles and guy/anchor pols; g) Electrical underground and overhead transmission and distribution facilities; h) Underground conduits and substructures;
i) Street lighting systems;
j) 69kV underground and overhead electrical facilities, including splices and terminations and acceptance testing;
k) Sulfur Hexafluoride filled equipment including 69kV and 12kV switches and power circuit breakers.
40 l) Fiber optic/copper overhead and underground communication, telecommunication and supervisory control and data acquisition facilities and other telecommunication utilities’ facilities;
m) Distribution automation equipment;
n) Substation control/power cable conduits, duct banks, cable trenches, substructures and grounding works (both above & below grade);
o) Underground vaults, holeliners, pads and secondary pullboxes; and p) Furnish electrical material and equipment, as required to support the work. 3) Locating and pot-holing for underground obstructions and utilities; 4) Replacing existing direct buried high and low voltage cables with underground cables installed in conduit using directional boring techniques or open trenching methods; 5) Thermographic inspection of overhead and underground high and low voltage current- carrying electrical equipment;
6) Cleaning and washing of overhead electrical insulators; 7) Construction, fabrication and installation of foundations for substation equipment and steel structures, and construction, fabrication, transportation and installation of substation steel structures;
8) Upgrading, reworking, transportation, installation, connection and replacement of substation equipment such as 230/69kV and 69kV/12kV transformers, 230 kV, 69kV and 12kV power circuit breakers, substation disconnect switches, 132 VDC battery banks, AC & DC panels, 69kV and 12kV Gas Insulated Switchgear (GIS), switches, power/control cables, capacitor banks, instrument transformers, vacuum switches, surge arresters, relays and control and automation equipment;
9) Transportation, installation, alteration, and/or repair of architectural and/or landscape screening of pad-mounted electrical facilities; and
10) Transportation, installation and refueling of temporary portable generators of varying capacities and voltages, including jumper cables and connections.
PART B: IMMEDIATE RESPONSE SERVICES
The services of a Contractor are required, on an as-needed basis, to provide Immediate Response Services to repair/replace and inspect damages to the Electrical System. Typical work under this 41 Part B will include, but not be limited to, restoration of interrupted overhead and underground system at 220kV, 69kV, 12kV, 6.9kV, 4.16kV and secondary voltages, repair and/or replace underground conduits and substructures, environmental/hazardous cleanup of spills and by- products of combustion, repair/replace substation equipment, repair/replace other Anaheim incidental utilities (water, sewer, etc.), repair/replace associated curb, gutter, sidewalk, roadway, etc., and repair/replace telecommunications and SCADA facilities. An "Immediate Response" is defined as the reporting and delivery of the necessary resources to the designated job site within four (4) hours of Contractor's receipt of personal or telephonic notification by Anaheim of the circumstances requiring Immediate Response Services.